HAM. Full Court of Appeal, consigting of Judge Sir Peter Grain, Assistant Judge G. W. the Hon. Mr. Justice Woed (Acting Chief Justice at Hongkong) October 20, heard the China Soap Ca., Ltd, cision in favour of G. E, Marden Ca, Ltd. given by Judge Grain on June 25.
Mr. John McNeill represented the plaintiffs-appellants; Mr. M. Reader Harris appeared for the defendants-respondents.
The facts of the case, as outlined by counsel, are briefly as follow: On August the jot August 8 resin, which had been landed at the China Merchants Wharf, from the Silverbelle to the "plaintiffs. appellants factory. They had carried all but 160 barrels before any inident took place. These 160 barrels were loaded separately on one of their lighters, The lighter was un fable to deliver the cargo to the factory on August 30, a3 it was a Saturday, or on the following day as there was no cne then authorize to receive it. The Iaodahs con: sequently moored the lighter agains: the Blue Funnel Wharf. While 30 moored, the str. Dah Yung_ passed Jdown river, causing a considerable fash, which resulted in 118 barrels Jef the resin being either swept or tilted into the water, of which number 73 were an absolute loss. The value of the 78 barrels was Tls. 284210 which amount' was claimed at the original hearing.
The plaintiffs -appellants then pleaded that the defendants-respondents "common carriers," a capacity which rendered Them fable for all loss except that caused by "Act of God" or "The King's Enemies" of by injury arising from defects inherent in the cargo carried, It was alternatively pleaded by them that if the defendants-respondents. were not "common carriers" they had Jagreed to carry carefully and without negligence whereas it was in consequence of their negligence that the loss had occurred.
'The defendants-respondents denied that they were "common carriers" and alleged that they had contracted to carry as "private carriers"; that the plaintiffs-appellants had' contracted to insure all cargo to cover risk of craft," and that they had given notice to the _plaintiffsts that they would not bel insurers of the goods. Alternatively, they pleaded that even if they had received the cargo as "common carriers" they had contracted out of part of their linbilitic such, Judge Grain decided that the defendants-exponents wore not, "com. mon carriers" and that no negligence had been proved by the plaintiffs. ppelianis, on whom the burden of day's hearing, Mr. Meid that the question of damages was not an issue and that] he had based his appeal on alleged grounds which were briefly follow: That the learned judge; in the court below had been wrong in law in deciding the original ca against his clients; that his decision that the defendants - respondents wore not "common carriers" was not consemance with the facts as proved; that he erred in holding that the maxim res ipso loquitur that the accident to the resin could rot have happened in the usual) Jcourse of events if the servants of, the defendants-respondents had, used proper care and precant not applicable; that he was wro1 in holding that the burden of proving negligence rested on the shoulders the plaintiffs-appellants, who alleged it; that his finding that there was insufficient evidence of negliglence was wrong in law; that ho erred in saying in his judgment that the evidence of a Chinese witness }was illogical because of possible jerror in interpretation, despite the Jacceptance by the defendants-respondents of that interpreta ho erred other than legally ing that there were very meagre grounds to prove negligence; that las evidence of specific neg:
Jaad been given the burden was on the defendants-respondents to prove that the accident could not have Joeen avoided; and that there was Ino evidence or insufficient evidence. ta show tat the lost cargo ha been properly stowed.
Mr. MeNeill quoted exhaustively] from legal authorities in support of these contentions. It was obvious, lhe said, that the learned judge had been under a misapprehension as t> ithe status of "common"—and "private" carriers when he gave decision in favour of the defendants-respondents. The evidence? had he then had a proper conception negligence was so apparent that
Jof that status he could not have' Jdone ottierwise but find for the Plaintiffs-respondents, Mr. Harris commenced his reply} Jiust before the Court adjourned. He will continue his speech on October. 21
Text read from the printed page and cleaned; old type leaves the occasional error.