AN INTERESTING JUDGMENT.

Hokitika Guardian, 1 June 1920, Page 3

AN INTERESTING JUDGMENT.

! PAY NIC V. N.Z. EXPRESS CO., L'J At the .Magistrate’s Court, Westpo on Friday, Mr Maunsell, S.M., gave t following judgment in the above cast ‘‘ln this case,, plaintiff claimed t ■ Company, acting as a common carrii accepted delivery of her .sett ing machi at Hokitika to he forwarded on her i count to Westport* but has failed to ( liver tlie same. ' Sfie accordingly clan £4O damages, being £ls for the value tile machine and £25 damages for lc incurred through being deprived of i use. Since the action was commence the machine has reached the plainti: but she has pursued her >.<1.111 ior dar ages. defendant Company clain that it acted as a forwarding agei only and hot a as common carrier, an was hot liable without proof of negl gence. Jt further denies liability fc loss of profits, as it bad no notice tin such loss tt'ould occur. “There is very little, if any, ev deuce, that the Company is a conuno carrier. Mr Maloney relies to some e> tent on the unsigned delivery note prc duced. This, however, contain an ex press condition that the liability of ill Company shall be only that of “ foi ivarders.” If this note had been sign ed it would have been conclusive agains the plaintiff’s ease. It is further contended that the paro evidence shows that the Company wa acting as a common carrier. All thi: shows is that the Company’s agent a Hokitika received .general instruction! by the plaintiff's agent, one Jones, t( forward the machine, to Westport. Ht refused to sign a delivery note not because it contained the. condition mentioned above, but because he had no personal interest in the matter. The evi denoe therefore, is equally consistent with a contract either by a common carriar or a forwarding agent. It may he, j however, that the Company, having undertaken to forward the goods, should be deemed prima facie, a common carrier (see Hill v. Scott 1895—2- QB. 371). The status of the defendant Company has been-discussed in two important eases, Mr Molony relies on New Zealand Express Co. Ltd. .v. Minahan, 191(i 0.L.R., 552, wherein the Company was held to lie a common carrier, and Mr Olliver relies on New Zealand Express Co, Ltd, v. Pemberton, 17 G.L.R., 524, wherein the Company was held to he a forwarding agent. Both cases have points of •similarity with the present ease, and the point for consideration is what the distinction between the cases really is,

In my opinion tlie result of these decisions is to lay down the following principle: In the absence of a special agreement as to status a company carrying lop business similar to that of this defendant company acts as a common carrier when it receives goods from their owner apcl delivers them in its own name to a ship owner (.or other common carrier) for delivery to the Company’s agent at the end of the journey. On the other hand, if it merely conveys the goods to the snip and consigns them in the name of the owner of the goods then it is a forwarding agent. In the former case the ship owner is the agent of the Company, and in the latter case is agent if the owner of the goods. There cannot be privity of contract between the ship owner and the carrying Company, and the owner of the goods, at the same time. If the carrying company contracted with the ship-owners as agent, it would be manifestly unfair if the owner could recover from the carrying company, if the ship-owner lost the goods, leaving the carrying company no redress against the ship owner. Tn this case it lias been p oved by the witness, lfevan, that the g'oods were consigned in the naijie of the plaintiff, the weigli-biU shows that the defendant company was neither consignor nor consignee, It was contended that this weigh-bill was not evidence against plaintiff. This nmv have been so if it were proved that • the defendant company was' engaged expressly as a common carrier, but as the instructions wore of a general nature, I think it is admissnblo to show in what capacity t jie defendant Company did act. In my opinion, the liability of the defendant company terminated when it delivered the go ,ds to the ship-owner on behalf of the plaintiff, and that it acted as a forwarding agent only. , The plaintiff must be non-suited.