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Colonial Cases

Hewett v. Plenge, 1886

[sale of goods]

Hewett v. Plenge

Civil Summary Court, Shanghai
Mowat AJ, 12 January 1886
Source: North China Herald, 13 January 1886

Shanghai, 12th January 1886
Before R. A. Mowat, Assistant Judge.
W. HEWETT & Co. v. H. PLENGE (Master, s.s. Madras.)
  This was a claim for Tls. 23.75 for one ton 18 cwt., of coke short delivery or cargo, at Tls. 12.50 per ton.
  Mr. H. J. Such, of Messrs. Hewett & Co., appeared for the firm. He produced the bills of lading for 350 tons 7 cwt. of coke, and said the amount delivered, as weighed by the wharf authorities, was 348 tons 9 cwt.
  Captain Plenge admitted these facts, but said here as always a slight waste, arising partly from the coke being weighed in in large loads and weighed out in small loads, and partly from other causes.  He considered this a very good delivery, as the waste as only about half a per cent.  The coke had been weighed in during wert weather, and there was a quarter to half a ton of coke dust still in his ship, which accounted for part of the waste.
  Mr. Such said he did not deny that it was a very good delivery; but he was instructed from home that there was a special arrangement in this case that he was to receive from the ship the exact amount.
  His Honour strongly advised that the matter should be settled at home, as it was impossible to get evidence here as to the alleged arrangement or as to whether the coke as wet when shipped.
  Mr. Such, however, pressed the claim, saying that he would refund the money if the consignees at home agreed to it.
  Captain Plenge asked Mr. Such if it was not a custom of the port to make a certain allowance in the case of delivery of cargoes of coke and coal.
  Mr. Such said he knew of no such custom.
  Captain Plenge, having been sworn, stated that the coal was shipped at Newcastle from open trucks during very wet weather, the loads weighing about a ton and a half each; and weighed out here in loads of about 1½ cwt. each.  There was always a certain waste in cargo of coke and coal, ranging from 1 to 1½ to 2 per cent in the case of coke, and still more in the case of coal.
  In answer to Mr. Such, Captain Plenge said he did not know that it was usual where a ship was no responsible for weight to put a clause to that effect in the bill of lading.
  His Honour said that the case seemed very clear.  The Captain seemed to have delivered the coal that was shipped on board, and the mere fact that it did not turn out precisely the same weight was sufficiently explained by the different circumstance under which it had been weighed in and weighed out.  He believed if it had been weighed out in large quantities, in the same way that it was weighed in, the weights would have been identical.  There would be judgment for the defendant.

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