IMPORTANT SHIPPING CASE.

Globe, Volume IX, Issue 1347, 8 June 1878, Page 3

IMPORTANT SHIPPING CASE.

At the Resident Magistrate’s Court, Dunedin, on Tuesday, Mr Bathgate, R.M., delivered judgment in the case of Russell v Edmond, Forsyth, and McNeil, as follows: — The plaintiff seeks to recover £IOO damages for breach of warrantry, the defendants having sold a chain cable to the plaintiff as properly proved according to law which had not been so proved, and which it is alleged was not capable of sustaining a degree of tension equal to 15 tons and scwt, A certificate was produced under the hands of S. Taylor, superintendent of the chain and anchor testing machine, Primrose Bridge Works, Netherton, near Dudley, dated February 26th, 1875, to prove that a chain cable sold by the defendants to the plaintiff had been duly tested. The putter of the testing of chain cables had been deemed by the Imperial Parliament one of grave importance, and three Acts have been passed to regulate the proving and sale of chain cables. By the first of these (27 and 23 Viet., c. 27) the Board of Trade was authorised to grant licenses to any person, renewable annually, on the report of the Government inspector. By the second (31 and 35 Vic., c. 101) the power of the Board of Trade to grant licenses and renewals to any person was revoked, and the Board was only authorised to grant licenses to certain corporations specified in the fust schedule annexed to the Act, and to such other public body or corporation as her Majesty in Council might direct. By the third (37 and 38 Vic., c. 51, sec. 3) it was enacted that “ a maker or dealer in anchors and chain cables shall not sell or contract to sell, nor shall any person purchase or contract to purchase for the use of any British ship any chain cable or any anchor exceeding in weight 1681bs. which has not been previously tested and stamped in accordance with the Chain Cables and Anchors Acts, 1861 to 1874. Any person who acts in contravention of this section shall be deemed to be guilty of a misdemeanor.” The certificate produced is dated subsequently to the passing of the lastmentioned Act. The Primrose Bridge Works are not among the public bodies and corporations specified as entitled by law to hold a license. It docs not appear that the works belong to a corporation or public body. The heading, which is in the following words—- “ Formery licensed by the Board of Trade, pursuant to' Act of Parliament 27 and 28 Viet., cap. 28”—leads to the inference that the testing machine there is not now licensed. The original Act is misquoted in this heading, and there is a typographical error in the word “formery,” which apparently was intended to read “formerly.” 2Sx facie the certificate is illegal, and the parties concerned in the sale and purchase of the chain cable in England have incurred the pains and penalties in the Statutes in such eases made and provided. When the plaintiff applied to the defendants he asked if they had any tested chairs, and he was answered in the affirmative, and that the certificates were upstqirs. The plaintiff informed the defendant Edmond that ho required the chains for the purpose of intended operations in raising the steamship Express, wrecked at Riverton. The plaintiff loft for Riverton, and when there the

plaintiff telegraphed to defendants to send him sixty fathoms of 1J- chain, which length was duly forwarded on March 17th. On being put to use a link of the chain gave way. The additional length of thirty fathoms was sent on April sth, and the certificate before referred to. The chain gave way when in use on several occasions—three or four times altogether. The question is, are the defendants in the circumstances liable in damages as sued for P If goods are sold as being of a particular description this amounts to a warranty that they answer this description. The chain in question was without doubt bought and sold as a chain cable duly and legally tested. Mr Edmond admits that he understood he was selling a certificated chain. The article is not a legally tested chain cable. The certificate given with it is illegal and of no faith to prove that the'chain was ever legally tested. On this ground alone the plaintiff is entitled to recover, but in order to ascertain the amount of damage it is necessary to proceed farther and inquire whether the chain actually turned out what it was represented to be—a chain which was proved to be capable of sustaining a degree of tension equal to 15 tons scwt. It is difficult to determine with precision the amount of tension to which the chain was subjected at different trials of it at Riverton. The plaintiff and his witnesses give one opinion, and the defendants’ witnesses another. The evidence on that point appears to be little more than a random guess, with one exception. When the chain first bi’oke the plaintiff swore that it was not then taut, and that the strain was much within 15 tons; and in this he is corroborated by Rodrigues, who said the full strain was not on. I am inclined, nevertheless, to set aside the whole of that evidence and to be guided solely by the testimony of the experts examined on the point. The four experts examined were all men of acknowledged character and practical skill, without any conceivable bias, and their evidence not only stands uncontradicted, but is corroborated by several of the defendants’ witnesses. They concur in opinion that the chain is unsound and defective, the links exhibited had not been properly welded, and were of improper workmanship. Mr Sparrow deposed the chain would not stand a strain of eight or ten tons, and Mr Kincard, when asked if it would stand a strain of fifteen tons, said expressively, “ Not the half of it.” I have no doubt that the chain was bad and incapable of sustaining the tension of fifteen tons, that it was not what it was represented to be, and that it was unfit, on account of its defects, for the purpose for which it was required. While it appears to mo that both the manufacturer and wholesale merchant who sold the chain to the defendants were highly culpable, if not guilty of fraud in selling a chain not tested according to law, yet I may exonerate the defendants from a charge of this nature, and express my belief that they themselves have been deceived. This cannot, however, relievo them of their liability as vendors. In Brown v. Edgington (2 Man and Gr. 293) Erskinc J. points out that it makes no difference that the vendors are not the manufacturers. In Bigges and Another v. Parkinson (31 L. J, Ex. 302) Cockburn, C. J., said, “ It is no answer for a seller to say, ‘the manufacturer deceived me.’ ” I am, therefore, of opinion that in the circumstances of the case the defendants are liable in damages, and I asssss the same at £BO, for which there will be judgment for the plaintiff, with costs.