10
*
he could" noo-the when he arrived.
had not been
H. V. von Bohuscowios, assistant to Messrs. Carlowits and Co., id he was engaged in export department, and had had the handling of considerable number of aniseed tins. They ceived aniseed from, Haiphong and exported from here to Europ." He had" inspected threo tāns containing anmeed, and the material of which the tins were made, and also the wicker- work were not so strong as others." These, tins wars, they of the same shape 'as those which came from Haiphong.
The assistant compradors of the Hailan said the person who signed, receipts for He was on board the Hailan in October, 1897. He remembered a cargo of aniseed coming on board in that month, and saw it stowed away, The tins containing the oil were in two tiers and some were in baskets and some without. He saw the tins when someone came on board in Hongkong to take delivery. If there was any thing broken the matter was reported to him and he made an inspection. It was reported to him that some of the tiùs had been damaged and he went to look.” He saw that the tins were in two lets-one in good condition and the others damaged, and those which were in good condi- tion were taken away." The tins which were damaged looked as if they had been presse down by something.
1
A
[September 9, 1899.
The
The defendaut, on the other hand, contended that the loss arose through the insufficiency of the package of the oil, and also cont»uded that, in view of the tempestuons weather the ship encountered on her voyage from Pakhoi tu Hongkong, the loss comes within two of the exceptions in the bill of lading, Act of God" and “accidents of the sess and steam navigation." The plaintiffs deny this, and contend the real cause of the damage, wak the defendant's negligence in the stowage of the aniseed. The words occur in the bill of lading "not accountable for leakage, break- age or other consequences arising from insuff ciency of address or package."
THE HONGKONG WEEKLY PRESS AND establish the allegation of bad stowage, the plaintiff had resorted to what he submitted had been proved to be absolute falsehoods. Even if his Lordship rejected the evidence of the first mate as being connected with the ship, how could his Lordship reject the evidence of Captain Goddard, who went on board to survey this cargo of aniseed with regard to its stowing and made a report at the time. His Lordship had the evidence of two Europeans-Captain Goddard and the first mate and if he rejected their evidence for that of a'Chinaman who had been proved to be lying when he said there were four fiers of tins, he ventured to think it was going rather too far. He argued that the de fendants were not liable for the damage done, In the second edition of Carver's Carriage inasmuch as it had been caused either through by Sen, Section 78, the law appears to me to be insufficient packing or the violent storm. cerrectly laid down sa
as follows :—“ Ordinarily the Mr. Pollock submitted that his learned friend burden of proving that a loss which has occurred had not made out his three points to show good has been due to excepted cause falls upon the cause or excuse for the damage done to these shipowner who seeks to excuse himself. tins. The only issue in the case the onus of Thus, if there be a doubt whether damage to which lay upon the plaintiffs to prove was cargo has arisen from had stowage or from the issue as to whether these goods were excepted perils of the sea the shipowner relying lost in the course of transit from Pakhoi to on the exception must prove that the perils of Hongkong-whether ten of these tins were so the sea caused it. And where it appears that absolutely damaged as to be practically useless two causes have contributed to the low, one of and of no marketable value. The defendant which only is, excepted, the shipowner must relied for his defence on three grounds, the not distinguish between the damage which was er of God, perils of the ses, and insufficient pack-was not due to that. But if a loss apparently ing. With regard to all three of these issues ||falls within an exosption, the burden of show- Captain Burnio had bɔen subpowned by the the onus of proving them rested upon the de- ing that the shipowner is not entitled " to the defence, but he did not appear.
fendant, the ordinary contract for the carriage benefit of the exception on the ground of (MF. Slide Would your lordship adjourn the of goods by ses under bill of lading amount negligence, is upon the person so contending. ense until to-morrow, when Captain Burnie willing to an absolute contract by the ship. This latter passage was quoted with approval no doubt appear !
owner that he would absolutely carry the by Lord Esher in his judgment in the case goods safely and deliver them safely and The Glendarrock, at page 232 of the Law Re undamaged, certain perils only being excluded, ports (1894) Probate Division; a case where and unless he could bring himself within cement sustained so much damage, by water one or other of those conditions he must fail in through the stranding of the vessel in Cardigan his defence. With regard to the evidence Bay as to be useless. given in the case, his learned friend had charged In the present case, however, the damage the plaintiff and his principal witness with tell- was not caused by water nor was there any ing deliberate lies; but he thought that his stranding. The tins appear to have been Lordship in considering the evidence would not crushed in from above, the tops are -pressed come to that conclusion, and that his Lordship down, and the only way the tempestuous res must, if he considered the evidence carefully, ther can affect the question is that it may have come to the conclusion that a good many points caused the ship to roll and pitch and so have made by his learned friend had no substantial | pat an extra strain on the cargo or shifted it. foundation. In the first place his learned friend As regards the packing, the oil seems
have made a great deal of the point about which been contained in tins enclosed in baskets. Captain Burnie had given evidence that morn-Large numbers of similar tins similarly packed ing-as to the piling up of the goods. had previously been sent from Pakhoi, and had He thought his Lordship would come to arrived in good condition These ten were the the conclusion that there was nothing at only tins for which the planitiff bad ever made all in that point; that it was perfectly possi-a claim. It is true that after this damage, that ble for three or even four tiers of oil to is after October, 1897, the defendant refused to be packed 'tween decks in some cases with take aniseed oil unless double ting were substi indigo on the top and in some cases with hides tuted for single tins, or, if single tina were used, on the top; but whether his Lordship came to then wooden cases for enclosing them were the conclusion whether there were three or four required instead of baskets. It is equally trus was practically immaterial. In conclusion, Mr. that till then, aniseed oil had been carried by Pollock argued that the defendant had not the defendant packed in the same manner brought forward any good exonse, and that he
this oil was packed without objection. should be made liable for the damage, His Lordship reserved his decision.
His Lordship said he should certainly not and asked counsel to sum up.
P
It was discovered, however, that there was still another witness the keeper of the godown in which the uniseed was stowed.
Babsequently Captain Burnie put in an ap- and gave it as his opinion that the packages were not sufficiently strong.
September 5th,
- Mr. Slade asked for permission to recall Cap- tain Burnie, to prove the height of the tween decks for the purpose of showing it would be impossible to put four tiers of the aniseed tins produced tween decks with a tub of indigo on the top.
Captain Burnie, on being recalled, said he had measured the tween decks of the Hailan, The distance was 6 feet 8 inches, and it would have been impossible to put four tiers of ani- seed tips like those produced and a row of in- digo tube tween decks.
Evidence was also given by a Portuguese clerk from Mr. Marty's office and Pan Tai, who is on Mr. Marty's compradors staff. The latter removed the damaged tins of aniseed from the Hailan to the godown, and identified thin court as the same, including the three *hl" le had got from the gcdown that morn- ing. They had not stowed any aniseed in the godown other than that from the Hailan,
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This concluded the ease for the defence. Mr. Slade then summed up for the defence. In the first place he submitted that it was per- fectly clearly made out that the case for the plaintiff was founded, except as to the fact that he had ten tins broken, on what had been con- clusively proved to be deliberate lies. It had, he thought, beyond all shadow of doubt been proved, and must have been proved to his Lord ship's mind, that in the first place it was a physical impossibility to pile four tiers of tins with a tub of indigo and a bale of cowhide all on top of one another between decks. It could not be done. There was not sufficient height to enable them to be so packed. Captain Burnie, from offcial measurements made by himself, proved the height between decks, and the height of four tiers Alone, hout reckoning" the tubs of indigo and of hides, was greater, even without lanks underneath. Then he Lordship would believe the evi- Goddard and that of the first
ot that this
reckonip submitted dence of Cap
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make out in orde
September 7th.
His Lordship delivered judgment as follows:--- This case was heard by me on the 4th and 5th instant, when I reserved my judgment.
J
The plaintiffs are merchante trading under the name of the On Fat Wing at Victoria, and the defendant is a merchant and shipowner carrying on business at the same city in this Colony.
reto deti
The plaintiff was not the only person whos aniseed got damaged. Some of the tins ing to other people also got crushed, in on zame voyage. But,how was it that these tins got so damaged P Let us consider the stowage. The aniseed seems to have been stowed in the after between decks. Each tin weighed some forty to fifty pounds, and secord- ng to the evidence given it would have almost been to court disaster to have put the tins în three tiers, that is to have placed two more tiers above the lowest one. Captain Anderson con sidered it would be no
pro, or stowage to put even two tiers unless a plank was put between About the 11th October, 1897, the plaintiffs properly supported so as to, revent pressure from shipped on board the defendant a steamship the the upper tins upon those beneath, and then Hailan, at Pakhoi, 45 tins of aniseed oil to be there should have been proper “chocking delivered, according to the bill of lading in while Captain Goddard, one of the defendant's like good order and well condition" (as when own witnesses stated that, although he thought shipped) to the plaintiffs at Hongkong. Thirty-two tiers might be safe, three tiers would not five of the tinsarrived safely, and were delivered in due course. The remaining ten got so damaged on the voyage that the oil escaped, and so little remained that the plaintiffs refused to take them, and med the defendant for the non-delivery of those ten tins, the value of which at the time in question was $170 a tin, though the prios has gone down considerably.
The plaintiffs allege that this lons of $1,700 as cocasioned by the negligent stowage of the tins, and if that contention is correct, if the crushing down and destruction of the tins arose from improper stowage, the plaintiffs are clearly | row:
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be. Now, how many tiers were there? The evidence on this point, as on some others, is, as usual in this Court, very conflicting. A this point would not at the time be specially in the mind of those who had nothing to do with the stowage, one can understand that mistakes might be made. Ko Tim, the Chir
for the plaintiffs, said there were fou The Chinese witness for the defendant, Leur Wai-
am aware that G Goddard board
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