Gilchrist Watt and Sanderson Pty. Ltd v York Products Pty. Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1970 |
| Date | 1970 |
| Year | 1970 |
| Court | Privy Council |
Australia - New South Wales - Bailment - Sub-bailment - Stevedores and ships' agents taking possession of goods on delivery at wharf - Loss of goods - Whether relationship of bailor and bailee.
Two cases of clocks were shipped from Hamburg for delivery to the plaintiffs at Sydney. The ship berthed on September 29, 1962, and on October 2 the goods were unloaded, sorted and stacked into a shed on the wharf by the defendants, who were ships' agents and stevedores. On October 8, 1962, the plaintiffs' agents paid the defendants 10s. 1d. in respect of stacking, sorting and handling charges, and obtained their stamp stating “Please deliver.” When the plaintiffs' agents sought to take delivery of the two cases, one was missing and was never found. The plaintiffs sued the defendants for damages on the ground of negligence. The shipowners took no part in the proceedings. The trial judge held that although there was no express agreement of bailment, the defendants became bailees when they notified the plaintiffs of the arrival of the goods, retaining possession and control of them. His decision was affirmed by the Court of Appeal. On the question whether the defendants owed the plaintiffs a duty of care as bailees, it not being contested that if the defendants had exercised reasonable care the loss would not have occurred:—
Held, dismissing the appeal, that, although there was no contractual relation or attornment between the defendants and the plaintiffs, the defendants by voluntarily taking possession of the plaintiffs' goods assumed an obligation to take due care of them and were liable to the plaintiffs for their failure to do so; that whether or not the obligation could with strict accuracy be described as that of a bailee, the obligation was created by the delivery and assumption of possession under a sub-bailment (post, p. 1270D–F).
The following cases are referred to in the judgment of their Lordships:
Chesworth v. Farrar [
Foulkes v. Metropolitan District Railway Co. (
Global Dress Co. Ltd. v. W. H. Boase & Co. [
Hooper v. London & North Western Railway Co. (
Isaack v. Clark (
Learoyd Brothers & Co. v. Pope & Sons Ltd. [
Lee Cooper Ltd. v. C. H. Jeakins & Sons Ltd. [
Morris v. C. W. Martin and Sons Ltd. [
Moukataff v. British Overseas Airways Corporation [
Newman v. Bourne & Hollingsworth (
Thompson v. Nixon [
The following additional cases were cited in argument:
Barclays Bank Ltd. v. Customs & Excise Commissioners [
Duncan Furness & Co. Pty. Ltd. v. R. S. Couche & Co. [
Kahler v. Midland Bank Ltd. [
Makower, McBeath & Co. Pty. Ltd. v. Dalgety & Co. Ltd. [
Midland Silicones Ltd. v. Scruttons Ltd. [
Prins Willem II, The [
Wilson v. Darling Island Stevedoring & Lighterage Co. Ltd. (
APPEAL (No. 11 of 1969) from a judgment and order (October 15, 1968) of the Court of Appeal of the Supreme Court of New South Wales (Asprey J.A., and Walsh J.A., Hardie A.J.A. dissenting) dismissing the appeal of the appellants, Gilchrist Watt and Sanderson Pty. Ltd., from the judgment of the District Court of New South Wales (Levine J.) for $1,648.00 in favour of the respondents, York Products Pty. Ltd.
The facts are stated in the judgment of their Lordships.
M. J. Mustill Q.C. and S. O. Olson for the appellants.
Robert Goff Q.C. and John Hobhouse, for the respondents.
July 1, 1970. The judgment of their Lordships was delivered by LORD PEARSON.
The plaintiffs, who are the respondents in this appeal, carry on in Sydney a business which includes the importation and sale within Australia of watches and clocks. In 1962 they bought two cases of clocks from German suppliers. The price and the freight were paid before shipment. The two cases were shipped in a ship called the Regenstein for carriage from Hamburg to Sydney and for delivery at Sydney. The bill of lading was to “order.” The ship arrived at Sydney and on September 29, 1962, berthed at a wharf belonging to the Maritime Services Board (“the board”).
The defendants, who are the appellants in this appeal, carry on business at Sydney as stevedores and ships' agents, and in these two capacities they dealt with the cargo of the Regenstein including the two cases of clocks which the plaintiffs had bought. On October 2, 1962, the defendants unloaded the cargo on the wharf and sorted and stacked it in a shed on the wharf. This shed belonged to the board but it was being used and controlled during working hours by the defendants. The key of the shed was kept by customs officials during the night but was fetched by the defendants in the morning and returned by them to the customs officials at the end of the day (or at the close of the night shift if there was one). The defendants' head stacking clerk had an office in the shed. As goods came off the ship, he, with the aid of other stacking clerks employed by the defendants, placed the goods in appropriate positions in the shed and recorded in a book the goods and their positions. The defendants did the work of sorting and stacking them in their capacity as stevedores, and their charges for this work were paid by the plaintiffs and other consignees of the goods. The defendants also employed a number of watchmen to protect the goods while in the shed or being taken to or from the shed. The defendants also employed at least one delivery clerk and a tally clerk for the purpose of effecting delivery of the goods to the consignees. The wages of these clerks and of the watchmen were initially paid by the defendants, but the amounts of these wages and other expenses in respect of each ship were charged by the defendants to the shipowners concerned.
The Regenstein sailed away from Sydney on October 4, 1962. On October 5, 1962, agents of the plaintiffs paid 8s. 9d. to the customs and obtained a customs stamp saying “may be delivered” on the face of the bill of lading. On October 8, 1962, they paid 10s. 1d. to the defendants for sorting and stacking, and obtained their stamp saying “Please deliver” on the face of the bill of lading. But when the agents of the plaintiffs sought to take delivery of the two cases of clocks, one of them was missing. It has not been recovered.
After some correspondence the plaintiffs commenced an action against the defendants on July 2, 1964. The particulars of claim contained three alternative counts. The third count, on which judgment was given for the plaintiffs, was in these terms:
“and the plaintiff also sues the defendant for that there were...
To continue reading
Request your trial
-
The Pioneer Container (K.H. Enterprise)
...he was aware that the goods in question were not owned by the bailor. (Gilchrist Watt & Sanderson Pty Ltd v York Products Pty LtdWLR[1970] 1 WLR 1262andMorris v C W Martin & Sons LtdELR[1966] 1 QB 716applied.) 2. The shipowners became on receipt of the relevant goods the bailees for reward ......
- Lowenstein (J.) & Company Ltd v Durable Wharfage Company Ltd (Seafire)
-
KMA Abdul Rahim and Another v The Lexa Maersk (Owners) and Others
...decision in Morris v CW Martin & Sons, supra, was considered with approval by the Judicial Committee in Gilchrist Watt v York Products [1970] 1 WLR 1262. In that case two cases of clocks were shipped from Hamburg for delivery to the plaintiffs at Sydney. On arrival of the ship at Sydney the......
-
Ship Starsin, Re, (2003) 307 N.R. 100 (HL)
...question is to be found in the decision of the Privy Council in Gilchrist Watt and Sanderson Pty. Ltd. v. York Products Pty. Ltd. , [1970] 1 W.L.R. 1262, an appeal from the Court of Appeal of New South Wales. There two cases of clocks were shipped from Hamburg to Sydney. On arrival of the s......
-
Carriage Of Goods By Sea
...1912 A/S and another; Utaniko Ltd v P & O Nedlloyd BV [2003] 2 All ER 700, Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd [1970] 3 All ER 825. Per Lord Goff, The KH Enterprise v Pioneer Container, Pioneer Container ibid. [2011] 7 MLJ 145 the author acted for the Plaintiff in thi......
-
Table of Cases
...45, 163 Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd, [1970] 1 WLR 1262 (PC) ............................................................................... 27 Gill v Bucholtz, 2009 BCCA 137 .........................................................................271 Glenelg H......
-
The End of Knowing Receipt
...the assets were not held in trust before receipt or where the assets received are the traceable proceeds of the assets originally 27. [1970] 3 All ER 825 (PC (Austl)). 28. Ibid at 831-32. See also Robert Stevens, Torts and Rights (Oxford: Oxford University Press, 2007) at 10-11. 29. Akindel......
-
Third party rights under shipping contracts in English and South African law
...this (see at 731C) and Salmon LJ, although 'strongly attracted' to Denning LJ 's stance, expressed no concluded view (see at 741E). 75 [1970] 1 WLR 1262 (PC). 76 At 1267C. See also Singer Co (UK) Ltd v Tees & Hartlepool Port Authority [1988] 2 Lloyd's Rep 164 (QBD), noted by NE Palmer 'Sub-......
-
Ownership and Possession
...v Savoy’s Jewellers Ltd (1986), 26 DLR (4th) 546, 54 OR (2d) 383 (CA). 50 Gilchrist Watt & Sanderson Pty Ltd v York Products Pty Ltd , [1970] 1 WLR 1262 (PC). 51 [2007] NZSC 105 at para 15, [2008] 2 NZLR 48 at 59. 52 See Borwick Development Solutions Ltd v Clear Water Fisheries Ltd , [2020]......