DAMAGE TO CARGO

Evening Post, Volume XCVIII, Issue 38, 14 August 1919, Page 8

DAMAGE TO CARGO

IMPORTANT TEST CASE

DECISION RESERVED.

A test case of considerable importance to shipping folk and merchants generally came before Mr. W. G. Riddell, S.M., at the Magistrate's Court to-day, when Aulsebrook and Co., Christchurch, sued to recover damages from the Union Steam Ship Company i in respect to damage to a consignment of biscuits recently carried from Lyttelton to Wellington by the steamer Poherua. Sir John Firtdlay, K.C., for the plaintiff company, said that both he and Mr. ! P. Levi, who was appearing on behalf of the defendant company, asked the Court to decide merely the question of the legal liability of the defendant company, for were decision given in favour of plaintiffs the amount of damages could readily be arrived at between the parties. The plaintiffs, said counsel, in May last shipped thirty-four -packages of biscuits and confectionery for Wellington, and on arrival at this .port it was found that a quantity of sheep dip had leaked from two containers and had damaged the greater' part of the consignment. Counsel contended that the damage had been caused by faulty stowing, and was not excepted by the bill of lading. Alternatively, counsel suggested that the dip had been spilt on the floor of the hold and the crates of biscuits placed on that spilled dip. It was common ground that damage had occurred on board the ship, and it was for the defendant company to show, if it were to succeed'in its defence, that the damage resulted from a cause which came within the exceptions set out' on the bill of lading, or that such damage was not due to the negligence of the defendant company. "Our defence is that the damage was caused by peril of the sea," interjected Mr. Levi. . ! Sir ' John Findlay answered that that, defence was insufficient unless 'it was shown that the damage could have been avoided by the exercise of any amount of care. He held that had the sheep dig containers been properly stowed they would not have broken adrift, and, in any case, tho dip should not have been stowed in the same hold as' foodstuffs. The stowage, it was contended, should' have been such as was sufficient to provide for all contingencies of weather. t Counsel then quoted many authorities on the question at issue. Mr. Levi repeated that the defence relied upon the clause in the bill of lading relating to "perils of the sea," and referred to the particularly rough trip experienced on tho voyage in question, and proceeded to quote authorities in support of his contention. He admitted that the clause would apply only if the cargo had been properly stowed, and called attention to the evidence of ship's officers, taken in Timaru, to the effect that the stowage was satisfactory. If, however, his Worship held that the stowage was faulty then the defence must fail. The dip, contained in properly sealed tins, was not dangerous cargo, and was not wrongly placed in the same hold as the foodstuffs. Captain Ernest B. Atwood, marine surveyor and average adjuster, Wellington, then gave evidence that the cargo on the Poherua appeared to him to have been properly stowed when he examined the ship on her arrival at Wellington. He did not see any tins of dip loose, though he saw the blocks in ' place- to prevent the cargo from shifting. As a rule such cargo as dips was carried on the shelter deck, but the Poheraa had no shelter deck, and it was therefore in order that the dip should be carried in the ship's hold. Decision was reserved. i