SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4547, 16 October 1875, Page 2

SUPREME COURT.

Friday, October 15.

(Before his Honor Chief Justice Prendergast, without a jury.) TOD V. CAMPBELL.

His Honor delivered judgment in this case as follows : I have come to the conclusion that the forty-six cases delivered to the defendant to be carried under the bill of lading were either in fact delivered to the plaintiff or were so dealt with by the captain as either to amount to delivery to the plaintiff or at- any rate to a performance of the contract on tho part of the defendant.

The declaration alleges that the goods were not delivered to the plaintiff. ■ The pleas are a general denial, and a plea that the defendant delivered the goods “ for " the plaintiff, at Wellington, within a reasonable time. As the evidence is not quite conclusive that tho goods were in fact delivered to the plaintiff, it becomes important to consider whether it is necessary under the hill of lading that delivery to tho plaintiff is necessary in order to discharge tho defendant, and whether the second plea of the defendant alleges facts which, though not amounting to a delivery in fact to the plaintiff, yet do discharge the defendant. I have intimated-that if necessary I should amend the plea according to the facts. I entertain some doubt whether the bare allegation of a delivery “ for" the plaintiff is sufficient. I find that such a plea is to be found in books of precedents. Nevertheless, the plea should, I think, be more special, and either state facts which show a discharge of tho contract, as decided in Bourne v. Gatliffe (4 Bing, NIC., p. 314), and in error (11 Clk. and Fin., p. 45), or allege, as might have been done in this case, that delivery had been made according to the bill of lading. See .Petrocochino and another v. Bott (43 L.J.C.F., p. 215. As I have permitted the plea to be amended according to the facts, no question now arises as to the plea. The bill of lading no doubt provides for delivery to the plaintiff, but it also provides that the plaintiff is to be ready to receive the goods within forty-eight hours after the ship commences to unload, otherwise tho master may discharge and store the goods at the expense and risk of the owner of the goods. If the forty-six cases now in store are the goods delivered to the defendant to bo carried, it matters not whether they were actually delivered to the' plaintiff or were discharged and stored in accordance with tho bill of lading. Under a very similar bill of lading it was held that tho master is discharged by landing and storing the goods, even though after landing some of the goods were lost. See Petrocochino v. Bott, supra. Indeed, without any special clause in tho bill of lading the master would be discharged If the landing and storing were, in accordance with the custom of tho port of Wellington ; and those facts were pleaded In Hyde v. Trent and Mersey Navigation Co., 5 T.R.; and Bourne v. Gatliffe, supra., As ■a-matter of fact the landing and storing were in accordance with the custom of the port. From every point of view, I think that tho master was discharged if the goods were the same goods as those delivered to him to carry. On behalf of the plaintiff it was contended that as tho cases delivered to the defendant to carry are described in tho bill of lading as bearing certain numbers, the master could not perform the contract except by delivery of cases bearing the same numbers, and reliance is placed upon the 18th and 19th Viet., cap. HI. (adopted in New Zealand by the English Acts, Act 1856), section 3. The Act in question in . its preamble recites that “Whereas it frequently happens that the goods in respect of which bills of lading purport to be signed have not been laden on board, and it is proper that such bills of lading In the hands of a bona tide holder for value should not be questioned by the master or other person signing the same, on the ground of the goods not having been laden as aforesaid:” and by the the third section provides that “every bill of lading in the hands of a consignee or endorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless such holder of the hill of lading shall have hadactual notice, at the time of receiving the same, that the goods had not been in fact laden on hoard: Provided, that the master or person so signing may exonerate himself in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by tho fraud of tho shipper, or of the holder, or some person under whom the holder claims.” ... - The preamble shows what the evil intended to be provided against was, viz,, masters signing bills of lading which purport that certain goods were shipped, and afterwards when sued for the goods by consignees and Indorsees for value, setting up and proving that in fact the goods were not delivered to them to be carried. This, before the Act, they could do, because..a bill of lading having been decided to he no more than a receipt under hand only, they could give evidence to contradict it and prove that though they had given a receipt for the goods yet tho goods were not in fact-received. The Legislature meet this by declaring that the bill of lading shall as between the consignee and master be conclusive that the goods described in the bill of lading have in fact been delivered to the master to carry. Tt is contended by the plaintiff that the defendant cannot discharge himself by delivering, or tendering goods, if any of those marks on tho cases which are entered on the bill of lading are not found on the oases delivered or tendered by him to the consignee, even though the cases and goods are the very same goods delivered to him to be carried, or at any rata that It lies upon the defendant to prove that the marks have been obliterated while in his custody. I do not think that the plaintiff’s contention is well founded. I think tho master would, by the section of the Act referred to, have been estopped in tho present case from denying that cases of the number mentioned in the bill of lading, namely, forty-six, were shipped, and perhaps in some cases, if tho quality or weight of tho goods were described in tho hill of lading, he would he also estopped from denying that the goods delivered to him to carry were of the quality and weight described. But tho present case is for nondelivery of the goods, and I think the only question is whether the goods delivered or tendered are the same. The provision in question of tho Bill of Lading Act was considered in the recent case of Blanchet v, Powell's Lantivit Collieries Coy., vol. ix. (9) L. E. Exch., p. 77. That was an action for a lump sum for freight, by the master of a ship against the indorsee of a bill of lading. The defendants pleaded, except as to ■ 217 tons of cargo, that by tho bill of lading tho plaintiff acknowledged himself to have received a number of tons exceeding 217 tons, and that he did not carry or deliver the goods in tho bill of lading mentioned, but only a portion, to wit, 217 tons. The plaintiff replied that he carried all the goods delivered to him to carry, and.that tho misdescription of weight was without fault or fraud. In tho course of his judgment, Bramwell, 8., says: “I agree that in some cases and for some purposes, whore tho weight of the cargo is material, tho master might be bound by the statement of weight in the bill of lading. For example, in an action for non-delivery ho might be estopped.” Baron Cleasby, in the same case, says: Tho only answer to his (tho master's) claim is founded on tho 3rd section of. the Bill of Lading Act, and it is contended that tho statement of weight in tho bill estops him. Now, if the bill had acknowledged the receipt of certain specific things—a certain number of horses, for instance—lt might be that the plaintiff could not bo heard to say that a different number was shipped in fact. But that cannot bo said of a mere statement of weight, which may, and often docs, vary during tho transit; and I do not see any estoppel, therefore, to prevent the plaintiff from saying that the measurement was wrong," In Jcssel v. Bath and another, L.J. (C.L.) Exch, vol. 36, p. 149, with reference to the same section of Bill of Lading, Kelly, C. 8., says: “ Doubts may arise whether the statute at all applies to oases of deficiency of weight of goods shipped, or to other than those cases in which bills of lading have boon signed tor goods never in fact shipped at all.” The opinion of the Chief Baron and Baron Cleasby seems against applying the Act to cases other than those ol a representation as to number, and against extending it even to such material representations as of weight. Clearly, therefore, they would not extend the provision of the Act to representations altogether immaterial, such as is a representation that the cases were of a particular color or size, or boro a particular number. The only question, I think, in this case is, are tho cases tendered or delivered tho property of tho plaintiff and all the property delivered to tho defendant to carry under the billot lading; If so, tho defendant was bound to deliver those very cases to the plaintiff, and none others. He has done so, and has therefore performed his contract. If tho defendant had sold or otherwise converted those goods, an action of trover would have lain against him at tho suit of the plaintiff, and if ho detained them, an action of detinue. I find, therefore, for the defendant on all the issues.