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Colonial Cases

Lyell v. Butterfield and Swire, 1881

Lyell v. Butterfield and Swire

Provincial Court, Chefoo

McLatchie, 13 August 1881

Source: North China Herald,   26 August 1881

IN H.M.'s PROVINCIAL COURT AT CHEFOO.

13th August, 1881.

In the matter in which THOS. LYELL, plaintiff, versus THE AGENTS OF Messrs. BUTTERFIELD & SWIRE, AGENTS FOR S.S. Larch, Defendants.

  In this action the plaintiff seeks to recover damages for loss alleged to have been sustained by him in consequence of delay in delivery of a case containing chemicals and marked HKD in a diamond, shipped on board the s.s. Larch, and consigned to him at Chefoo, but which case was, through negligence, over-carried to Newchwang and thence brought back here; he also claims for loss by breakage of one bottle of sarsaparilla value at $9, as per account put into Court, and which breakage he considers to have been caused by pressure, the consequence of negligence in stowing.

  The defendants, however, deny their liability in toto.

  1. Because no special time was mentioned by which the case was to be delivered;

  2. Because by the clauses of the bill of lading they consider plaintiff has no right to claim loss or damages (if any were sustained by him) caused by the delay of a few days.

  Now, this case divides itself naturally into two claims; one for damages sustained by plaintiff through delay in delivering the said case marked HKD; the other for the value of a bottle of sarsaparilla alleged to have been broken on board the Larch by pressure.

  As regards the latter claim, which I will dispose of first, there does not appear to be sufficient evidence to prove the plaintiff's assertion that too much iron cargo had been placed above his box, thereby causing the pressure plaintiff refers to - indeed, he shows himself that it is upon his own conviction only that he makes that assertion.  Moreover, in his petition he states that the case was received in a broken condition, and yet in his evidence he says it was in very fair order and condition; and the box as produced in Court does not appear to have received harm from pressure, and shows no particular signs of iron-dust.  Consequently I do not consider it to have been proved that the breakage was caused whilst the package was on board the Larch, and I must dismiss this claim.

 Now as regards the other claim, viz., for damages on account of loss alleged to have been sustained by plaintiff's business in consequence of delay in delivery through over-carriage: the over-carriage, and consequently the delay in delivery are admitted, but the defendants deny all liability on two grounds as before mentioned:-

  1. - That no specified time had been stated for the delivery.  Now, it is held in law that when no particular time has been specified, it is expected that delivery shall be made within a "reasonable time."  In the present case the s.s. Larch arrived in Chefoo on the evening of the 23rd May, and did not leave till the morning of the 26th, which gave ample time to land the package.  It was not however landed, but was over-carried to Newchwang, brought back thence and delivered here on the 3rdf June.  This I cannot consider to be "delivery within a reasonable time."

  2. - Defendant's second contention is that by the terms of the bill of lading they are exonerated from all liability whatever arising from any negligence or misfeasance on the part of their servants.  That negligence there was, is sufficiently shown by the fact of this package having been stowed amongst the Newchwang cargo, when the bill of lading shows, it was well known to have been shopped for Chefoo; and through this error in stowage it was, that the said package was over-carried to Newchwang and brought back again before being delivered.  Now, the clause in the bill of lading to the effect that the defendants will not be responsible for negligence is a special notice, and not one of the exceptions authorised under the Merchant Shipping Act.  Such special notices are allowed to be made by a common carrier, but they only exonerate him for loss occurring on uninsured goods without fault on his part, while in the sense of negligence they do not do so; and the master and owners of a vessel are liable for injury cause by the negligence of their servants, notwithstanding exceptions in the bill of lading.  They are also liable for any damage through negligence in wrong stowage.   Moreover, should it so happen that through such wrong stowage the cargo cannot be found when applied for, and so delivery not made, the carrier is not protected under the Act 11 George IV., and 1 William IV., against liability to answer for damages sustained by default in not delivering.

  Now it appears to me that it was negligence in the stowage which caused the case in question to be over-carried, for it was stated in evidence that though searched for it could not be found when the steamer was first in Chefoo - and against the consequences of this negligence it is my opinion, fore the reasons I have given above, that the clause in the bill of lading does not protect the defendants.  I must therefore record judgment in favour of the plaintiff for such damages, (if any), as he may prove his business has sustained through such delay in delivery.

  As this Court in not in a position to assess what damages, (if any,) the plaintiff has sustained, the assistance of experts will have to be called in to do so; and this Court is ready to allow the parties to this suit, according as those parties may prefer, to agree between themselves as to whom they would wish to refer the matter of assessment to submitting the names for approval to this Court; or it will itself nominate an expert ort experts to make such assessment of damages.

  Costs divided.

  [L.S.] (Sd.,) H. P. McCLATCHIE, Consul and Judge.

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