[assumpsit – negligence, neglect and bad stowage of horses – ship’s cargo]

Ross v. Griffiths

Supreme Court of Van Diemen’s Land

Pedder C.J., 8 January 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

16 January 1841[1]

            Before Sir John Lewes Pedder, Knt., Chief Justice, and the following special jury, L.W. Gilles, Esq., foreman, J. Down, J. S. Hill, J. Cameron, A. Collett, A. Anderson, J. Atkinson, M. Gaunt, R. Pringle Stewart, R. Petty Stewart, W. Kenworthy, and T. Bartley, Esquires.

            Mr. Stephen, opened the pleadings. This was an action of assumpsit to recover the sum of £800. The declaration set forth that defendant undertook to convey for plaintiff ten horses to South Australia, but while the horses were in his charge, through negligence, neglect, and bad stowage, the horses sustained the damage set forth.

            The defendant pleaded, first the general issue, and then specially, that he did always while the horses were in his charge, take due and proper care of them, and that the loss sustained did not occur from negligence, neglect, or bad stowage. This was denied by the plaintiff, upon which issue was joined.

            The Attorney-General said that he with Mr. Stephen was of counsel for the plaintiff; it was an action for damages arising from the improper conduct of the defendant, or those for whose acts he was responsible, while conveying horses belonging to the plaintiff in the Lowestoffe to South Australia. At the latter end of September, 1839, plaintiff shipped at Coulson’s, nine horses and one at Bryan’s Bay, on board the Lowestoffe, of which defendant was owner. The vessel sailed, and when she had been absent about a day encountered considerable stress of weather. Two days after she returned to George Town at which time seven horses were dead and three were landed in a melancholy condition. The damages sought to be recovered were for the seven which died and the deterioration of the three which survived. He had no doubt he should make out, indeed he thought it would be hardly disputed, that defendant had entered into an engagement to carry these horses to South Australia, and they must be satisfied that the loss sustained by the plaintiff was through the negligence of the defendant. He should prove that the heavy and serious loss sustained by Ross arose from the unsatisfactory and imperfect fitting-up, and that had the vessel been properly fitted up, probably the accident would not have occurred. It was no answer on the other side to show that even if the fitting-up had been proper, the accident might have occurred; if the defendant could not show that an act of God caused the accident, and that every precaution had been taken in the first instance, the defendant was liable. It might be argued that Ross being an old hand, and a shipper of horses, should have seen that the fitting-up were proper, or he was not entitled to recover, but a more dangerous doctrine, and one more against law, to all parties, except the ship-owner, could not be conceived. He would shew that the foundation upon which these horses were placed, consisted of a vast quantity of sand and some casks, and, as it was pumped up through the pumps, the casks descended, and the whole fabric came down; all this was neglect and culpable negligence on the part of Mr. Griffiths, or those for whom he was answerable, He would make no observation upon the cause of action having occurred in the month of September, 1839, the delay did not originate with them; neither did he mean to say that it occurred wilfully on the other side. He would place before them a model of the Lowestoffe, and call witnesses to show in what manner she was fitted-up before sailing, and the state in which she appeared upon her return. He would leave the case in their hands, satisfied that upon their oaths they would give that attention to the case which it merited; exceeding important as it was to all parties, and showing the liabilities of parties making such contracts as Griffiths made with his client.

            The following witnesses were then called:-

Mr. Eneas Allen. - In 1839 I was clerk to defendant, and am still so; I remember Mr. Griffiths had a vessel in Sept., 1839, called the Lowestoffe about sailing for South Australia; she was commanded by James Allen; she was employed to take in freight and passengers for South Australia; she took in some horses, I believe for plaintiff; I saw Mr. Ross about shipping some horses; I know that he had horses on board going to South Australia; I did not see them; plaintiff made no agreement with me or Allen the Captain in my presence; I don’t know how many horses were shipped, or when the vessel came back, to my own knowledge; I received a letter addressed to Mr. Griffiths, and one addressed to Mr. Griffiths or myself; I handed them over to defendant’s solicitor; the letter bore the signature of James Allen; I have no doubt it was his writing; it purported to give an account of the accident to the horses; there was nothing said about the pumps, or sand-ballast shifting, or being washed away to my recollection; it gave no account how the accident happened.

            By the Court. - I saw the letter about three months ago.

            Examination continued. - I cannot say whether there was one or two letters; if there were two letters, they gave the same account; there was not to my recollection anything in the letters to the effect that I was not to tell Ross how the accident occurred; I don’t recollect anything in the Captain’s letters to the effect that the pumps were choked; I cannot swear there was not something to that effect.

Cross-examined by the Solicitor-General. - I was never examined in any other place upon this subject; I know there has been an investigation at our office into this matter; I gave the key up, and sent part of the men in; it was more than twelve months ago; James Allen, the captain was then alive; he was one that was called; James Allen is since dead; I do not remember the name of the mate of the Lowestoffe, and cannot say whether he is dead or alive; I cannot say to my own knowledge, that between the sailing and return of the Lowestoffe there had been a severe storm; [log-book put in] I believe it to be the handwriting of the chief officer of the Lowestoffe, whose name I do not recollect; this entry is 3rd October, 1839; I have no knowledge of his handwriting.

Re-examined. - I heard that plaintiff was looking for the chief-mate, but did not find him, I believe; I do not know a person named Rose then on board the Lowestoffe; I have not heard that all the seamen of the Lowestoffe are dead; the defendant is still a ship-owner; I have not heard that all the men were got rid of in New South Wales.

By the Jury. - I never heard the Captain say anything about the pumps being choked, to my knowledge; I saw the Captain when he came up, but I cannot say I had any conversation about the accident; all Mr. Griffiths’ transactions pass under my eye; it is customary to grant a bill of lading, always, generally; there was not a set of bills of lading in this instance; there was no receipt given, or it would have passed through my hands; the freight was not paid here; I cannot say what was the agreement between Mr. Griffiths and plaintiff; I cannot say any demand was made for freight; I cannot say positively whether or no there was anything in the letter about the choking of the pumps; I had several conversations with the Captain, but I am not aware it was about the accident.

By the Court. - After the arbitration there was a demand made on behalf of Mr. Griffiths for freight.

William Smith. - I am gardener to Mr. James Henty; in September 1839, I was lodging at Mr. Grayling’s; I assisted in taking nine horses from there to Coulson’s, about eleven miles from here down the river; they were plaintiff’s horses; I assisted in shipping them; it was about the latter end of September, either the 29th or 30th; they were shipped on board the Lowestoffe.

Cross-examined. - In 1939 I was living at Grayling’s as a helper; I know they were Ross’s horses because he asked me to take them down.

Robert Cotton. - I am a shipwright. I remember in October, 1839, I saw a horse shipped belonging to Mr. Griffiths on board the Lowestoffe, which vessel went to sea on the 2nd of October; I have fitted up upwards of twenty vessels for the reception of stock; I have inspected vessels going to sea by the captain’s request, and also the fittings; I saw her on the 4th; on which day I think she returned; there was a survey to inspect the fittings of the horses; I, Dr. Smith and Captain E.P. Tregurtha were on the survey; I saw seven horses dead, and three alive, very much bruised; those that were dead were also very much bruised; the fittings then were down; there were two stanchions which were hanging from the combing of the hatchway; the bottom plate had sunk from them [model put in] this is the appearance of a vessel fitted up for horses; the fore and aft plates had sunk; there was nothing to secure the bars to the side of the vessel; the back pieces were standing; if the hip of a horse got under the side rails they might by that means be unshipped; the fore and aft bottom plates rested upon sand ballast; if it had been shingle ballast I should have fitted up for ten horses, the same as the model; I generally secure the stanchions to the ceiling of the vessel, and with bottom plates to shoulder them in; if they had been so secured in sand ballast, they would not have shifted; I saw the Lowestoffe after she was discharged; fourteen or fifteen tons of sand ballast were taken out in Dr. Smith's punt; I did not observe the pumps; I consider the accident to have occurred from the fore and aft plate sinking, the upright pieces were then loosened and would fall out except where they were spiked to the combing; in calm weather it might keep the horses in, but not in rough weather; the vessel would have been properly fitted-up, had it been shingle instead of sand ballast; everything appeared very strong except the bottom plates sinking.

            By the Court - I can’t say how many stalls had been fitted-up, they were all down but two; there was room for ten horses; I went on board the vessel two or three hours after she came in.

            Cross-examined by Solicitor General. - I live in George Town, and am a shipwright; it is dangerous at sea when the rails become unshipped; I am not aware that between the vessel’s sailing and return there had been a gale of wind; there was cargo fore and aft; to the best of my knowledge the bottom plates ran in under the cargo; I did not observe upon what the ends rested; five horses were lying on the starboard, and two on the larboard side when I went on board; the live horses were on the larboard side; the fitting laid amongst the horses; it was a whole scene of confusion, except two stancheons; the live horses were on their legs; the timber of the fitting was sufficiently strong; also that of the plates; the Lowestoffe was a schooner, about 206 tones; I knew it was the Lowestoffe because I knew the captain, Allen; I saw him on board; I don’t recollect the mate.

By the Jury. - I did not examine the under side on the plates; I cannot say if there were any casks under them; I cannot say what the ends rested upon; I cannot say whether they rested upon anything else than sand; the plates had sunk right down in a line with the uprights; I should think there was a depth of five feet from the top of the ballast to the ceiling of the vessel; there was plenty of room for casks and general cargo underneath; I did not see the plates after the ballast was taken out; I cannot say whether there were any transverse pieces from the plates to the ceiling of the vessel; the stauncheons standing were spiked as they ought to have been; I cannot say if they were cleated; they are more safe when cleated; I pointed out to Captain Tregurtha and Dr. Smith that the plates had sunk about 5 inches.

Mr. John Brown. - I am a publican, but have followed carpentering and sawing; I saw the Lowestoffe, October 5th, 1839; I went on board at George Town; the horses had been taken out; the fittings were all adrift; they were clearing the sand to get to the pumps, which I understood were choked; the Captain said nothing to me about them; in the hold I saw two plates fore and aft; there were no other plates transverse or otherwise; if there had been I must have seen them; when they were clearing out the sand, I saw them get out from amongst it one cask, and hoist it up; the cask was got out of a bed of sand; there was nothing under it that I could see.

Cross-examined. -  When I got there the stalls were all adrift; when I went on board I saw the sand had shifted from under the plates, and there was nothing to support the upwrights; I only saw one cask; I was on board on Saturday about an hour and a half; there were a great many of the stanchions out, but some in the plates; there were several hanging to the combing, especially on the larboard side; there appeared to me more than three or four stanchions morticed to the plates; the cask was about fifty gallons; it was only one I saw.

By the Jury. - In the centre of the plates the uprights had gone; at the ends, several were standing.

Thomas Stanners. - I am a wheelwright; I knew the Lowestoffe, belonging to Mr. Griffiths; I went down to where she was lying opposite Mr. Coulson’s for a horse; I went on board; it was about the 29th or 30th September, 1839; Mr. Ross and I did not exactly understand each other, so I took my horse back again; I saw the captain on board, and I went down and found fault with the berths; I said to the captain, I thought the berths would give way, as the uprights were only just spiked on the combings of the hatchway; he called the carpenter in and began to blow him up for not making them more secure than they were; the uprights were halved in and spiked to the combings; had the combings been morticed and the upright with a tenant let in it would have been more secure.

Cross-examined. - That is the way I should have done; I am not a ship carpenter, but can do almost anything I am put to; the carpenter excused himself, saying he had not sufficient tools; the captain called the mate to get it done better; I am quite sure there was no cleating to the upper part of the uprights, and I told the captain when the vessel rolled they were likely to break away; there were no horses on board at that time; why I and Ross disagreed was, that I expected cash, and he wanted to give me a bill for the horse; I never sold Ross a horse either before or since.

            Re-examined. - I remember it was the 1st of October, because I had to pay Mr. Stilwell some money on that day.

            Mr. W. M. Grayling. - I keep livery stables; I am related to plaintiff; in September, 1839, I remember he took ten horses from my stables for shipment; two men named Smith and Hill took them; it was the 29th or 30th September, 1839; horses at that time was very dear, and they would have averaged £65 each; I and Ross are judges of horses; they would have sold to advantage.

By the Jury. - The horses came into my stables as they were purchased; they were all healthy and in a fit condition to ship.

Mr. William Scott. - I am an agriculturalist; I saw ten horses in September or October, 1839, belonging to Ross; they were worth £65 each on the average; they were draught and saddle horses, and some backs; there was one very large horse; I saw them in Grayling’s stables.

Cross-examined. - The large horse was worth ninety guineas; I saw the horses at Grayling’s in September, 1839; I looked at each horse, opened their mouths, and examined some of their knees.

Mr. S. Feutrill. - In November, 1839, I sold horses in South Australia; on good strong horses I obtained about fifty per cent, upon the prices here.

Dr. M. Smith. - I live at George Town; I have been a good deal engaged in shipping horses for South Australia; I generally went on board the vessels which came in, and sometimes when they were going out; I remember the Lowestoffe sailing lst October, 1839; she returned on the 4th; I then went on board; I was requested by Mr. Ross to go on board the Lowestoffe and see the fittings, and horses, and the state they were in; I went on board with Captain Tregurtha and Robert Cotton; I believe Captain T. to be at Port Phillip. When I went on board, I saw all the fittings down; I did not consider she was fitted up secure; there was a bottom plate for the uprights to be morticed into resting upon sand ballast; the sand ballast had shifted away from it and allowed the uprights to get loose, and the horses to break adrift; if these uprights had gone down into the skin of the vessel, that would have been prevented, if perfectly secured there with cleets; that was not done; the uprights were nailed to the carline of the deck, they ought to have been cleeted; I did not observe any casks amongst the sand ballast; I saw about fifteen tons taken out; that was independent of the quantity which might have been pumped up; I should say that the horses that were alive were not worth a third of their original value.

By the Court. - I cannot say whether there was anything under the fitting but sand, I saw nothing else; the under plate had sunk very considerably.

Mr. W. L. Goodwin. - I do not remember the sailing or return of the Lowestoffe; I saw the captain of that vessel at Mr. Griffiths’ about December, 1839; I was one of two arbitrators who were to decide the question between Griffiths and Ross; there were two letters produced; I think they were addressed to Mr. Griffiths from Captain Allen; they were shown to me at my request by Mr. Eneas Allen; they might have been addressed to him; I should think the letters would be addressed to the owner, Mr. Griffiths; Griffiths was in Launceston at the time of the arbitration; I cannot speak as to the time of the vessel sailing; whether Griffiths had been absent and returned I do not know, but I do know that he was upon his premises at the time of the arbitration.

            This closed the plaintiff’s case.

            The Solicitor-General moved for a non-suit, on the ground that no contract had been proved that defendant had engaged to convey the horses to South Australia.

The Chief Justice thought there was proof of the horses being shipped for conveyance to South Australia, it was also in evidence that freight was demanded after the arbitration from which he thought there was sufficient for the jury to come to the conclusion that there was a contract; he would, however, reserve the point if necessary.

The Solicitor-General. - A considerable portion of the questions put on behalf of the plaintiff, related to matters which had been long before the public, and he was convinced that it was impossible for twelve gentlemen then assembled to have passed twelve months or more in the colony without having heard of the matter in dispute, and it was equally as impossible that an impression so formed could be annihilated in one moment. Constituted as human nature is, he knew they had a different task to perform, but he called upon them to discard all impressions from their minds which they might have received upon the matter then before the court. They were to try one simple issue between conflicting parties, but not to confine themselves to what was equitable and just between them, but to apply themselves to the simple issue before the court. The allegations of the declaration had not been borne out by the evidence that defendant had contracted to convey the horses to South Australia, from the evidence of Allen there was no proof of a contract existing between Ross and Griffiths; Mr. Allen admitted there was such a vessel, but denied the contract. If, however, they were satisfied there was sufficient evidence to warrant their arriving at a conclusion that a contract existed, then he admitted that in law Griffiths was placed in the position of a common carrier, and was bound to deliver the goods he received for such purpose in safety; the acts of God and the King’s enemies excepted. He felt satisfied that from the evidence he should adduce they would arrive at the conclusion that defendant did take proper care of these horses, and that they had not been lost through the carelessness, negligence, or improper stowage of defendant, which if it was the case, it was the duty of the other side to prove. [Here the learned gentleman went into an extensive commentary upon the testimony given by the witnesses on the part of plaintiff, wishing the jury to believe that the evidence was beneath their notice.] He should leave the case in their hands, and call two witnesses whom he was sure would convince them that every precaution had been taken in fitting up the vessel.

            For the Defence - Richard McDonald. - I am a shipwright; I have been in the habit of fitting-up vessels for the reception of live stock; in Sept., 1839, I was employed by defendant to fit-up the Lowestoffe; we were obliged to get out the water casks to get at the timber-boards to clean the timbers for a passage of the water to the pumps; we did so, and swept it clean; we then stowed the water casks afresh; they rested on proper beds made for them; there was some dunnage laid between the casks and the ship’s skin; on the top of the dunnage we laid sand ballast; that was done to make a level for the horses to stand upon, and to fill up the crevices between the casks more completely than the dunnage; we then laid two pieces of scantling 6 x 4 athwart-ship in the wake of the main hatchway; they were levelled off at the end, fitted nicely to the skin of the vessel, and were spiked; the ends rested on casks filled with water; there were two plates fore-and-after; they were dropped in ¾ of an in. in each of the thwartship pieces, and spiked with six inch spikes, and were wedged up from the water casks; there was a solid foundation all along; there was a row of stanchions between the berths, and they were secured to the plates, which were morticed, and the tenants of the stanchion went through three inches where the water casks allowed; the stanchions were fastened against the combings of the main hatchway, both spiked and cleeted; the berths were divided by two thwartship bars, there was a spike went through each to secure it; I don’t think a horse could unship one of them very quietly with his hip, the bars would be below the general run of a horses hip; the upper bar was about three feet from the floor; the work was stronger than the usual work put into vessels carrying horses; she was from 150 to 180 tons; I never fitted up a vessel so strong since I have been in the colony; Shields worked with me in fitting up up the vessel.

            Cross-examined. - I don’t think Shields saw the casks stowed, he was working ashore at the time; the mate of the vessel and some of the crew assisted me in stowing the water casks; I have fitted out five or six vessels for Mr. Griffiths; I have fitted up about two besides; can’t tell their names, nor the names of their owners; I have neither journeymen nor apprentices; I fitted her up at the Queen’s Wharf; I did not go as far as Coulson’s in the vessel that I recollect; I do not know Thomas Stennar; I do not recollect seeing him before; Shields lent me a hand to put the berths up; we put up the work stronger because Mr. Griffiths was ill; we, therefore, put it up stronger than if he could have seen us; I have been in Mr. Griffiths employ about two years; before I was at work for Mr. Jennings; I am an assigned servant to Mr. Griffiths and was so at the time I have been talking of.

            Re-examined. - We could not see Mr. Griffiths, and therefore fitted up the Lowestoffe very strong, that it should be sure to please.

            By the Court. - I am sure the fore and aft pieces rested on the casks, and where they did not wedged them up.

            By the Jury. - The casks were ton butts and rested on beds, and the upper part of the cask touched the under part of the plates; the ballast was stowed before we laid the plates; we weighed up the plates where they did not travel, and even nailed the wedges to the casks; there was only one tier of the casks fore and aft; between the bilge of the casks, and the skin of the vessel there was about 2ft. 6in. which was filled up with dunnage nearly to the level with the bilge, and that was covered with sand to make a bed for the horses to stand upon; to secure the wedges, I nailed them to the casks; I used seven-inch spikes for the purpose.

            John Shields. - I am a carpenter; I was employed in fitting up the Lowestoffe, in 1839; the water casks were stowed before I began, and a level surface made; the thwart-ship pieces were bevelled off to the side of the vessel; they are called sleepers; there were plates fore and aft so they rested upon the thwart pieces at the end, and upon the casks along the centre; where they did not meet the casks we put in pieces of timber to bring up the bearing from the casks; there were scarfs an inch deep in the thwart-ship pieces to admit the plates; I had previously fitted up vessels for carrying stock; the fittings of the Essington were as strong as any I ever fitted up; in my opinion they were abundantly strong to convey ten horses to Port Adelaide; the uprights were morticed into the plates below, and spiked and cleeted into the combing above.

            Cross-examined. - I fitted up the Essington on one occasion before when she took horses - that was a successfully trip; I never heard of her losing horses when I fitted her up; I am a house carpenter; I do not know upon what the casks rested; it might have been sand or any thing else; I swear positively the stanchions were cleeted; McDonald told me the vessel was to be fitted up; he did not day for whom; I saw Mr. Eneas Allen whilst putting it up; he came and asked if Mr. Ross was on board; he said he was the person the horses belonged to which were going to Adelaide; I am quite sure I heard that from Mr. Eneas Allen; I believe McDonald went down the river in the vessel, but I do not recollect he told me so; she was not quite finished when she left the Queen’s Wharf; there was no other carpenter on board when I was there; I was on board one day only; we knocked them up in that time.

            Re-examined. - It was not a hard day’s work either; the berths were complete all but the breast-piece.

            By the Jury. - There was nothing to prevent the plates going amidships except the scarf of an inch in the end of the thwart-ship pieces.

            This closed the case on the part of the defendant.

The Attorney-General in reply would respectfully submit, that the defence had been totally unsustained as to the contract.

The Solicitor General would give up the contract, satisfied that it had been proved.

The Attorney-General in continuation. - The contract being established, the other point was deeply important to the community at large, and he would venture to contend that if they were satisfied such negligence had been proved, that the loss grew out of it, he was satisfied his Honor would direct a verdict for plaintiff. It was the duty of the other side, if they would, to have proved it to have arisen from an act of God or the king’s enemies, which they had not done; the log-book had been put in, and he had offered to admit the contents of that book if they would produce the two letters spoken of by Allen, but this had been declined by the discreet attorney and solicitor for the defendant. If the defendant professed to give a fair account of the transaction, why were these letters kept back? - Because these parties loved darkness rather than light, because their deeds were evil. If they believed the testimony of McDonald, he would recommend every one of the jury upon their retiring home, to dismiss their superintendents or overseers, and be as little from their homes as possible; because, according to his testimony, assigned servants did more work when their masters were away than when superintending. They were called upon to decide in the dark, without the twilight which might have been cast upon the case by those two letters which were no doubt glimmering in the pockets of Mr. Gleadow. He would leave the case in their hands, satisfied that unless they placed implicit credence in the evidence of men who came to praise their own work, that he should have a verdict at their hands.

His Honor in summing up, remarked, that he should not read over one tittle of the evidence unless they wished it, satisfied as he was with the close attention they had paid to the whole of the proceedings. There were two points upon which he would address them; they would dismiss from their minds every thing they had heard before, more especially that the subject matter before them had been submitted to arbitration, and whether any award had been given or not they could know nothing about. There was evidence that freight had been demanded after the arbitration, but that was no legitimate conclusion that it was due. Whatever conclusion they arrived at, must be from the evidence they had heard that day.

The jury after an absence of nearly four hours returned into Court, and found a verdict for the plaintiff, damages £386.