RESIDENT MAGISTRATE’S COURT.

Evening Star, Issue 3512, 26 May 1874, Page 2

RESIDENT MAGISTRATE’S COURT.

Tuesday, May 26. (Before J. Bathgate, Esq., R.M.y > Drunkennes.—George B owe, havingbeeu thirteen years in tho Colony, aiid this his first offence, was discharged with a caution. Robert Hamilton, James Parker, Robert Ciirrol, and William Jones were each lined ss, with the option of 48 hours’ imprisonment. Assault.— James O’Brien, charged, on remand, with resisting constable Roonev whilst in the execution of his duty, was fined 10s, with the option of 48 hours’ imprisonment. CIVIL CASES. E. Wilson and Cj. v. Da'yis.—ln this case, heard on Friday last, a claim brought by the plaintiffs against the master of tho Dallam lower for damage’ done to goods while on board the ship, his Worship proceeded to deliver judgment as follows : This is an action by the consignee ■ of 100 cases brandy, shipped on board the'Dallam A°. 1 f l er ’ j ? l° sa five dozen and seven bottles deficient when delivered. The bill of lading- signed by the defendant as master, admitted the receipt of 100 cases “in good order and condition,” to be delivered, under the exceptions of the risks mentioned, in the like good order and condition. The bill of lading fixes the receipt and custody of the goods upon the captain, and his responsibility continues until i o nee or his servants, or until the fighter employed is fairly loaded and released from the ship. It was stated in defence that there was no proof of the conteuts : of the cases, and it was suggested that the Cases might have been tampered with and part of the contents abstracted, at Chavente, or on the way to London, or at London, before the delivery of the cases on board. Cases of Henessy s brandy are too well known as an article £ r , Ce t0 the doubt that the nature of the contents was known, and the defendant admitted that because the cases contained k ad stowed a 'vay in a part of the hold inaccessible to the crew. If it were thocnnnTf- th f ßpart # a c P.»sfcaee to prove the condition ef cases from the moment of their !^ S J )a v Cd ’ nd^- eds of miles away from the port of shipment, till the time they were taken ’ • then l e ? OVer y of damages for loss im P ossl ble, and a serious impediment in the way of commerce created, as well as an inducement to carelessness and negligence on the part of masters The necessity for an? inquuy concerning the condition of the goods antecedent to shipment is removed by the acknowledgment in the bill of lading. It has been held that where goods have not been defivered to the consignee this is sufficient prima facie evidence of loss by negligence, and as the law imposes the obligation of safety upon the Cases 0t the onus probandi is ah "S exei, )Pt himself from liability. All, therefore, that the plaintiff, as con+d U< iofi requnod T to P rov ®» was the fact of the deficiency. In the present case, the loss Xrtwfr’ rOV f b J^ n Mediate survey after the goods were landed. There were 15 cases which hau been opened, and the contents of which were more or less deficient; the total loss, exclusive of breakage, being sixty-seven The master being liable fora/ thefts and embezzlements by any of the crew or bv any other persons, although lie may have exerciscd. every possible vigilance to prevent the loss, if the voyage had been the usual one from London to Port. Chalmers, the defendant, as master of the ship, would have been liable for the loss specified in the plaint, which does not come under any of the exceptions in tho bill ef lading. But the voyage of the Dallam Tower extraordinary in its incidents, aspioved m the defence, It stands perhaps almost unparalleled, and will form an interesting chapter m some future narrative ef “ Shinwrecks and disasters at sea.” I am, therefore, bonncl to examii.e the details carefully to see whether the loss complained of has been satisfactorily accounted for by the facts proved in evidence for the defence. First it is proved that tiiebranay was stowed away in a part of the nold where tne crew could not possibly get at it. Care was exercised in the stowage at London, and there is no reason to believe that the lumpers employed loading the ship could have an opportunity to open the cases and abstract ]iart of the contents, and renail the cases. Second. ihe breaking and falling of the iron masts and yards—the consequence of the disastrous hurricane encountered—made such havoc in the ship that much of the cargo was injured; and by tbe continual rolling of tho vessel, and the shipping of large quantities of water while it was in a disabled state, the cargo generally was moved and displaced, and more or less injured. This shifting and working of the cargo in the hold continued for a number of days, A large and heavy piece of machinery m the hold fell over upon, and broke some of the brandy cases, and several others were seen to be damaged and floating about. From the day of July, the day of the hurricane, to the 20th August, when the vessel was brought into the port of Melbourne under jury masts, the ship was in distress, but even then the carpenter stated the sailors had not access to the brandy. Third. On arrival at the port of Melbourne, Lloyd’s surveyors or-

dered the ship to be discharged, and -the car'o was removed into the Customs shed, whore It lay for.six months. On the cargo being dischai ged, a number of the cases were found to be damaged,, and a number of broken bottles, also nails, broken glass, and crockery, were round in the hold; The captain picked up one* or two whole bottles among the c kbrii There was no other brandy on board. The best was done to put the injured cases in order and repack therein tlio whole bottles which were found, and several cases received especial repairs. It is not distinctly proved how many were repaired. 1 lie captain thinks upwards of a dozen aud the carpenter thinks half-a-dozcn. The clerk who tilled up the Melbourne manifest must have noticed five, as his tally marks prove. It is to be regretted that more care was not exeicised in noting the condition of each of the cases opened, either at Melbourne or when the survey was made at Dunedin. Mr Macassey hereupon said he did not think it necessary to trouble bia Worship any fur-, thor. Plaintiff would accept anonsu.it.—Mr Haggitt: With costs ?—His Worship : I was smug to say without costs.—Mr Haggitt : But a nonsuit must bo so.—His Worship : Yes. But if I had given judgment for defendant I would not nave allowed costs. Bi isach of the Customs Act. —Hackwood M-Lean. Defendant,master of the schooner Luphrosyne, was charged by plaintiff, an officer of the Customs, under the direction of the Commissioner, with being concerned in having possession of certain uncustomed goods, viz., lOOlbs of tobacco, contrary to the section 163 of the Customs Regulation Act, 1858, whereby he had forfeited the penalty of LIOO, for which the Commissioner of Customs had elected to sue. . Defendant was further charged with being concerned in evading Customs duties upon some tobacco with intent to defraud her Majesty,! contrary to section 163 of the Customs Regulation Act, 1858. —Mr Haggitt for the Customs ; Mr Stout for defendant, who pleaded not guilty Mr Haggitt stated the case at considerable length ; and said it could not be expected that the Custom’s authorities could prove how defendant became possessed of the tobaceo, that was for defendent himself to account for. On the vessel’s arrival at Port Chalmers’ Mr Monson, principal officer of the Customs there, went on board and asked that the manifest might be produced, which was done; the only goods named in the document, which was under the seal of the Collector of Customs at the Bluff, being “New Zealand produce, 45,000 feet sawn timber.” Having reason to suspect that tobaepo was oh board; he asked the captain if those were all the : goods on board, and received a reply in the affirmative. He was then asked if he had ho stores, and he replied that he had not any. Monson then said “ I may tell you at once that I suspect you have tobacco on, board, and I am gbing to make a search for it.” 4fter this the captain made no further attempt at concealment, and produced two packages of tobacco fromLis cabin. Monson then made further search ■ and found four more packages. These wore subsequently weighed, and each averaged IS pounds, making over a hundred pounds in all. Under the 15Bth section the master had rendered himself liable to. have his vessel forfeited, after the seizure defendant made a declaration at the Customs, in ■ which no tobacco was mentioned., Mr Stout pointed out that this was after the seizure, when in fact and in truth there was no tobacco on board. Mr Haggitt went on to say that the absence of all mention of tobacco. in the inward manifest was strong evidence of concealment. . The Collector of Customs had power to sue for three times the value of the goods seized, or a fine of LIOO, and had to go for the latter. The following evidence was given :■ John Monson, principal offi ’er of Customs at Port Chalmers, said the E-uphrosyne, of which defendant was master, arrived at Port Chalmers on Wednesday, the 20th. Witness boarded her near the Quarantine Ground. The captain was at the wheel, and witness asked him to go below, at the same time demanding the vessel's papers, which were immediately produced and handed to him. Defendant said he had nothing on board not reported in his papers, and no stores. Witness then said to put the mattes plainly, he believed that there was tobaepo on board. He also said that he would search the vessel, and that if tobacco was on board he was bound to find it. Defendant than said he supposed ho must admit that tobacco was on board, and produced a tea-box, now in Court. , With Constable Carter and the captain he further searched the vessel and got more tobacco, the captain having admitted that it' was cn board. (Four other packages found on board were next produced.) Seized the vessel, leaving an officer in charge, and carried the tobacco ou shore. Weighed the packages, the average being 161b, but if weighed together the total would be a hundredweigbt. By Mr Stout; Defendant told me that the tobacco was got on board at the Bluff after clearing ; that it was fished np while alongside the wharf there, and that he was not present , at the time. John Tennant haid he was an officer of the Customs. The document iu his hand was a report inwards signed and declared to by Maclean, the defendant, in his presence. By Mr Stout: Was aware that the.tobacco bad been seized at this time.—Constable .Carter gave, evidence similar to Mr Monson, adding that in the conversation the captain said that the tobacco was divided between himself and his men, and some part at the Bluff. —Joseph Slater, landing waiter in the Customs, said the average weight of half a tierce of tobacco was from 330 to 3401bs By Mr ; He was only speaking of American tobacco.—Mr Stout argued that no offence had been committed under the first count. The offences should have been a .joint one. Tho second count was placed in the shape of an alternative charge, when it ought to have been a specific one. The case must, therefore, be dismissed. The tobacco in question u übuu fished up out of the water while the vessel was lying in Bluff harbor, and the captain was not on board at the time. Two fishermen at the Bluff assisted in getting the tobacco, which was afterwards divided equally between them and the Jiuphrosyne’s crew, numbering six, each of whom afterv aids took one packet. The reason why the tobacco was not placed on the inward manifest was that it had been seized the day before, and not, as it had been attempted to be shown for, the purpose of concealment. He called the following witness : obn Brown, cook on the Ephrosyne, was on board when the Customs Officer boarded the boat and took in the tobacco. iYhile alongside the Bluff jetty witness assisted some fishermen to pick the tobacco out of 13ft of water, x hey said that it had been dropped out of a Melbourne boat.—By Mr Haggit: The tobacco had been placed on the Euphrosjme, and the fishermen, who were in a 1 cutter, the name of which witness did not know, said they were entitled to it for leaving the tobacco there. Mis "Worship said this dividing the tobacco by the fisherman and the boat’s crew seemed remarkable. Mr Stout said it was simply a case of share and share alike.—Mr Haggitt thought that seamen generally acted upon tho rule of “ first come first served.” (Laughter).—;vi r Stout said that the Customs officers would admit that some tobacco had been lost from a boat at the Bluff, and afterwards found.—Mr Haggitt said that half a case of tobacco had been lost from the s.s. Albion on her last down trip from Melbourne. Search was made, but it was inconvenient to find it.while the Albion was there, but immediately she' had gone it was' found. Keeping it really amounted to larceny.—Mr Hack worth, said he had known defentianfc, aud believed him to be a respectable map.—His Worship said that had this

ben a ease of smuggling he would have inflicted fcho full penalty. As the circumstances were somewhat peculiar, and there had been a contradiction under the first count, the penalty would be mitigated to one-fourth. Dr-fendaut was therefore fined L 25 and costa.