British Shipowners Company (The) v Grimond
| Jurisdiction | Scotland |
| Judgment Date | 04 July 1876 |
| Docket Number | No. 152. |
| Date | 04 July 1876 |
| Court | Court of Session |
Lord Justice-Clerk, Lord Neaves, Lord Ormidale, Lord Gifford.
Ship—Carriage of Goods—Delivery—Risk.—
In an action for payment of the freight of part of a cargo of jute shipped for delivery ‘at the port of Dundee’ the consignee alleged in defence that the shipowners had failed to implement their contract by delivering the goods in good condition, and stated a counter claim of damages on account of certain bales which had been injured by rain water while lying on the quay, where they had been deposited. The consignee led evidence to shew that by the custom of the port the bales were checked by the shipping clerk only when placed on the consignee's carts for removal, and contended that till that time no delivery had taken place. Held that the defender had failed to instruct any custom of the port at variance with the general rule according to which delivery of each bale was complete as soon as it passed over the ship's side into the hands of the harbour porters employed for the consignee, and, accordingly, that the shipowners were not liable for the damage in question.
(Supra, p. 604.)
This was an action raised in July 1875 in the Sheriff Court at Dundee, at the instance of the British Shipowners” Company (Limited) against J. and A. D. Grimond, merchants and manufacturers, Dundee, for £95, 2s. 2d., being the balance of the freight payable by the defenders to the pursuers for the carriage of 750 bales of jute from Calcutta to Dundee, in the pursuer's ship ‘British Princess,’ in the spring of 1875, under bills of lading, by which the jute was to be delivered ‘in the like good order and well conditioned,’ as shipped, ‘at the port of Dundee,’‘unto order or assigns ‘of James Daffus, and which bills of lading were endorsed to the defenders.
The defenders admitted the delivery of part of the jute, and their liability for the freight thereof, but alleged (Stat. 2)—‘The pursuers failed to perform the obligation incumbent on them by the said bills of lading, and as carriers by sea, inasmuch as they did not take due care of and give due delivery at the port of Dundee of ninety-one bales or thereby of the said parcels of jute. The pursuers, or others for whom they were and are responsible, unduly and improperly discharged said ninety-one bales in wet weather, and deposited the same on the open quay among wet mud, and unprotected, whereby the jute was injured by rain water.’
The defenders accordingly set forth a counter claim of damages for loss on the ninety-one bales.
The defenders pleaded;—(1) The pursuers having failed to implement their contract under said bills of lading, and the defenders having sustained damage through the fault of the pursuers, or their servants, or others for whom they are responsible, are entitled to set off such damage against the freight, and they accordingly plead compensation.
A proof was allowed, which established the following facts:—The practice in regard to the delivery of jute cargoes at the port of Dundee was that after due notice to the various consignees of the ship's readiness to discharge, the bales, as they came out of the ship, were deposited on the quay, from which the consignees removed them in carts without delay. It was the custom to discharge the ship by ‘lumpers’ in the pay of the shipowner, who brought the bales to the deck, from whence they were generally run down a plank on to the quay, where they were taken possession of by the harbour porters, whom the consignee was obliged by the harbour regulations to employ for this purpose, and who were paid by him.
The ‘British Princess,’ on arriving at Dundee in the beginning of June 1875, was berthed by the harbour-master at a quay where there was no shed accommodation. The discharge of the cargo, which consisted of upwards of 8000 bales of jute, consigned to four different firms, began on 5th June. By the evening of 10th June (Thursday) the defenders had removed 320 bales of the jute consigned to them. About forty more bales of the defenders” jute which had been landed that afternoon were lying on the quay not removed. The defenders” clerk was at the quay the next morning (Friday), but he did not have the bales removed, in consequence of instructions from his employers not to send up a load of bales composed of different marks, and there was not in the lot which he found lying on the quay a sufficient number of bales of any one mark to make up a load (five bales). About noon that day (Friday, 11th June) a thunderstorm, accompanied by heavy rain, came on, and the forty bales above mentioned, along with thirty or forty others, also forming part of the defenders” jute, which had been landed that morning, were exposed to the wet, and damaged by the rain water. A few more of the defenders” bales were, notwithstanding the remonstrances of their clerk, landed during the storm, or, at least, while the quay was still wet and dirty, and were also damaged. The whole of the damaged bales, ninety-one in number, were allowed to remain...
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