RESIDENT MAGISTRATE'S COURT

West Coast Times, Issue 326, 9 October 1866, Page 1 (Supplement)

RESIDENT MAGISTRATE'S COURT

(Before G. G. FitzGeralcL. Esq., R.M.)

Fhidax, October 5, 1866.

Kennedy Bros. v. Well, master of the schooner Glengarry. This was an action brought to recover L 92 7s damage to goods, being sugar and flour consigned to plaintiffs at Greymouth., under bills of lading. Mr South appeared for plaintiffs, Mr Harvey for defendant. After stating the plaintiffs' case, Mr South called Martin Kennedy, who being sworn, stated that by the bill of lading produced, a quantity of Company's .sugar and Adelaide flour on which freight had been paid was so damaged by salt water as to be greatly deteriorated in value. He had paid L 52 per ton for the sugar, and L2O per ton for the flour, which was best brand Hart's Adelaide. A survey had been held upon the damaged goods in the usual manner ;v; v they were afterwards sold by public auction ; the sugar fetched L4O, and the flour Ll4 per ton. In a con.versation witness had with the defendant, master of the- Glengarry, he informed ■witness that the mate had occasion before crossing the bar, to open the after hatch to get at some rope ; that after taking some out he did not fasten the hatch with the lock again ; but put in place of it a piece of ,wood which fell out through the schooner rolling. In crossing the bar the hatchway flew off, and a quantity of water fell on the goods which caused the d.image. Witness estimated the damage, with survey fees and expenses, at L 92 7s. Cross-ex-amined by Mr Harvey —When I saw the captain first, he did not tell me the Glengary had struck on the bar. There was no salt water on the beach to damage the sugar. The sugar was under the hatch ; that was where it wat wetted with salt water. I told the captain I thought it was a fair bar, /.and that we often had it very much worse. I examined the hold,- and judging from the appearance the water came through the decks. I caused to be"* sold by auction what came out of the after hatchway. I did tell the captain, and also the owner, when'the goods, were going to be sold. The bellman went round in the usual- way to cry the sale. 1 employed Messrs Cook and Keenan to survej' the goods. - The captain and owner had an opportunity of attending the survey^— N. G. Cook, merchant, Greymouth, proved the making and signing of the survey, and payment of the fees. (Mr South here put in the surveys both of the goods sold and those shewing the depreciation in value ,of the goods bonded.) The goods were all very much damaged by wetting' with salt •prater. I have had much' experience in and surveying upon goods damaged, on board ship. The sale by auction took place in the usual way. The goods were sold bona fide to the higl e^t bidder. — Cross-examined by Mr Harvey The Glengarry was a remaikabie looking vessel. I know that the bar was in a good condition the day the ye. sel came over. I was all over the ship. There was . a good attendance at the sale. Most of the Greymouth. merchants were there. 1 was a bidder at the sale for Mr Kennedy, and I ultimately did buy the goods fur him.— Re-examined by Mr South— There was nothing secret or collusive about the sale. It was a fair sale in every waj r . It was to give the ship a chance that I purchased Mr Harvey stated the case for the defence and* called Mr Well, the defendant and master of the Glengary, who deposed that he was towed in by the Persevere, the hatches were properly secured. Coming towards the bar, the Persevere caught the ground, the Glengarry then touched the ground and lay there for some minutes, the sea wasEed over her for ten minutes, they had to take to the rigging, there were two men washed away from the helm. Some casks knocked against the hatchway and knocked it' off, by which the goods were wetted. The vessel was caulked before leaving Melbourne. I did not get a copy of the siirvcy. Crossexamined by Mr. South — The vessel is not an old friend of mine, I only joined her iust before sailing in her from Melbourne. The decks were footworn. Just before making the bar the mate unfastened the hatchway for some rope. He put a <; toggle "in the hasp instead of the lock. A cask knocked it out. Ido not know that the vessel is an old one or not ;' I know nothing of her at all. My Jog-book wa3 written in pencil when I arrived at the Grey. I had never been at the Grey before. I was- not on bonrd tho vessel when she was caulked. Ido not know of my own knowledge that she was caulked before leaving Melbourne, but I l}ear.d so. I had no opportunity o£ seeing whether the water came in at the seani3. Mr Harvey addressed the Court for the defence, and maintained the cause oj thf damage came within the exceptionsun the bill of lading. He quoted from Smith's "Mercantile Law," and alleged that any nccident occurring over which humanforesight could not prevail, excused tho captain-. There were suspicious circumstances about the sale, and defendant had not j>i'oper notice. Mr South obtained leave to call Mr A. Macfarlane and Mr Paul as to the state of the bar on .the day the Glengarry crossed. These gentlemen both' stated that there was nothing unusual in the state of the bar. Mr Paul deposed that he did not see the vessel ground, and that she kept ' moving. Mr .South, for the piai^Mff, contended that substantially there had been no defence to the action in the evidence adduced for the defendant. It was clear that the injury sustained iby the gmds was caused by the negligence and unskilfulness of the mate in not propeil v re-lock-ing and securing the hatch. I'rom such the law did not excuse the master, who signed the bill of lading now before the ' Court. Consignees of goods must have ■ that protection thrown round them which the law imposed. The cases Dealing on this in "Addison on Contracts" were - stated with great . clearness, who stated * that it was not competent to a party to enter into a contract for the performance of a particular duty, and, by the same contract, stipulate that he should be exempt from all legal responsibility if he nu»lects to do what he had undertaken to perform. Plaintiffs' counsel commented on the evidence, and submitted that the case had been proved, and that plaintiffs were fully entitled to recover the damages laid in the action. The Resident Magistrate said he would look over his notes of the evidence, and deliver judgment on Monday morning.