RESIDENT MAGISTRATE COURT.

Westport Times, Volume IV, Issue 711, 15 September 1870, Page 2

RESIDENT MAGISTRATE COURT.

Tuesday, Septembeb 13. (Before J. Giles, Esq., E. M.) Bailie and Humphrey v. Cairns, master of the schooner Mary, and Spence Bros, and Co., owners, a claim for £23 7s 7d for casks of washing soda, short delivered. Mr Watson, agent for the owners of the vessel, stated that the captain appeared, but that no notice had been served upon the owners who were not within the Colony. His Worship amended the summons, crossing out Spence Bros, and Co. as defendants, and the following evidence was then taken. Jamei Wilson Humphrey: This action is to recover the value of six casks soda shipped per Mary from Melbourne as per bill of lading produced. The amount claimed includes the original cost in Melbourne with freight, shipping charges, insurance, exchange, and duty added. I never got the delivery of the goods. The bill of lading was signed by David Spence for the master, and was admitted by the defendant. The document bore an endorsement that the casks of whiting and soda, when shipped, were insufficiently hooped and more or less broken. By the defendant: We refused to take delivery of the six casks because they were not marked as per bill of lading. That was the only reason. I believe three were empty. We offered to take delivery of three casks if the remaining three were made good. By the Bench: We did not refuse on account of the absenee of any mark on the casks, although I believe the first cask brought up, though full, was refused on that account. We could refuse to take delivery of the goods on account of their not being according to bill of lading. We refused to take delivery because the casks were empty. Samuel Alexander Leech: I am harbor-master at Westport. I held a survey (produced) on the hatches of the schooner Mary on Dec. 23rd, 1869. I also surveyed the dunnage in the hold of the vessel, and found that she had been sufficiently dunnaged. There was evidence, from the mud that had been cast up on top of the cargo at the starboard side, that the vessel had been on her beam ends. The cargo on that side was damaged by salt water, which must have entered by the air ports, while on the port side, which was similarly dunnaged, the cargo had entirely escaped injury. Owing to the lining of the deck being watertight the water would not be able to escape and was certain to damage any perishable careo that it came in contact with. I surveyed a quantity of goods and, among others, three casks of soda, damaged, and three casks the contents of which appeared to have been soda, which were empty and the marks of which were illegible. The soda would have a very powerful effect in effacing the shipping marks, more especially if the marks had been recently affixed. I cannot recollect whether the original shipping marks were legible—l mean the marks affixed at the home port. By the plaintiff: The marks on the casks of soda would be more likely to be obliterated than on salt or sugar. Thomas Watson: I am agent for the owners of the Mary. I have examined all the bills of lading for.that trip, and I find there were only six casks of soda on board, three of which I have on hand full, as also three empty casks. The defendants have refused to take delivery of the same.

John Cairns: lam master of the schooner Mary. In consequence of the vessel having been thrown on her beam ends during a squall on the passage referred to, and anticipating that a portion of the cargo would be damaged, on my arrival in port I noted the protest (produced) and held a survey. The goods now sued for are included in the surveyor's report. I saw the casks when shipped, and they were then in bad condition. The shipping marks as per bill of lading were then on the casks. The protest was signed by the mates of the vessel and some of the crew. The casks were delivered from the ship in as good order externally as when received on board.

This closed the evidence, and his Worship deferred judgment till the following morning at ten o'clock. Patterson v. Cairns and Spence Bros. & Co. Claim for £7 8s Id, the value of two bags of sugar short delivered ex Mary from Melbourne. In cousequence of the latter defendants not having been present, the names were struck out as parties to the action. W. J. Patterson: I am a storekeeper, residing in Westport. The above claim is for two bags of sugar short delivered by the vessel in December, 1809. I had sixteen bags sugar on board, but only received fourteen packages. There were two empty mats on the wharf, and I asked for delivery of the empty mats, but did not get them. By the defendant: I did not instruct the drayman to refuse the empty mats. I accepted delivery of sugar that was damaged. Thomas Watson : I saw two empty largo mats sugar on the wharf, delivered out of the Mary on the passage referred to. T gave instructions that the bags should be taken care of in order that too claim might be made for full bags. The mats were net of the slightest value except as evidence that the sugar had been wasted by salt water, and in no other way. Edmund Alfred Lnbatte: I discharged the schooner Mary in De-

cember, 1869. I recollect two large bags of Mauritius sugar being empty. There was other sugar on board, but I am almost certain that none was made up in bags similar to Mr Patterson's, being all small mats. The two empty bags were on the wharf at 2 p.m., and on my return from pinner, in a quarter of an hour, they were gone. The drayman had refused to accept delivery of the empty bags. By the plaintiff: You were the only consignee of Mauritius ?ugar in large bags. The evidence with respect to the surrey and the protest was admitted, and his Worship deferred judgment until the following morning.

Wednesday, Septembee 14,

Bailie and Humphrey v. John Cairus. Ilia Worship, in giving judgment, stated that the plaintiffs sued for £23 7s 7d., the value of six casks washing soda, short delivered by the defendant who is master of the shooner Mary. On the arrival of that vessel the casks were not found to bear marks corresponding with the description in the bill of lading, and for that reason alone the plaintiffs had refused to accept delivery. Damages were not sued for, and, indeed, it was doubtful, if an action had been brought for damages, whether they would have been recovered. The bill of lading contained an endorsement describing the condition of the casks when shipped, which would have alone prejudiced any action theplaintiffs might have brought, and in addition to that the report of the surveyor, which had been in no way rebutted, showed that the damage was one over which the master could have had no control. The only question that would remain was whether the casks, when shipped, were marked in conformity with the bill of lading. Captain Cairns, on that point, gave very positive evidence. He distinctly stated that the casks were marked B and H, and the fact of their bearing no such mark when landed was explained by the very reasonable supposition of Captain Leech, that the action of water and soda would be liable to obliterate any marks that may have been recently affixed. Looking at the evidence produced by the defendants, and the absence of all affirmative evidence by the plaintiffs, it must be concluded that the present action was not justified, and the verdict would be for the defendant. W. J. Patterson v. same. The circumstances of this case were very similar to the previous one, with the exception that the plaintiff had expressed his willingness to accept delivery of the missing packages, even if °mpt,y, and in comeQuenr.fi of the defendant's inability to deliver the packages, the action ensued. In this case, however, there was the pointed and uncontradicted evidence of the wharfinger, who stated that the carter while acting as agent for the plaintiff was requested to accept delivery of the two empty bags. This evidence was not contradicted. He refused to take delivery, and, haviug done so, there can be no doubt that they remained on the wharf at the risk of the consignee. In this case judgment would also be for the defendant.