Brass and Stanes v Maitland and Ewing

JurisdictionEngland & Wales
Judgment Date01 January 1856
Date01 January 1856
CourtCourt of the Queen's Bench

English Reports Citation: 119 E.R. 940

IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER

William Brass and James Stanes against Frederick Charles Maitland and John Dick Crum Ewing

S. C. 26 L. J. Q. B. 49; 2 Jur. N. S. 710; 4 W. R. 647. Discussed, Redhead v. Midland Railway Company, 1867-69, L. R. 2 Q. B. 436; L. R. 4 Q. B. 379. Adopted, Blower v. Great Western Railway, 1872, L. R. 7 C. P. 663. Referred to, Searle v. Laverick, 1874, L. R. 9 Q. B. 129. Discussed, Acatos v. Burns, 1878, 3 Ex. D. 288. Referred to, Dunn v. Bucknall, [1902] 2 K. B. 621. Discussed, Bamfield v. Goole and Sheffield Transport Company, [1910] 2 K. B. 94.

william beass and james stakes against frederick charles maitland and john dick crum ewing. 1856. First count : That plaintiffs were ownera of a general ship; that defendants caused a corrosive substance to be packed in casks, and delivered to plaintiffs, as casks of bleaching powder, to be carried in the ship : that plaintiffs and their agents were ignorant that bleaching powder contained a corrosive substance, and the casks outwardly appeared to be sufficient; but that the casks were insufficient, and the contents so improperly packed, that the corrosive contents escaped and destroyed the cargo. Second count : That defendants shipped a dangerous article, knowing it to be such, without notice of its danger; and the plaintiffs without knowledge of its dangerous nature, receiver! it, and stowed it in the hold, where it did mischief. Pleas. 3 : to so much of the first count as relates to the insufficiency of the packages : that defendants purchased the goods ready packed from third persons, named, and were not themselves, or by their servants, guilty of negligence. Plea 4, to first count: that the persons employed on the ship knew and had the means of judging of the sufficiency of the casks. Plea 10: to the second count : that the master of the ship knew, or had the means of knowing, the dangerous nature of the goods. On demurrer to the pleas : - Held by Lord Campbell C. J. and Wightman J. : that there is an implied undertaking on the part of shippers of goods on board a f en era 1 ship that they will not deliver to be carried on the voyage packages of a angerous nature, which those employed on behalf of the shipowner may not on inspection be reasonably expected to know to be of a dangerous nature, without giving notice. That, consequently, both counts were good, and the 3d plea bad. But that the 4th and 10th pleas, which they construed to amount to an allegation of facts equivalent to notice, were good, - Held, by Crompton J. : that the implied] undertaking of the shipper did not extend beyond an obligation to take proper care not to deliver dangerous goods without notice; and that on the first count and third plea, taken together, the defendants appeared to be innocent shippers of goods, dangerous in fact, but without any negligence on their parts. And that, therefore, the defendants should have judgment on the third plea. He agreed with the rest of the Court that the 4th plea was good, and the second count good ; but be construed the 10th plea as not amounting to an allegation of notice, and therefore held it bad. [S. C. 26 L. J. Q. B. 49; 2 Jur. N. S. 710; 4 W. R. 647. Discussed, Redhead v Midland Railway Company, 1867-69, L. R. 2 Q. B. 436 ; L. R. 4 Q. B. 379. Adopted, 6BL.&BL471. BBASS V. MAITLAND 941 Blowr v. Great Western Railway, 1872, L. R. 7 C. P. 663. Referred to, Searle v. Laverick, 1874, L. R. 9 Q. B. 129. Discussed, Acatos v. Buns, 1878, 3 Ex. D. 288. Referred to, Dunn v. Bucknall, [1902] 2 K. B. 621. Discussed, Bamfield v. Goole and Sheffield Transport Company, [1910] 2 K. B. 94.] First count: that plaintiffs were owners of the ship " Regina," lying at London, and bound for Calcutta, as [471] a general ship; that chloride of lime is an article of a corrosive and dangerous nature, and gives forth corrosive fumes, and is highly injurious to other goods with which chloride of lime, or the fumes thereof, come in contract^ and is an article requiring, in order that it may be safely carried on a voyage, to be packed carefully and skilfully, and in packages, not liable to be corroded by, and sufficient to keep and contain, the said chloride of lime, and the fumes thereof, during the voyage; that defendants, well knowing the respective premises, packed, and caused to be packed, a large quantity of an article, consisting, in a great degree, of chloride of lime, in sixty casks, for thi purpose of being sent to Calcutta in the said ship of the plaintiffs, and delivered the casks to the master of the ship, who then received them, as sixty casks of bleaching powder, shipped by the defendants, in good order and condition, weight and contents being unknown to the master, to be carried to Calcutta in the said ship : that, when the master so received the casks, the master and all persons employed on behalf of the plaintiffs in the ship were ignorant that bleaching powder, then by the defendants mentioned as the contents of the casks, contained or consisted of chloride of lime, or any article of the corrosive nature hereinbefore mentioned : that the casks, when delivered to the master, appeared outwardly, to the master, to be sufficient to keep in their contents during the said voyage to Calcutta, and the contents thereof appeared to be sufficiently packed ; and the master of the ship had not, and the plaintiffs and their servants, in that behalf, bad not, knowledge or means of knowledge that the said casks were not so sufficient, or [472] the contents thereof not sufficiently packed. Yet the casks, when delivered by the defendants on board the ship, were insufficient to keep in the contents during the voyage ; and the bleaching powder and chloride of lime, in the said casks, was carelessly, negligently, unskilfully and insufficiently packed in the said casks; and by and through such insufficiency of the casks, and insufficient, careless and negligent packing, the bleaching powder and chloride of lime, during the voyage, corroded and burst the casks, and got out and destroyed goods then in the ship, for the safe delivery of which, at Calcutta, the plaintiffs were, under bills of lading, responsible to the shippers, to whom they had been obliged to make good the loss. Second count: that, the plaintiffs being owners of the ship "Regina," lying at London, bound for Calcutta as a general ship, the defendants wrongfully sent to the ship, for shipment therein to be carried to Calcutta, sixty casks containing an article of a highly dangerous and corrosive nature, consisting, in a great degree, of chloride of lime, and which the defendants knew to be an article of such a nature, without giving due or any notice to the master of the said ship, or to any person or persons concerned or employed therein on behalf of the plaintiffs, of the dangerous and corrosive nature of the said article, so that the persons concerned for the plaintiffs in the ship might stow and deposit the said casks in such part of the ship that the same might not, during the voyage, endanger the other goods stowed and conveyed in the ship; and the said master of the ship and the other persons concerned, on behalf of the plaintiffs, in the stowing of the ship, not knowing of the nature of the said article, stowed and placed the said casks in the hold [473] of the ship, and among the other goods and merchandize in the ship, the same being a proper and prudent place wherein to stow ordinary articles, but an improper and imprudent and dangerous place wherein to stow articles of a dangerous and corroaive nature : that, during the voyage, the chloride of lime, and the fumes thereof, escaped from the casks; and the casks, being in the hold with the other merchandize, mixed with and corroded and destroyed the other goods and merchandize, which would not have been the case had the said casks been stowed elsewhere, as they ought to have been, and would have been, if the nature of the said chloride of lime had been known to the plaintiffs and their servants: and the plaintiffs, being responsible, to the shippers of the said goods so damaged, for the safe delivery thereof at Calcutta, under bills of lading, have become liable to make good the said damage, and have been, forced and obliged to make it good to the shippers of the said goods. 942 BRASS V. MA ITT, AND BL. & BL. 474. Plea 3 : to so much of the first count as relates to the alleged insufficiency of the casks: that defendants did not personally, by themselves or their servants, pack the said casks and their contents, or any of them, as in the first count of the declaration alleged : but that they ordered the same of Messrs. T. Burnett & Sons, of Newcastle upon Tyne, to be supplied and packed by them for the purpose of being sent to Calcutta; and the same were so supplied and packed accordingly by the said Messrs. T. Burnett &Sons, and by the defendants delivered on board the plaintiffs' said vessel the "Regina," as so supplied and packed by the said Messrs. T. Burnett & Sons; and that the defendants and Messrs. T. Burnett & Sons, and each of them respectively, did not know or believe, [474] and had no reason to know or believe, that the casks were not proper or sufficient. Plea 4 : to the first count: that the master knew that the casks contained bleaching powder, and that he knew, or had the means of knowing, and reasonably might and could and ought to have known, that bleaching powder contained and consisted of chloride of lime ; and that the master and persons employed by the plaintiffs in the said ship knew, and had the means of judging of, and knowing, the state and condition and sufficiency of the casks, and of the packing of the contents thereof, Plea 10: to the second count: that the article contained in the casks was bleaching powder, as the said master well knew; and that the master knew, or had the means of knowing, and...

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