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Colonial Cases

Kirby v. Galley of Lorne, 1875

[bill of lading, assessment of damages]

Kirby v. Galley of Lorne

Supreme Court for China and Japan
Hornby C.J., 15 December 1875
Source: The North China Herald, 23 December 1875


Shanghai, Dec. 15th.
Before Sir EDMUND HORNBY, Chief Judge.
  A judgment of some mercantile interest was pronounced to-day, in an appeal from Hiogo, between the Galley of Lorne (defendant), appellant, and E .C. Kirby (plaintiff), respondent.  We publish the text of the judgment below, prefixing it with a summary of the case:-
  Plaintiff shopped by the Galley of Lorne, from London to Hiogo, a case containing machinery. Om discharging the case, the chain of the ship discharging it broke, whereby the machinery was much damaged.  Plaintiff accordingly refused delivery, and demanded $1,980 damages.  It appeared by the evidence, that the machine broken was a patent machine, and could not be properly mended in Japan.  It would have to be sent to the maker.  If the maker sent out new pieces to replace those damaged, the machine would be deteriorated in value 25 per cent.  The invoice price of the machine was                                   £188 10 0
Freight and primage                       £  7  11  0
Charges                                             £   5   5  0
Commission                                      £  9  12  0
Interest at 12%                                £   6   8  8
£215 7 5.
  The plaintiff put in what he alleged to be a contract with some Japanese to sell the machine for 2,000 yen, or 1,980 dollars; but the court below considered the document no contract - 1st, Because the Japanese refused to acknowledge it; 2nd, because the date at which plaintiff had agreed to deliver the machine to Japanese had expired before the arrival of the galley of Lorne; 3rd, because the contract was itself informal.
  The defendant offered, before the institution of the case, to get out from the patentee the broken parts, and to pay legal interest until the machine should be repaired.  This offer not being accepted by the plaintiff, defendant, on the case being brought to trial, rescinded his offer.  During the trial, defendant wished to call on plaintiff to prove contract to carry machinery, and to produce Bull of Lading.
  The Court disallowed both requests.
  Defendant then produced Mater's copy of Bill of Lading, and argued that the terms of the Bill of Lading relieved defendant of responsibility of delivering goods in like condition as they had been received on board the Galley of Lorne.
  The decision of the Court below was that defendant pay the plaintiff invoice price of the machine, plus other charges amounting as above stated, viz., £215 7s. 5d., or $1063, plus $20 costs.
  Against this decision the defendant appealed, principally on the ground that in the Bill of Lading,
"Loss and damage from machinery," and "any act, neglect or default whatever of Pilots, Master, or crew in the management or navigation of the ship, and all and every the damages and accidents of the sea, river, and canal, and of navigation of whatever nature or kind, are excepted."
That the responsibility of the defendant was limited to £100 by the Bill of Lading, which states:
The owners of the steamer will not be accountable for gold, silver, bullion, specie, jewellery, precious stones or precious metals, or beyond the amount of one hundred pounds for any one package, unless the Bills of Lading are signed for suck goods and the value declared therein."
Again, because in evidence a witness believed such a machine when new would fetch £100 at auction at Hiogo, that must be considered the value of the machine, and that the machine had been repaired and defendant was only liable for the 25 per cent for deterioration.  Theta the defendant having made an offer, the case was dragged into Court by litigiousness of plaintiff.
  The judgment of the Court below must be confirmed.
  The exceptions in the Biill of Lading mentioned in the appellant's answer to the petition referring to loss or damage from machinery, or a priori neglect or default of master or crew in the management or navigation of the ship, does not apply in the case of a chain, used in hoisting cargo from the hold, breaking.  Such a chain is not part of the machinery mentioned in the exception, which applies only to the machinery by which the vessel is propelled; in the same way the negligence or default of the mater and crew only applies to the management and navigation of the ship, and does not apply to any act connected with the receiving, stowing, or delivery of the cargo.
  The exception with reference to the non-accountability of the ship-owners for gold, silver, &c., or beyond the amount of £100 for any one package, unless the Bills of Lading are signed for "such  goods," &c., means clearly "for gold, silver, &c.," and the contents of the package in respect of which the action was brought, not falling within the description of "such goods," it cannot be said that the owners are exempted by this exception from liability.
  I fix the amount of the costs of the appeal, beyond the Court fee paid by the appellant, at $60.

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