The judgment of Mr, Wood was as folfo 'The facts in thi are as fol-Jows:—On August 1% 1927, the made a contract by corres Pondence with references to impor" clearances by the respondents of the appellants' cargo at Shanghai. This court was informed by Counsel that the term of this contract was three years. It was agreed that for the 'Sum of $1.80 per ton the respon. ents should receive the appellants' cargo from the place of storage and deliver the same to the appellants or their order in Shanghai. The respondents stipulated that documents of title to the goods should each them in. general two working 18 before the free storage Perle expired. took tion ved." The respondents advised the appellants that—"ex-ort and import cargo as necessary should be covered by insurance include risk of craft." The respondents further promised their assistance without charge in relation to Customs, Transportation and Shipping.
The respondents owned lighters which they used for the purpose of! futflling this contract. They employed Chinese lighterman.
Tu pursuance of this contract, on Saturday, August 3i, 1929, the respordents received on to their light. er at the China, Merchants Power Whart 160 barrels of rosin the property of the appellants for conveyance to the appellant's Pactory.
"The lighter proceeded to Holts Wharf and tied up there to await discharge, arriving there at 6 p.m vessels passed near to the lighter during the night of August On the evening of Sunday, September 1, at 10.50 pin. the str. Dah Yung passed close to the lighter travelling fast and causing. s0 heavy a wash a3 to dash the lighter against the wharf several times with the result that a number barrels fell overboard. In all 118 fell into the water of which 45 were recovered; 73 barrels were lost in Fespect of which loss damages are here claimed.
Te fg to be noted that the lighter question has Leen described in the report of the marine suryeyort Messrs. Eisler, Reeves & Murphy, Incorporated, as "a native cargo boat."
The crew of the lighter who were servants of the respondents consist fed of five men. The lighter wat tied up to the wharf at both ends. 'A watch was kept by the crew during the. daytime, both to prevent thefts of cargo and also, whenever steamers passed, to fend the lighter off with poles from the what During the night the crew also ko watch for thieves but did not look for approaching steamers. At the time' of the occurrence the rev were watching for thieves only. they had been alert to notice the approach of steamers there was no cbatruction to prevent them from observing the passing traffic. The earned trial Judge in his judgment thas remarked "it appears that there were many other lighters, tied up the wharf." But it has beea agreed before us that a strict Shalysis of the record will-not sup port this statement by evidence. If] The crew had been ready to act and had not been taken by surprise, Choy might have by fending off the lighter from the wharf, "prevented oF diminished the loss.' Or again, such action might in the cirfeumatances have been wholly {ineffective and the occurrence might still have proceeded to a like result, As it was, they took no steps and the loss ensued.
"At the present stage in these proceedings it has not been seriously intended that the lighter was over-fended or that, the cargo was PeThe appellants were "insured in roperly. stowed.
respect of this loss and have been Indemnified under their insurance policy. The underwriters have been Subrogated to the appellants' rights in this action.
With the exception of the question of the presence of other lighters (on which nothing of importance depends) the above facts fare undisputed and were accepted by the learned trial judge. There has been no conflict of testimony wich reference to them.
'The appellants' claim for damages has been supported both here and below upon the following. ground:
Firstly that the respondents are common carriers and are thus in lay lable to the appellants as insurers is loss (unless they not suggested, to an act of God and been their servants, namely, their omission to keep a look-out for passing] ships on the river and to fend off the lighter from the wharf. The respondents have contended that they are not common carriers and also that as private carriers they have not been negli learned trial jadge on both these: issues decided in favour of the: reepondents and gave judgment for them.
On the first point, the learned rial " judge has already fully reviewed the authorities in the judzment here appealed from. The question whether a party is or is not a common carrier is one of fact and in these proceedings the matter seems to me to have teen clearly cottied. in the respondents? favour] by the evidence given for the ap-.petiants in the court below by Mr. Morris, an_offeer. in the appellant company. He himself negotiated! the contract of carriage with Mr, Marden, the managing director of the respondents. Mr. Morris said "Tthink T may say that we have #e-garded Mardends responsible for negligence of service and not otherwise." By this evidence the appellants are, bound. Ib is useless thereafter to submit to the Court that the appellants. looked. to the respondents. as. insurers -of the! safety of their cargo. The appel-ants themselves regarded the con-track as one of private carriage.
Farthermore, I sick in vain in the evidence recorded in the appellants' lease below for any -scintilla of [positive evidence - that the respordents are to be classed as com. mon carriers. The learned counsel for the appellants in his arguments hhere has apparently asked—this court to infer from: the fact that the respondents owned cargo lighters that the character of common carrier attaches to them. Even if} this were in general a sound proposition it would yet be negatived the present ease in which the owners of the ave through their representatives, witness lared that the contractual relation here involved differed from that existing between a customer and a feommon carrier. Nor do the an thorities cited (og. "The Liver 7 Ex. 267: also LR. 9 Ex, 338) Atkali Company v Johnson" show that a lighterman must in" all] circumstances be found to be [common carrier.
The status of a common carrier pot to be inferred from his vveh'ele but from the course of his mess, and in respect of this narter the appellants at the trial offered no evidence. A carrier parson who entered into an agreement with the public to carry goods which becomes once a complete and binding contract when any person brings him the goods and makes the' request that he should carry them to a certair(person or place, To make such a contract binding -upoa him as a common carrier it is not necessary that a specie sum of money should be promised or agreed upon but where that is not the case there is an implied undertaking upon the part of the bailor that the remuneration shall be reasonable.
(Balfour Browne "Carriers" 1873 p42) Neither the status common carrier has been ished in the resyecdents by appellants nor yet tu8 different, but with a similar liability as contemplated by Brett J. in "The Liver Alkali Company—v—Johnson" (LR. 9 Ex 338.) for the defence on this point, Mr. Marden's evidence is definite, that in no sense has he held the services of the respondent company at the disposal of all persons equally, or at the sporal of any person apart from special contract.
Tt does not appear that the respondent company look for or accept the ordinary remuneration for carriage, nor that they have included in their charge a premium for insurance of the safe delivery of the goods, in addition to the ward for the labour and expense of carrying them. Even if it were possible to the appellants to produce evidence of advertisement by the respondents on which to found more substantially their allegation in this matter yet, as I" have ready said, on the evidence her? given {t has been shown that the contract of carriage between these parties was a particular contract 2 was not one governed by th:
ples of law relative to common carriers, The duties of the respond-cents under this cofitract were composite, and included functions other than those of carriage. With respect, on this issue, I adopt the conclusion arrived at in the court) below.
In the' alternative, the appellants claim that the respondents are nevertheless liable in damages for the consequences of any negligence their servants. It is at this point} that the ease has been most stoutly argued. The liability in law of the respondents for any proved negligence is admitted ty both Jsides, The matter disputed is whether negligence evidence rightly to be attributed to the respondents or not.
Text read from the printed page and cleaned; old type leaves the occasional error.