12, Judge Sir Peter Gr heard an action brought by China Soap Ca., against G. E. Marden & Ca, for Tls. 2,242.10, the sum representing the value of cases of resin, which the defendant, company was alleged to have lost in the Whangpoo River in August, 1929, when a wash caused by a fast ing steamer, had made the defendant's lighter sway, with she result that a load of cargo board had been swept away.
Mr, J. McNeill represented the plaintiffs in the action and Mr. M. Reader Harris appeared for the defendant:
Ar. MeNeill in opening his case said Uhat though the sum claimed was a small one, the ease involved important principles. The plaintiffs for several years had engaged defendants to transport their cargo. from warehouse to warehouse of from ship to warehouse, and in August #1, 1929, as was the usual practice, gave Marden & Ca,, docu ments for the transportation of 900 cases of resin from the str ser Belle to the defendants? ware house.
On the night of August 31, 1929, the str, Dah Yung was travelling excessive speed on che Whangpoo River and a wash shook the 40 ton lighter which was lying at Hunt's Wharf and about 118 barrels were thrown overboard and 43 barrel were recovered, Counsel for plainti®' said that he would attempt to prove that the defendant were liable for the loss fand that they had been negligent. In the first place the defendant in correspondence to. the plaintiff referred. to themselves as lighter ren, not that there was any dispute on that point, Lightermen, said Mr. MeNeill were common carrie and og such, could be held lia for any lass incurred by them. Counsel then quoted several cates in which it was decided that lighter. men were common carriers, one of [them being Wade v. Hall in 1750.
Mr. McNeill displayed a small model of 1 lighter which he asked the court to suppose was the 40 ten lighter which had been swent by a wash, Mr. Harris objected, saying that the model was not in exact proportion to the lighter could hardly he said to te a model of the lighter.
'A. director of the plaintiff com pany, Mr. R. E.R. Morriss, gave nce as tothe manner the cements were given the defendant. In reply to Mr, Harris, witness agreed that on one occasion Marden Ca, had paid for the Toss of goods which were carried by coolies who ran away after a cloud had burst. Counsel for plainti object: fed. to this instance being given ne Inv. Harris could not prove that this had happened or when it had happened.
The hearing was concluded June 13, when the—master combat ing evidence, lighterman of the—defendant
that it) was the duty lighters evew to keep w good Took-out for such fast steamers as tho} Dah Yung. Although not on board the lighter, he was of the opinion that the si 1g Was unavoidable He did not think it was possible for the crew of a lighter to estimate the speed of a steamer or to anticipate the extent of wash, The cargo on the swamped lighter had been proerly stowed, the barrels being} placed vertically. This was the only cafe way in his opin his speech for the defence, Mr. Harris emphasized that his clients were not common carriers and that they. had limited their liability respect of such occurrences by agree ment wich the plaintiffs. "No evi fence as been given to the effect that the G. E, Marden & Ca., Ltd were or are common carriers, that is to say, that they held themselves out to all and sundry to carry for! them. at reasonable tates," Mr. Harris said. "What lighterman did during the eighteenth century, as recounted by my learned friend, Mr. MeNeill, has nothing to do with my clients' position. Probably at that time lighterman plied for hire and carried -ladies over to Vauxhall jin the morning. In this case, was understood between plaintiffs and! defendants that the latter should net as common carriers and assume Jcommon carriers' ities? The answer is obviously No.'" The fact. hands of the plaintiffs, was proof, a went on to say, that the defendants were not acting as Replying, Mr. McNeill deprecated "the habit,' which seemed to have' sprung up'in H, M, Court and was. not confined to the profession of a solicitor, of treating a case which has been heard 150 years ago- or which appeared in the Statute Books about that time, as one of no importance at all." There had been no limit of the liability on the part of the defendants, he said, and their contention that liability had been limited by their o¢eupation of as "private" carriers was un tens able. In_ practice, they were common carriers, assumed the liabi ties of common carriers, were responsible for the safe transit of argo in such capacity, and were not immune from paying damages except where it was shown that loss of or damage to property temporarily in their custody was caused by act of God or by the King's enemies.
After Mr. McNeill had quoted exhaustively from law reports and other authorities in support of his claim, his Lordship reserved judg"
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