LAW REPORTS.

Dominion, Volume 5, Issue 1303, 5 December 1911, Page 3

LAW REPORTS.

SUPREME COURT. SHIPPING CASE OF INTEREST. CHIEFLY STOWAGE. I'irES roil WATEG SERVICE. BEOKE.V EX VOI-AGB. Interesting points of law and fict were involved in a case heard in tlio Supromo Court yesterday before tho Chief Justice (Sir ltobert Stout) and a jury of lour. Tlio parties ivero John Duthio aud Co., Ltd., plaintiffs, and. the New Zealand Shipping Company, Ltd., defendants, and tho claim was for .£3OO "s. !ld. for damages causcd through tho breakage of iron pipes carried in tho' defendant company's steamers. It appeared from tho proceedings that Dutliie and Co. wero the owners" of ."63 ■roil pipes. shipped from London by tho lurakina in April, and 468 pipes shipped by the Tongariro in Jlay. It to stated that tho pipes had been shipped in good order and condition, but that the New Zealand Shipping Company had failed to deliver them in that order. i'ho ground of defence put forward by the New, Zealand Shipping Company wa3 that the Joss had not arisen from any breach of contract on its part. Prior to tho shipment of the pipes Duthio and Co. had caused a band of steel or iron to bo' affixed to each pipo for protective purposes. They knew (or ought/to have known) that the effeet of tho bands would bo to greatly increase the danger Qf breakage. Other defences were.insufficiency of packing and a plea of nonresponsibility for castings. . I - Morison appeared for the plaintiffs (John Duthie and Co., Ltd.) and Mr. II IX Bell, K.C.,. with him Mr. • * • ' 0r ew Zealand Shipping Company. ilr. Morison suggested that, as there was no question nf damage to go to the jury, Mr. Bell should, open. . Di.es English Law Govern? Mr. 801 l said that a point of law would aruj for hj3 Honour s decision, this point being as to what law governed the contracts. .The-Shipping Act of 1903 (applving to exports only) required that the exceptions m a bill of lading had to be held reasonable" by the Court. An Amendment Act (1009) contained a clause (II) applvin" the same provisions to im- & P I' Sc . ction 41 ha 'l ronn?% • a n re P calin S it had not jet received the assent of. the King. | It would l,e for his Honour to rule, as to what Act was in'-force Continuing,.Mr. Bell stated tJint at the time of the first contract (between plain- ») l ", (l , (l^ en( i a , nts ' Scction « of the nf "fho k in force. Delivery or the shipment, howover, had not been fo?™ ll ? n ", n / tcr , tJio section was in ft. J n f- eg * ril „ thc secon<l shipment wis H.^ ei J| lOn v° -5 e , Shl PP' n S Company T Li/ i , en - e i l ' an(l Act governing a contract made in England was wholly - mf ° r ? lso . thafc litigation of this hr H,« | a 1° I , mp ? rt3 was Kovemed .llnfii"' ° f n " lan ''' as state 'i ''n the bill of lading. Counsel contended'that his clients were entitled to relv on "the exceptions in the bill of lading without w CT I! ng a Judge-to say,whether or not they wero reasonable." fn* Honour: What questions ire you to put to the jury? . J Mr ;- Bc " l eEli f (1 that ther « ™ no 2 ™ M to , tlamage, but a .question "ouw.come out as the case proceeded. Case for N.Z.S. Co. He then went on to outline the case He stated that the bill of lading had been r^ spec , fc . of two separate shipments per lurakina and per Tongariro. Duthie and Co. had secured a contract irom the corporation for tho supply of the pipes for thc , now Wainui-o-inata main, and they had arranged with the , ir ?i u sjiipp'ng companies-the New Zealand Shipping Company, the Shaw Savill and Albion Company, and the Tvser line -to carry tho pipes from London to New Zealand. Iloioro carriage commenced, Company's London ofiice wrote to .the New Zealand Shipping Company stating that special care would be refjuired, and inviting tho company to make tlio best arrangements possible' for safe tw'tf," B C T 5I?! . .went on to say that tho first point which the shipnin» company proposed to establish by evidence mo?i, i t l Cy • ' lal ' orJ'narv method , of stowing .which was "bilge and cuntling The jury had heard the ietter trom Duthie and Company's London ofiice to the Shipping Company. That letter contained no suggestion that any other method of stowage but the ordinary method should be adopted. It was true however that another method had been adopted .by thc Shaw-SaviU Company with good result and it was also true that this_ method had since been followed bv the New Zealand Shipping Company, anil had proved successful. A'question'would arise as to whether it was negligence or impropriety on the' part of' the New Zealand Shipping Company not to have discovered this method before the loading of. the first two shipments. The jury might ask: If tho regular method had been followed, why had the breakages been » heavy? Counsel would lead evidence with a view to showing that it was due to tho ring that had been placed on the spigot end of each nipe by Duthie and Company's representatives. Counsel enlarged on this point, and then, after a reference to the exceptions in the bill of lading, he called evidence. Neil Galbraith, accountant in the employment of the New Zealand Shipping Company, stated that ho had not seen tho pipes Wore they.were taken out of the ship. He had conducted, part of the. correspondence (nroduced. and put in) with the head ofiice at Chrisichnrelii The company was registered in Christchurchi ■ but the snips in Plymouth, and the company was represented in London by n board of directors. To Mr. Morison: He was not aware of any written report furnished by Mr. Jellie (the company's stevedoreV as to the cause of damage. He admitted that since the Turakina shipment, .the company had recommended the London office to placc dunnage between 'the layers of 'pipes. Evidence on Stowage. E. B. Attv.-ood, master mariner, last on' the Elingainite, stated that during a long experience his method of stowing pipes was "biigo and cimtlii'ig." .To Mr.-Morison: He did not use dun-, nage between tiers, and the percentage of breakage was small—perhaps two ot three jer cent. The risk of breakage dejieiided on the part of tho .ship in which the cargo was stowed, but it- was true that it was part of proper stowage . to secure the cargo from shifting. Extra precaution would lie taken in respect of cargo stowed in the "wings." If there were over 20 per cent, of breakage it might be caused by th'> pipes shifting or by the'iron spigot mentioned. He had rot seen either of the shipments in dispute, and could not account for the ,difference in the percentage of breakage in different shipments unless it were due to difference in the stowage. • Arthm' B. Jones, master mariner, with tO years' experience, gave evidence as to inspecting the Tongariro's cargo on July u last. He saw nothing amiss with the way in which the pipes were stowed. They were carefully handled when being landed. To Mr. Morison: He did not inspect tho Turakina in May, aud he had not reported that the Tongariro's cargo had been badly stowed. Felix Black, .master mariner, with 3S years' experience, also evidence as to the ordinary method of blowing pipes. Acting for Mr. Duthio, witness had insnected tho landing of the pipes which came by tho Turakina. ■ . To Mr. Mori-son: Ho had suggested that wooden Imttens should be placed between the tiers' on future shipments, lie could not account for tho difference, in percentage of breakage in the different ships, unless it wero a question of' stowage. Professor Laby Called. Thomas'H. Labv. professor of physics at Victoria College, save' expert evidence as -to the' difference between pipes bearing the iron band and those not bearing the band. Those bearing no band could be stowed so as to be in contact for their whole length. Those bearing'the'band' would have only four points of contact--two at each end. In the latter case it would only require onesixth of the pressure to crack tho pipes.' To Mr. Morison: The inference to draw was that dunnaging was required to avoid breakage. Other witnesses wero W. G. Loddar, engineer; Colin Campbell, assistant fore-

man stevedore; Charles Wadley, siflvc(fove: I'ri'.iik .lellic. .stevedore; and ,1. E. I'ulton, rntfinecr. Cass for Dullile and Co. M:'. Jlori?«n, in openi'ii;,' jilainlijl? case, said that tho question raa wl»'ther tho company \va:- liable for bre.'ikai;e. The three principal shipping panifs runniii'i; to New Zealand us-'kl a eommoa bill of ladinsr. 111 la'o vcnrs this bill of lading had been more in favour amoiij; s-liijicwnevs than previously. There was a lime when the elauM, excepting tliipowners from their own negligence was unheard <Ji. but now- it had eoir.o in. The iuf'eroaeo was that, as there 110 liability i'or nepliuence. the shipowner did not take the same care in stowage as formerly. In this bill of lading, however, the'ro was an exception to the exreptioij. That exception was to tile effect that, although the goods were shipped and carried at the consignee's own risk, the shipping company were bound to stow enretully. Counsel then referred to the letter written from Duthic and C'o.'s London office to. the Nciv Zealand Shipping Company, in which the latter were nsk«l to use tho best From the history of the shipments it v/ould be shown that .it was an irresistible conclusion that the damage in tho first two had been caused by improper stowing. There was a suggestion that the shipping company, in order to lessen the expense of loading, had done away with dnnnaging. Counsel went on to refer to certain admissions in the correspondence, and, in conclusion, stated that DuthieandCo. did not want the shipping companv to explain how the damage occurred. They wanted them to pay l'or it. He would call evidence. Pipes Stowed Without Dunnage Ttobert James Gillespie, master mariner, who had, for two years, been «n underwriter's surveyor in Ne\v Zealand, and who had had experience .is stevedore in Glasgow, stated that the regular method of stowing pipes in Glasgow when he was there, was by dunnaging every tier. Witness also considered that that method was the one ia vogue in England. As a surveyor for an insurance compnuy, he would not pass castiron pipes without dunnaging. George Sutherland, boilerniaker, who had acted as inspector of the pipes on the recommendation of the corporation, gave evidence as to the nature of the stowage adopted in respect to the various shipments that had arrived. Gerald Fitzgerald, engineer, stated that he had been in practice since 1874. From an examination of the pipes, he had formed the opinion that the ring or the band 011 the spigot end of the pipe would not alter the physical character, of tho pipes- when loaded. The thickness of the bead v;as sufficient to cause the same condition —that was only four points of contact, instead of contact along the whole length of the pipe. Witness was of opinion that the ring would have a good cifcct in. strengthening the pipesTho fitness was submitted to a lengthy cross-examination, after which (he Court adjourned until 10 o'clock this morning. BANKRUPTCY. TWO j DISCHARGES GRANTED. The CI lief Justice (Sir Robert Stout) pre-, sided at a sitting of tho Bankruptcy Court yesterday- afternoon. Mr. *\V. L. Rothenburg appeared in support of an application for dischargo by Edmund Bnckeridge, dentist. The Official Assignee (Mr. A. Simpson) offered h-o objection, and tho discharge v.'as granted, subject to the payment of ss. in -"the £. Mr. E. C. Lcvvey appeared for Ellen Cockayne, who had become bankrupt while' proprietress of tho Trocadero. Counsel understood there was 110 objec ; tion to lier application for discharge being granted. His Honour; . This seems a pretty heavy amount of deficiency—.£6ooo. Mr. Lcvvey stated tho whole amount was practically one judgment of .£SOOO. This judgment had been obtained at Christchurch. His Honour; Why did she not defend that action for .£5000? Mr. Levvcy remarked she had filed ft defence, but had no money to go on v.-ith it. . His Honour remarked that there was another .£IOOO to account for. Counsel replied that .€SOO of that ivas for rent dun to Pinnock. Tho Official Assignee said that in connection with tho ,£SOOO debt, it would have been better if the bankrupt had called her creditors together earlier and placed the matter before them. As it was. it did not come out until- after the bankruptcy. _ j After explaining something of the matter to his Honour, the Official Assignee, said that he thought the bankrupt honestly believed that she would have X'lflOfl to come from Christchurch, and on that account ho had let. her get behind with the rent. However, the account made her ,£SOOO on (ho debit side. The bankrupt, having answered some questions as to Wellington transactions, was granted her discharge, Mr. Levvcy pointing out that her Wellington creditors had expressed sympathy. with her.