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Decisions of the Superior Courts of New South Wales, 1788-1899

Salter v Smith [1836] NSWSupC 11

assumpsit - common carrier, liability of - negligence

Supreme Court of New South Wales

Dowling J., 25 February 1836

Source: Sydney Herald, 29 February 1836[1 ]

Thursday. - Before Mr. Justice Dowling and two Assessors.

Salter v. Smith - This was an action of assumpsit brought against the defendant, who is a common carrier, to recover the value of a tank of linseed oil, which he had undertaken to convey and deliver to Mr. James Peterson, in Jamison-street, Sydney; but which was lost to the plaintiff, owing to the want of proper care, and the negligence of the defendant.

In this case, it appeared that the plaintiff is a merchant of Sydney; and that at or about the time set forth in the declaration, he sold two tanks of linseed oil, worth about £90, to Mr. Peterson, a plumber, glazier, &c., in Jamison-street.  The defendant, who is a carrier, was employed to convey the oil from Campbell's wharf to the purchaser's residence.  He stated at the time that he must have assistance in loading and un-loading the drays, and accordingly the plaintiff's agent employed several men to load a the wharf, and told the defendant that, no doubt, he would find men at Mr. Peterson's to assist in unloading there.  On arriving at Mr. P's., the defendant applied for assistance to unload, and two men were sent out, being all who were on the spot, who, in attempting to raise the tank from the dray by means of a rope and pulley, they suffered it to slip from its position to the ground, whereby the vessel was broken, and nearly the whole of the oil lost.

On behalf of the plaintiff, it was contended, that the defendant was bound, as a carrier, to deliver the goods; and that as, owing to his negligence in not having procured proper assistance to unload the drays, a loss had accrued to the plaintiff, he was to be held liable for the consequences.  It was also contended that even if the delivery was not a stipulation by which he must be bound, still, he having acted upon it, did so at his risk, and the law would hold him accountable for any accident that occurred.

For the defendant, it was contended that the vendor was bound to deliver the goods; and that the whole of the evidence went to show that the defendant in this case undertook, by the terms of his agreement, and by his acts, no more than the mere conveyance of the property to the place of its destination - namely, the stores of the purchaser.

His Honor, in putting the case to the assessors, told them that, undoubtedly, by the common law, a carrier was bound safely to deliver goods entrusted to him for conveyance to their place of destination.  But this implied contract might be limited by special agreement, or in other ways; such as in the case of a coach proprietor who gives public notice that he will not be accountable for goods above a certain value.  The question here was, whether the defendant really did contract to deliver, or only to convey the goods from one terminus of a journey to the other; for, certainly if the nature of his agreement were merely to convey, it would be rather hard to hold that a common carrier was to become answerable for property, of whatever value, which might be entrusted to him, in consequence of an accident in the delivery, after he had performed his part of the contract by conveying it to its destination.  In order to satisfy themselves on this point, the assessors would have to look at the acts of the parties as detailed in evidence before them; and from which it certainly did appear that the defendant had stipulated for assistance in loading and unloading the drays.  It was in proof that he said, at the time of the hiring, that he must have assistance; it was shown that it required the aid of eight men to place the tanks on the drays and it was also in proof that when he suggested the necessity for similar assistance in unloading, he was told that he would get men at Mr. Peterson's.  This case was not similar to one between merchant and merchant - there the seller was bound to deliver the goods; but that principle did not hold between the vendor and a common carrier, unless there was a special agreement between the parties.  His Honor was about to read through the whole evidence taken in the case, when the assessors intimated to the court that they had made up their minds.  Verdict for the defendant.

Counsel for the plaintiff, the Solicitor-General[ 2] for the defendant, Mr. Foster.



[ 1] See also Australian, 26 February 1836; Sydney Gazette, 1 March 1836.

[ 2] John Plunkett.

Published by the Division of Law, Macquarie University