SUPREME COURT

Dominion, Volume 12, Issue 228, 20 June 1919, Page 5

SUPREME COURT

CLAIM FOR FREIGHT fNTERESTING SHIPPING CASE In the Supreme Court yesterday afternoon His Honour the Chief Justice (Sir Robert Stout) heard, the ease of Levin and Co., Ltd., Wellington, v. L. S. Maxwell and Co., of 24 Custom Street Ea.st, Auckland, exporters, for ,£l6l 2s„ a claim for freight. Mr. M. Myers appeared for the plaintiffs, and Mr. T. I'oung for the defendant. The statement of claim 6et out that about November 2D. 1918, ,the plaintiffs, at tile request of the defendants, shipped on board the ship Aryan, of which the plaintiffs held a sub-charter, 229 sacks of kauri gum to Lancaster, Pennsylvania, via San Francisco, at the rate of ,£8 per ton of 20cwt, payable -in Auckland' against a bill of lading. The total freight amounted to £164 2s. The bill of lading was duly presented, but the defendants refused to pay the freight. , The defendants denied that the sum of .£lO4 2s. or any other sum was owing. On November 28, 1!)18, the defendants had on board the Monowai 575 sacks, of kauri gum of the weight of 50 tons, and it. was agreed between the defendants and Spedding and Co., Ltd., the .plaintiffs' agents in Auckland, that provided delivery of such gum could be obtained from the Union S.S. Company the goods were to be shipped by the Aryan. The defendants agreed on delivery of the bill of lading for such 575 sacks of gum, to pay the freight thereon. The plaintiffs, it was claimed, failed to perform the contract to load the 575 sacks of gum ami ioadt'd only 2-» sacks. Mr. Myers s"aid that the plaintiffs (Levin and Co.) had a sub-charter of the ship Aryan, which was to sail for San Francisco, and three or four days after leaving Wellington she was destroyed ny fire at sea. The defendants (Maxwell and Co.) were merchants carrying -m business-in Auckland, and wanted to sbip\ kauri gum by the vessel Aryan. The' defendants had previously arranged with the Union■ S.S. Company to carry ."75 6acks of gum to San Francisco, and the whole lot of the gum was on board the Monowai. This was during the influenza epidemic, and there was a great deal of trouble with the personnel of tho Monowai. The cargo of gum was carried up and down the coa,st, The defendants asked the plaintiffs to take this gum en board the Aryan on the terms arranged, provided delivery could bo obtained from the Union Company. After considerable trouble the Union Company undertook to give delivery on a certain day, and ;.s a matter of fact only 229 sacks of gum were actually received from the Union Company and placed aboard tho Aryan. .The plaintiffs had asked for payment of freight, but the. defendants declined to pay the amount. The defendants would endeavour to set up the point that the contract was for the carriage of 575 sacks and not for any smaller amount. The fact .that the vessel was burned at sea did riot matter, as the freight' was payable in New Zealand. Mr. Myers contended that the defence was an unmeritorious one. He had no doubt that the freight was included in the insurance which the defendants h-ad obtained. As the Monowai unshipped the goods they were taken oh board the Aryan, and after landing 229 sacks the Monowai could not find the balance of the shipment.' The plaintiffs communicated with the defendants, who telegraphed in reply that the Aryan was to take tho whole parcel of kauri gum or none at all. ' When the Union Company agreed to givo delivery tho plaintiffs were ready to take the goods on board the Aryan, but the Union Company only gave delivery of 229 sacks, and tho plaintiffs were unable to do anything better. The defendants having insured tho goods and the freight and having secured the money (the vessel and her cargo having been destroyed) he contended that it was unfair for tho defendants to set up the contention that the whole of the gum was not talcen. Tho plaintiffs were prevented from carrying out their contract because the goods were not ■ delivered to theni. . '

A. E. Mabin, manager of tho wool and Eroduce department of Levin and Co., td„ Leslie Goldfinch, shipping clerk, and Albert Anchor, stevedore, who was in charge of tho loading of the Aryan, gave evidence in support of counsel's statement.

Mr. Young, on behalf of. the deiom'.ants, contended that tho contract was an express contract to ship 50 tons of kauri gum, conditional on the goods being obtained by Levin and Co. from the Monowai, and further that it w.-.s an "entire" contract and not divisible.

His Honour: You asked them to provide freight for certain goods that you wore to provide, and you provided part of tho goods and not the lot. The goods were your goods and were in tho possession of your agents. The best lest was, could Levin and Co. have sued the Union Company for the goods? Mr. Young: Perhaps they could not. His Honour: But you could have sued them. You say that Levin and Co. had to. get the goods from the Monowai without any assistance from Maxwell and Co.' Had Maxwells no duty in the matter? Mr. Young: No. Their duty was only to give Levin and Co. authority to get tho goods, and if Levin and Co. could not get all the goods the contract ended. His Honour: What were they to do with the goods that you had already delivered, and that" had been taken on board? Mr. Young: Place, them on the wharf! His Honour: Were they to unship the goods at their own expense? AVhat was. the duty of the parties? Mr. Young: The ship had to. got-the whole of the goods from the Union Company, and curry them to comply with the contract. His Honour: But if you give tbem delivery of part of the goods how was tho ship to carry out its contract? ' After further discussion, Mr. Young said that he insisted upon the contention that it was a conditional contract. His Honour: It was conditional on both sideo. Why did you give them part of the goods? „ Mr. Young: The Union Company.vere not our agents. His Honour: They were certainly not Levin .and Co.'s agents. Mr. Youiig quoted authorities m sup-' port of his contentions. He maimai led that the position taken up by Maxwells was consistent from beginning to end. They told Levin and Co. they must ti.ko the lot or none. His Honour: It was absurd to say they must tnke all or none when part of the goods had already been taken en beard. Mr. Young again staled that the Union Company were not Maxwell's agents. His Honour: Tho Monowai had your goods on' board. They were your goods held by your agents. Mr. Young: The plaintiffs knew tho goods were on the Monowai, and that they were lo get tho goods from the Monowai and ship them on the Aryan. They failed, to get tho goods, and they wished to make the Union Company the agents of Maxwells. ■His .Honour: What were they? Mr. Young: They were custodians of tho goods. His Honour: The property in Hie goods was in your hands, and the custody of the goods was in the hands tf jour, agents. Mr. Young: I am afraid I cannot put iho ease differently. Mr. Myers replied, briefly hinting that Maxwell and Co., through, their agents, tho Union Company, supplied rnrt of the goods and not tho lot, and so prevented the plaintiffs from carrying out the contract. His Honour reserved his decision.'