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Colonial Cases

Kinnaird v. Glover, Dow and Co., 1870

[bill of lading]

Kinnaird v. Glover, Dow and Co.

Supreme Court of China and Japan
18 June1870
Source: The North-China Herald, 28 July 1870

 

LAW REPORTS.

SUPREME COURT.

July 18th, 1870.

Before GEO. JAMIESON, Esq.

R. KINNAIRD, Master of the "Satsuma," v.  GLOVER, DOW & Co.

   This was a claim for Tls. 57.38, for balance of freight on coals from Sydney to Shanghai.

   Defendants pleaded that they received bill of lading for 571 tons and only 505 ½ were delivered; in consequence they claimed on the Captain for short delivery.

   Plaintiff, sworn, states - On the 5th Aperil, my vessel was chartered by Sydney merchants, to load a cargo of coals for Shanghai.  I was to take a cargo of not less than 500 nor more than 600 tons.  I loaded at Sydney, and the coals were put alongside by the charterers.  They were not all weighed, but shipped from different sources, and the total of 571 tons is only a guess at the quantity on board.  I could tell, from the draught of the vessel, that there were about 530 tons on board.  Mt shippers presented me with the bill of lading made out for 571 tons.  I refused to sign it for three days.  I at last did so, but added a note not to be accountable for weight.  I got a sealed letter for Glover, Dow & Co.  I am prepared to swear that all the coals taken [????] were delivered at Shanghai.

   Cross-examined - I admit that I received about 530 tons, and I delivered all that I received.  I delivered 505 tons; and account for the discrepancy by the wetness of the coals.  I only judged the weight by th4 draught of water.

   J. W. WRIGHT, for Defendants, sworn, said - The bill of lading was sent to us as consignees of the cargo.  The shippers have drawn against us for more than the value of the cargo of 505 tons; and this draft we have paid.  We regarded the bill of lading as a clear one; and sold the cargo to J. Thorne & Co., who sent a man to take delivery.  We would have a claim on the Sydney shippers for the deficit.  We are willing to allow 5 per cent loss by waste on the voyage, making 542 ½ tons.

   Judgment reserved.

   July 20.

   To-day, judgment in th4 above case was delivered by his Worship as follows:-

   I think that the Plaintiff is entitled to recover the balance of freight he here sues for.  It appears that Messrs. Glover, Dow & Co., are not the bona fide transferees for value of the bill of lading, but are simply consignees of the cargo on account of the original shippers in Sydney, and consequently they appear in Court as agents for these latter.  Now, as between th4 original shippers and the shipowner, a bill of lading is not conclusive; and evidence is admissible to show what quantity of cargo had in fact been put on board.  In this case I am satisfied that the full weight of coals put on board, after allowing for reasonable waste, has been delivered in Shanghai.  No set-off can therefore be allowed on account of short delivery, and Defendants must look to their principals in Sydney for reimbursement or any amount they may be out of pocket by the transaction. 

   It is thus not necessary, for the determination of this suit, to consider the effect of th4 clause added by the Captain to his bill of lading - "not to be accountable for any weight;" but I cannot help remarking that had the bill of lading been transferred to an innocent holder for value, so as to pass the property in the cargo, I should have been inclined to attach very little weight to that clause.  When in the body of the bill of lading a specific quantity is named, and such added clause can only be held to cover such small deficiency as is likely to arise from the nature of the cargo.  If the master does not know what cargo he has on board, he should not say he doers, and third parties cannot be made to suffer through his remissness.

   Defendants to pay costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School