Dunlop & Company v Lambert
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1839 |
| Date | 16 June 1839 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 824
FROM THE COURT OF SESSION.
Mews' Dig. iii. 197; xiii. 552; 7 Scots R.R. 266. As to consignor suing, see Cork Distilleries Company v. Great Southern and Western Railway Company, 1874, L.R. 7 H.L. 269. Cited in Colonial Insurance Company of New Zealand v. Adelaide Marine Insurance Company, 1886, 12 A.C. 139; and cf. Great Western Railway Company v.Bagge, 1885, 15 Q.B.D. 625, on point as to delivery to carrier.
[600] APPEAL from the court op session. WILLIAM DUNLOP and Others,-Appellants; GEORGE ANTHONY LAMBERT and Others,-Respondents [March 1, 5, 6, 1838; July 16, 1839]. [Mews' Dig. iii. 197; xiii. 552; 7 Scots R.R. 266. As to consignor suing, see Cork Distilleries Company v. Great Southern and Western Railway Company, 1874, L.R. 7 H.L. 269. Cited in Colonial Insurance Company of New Zealand v. Adelaide Marine Insurance Company, 1886, 12 A.C. 139 ; and of. Great Western Railway Company v.Bagge, 1885, 15 Q.B.D. 625, on point as to delivery to carrier.] Though, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the latter is the proper person to bring the action against the carrier, yet if the consignor make a special contract with the carrier, such contract supersedes the necessity of showing the ownership in the goods, and the consignor may maintain the action, though the goods may be the property of the consignee. The question whether the goods were delivered to the carrier at the risk of the consignor or consignee, is a question for the jury. The delivery of goods to a carrier by a consignor, does not necessarily vest the property in them in the consignee. This was an appeal from two interlocutors of the Court of Session, pronounced under the following circumstances :-The Appellants were wine and spirit merchants in Edinburgh, and the Respondents, most of whom resided at Newcastle, were the owners: of a steam vessel called the Ardincaple, which was in the habit of passing between Leitli and Newcastle, conveying passengers and goods. On the 31st of August 1833, the Appellants shipped on board the Ardincaple a puncheon of spirits, addressed " Mr. Matliew Robson, Collier-row, by Houston-le-Spriiig; W. D., No. 1369 ; 105 gs.; care of Mr. Lattimer, Newcastle." [601] The bill of lading subscribed by the agents for the owners on this occasion, dated the 31st August 1833, declared the goods to be deliverable " unto Mr. Mathew Robson, Collier-row, by Houston-le-Spring, or to his assigns.,-freight for the said goods, being paid by William Dunlop and Co." The obligation of delivery at Newcastle, undertaken by the owners, was qualified in express terms with the ordinary exception, " all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind, excepted." During the severe weather of Autumn 1833, the Ardincaple, in the course of a voyage from Leith, encountered one of the violent tempests which then prevailed. The gale gradually increased until it blew a hurricane. One heavy sea struck the vessel on the larboard quarter, and broke on board with such violence as to sweep off every person then on deck, except the man at the helm, being in all nine individuals, of whom six, including the master, perished. The mate and the remaining crew, finding that the tempest rather increased, and that the vessel, notwithstanding 824 DTJNLOP V. LAMBERT [1838, 1839] VI CLARK & FINNELLY. their utmost skill and diligence, was labouring in imminent, peril, determined to throw overboard a part of the ca,rgo, for the safety of the remainder, asi well as of the vessel itself, and of their own, lives and the lives of the passengers. Accordingly, and in the view of the threatening and perilous circumstances in which they were placed, and which presented no appearance of abatement, they made a jettison of the heavy goods composing the cargo, which eventually proved the safety of the whole concern, as the vessel was thereby lightened, and enabled to reach its destined port. On the same day on which the cask was shipped, the pursuers, William Dunlop and Co., wrote a letter of [602] advice to. Robson, the vendee, notifying the shipment, and transmitting to him ant invoice, along with the bill of lading, by which the goods were made deliverable to him, or his assigns. In the same letter they informed him that they had drawn on him, by bill at three months, payable in London. The letter contained the following charge, which made part of the sum for which the pursuers drew on the vendee: - " To freight paid to Newcastle, 10s.; insurance, one-half per cent., 8s." In point of fact, no. insurance had been effected, and the pursuers had no. order, instructions, or power, to effect insurance. In the end of this letter, the pursuers say,-" The spirits1 will be in Newcastle on Monday morning, if all is well." The Ardincaple arrived in the harbour of Shields on the evening of the 2d September ; and, as soon as the cargo was overhauled, it appeared that the cask of spirits, the property of Mr. Robson, was among the goods jettisoned under the circumstances above stated. The Appellants commenced a,n action against the Respondents to recover the value of the cask of spirits, and the Lord Ordinary, by an interlocutor of June 1835, established the pursuers' title to maintain, the action. The following issues were then, prepared as exhaustive of the whole cause: - " 1. Whether on or about the 31st day of August 1833, the pursuers shipped a puncheon of spirits on board the Ardimcaple, of Newcastle, a vessel belonging to the defenders, for the purpose of being conveyed to Newcastle, and delivered to Mathew Robson, Collier-row, Houghton-le-Spring, care of Mr. Lattimer, Newcastle? And, " 2. Whether the defenders wrongfully failed to deliver the said puncheon to. the said Mathew Ro'b-[603]-so n, and are indebted and resting owing to the pursuers in the sum of £75 9s., or any part thereof, with interest thereon, as the value of the said puncheon, of spirits? " The case came on for trial before the Lo.rd President and a jury, on 21st March 1837. The Appellants proved their case by several witnesses and depositions, and among the depositions they put in that of Robson, in which it was stated that he received an invoice of the puncheon, and that a bill wasi drawn by William Dunlop and Co., upon this deponent, for £75 17s., the amount of such invoice, and was renewed when due: That the said bill was so renewed in, consequence of another puncheon being sent a month later: That.deponent desired Mr. Dunlop to insure the same, and to1 charge the expenses of that, and the freight in the invoice, to said deponent: That the said puncheon was to be safely delivered on the quay at Newcastle-upon-Tyne, before deponent was to consider it his property: That deponent has not received a farthing for the loss: That deponent made an affidavit that the puncheon was ordered from Messrs. Dunlop, and lost at sea: That deponent got a letter from Newcastle, from the agents of the Ardmcaple there, stating that he had to make an affidavit before a magistrate, that the puncheon that was lost was his : That the said letter was a circular letter : That deponent made that affidavit, supposing it to be a. matter of form, to. enable Messrs. Dunlop, of Edinburgh, to recover the amount of insurance: That deponent had no idea that Messrs. Dunlop had acted at that time as their own underwriters: That the loss of said puncheon did not cost deponent one farthing: That deponent believes that the loss of the said puncheon wasi sustained by Messrs. Dunlop. [604] No evidence was adduced by the Respondents, but they insisted on the objection to the title, founded upon: the fact of the puncheon in dispute having been invoiced, and made deliverable to; Robson. His Lordship, in directing the jury, held that the Respondents' objection to the Appellants' title, as raised at the trial, was competent, and that the objection was valid in itself. Hisi Lordship directed the jury thus:-that " the pursiuers appeared to be entitled to. a verdict upon the first issue, and that the only question in dispute 825 VI CLARK & FINNELLY. DUNLOP V. LAMBERT [1838, 1839] related to the second issue; and did direct the said jury, in joint of law, that as it appeared that the pursuers, a,t the time of furnishing the puncheon of spirits ia question, had sent am invoice thereof to Mathew Robson, the purchaser, bearing that the same had been insured, and that the freight thereof and insurance were charged against the said Mathew Robson in the said invoice, the pursuers were not entitled, in law or interest, to- recover the value of the said puncheon from the defenders." The Appellants took an exception to this charge. The jury, however, adopted the law of the direction, and then returned a verdict finding that the Respondents were liable for1 the loss, and that they wrongfully failed to deliver the puncheon to' Mathew Robson; and on the last point of the second issue, they found, " that the defenders (Respondents) are not liable to the pursuers (Appellants) for the value of the spirits, because they were not, at the time of the loss, the rightful owners of the goods in question, their invoice showing that their right in the whisky ceased at the time of shipment." The bill of exceptions was afterwards heard before the Court (along with a separate motion by the Appellants for a new trial) ; the pursuers maintaining, in [605] support of their exception, that the objection was not well founded in itself. The Court pronounced the following interlocutor, disallowing the bill of exceptions, and refusing to grant a new trial:-" Edinburgh, 30th June 1837.-The Lords, after hearing counsel for the parties, disallow the bill of exceptions in this case; refuse the motion for a rule to show cause why a new trial should be granted; find the defenders...
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