AN IMPORTANT CASE.

Globe, Volume XXI, Issue 1699, 31 July 1879, Page 3

AN IMPORTANT CASE.

The following important case was heard at the Resident Magistrate's Court yesterday:— J. M. HEYWOOD AND CO. V. CAPTAIN PEEK. Mr Nalder for plaintiffs. Mr G. Harper for defendants. In this case, whioh was a claim of £BO, amount of alleged damage sustained by nondelivery of goods in terms of a bill of lading, the evidence waß taken on the 11th instant, and the case then stood adjourned to yesterday for legal argument. The evidence taken on the dato referred to was as follows :

Thomas Edward Taylor, clerk to Heywood and Co., sworn on 12th June. I took the bills of lading produced to the Shipping Company's office, Christchurch. The papers were fastened together as at present. The date, 12 6 79, was not put on by me, and was not put on when handed to tho Shipping Company. The printed matter on the bill annexed to the first was put on by the Shipping Company. I presented an order to the Railway Company for the goods mentioned in the bills of lading. I produce copy C. Ido not know if the endorsement was on the bill of lading marked B. When I presented the bill of lading to the Shipping Company's Offioe the clerk to whom I handed it asked for a cheque for freight. I told him he knew the arrangement made about freight. He said his instructions were to get freight on all goods by the Waimate. I said he had bettor see Mr Day about it. I knew of no alteration. I did not see printed matter put on bill of landing B. I know Mr Milne, the consignee. I did not see him endorse bill of lading. I do not know if it was on when I presented it. A slip similar to that marked D was received at our office. I don't know when.

William Day, sworn—l am a member of the firm of Heywood ond Co. I know the bill of lading put in B. I received it from John Milne. I was to obtain the goods, clear them, receivo them at our office, and advise Milne. We are forwarding and Customs agents. The bills of lading were handed by me to Taylor to be presented on the 12th June. I applied to tho shipping office on the 14th of June for the bills of lading. I received them from one of the clerks. I noticed the blue pencil marks on the papers then, they were not on when they were sent from our office. The custom to receive goodß from ships is to present an order on the railway department, and hand that order to the agents of the ship with the bills of lading. Before the railway authorities act on the order they receive an authority from the agents to act on the order, without which they will not act on the order. Except through the railway.l know of no other way of receiving the goods. Tho railway authorities receive into empty trucks, in accordance with instructions received from the ships' agents. I received a printed notice similar to D. before the 12th of June. I produce invoice of goods (E.) ; to that should be added certain charges. I have obtained delivery of the goods, but not whon 1 presented the bills ; it was a week ago since action was brought. I havo been put to extra charges through nondelivery. The plaintiff was kept out of his goods for some threo weeks by their being detained. I got notice frem my clerk when the goods came to hand. Cross-examined—When the bills of lading woro presented my clerk was not instructed to tender freight. The clerk had railway orders when ho took bills of Jading. Tho railway order has to be countersigned, in accordance with custom. The railway people require, before they unload, instructions from the agents as to whero all the lines of cargo havo to go. If goods are handed to the railway in our name the Shipping Company would cease to have control over them. When an order such as that put in, marked C, is presented to the Bhipping Company, with a bill of lading, it is for tho purpose of enabling the consignees to receive the goods from tho railway, provided the Shipping Company authorise it. The order is to send to our order as agent for the consignees if endorsed. It hns not been my practice to pay freight until the goods have been delivered to our order. I have as a rule received goods prior to paying freight. On the present shipment of goods tho Shipping Company have demanded freight on presentation of bill of lading and the railway order. I have had experience as shipping agent. The strict rule is to pay freight as the goods come over the Bhip'a side —that is to say. the payment and delivery should be concurrent. The practice hitherto has not been to pay freight until after delivery, that is, since 1861. The bill of lading was not endorsed until after the bill of lading had been presonted at the Shipping Company's office. It was endorsed in anticipation of the case being heard. I havo been asked in reference to goods by the.

Waimate for endorsements. I instructed my clerk to tender freight to the agents in Lyttelton. This was on the 14th June. I did not again present the bill of lading to the Shipping Company. I gotj'he bill of loding to take to my solicitor. Ido not know the bill of lading was presented again. We always receive back our bills of lading, and they (tho Shipping Company) retain the order. _ The railway order includes all the good* in the bill of lading and others. Tho freight was again, I believe, tendered on the 16th of June. I had tho bill of lading then. I heard goods were being landed and warehoused. I then saw Bennett, and fouud such was the case. I then instructed the clerk to tender the freight on Monday. It was not endorsed. The endorsement was never asked for on the bill of lading. The question did not arise until after the freight had been paid. I presented as agent for tho consignee. William Henry Griffin, chief wharf clerk in railway department, said—lt is part of my duty to receive orders for goods for delivery to different consignees. The railway would not recognise the order unless the name of tho corsignee is written on the manifest by tho agents of tho ship against the goods to be delivered. This constitutes the authority to deliver the goods to tho consignees. Goods must be sen"; from Lyttelton to Christchurch by rail. Crosa-examined—I produce copy of railway manifest handed to the railway through the Customs. When the name is entered in consignees' column, headed shipping, and the railway order is presonted, the goods would not bu delivered to the Shipping Company. In No. 21 and 22 the consignees are put down as Heywood and Co. That would bo done by the Shipping Company. The two casks in question were landed oh June 13th, to the order of the Shipping Company, in Lyttelton. They were sent on that day to the warehouse.

Thomas Hay sworn stated—l am tally clerk to tho railway. I was on board the Waimate from tho commencement to take tally of tho cargo for the railway department. The Waimate began to discharge cargo on Juno 13th. I kept tally book put in. In pages 9 and 11 I find two casks (JM over O in diamond) were anded and sont to tho shed to the order of the N.Z.S. Co. Trucks were alongside to receive the goods that day. Luggage was discharged on tho 11th June. Passengers' luggage from cabin or afterhatch. The main hatch was not opened that I know of on the 11th of June. I was the only tally clerk, and all the goods went through my books. I tallied all cargo to the present time. Guy Coverdale sworn stated —lam shipping clerk for Heywood and Co., Lyttelton. I know the casks referred to in bills of lading. I saw them in the Bheds at Lyttelton. I saw one on June 14th last. They were to the order of tho N.Z S. Co. I believe entries in the Customs had been passed for them. I tendered freight for the casks on Saturday, tho 14th of June, at 2 p.m. I saw Mr Dunlop, and offered him the freight, £1 17s 9d, in cash. Mr Dunlop did not take the money. He said I was to give it to Mr Smith or Mr Giffard, and they would give me a transfer. They are clerks to the New Zealand Shipping Company. I gave tho money to Mr Giffard. He took it, and in half-an-hovr camo back, and said ho could not find any trace of the bill of lading having been presented in Christchurch. I took the money back on Monday, the 16fch of June. I again tendered the money to Mr Dunlop. He said he was not aware of the bill of lading being presented, and he could not give a transfer. I saw him again between ten and eleven, and then he said if I would guarantee all charges I might have the goods. The charges were extra charges, wharfage, and storage. When I tendered the freight I had not the bill of lading. Mr Day had the bill on Saturday. Mr . Dunlop is the shipping clerk for the New Zealand Shipping Company. Mr Smith is clerk in the office of the company at Lyttelton. I knew the bill was at the time in Mr Day's possession. On Monday I could get the goods on payment of freight and the charges I stated without question of bill of lading. Arthur W. Bennett, sworn—l am clerk in tho New Zealand Shipping Company's office. I remember the arrival of Waimate at Lyttelton. The practice is as soon as the vessel has arrived to give notice to consignees, as by paper, June 12th. We also issued special printed circular, such as that marked D. H. Selwyn Smith, sworn, states —I am General Manager, Snipping Company. Mr Bennett's evidence is correct. I saw Mr Day on June 16th, at my office. Before I saw Mr Day I Baw letter put in. I received another letter. I required payment of freight concurrently with delivery. I would not have the goods put on the railway manifest until freight was paid, as we lost control. Mr Day said we were taking up a position we could not maintain, and ho was prepared to pay for the goods package by package. I said, in the bill of lading the freight was stated, and we could not break the delivery or receipt of freight an'l charge for each item. Mr Day then said, I shall expect you to let me know as the goods come to hand. I said I could not do so; I must land the goods if the freight was not paid and I should store them. The conversation took place on Monday, June 16th, at 10 a.m. The goods were- landed on the Friday bofore. Mr Day refused to pay freight. I offered to take a cheque and retain it until the goods were delivered. I objected that by the railway getting the goods I should lose tho lien. I knew the bills of lading had been in the office. They were takon away on the Saturday. I only discussed the question with Mr Day, but when the claim was made I wrote to Mr Day on the 18th June about the endorsement by the Bed Gauntlet. Robert Dunlop sworn—l am clerk for the Shipping Company is Lyttelton. I saw Mr Coverdale on Saturday, the 14th June. After the train started he said he wanted to pay freight on casks. I said he could pay in the Lyttelton office, and if all was correct he could get the transfer. No money was produced. He said the casks were in the shed. On Monday, about 9 a.m., he tendered money. I said I had no notice of any bill of lading being presented, and I would only give the transfer or delivery order unless he guaranteed all charges up to date. No bill of lading was presented. Coverdale said it had been presented in Christchurch. I get advice when to deliver from the general manager, with numbers on bills of lading. On the second occasion, when freight was tendored, Coverdale told me the marks on the casks.

Cross-examined —I get instruction as to what is due on freight. I knew what was due on the casks. I knew £1 17s lOd was the right amount on the goods. I wanted a guarantee for charges such as landage, wharfage, and storage, if due. We do not require bill of lading if we ore advised from Christchurch that it has been presented, I did not ask for the bill of lading, but I said I could not give delivery unless I had been advised, or he produced it. I had no instruction from Christchurch about the goods. I had general instructions. I knew charges had been incurred. I asked Coverdale for the bill of lading. George Thomas Gifford—l am clerk to N.Z.S. Co. I received on Saturday, the 14th of June, freight from Mr Coverdale on two packages, J.M. over O. in triangle. I got the money in the street, took it to the office, looked to the manifest book and found the entry. I saw the goods were not written off. I took the money back to Mr Coverdalo and said I could not give tho transfer order, as the bill of lading had not been presented. I had no instructioca about the goods. I know where the goods were, and I had written them off in the tally book for the company. I began to discharge the ship on the 11th of June. I got the hatches off and slung. I got out a package marked Neave. Tho casks came up on the morning of the 13th of June; first between eleven and twelve, and the second after dinner. I had instructions from the N.Z.S. Co. to discharge on the morning of the 13th June. Cross-examined—On the 11th of June the one package was got up, but not expressly that one I did got up. The ship began to disoharge on the 13th of June—that is the first dato in my tally book. No gear was rigged until the 11th or 12th to discharge cargo. We began on the 13 th of June at 8 a.m.

Robert Peek, sworn—l am master of tho ship Waimate. No bill of lading was presented to me in reference to the casks or was freight tendered me. The vessel broke bulk on June 11th, but nothing was delivered. We were ready in terms of the bill of lading. We required to rig gear to get out cargo. We hod not all the gear rigged, but sufficient on the 11th of June to discharge any cargo we wanted. The cargo is not discharged by the crew, but by tho stevedores. They came on board on the 11th of June. No oargo was taken out except the one case on the 11th. The bulk began to be taken out on the 13th June. The gear was rigged, I believe, be. fore the 13th June for the discharge of cargo.

H. S. Smith, recalled —1 gave instructions that the moment the ship came alongside the bulk was to be broken and a package slung, but nothing put oyer aide tor forty-ehjht hours unless consignees came with their bills of lading. On the case being called ou yesterday at three o'clock, certain evidence was adduced as to tho procoss of passing tho manifest of goods through the Customs, prior to the discharging of the vessel. Mr Harper then addressed tho Cou't on behalf of his client, and in tho first place called attention to the terms of the plaint and the form of action brought under it—viz , non-delivery of certain goods—that in fact ran through the whole action. He believed it was considered that this would bo somewhat of a test case, but he failed to see now how that could be so, as the law was quite clear upon the point at issue, and there was nothing in it really boyond the ordinary cause of action displayed in tho plaint itself, which was simply tho non-delivery of certain goods, It was therefore recessary for the plaintiffs to show that they had performed all tho conditions precedent to the delivery of the goods-. After referring to the facts of (he case, he pointed out that there was no such thing recognised as advance freight. It was necessary then for the consignee if ho intended to employ an agent to obtain delivery of theeo goods, to endorse his bill of lading over to to tho agont, to enable the agent to become tho holder of the bill of lading, by which means lie becomes entitled to receive the goods. It might be contended that tho agent was known in his real capacity by the Shipping Company, on presentation of tho bill of lading, and that therefore no endorsement by th« consigneo was necessary ; but ho could produce convincing authority that tho Shipping Company would have done wrong had they so acted. Tho second point was whether Milno and Co. or their agents ought to have paid tho freight concurrently with the presentation of the bill of lading at the company's office The strict law was that the deliveiy of tho goods and payment of freight thereon wore concurrent acts, therefore a consigneo might go to the Bhip's sido and ask for each package of goods, and could not bo called upon to pay the freight until he saw them coming over the ship's side. Ho did not know whether it was the custom for consignees to do so, but ho could say that tho Shipping Company had hithorto (wrongly, perhaps) asked tho consignees to pay beforenand, or rather, on presentation of the bills of lading. As he understood it, tho action had been brought for the purpose of testing a point which ho now submitted had been settled over and over again, that Mr Day was entitled, aB agent for Milne, to receivo the goods over tho ship's sido on payment of the freight for the same, and on his showing that ho was holder of the bill of lading or endorsee thereof. From the evidence of the two clerks, it was clearly shown that no bill of lading was presented when the freight was paid. Also tho actions of Mr Day subsequent to tho presentation of the bills of lading showed that he did not intend it to he anything more than a formal presentation. After taking back tho document it would have been impossible for the clerk to give up the goods without a fresh presentation, as the bill of lading might in the interim have been transferred half-a-dozen times. There was, therefore, no presentation of the bill of lading and payment of freight concurrently which the defence fell back upon as a nt in their argument. His Worship—Do I understand the argument of counsel to be, that after Mr Day receiving back tho bill of lading, that it was necessary to commence de novo again ? Mr Harper replied in the affirmative. He was about to say that he did not rely upon any custom, which he sought to show was to ask the consignees to pay the freight at tho office on presentation of tho bill of lading; and what he contended was that in the event of the company giving up possession of the goods on a railway order alone, they would lose all lien ever the goods as security. He was prepared to admit that the claim for detention of goods was the charge of freight. [Counsel here quoted Maclachlan on the Law of Shipping.] The company would have lost their lien over the goods as against the consignee had they given up possession without an endorsement of the bill of lading. Quoting from page 403 of the work above referred to, he showed that the only person entitled to receive tho goods was the lawful holder of the bill of lading, being tho consignee named therein, or his assignee under a proper endorsement of the bill of lading. The learned counsel ;during his address referred to different points brought out in evidence upon which he should not rely in the case. Mr Nalder, in reply, said he had been considerably surprised to hear his learned friend giving up one position after another, until there was really nothing left for him to answer. With reference to the payment of freight, ho pointed out that in some cases the prepayment of freight wonld inflict a hardship on tho consignees, who would_ have to remain out of the iuterest on tho freight and the value of their goods unt'l they were_ delivered, which might perhaps be a considerable lapse of time, say, three for instance, in the case of a ship laden with a lot of iron. The other side rightly conceded tho point that the payment of freight should be concurrent with presentation; but that was not the position taken up by his learned friend, and he would call the Court's attention to a clause in the bill of lading which says that the master shall deliver the goods with all reasonable despatch. After referring to the facts of the case elicited in evidence, he explained no endorsement at all was required, and had not previously been asked for. The other side had not shown a single authority, or quoted a word from any of the text books to Bhow that it is necessary for the clerk or holder of the bill of lading to have an endorsement to himself beforo it becomes a legal presentation. The bill might havo boon presented by himself or any clerk or agent on his behalf. (Pritchard's Admiralty Digest, "The Tigress") Referring to another phase of the same question, his learned friend was also in error. Thus bills of lading were often sent in duplicate and triplicate forms. In that case the party who first presented the bill of_ lading was entitled to receive the goodß, and if there were two parties to the bill of lading, the captain had a perfect right to deliver to either. Then the other aido seemed to argue that the plaintiff in this case should have paid the freight on presentation of the bill of lading, but no authority had been Bhown to bear that out. Mr Harper—l said that on tendering the freight he should have tendered the bill of lading. . . Mr Nalder—That was simply putting it in the converse form, and his loarned friend had been unable to quote authority in support of tho contention. He pointed out that the case had really been ponding since the 14th of June, the goods being landed on the 13th, and delivory being refused on the 13th, while tho lading was in the hands of the Shipping Company, and the plaintiff took advice as to what action he should adopt to recover his goods. [The learned counsel hore quoted from "Maritime Law Cases" —Wilson and others v the London and Adriatic Steam NavigationCompany.] The plaintiffs had their bill in before the notice appeared on the morning ef the 12th and in the hands of the agents of the ship when the goods were landed, and they should havo been handed over to the owner. [He quoted here from Maclachlan.] He submitted that the case narrowed itself down to this—When did the Bhip begin to discharge ? and if the ship commenced to unload on the 13th, then he would submit that the Court could have no option but to give judgment for the plaintiff, beeause the defendant had no right to put the goods off the ship until tho Monday morning following, the 16th, as they could not warehouse them till that day. As to the question of the lien, the signing of a railway order did not transfer delivery of the goods, and at any time before these goods woro delivered out of the ship was in the option of the Shipping Company their agents, or the master of the vessel, to stop delivery. The fact of filling up that column in the manifest was simply an indication to the Railway authorities as to where the goods wero to go, but nothing More nor leas. As he had said before, although an attempt had been mado to enlarge the importance of the case to a great extent by sayit was a test case, in order to try whether freight could be claimed on presentation of a bill of lading, it simply narrowed itself down to tho two points he had alluded to, namely, the date of the commencement of the discharge and the presentation of the bill of lading, and he submitted the Court could have no doubt whatever as to these faots. If| therefore, the position ho had taken up was held by the Court to be the correct position, then the plaintiff was entitled to damages, although the goods had, by arrangement, been subsequently delivered. His Worship reserved judgment.