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Colonial Cases

Wilkin and Robison v. Japp, 1872



Wilkin and Robison v. Japp

Supreme Court for China and Japan
Hannen AAJ, 28 February 1872
Source: Japan Weekly Mail, 2 March 1872 [281]




Wednesday, February 28th.

 Before Mr. Acting-Assistant Judge Hannen.

WILKIN & ROBISON versus Captain JAPP, of the [Couluckyle.]

   Mr. F. V. Dickins represented the defendant.

The Court delivered the following decision in the above case.   

This is an action by the consignees of cargo against the master of the vessel on which the goods were shipped, for short delivery and breach of contract, and the plaintiffs claim special damages over and above the value of the goods.

   The master had signed bills of lading in the ordinary form for "one hundred bales merchandise, one truss, and one parcel sample."

   On the bill of lading the following words were stamped:

"The within-mentioned sample packages and parcels the master engages shall be delivered immediately upon arrival."

   The ship arrived on the 18th of December; the plaintiffs immediately sent for their sample truss and pattern parcel but were only able to obtain the latter.

   Owing to their not having the sample truss, the plaintiffs allege that they were unable to sell the goods until the 6th of January, when, a portion of the goods themselves having been delivered, they were able to realise the full market value; but this latter had fallen when they actually effected a sale to $4 30 per picul. Of all this the defendant had notice, and the plaintiffs claim the value of the sample truss, and the difference between the price actually obtained for the goods and their market value on the day of the arrival of the ship. 

   The defendant denies his liability for any damage caused by the non-delivery of the goods, and further denies his liability for the truss itself on the ground that he is a gratuitous bailee.

   Now, by the 3rd section of 18 and 19 Victoria, c. III, it is enacted "that every bill of lading in the hands of a consignee, or endorsed for valuable consideration representing goods to 

have been shipped on board a vessel, shall be conclusive evidence of such shipment as against a master or other person signing the same notwithstanding that such goods or some part thereof may not have been shipped with certain exceptions within which the present case does not come.

   We have, therefore, conclusive evidence that the goods were shipped. And the fact that no freight was paid for this specific parcel, even if clearly established, will not avail the defendant, for two reasons - first, because I think there was a consideration for the carriage of these good similar to the consideration if a railway company received for carrying a passenger's luggage; and, secondly, because the law is, that the confidence indicated by undertaking  any service for another is a sufficient legal consideration to create a duty in the performance of it.

   (See Coggs and Bernard, 1, Smith's Leading Cases, page 193; Shllibeer v. Glyn, 2' Meeson v. Welsby, 143; Whitehead v. Greetham, 2, Bing. 404.) And in this case the onus is on the bailee to prove that it occurred through no want of ordinary care on his part.  (See the notes to Coggs and Bernard, p. 205; and Reeve v. Palmer, 5, Common Bench, New Series, p. 84.)  No attempt was ever made in the present case to show that the parcel was lost through no want of ordinary care, and I am therefore clearly of opinion that the defendant is liable for the value of the truss.

   The plaintiffs contend that the defendant has contracted not only to deliver the truss safely to the consignees, but he has moreover contracted to deliver it immediately. All had evidence to show that "immediately" meant a reasonable time or about 3 to 5 days from arrival.

   As to this portion of the claim the defendants say first, that they did not contract as alleged and secondly that there was no consideration for the promise.

   The questions for the Court are:

   [1.] - Was there any binding promise?

   [2.] - What was its exact nature?

   [3.] - Supposing these two questions to be answered in favour of the plaintiffs was there a breach of such promise and lastly for what damages is the defendant liable. 

   For the reasons I have given for holding that there was a sufficient consideration to support the promise to carry safely I am of opinion that there was sufficient consideration to support the promise to "deliver immediately on arrival." Once the valid contract and breach was established it is for the defendant to show that it occurred through no fault of his. This he has not attempted to do.

   But Mr. Dickins argues that this clause impressed on the Bill of Lading "merely contains a promise by the Captain not wilfully or negligently to refuse delivery when demanded."

   This construction of the contract makes the words in question mere surplusage, for the Captain would be liable in a case like the present if he wilfully, or negligently refused delivery when demanded, when without the words on the Bill of Lading. They must mean something and the construction is for the Court. The construction I put upon these words is this - that the master engages to deliver these sample parcels within a reasonable time dependent upon the circumstances of the ship, the harbour and many other surrounding facts. (This is substantially the same construction as seemed to be out upon the clause by Mr. Whittall).

   Now it is manifest that there has been a breach of this contract for no special circumstances were alleged in explanation of the fact, while was admitted that the sample truss had never been delivered at all. There is therefore, in my opinion, a valid contract and a breach, and the next question is as to damages. I confess that I have been in a great difficulty as to this last question, but as it is one which must be determined on the merits of each case as it arrives, my conclusion, even if erroneous need not bear any bad fruit hereafter.

   Were I sitting with a jury I should direct them, in the words of Baron Aldersons delivery of judgment in the case of Handley versus Baxendale 9 ex 341, to consider "damages might fairly and reasonably be considered either arising naturally, that is - according to the usual course of things, from the breach of contract itself, or might reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it."

   Bearing this principle in mind myself sitting as a jury, I cannot say that the damages here claimed are such as can be considered as the natural result of the breach of contract. The non-delivery of the sample truss was possibly a causa non, but it was not the only one, and it is not the cause state of the loss. The direct cause of the loss was the falling state of the market, and one of the causes of the inability to sell was the disinclination of the buyers to settle upon the production of the pattern parcel only, and the damage cause by this, as well as the fall of the market, was not in my opinion in the contemplation of the parties at the time of making the contract.

   I have thus distinguished between  what is to be taken as my rcling of the law and what my verdict sitting as jury, because the first is subject to appeal, and the second is not, except under peculiar circumstances, and also because I wish to be understood, that I do not say that such a claim as this could not by proper evidence be substantiated; what I wish to be understood is that when such a claim is made it is dependent upon the surrounding circumstances and the evidence presented to the jury or the Court, whether the loss alleged to have occurred comes within the rules in Handley versus Baxendale.

   Looking at the circumstances and the evidence before me in this case I cannot say that it does, and the damages will therefore be the value of the sample truss only.

   There will be verdict for plaintiff with $10.20 damages and costs.

   His Lordship said in connection he should like to add that on one hand owners if they do not wish to expose themselves to such claims, they should come to a clear understanding with shippers as to the engagement entered into or the liability entailed by the insertion of these clauses in the Bill of Lading and as these matters were now being discussed at home very fully, it was a good time to make a representation on the subject. He also added that he would have been able to give his decision much sooner if he had had the assistance of Counsel on both sides and he thought it was a case in which they might have advantageously been employed.

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