RESIDENT MAGISTRATE'S COURT.

Daily Telegraph (Napier), Issue 3136, 16 July 1881, Page 3

RESIDENT MAGISTRATE'S COURT.

FRIDAY, JULY 1G

(Before 11. Eyro Kenny, Esq., R.M.) ELLIS V. THE UNION S.S. COMPANY,

The following evidence was taken yesterday after our reporter left: — Captain Gleadow, H. Kraeft, and Captain Dowell, repeated the evidence they gave at the enquiry. Captain J. Campbell, master of the steamer Fairy, deposed that he had known the port of Napier since 1856. On the day of the collision bis steamer was moved near the breastwork, and he had a clear view of the channel. He never used springs in going out. Having heard what Captain Dowell had said, witness did not see that he (Captain Dowell) could have done any more. The boat if clear of the eddy, could not get round under two or three minutes. The eddy did not extend more than 10 or 15 feet from the wharf in a westerly direction. He thought the Boojum would be beyond the eddy when, from the position he occupied, the captain would be able to see down the channel. Witness had repeatedly passed lighters and schooners in the channel. Witness did not always observe the rule of the road or the harbor regulations. By Mr Lee: —Witness had never looked out to see if the channel was clear before starting. He might have done so, bui he had not rflade a rule o( it, If he knew a boat was in the channel he would not have started. Directly the woodwork was cleared anyone could see all along the western pier. The bow would be well in the flood tide then. Captain C. Helander deposed that he had traded to Napier for about nine years in four different steamers—the Go-Ahead, Southern Cross, Star of tbe South, and Pretty Jane. He came here last about six months ago. He always went out with a spring i_. such vessels, as a long vessel would not otherwise clear the bank on the opposite side. He had always seen vessels coming out of the Pot go full speed ahead into the middle of the stream and port the helm. He had had the place where the collision took place pointed out to him, and had heard the evidence given. Captain Dowell could not have got back into the port, nor could he have turned his vessel up the stream in time. The Boojum could not have got round up stream; he would have got on to the boulder bank. Witdid not think anything could have been done to avoid the collision with the Sir Donald going at such great speed. He had frequently passed vessels in tbe channel.

By Mr Lee : He could not say it was wise for a boat to go out without looking to see if the channel was clear ; but it seemed to have been the practice not to look out. He had always had tbe pilot in charge in coming in or out. One could see about midway from the western pier after clearing the eddy. Robert Thompson, master of the lighter Why Not, deposed that he' was two years' in the pilot service. He saw the collision from the cattle wharf. Had tbe Sir Donald starboarded her helm he believed she would have come up between the stern of the Boojum and the wbarf. There was not time or room for the Boojum to come back into the Pot. Captain Dowell could not have starboarded his helm and gone up-ehannel, because in trying to do so the Boojum would have gone ashore on the other side. The stern would have to be a clear fathom and a half out before anyone aft could see down the channel. The eddy extended out about 15 or 16 feet. Steamers going out went on the western side, and those coming in on tbe eastern side. By Mr Lee: Witness had never worked on a steamer heve. This closed the case for the defendant. His Worship thought it as well to point out that in this question of negligence the defendants had not shown there was any contract between them and the plaintiff. Mr Lascelles said there was; the note was signed by the purser. His Worship replied that to make a contract it must also be signed by the plaintiff, and that had not been done. His Worship quoted authorities in sup port of his view, remarking that without such a contract common carriers—and the Union Steamship Company were such—were bound to convey all goods entrusted to them safely and securely. Carriers could only limit their responsibility by special contract. Mr Lascelles contended that carriers were only responsible for loss or injury by proved neglect. Did not the delivery of a shipping note to the consignor or his agent make him aware of the terms upon which bis goods were being carried ?

His Worship said he would hear counsels' addresses before going further.

Mr Lascelles and Mr Cornford having addressed the Court on the facts and oa the legal points in the case.

His Worship gave judgment. He said there were two counts in the case. Under the first count the plaintiff claimed damages because tbe company as common carriers carried certain of his goods so negligently that they became damaged and spoiled. The second count was that the defendants committed default in delivery by a collision between the Sir Donald and the Boojum, through the negligent navigation of the latter. Defendants pleaded to the first count that the case was carried under special contract, and that there was no negligence ; and to the second count they pleaded that the case was in the custody of plaintiff and not in defendants', and that there was no negligent navigation on tbe part of the Boojum, As to the point that the goods were negligently carried, there was nothing to show but that they were carefully handled on the Sir Donald ; | but it was proved that a vessel belonging to the carriers themselves had collided with tbe Sir Donald, the result of negligent navigation, and it could not therefore be said that the goods were not carelessly carried. As to whether the i Boojum was carelessly navigated, he was in great hopes that the case would have gone off on a questiou of law, and that he would not have needed to touch on the point. It would have been much better if the case had gone to the District Court before a jury. He was sorry to say that he felt satisfied that there had been on the Boojum a breach of the ordinary care which a man should exercise in navigation. The negligence in navigation was the cause of the accident. The negligence arose in the Boojum leaving the wharf as she did, though after that Captain Dowell did all

he could to prevent the collision. It was not possible for him to have got into the

Pot, and to attempt to turn the vessel up stream would have been attended with too great risk. Captain Dowell was a skilful and careful seaman, and he would be very sorry if his (Mr Kenny's) expressed opinion prejudiced him in any way. That was one reason why he regreted having to decide the case on the question of fact. In regard to the second count it had been clearly proved that the case of goods was in the custody of the company aad not of the plaintiff. Judgment was entered up for the plaintiff for the amount claimed with costs and counsel's fee of £3 3s.

Mr Lascelles announced that he intended appealing on the question of law, and also to apply for an injunction for the proceedings not to go any further till the appeal was heard.