Scottish Court of Session Decisions

This was an action brought in the Sheriff Court, Dundee, at the instance of The Knight Steamships Company, Limited, against Fleming, Douglas, & Company. merchants, Dundee, in which the pursuers craved decree for the sum of £61, 7s. 6d., being the balance of freight due by the defenders as consignees of part of a cargo of jute discharged from the pursuers' steamer “Knight Bachelor” at Dundee.

The defence was that some of the jute consigned to the defenders had sustained loss and damage to the extent of the sum sued for through the fault of the pursuers, and that the defenders were consequently entitled to deduct that sum from the amount of the freight.

The defenders averred— (1) that the “Knight Bachelor” discharged her cargo at a wharf or jetty which was intended for landing imported cattle, and which was not suitable for the landing of jute, there being no sufficient shed accommodation; (2) that the jute received injury from being discharged during wet or snowy weather; and (3) that part of the defenders' jute was discharged by the pursuers or those for whom they were responsible on to a roadway to the west and a piece of vacant ground to the east of the byres attached to the jetty where the ship was discharging; that this piece of vacant ground was in process of being reclaimed from the bed of the river Tay, and consisted of mud dredged from the river, mixed with ashes and other rubbish; that it was soft, wet, uneven, and unprotected from the weather; that both it and the roadway were quite unsuitable for laying jute upon; that precautions were not taken to prevent injury to the defenders' bales'; and that in consequence 435 of them were damaged by damp and mud. The allegation No. 2 was not ultimately persisted in, and the Court, on appeal, found in fact that the berth allotted was suitable for the discharge of the “Knight Bachelor's” cargo.

A proof was allowed, the result of which may be summarised as follows:—The bills of lading held by the defenders provided that the jute was “to be delivered subject to the exceptions and conditions hereinafter mentioned, in the like good order and condition from the ship's tackles (where the ship's responsibility shall cease) at the aforesaid port of Dundee.” Among the exceptions and conditions referred to was a clause in the following terms:—“The goods to be taken delivery of from the steamer immediately she is ready to unload, and if the goods are not thereupon removed by the consignee, the master or agent is to be at liberty to land and warehouse the same, or, if necessary, to discharge into hulk, lazaretto, or hired lighters at the risk and expense of the owners of the goods.”

The “Knight Bachelor” arrived at Dundee on 13th January 1897 with a cargo consisting of 42,045 bales of jute belonging to several different consignees, part of which cargo, amounting to 6497 bales, was consigned to the defenders. Upon her arrival she was assigned a berth for discharging her cargo by the harbourmaster.

The discharge began on 13th January 1897, and finished on the 31st of that month. About that time a very large quantity of jute arrived at Dundee, and the consignees had some difficulty in getting their consignments taken away as quickly as they were discharged. The ship was not, however, discharged with any unusual rapidity, as upon former occasions she had discharged similar cargoes in a smaller number of days than she took upon this occasion.

The whole of the jute consigned to the defenders was discharged from the ship except one bale, for which credit was allowed to the defenders by the pursuers. The jute was put on the quay or jetty alongside which the ship was lying by the ship's tackle. With the exception of the bale before mentioned, all the jute consigned to the defenders was in good order and condition when it was taken off the ship's tackles at the quay. From the place where the bales were put by the ship's tackles they were removed by the harbour porters. These porters were appointed by the Harbour Trustees, and were subject to their rules and regulations. They were paid by the consignees of the cargo.

The cargo was discharged just as it lay in the hold, and as it was consigned to various different consignees it was not possible for each particular consignee to get immediate possession of the

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particular bales belonging to him from the ship's tackles. The bales bore quality marks, and private marks, and each merchant had to get from the general mass of bales landed the particular bales which belonged to him, or bales of the particular quality to which he was entitled. Before any parcel of bales could be removed it had to be checked by the ship's clerk so as to make sure that the consignee was getting his own parcel, and no more.

During the first part of the discharge the harbour porters removed the bales from the ship's tackles to the sheds and byres adjoining the jetty, but before long these places got filled up, and the porters then put the bales upon the open quay, and when all the available space there was occupied, they wheeled the bales to the vacant ground and roadway referred to in the defenders' averments. Until the day before the ship finished discharging the weather was frosty, and the ground was hard and dry, but upon Friday, 30th January, the frost broke, and the weather became wet and sleety. No bales were placed upon the roadway after the frost broke. Some of the bales belonging to the defenders were placed upon the roadway and the vacant ground, and there sustained damage from contact with water and wet mud to the extent of £61, 7s. 6d. The defenders did not remove all their jute till 16th February. The defenders' clerk was in attendance at the quay while the discharge was proceeding.

The defenders had the damaged jute classified, and deducted the amount of the damage from the freight. With this exception the whole of the freight claimed was paid.

The pursuers caused the following notice to be posted in the notice book of the Dundee Royal Exchange Reading Room;—“14/1/97.— s.s. ‘Knight Bachelor’ from Calcutta. Consignees of cargo will please note that on account of insufficient shed accommodation cargo is being landed on open quay, and they are requested to remove same at once as steamer will not be responsible for any damage the jute may sustain after being landed.” They also inserted a similar notice in the advertisement columns of the Dundee Advertiser and Courier newspapers.

By No. 57 of the Dundee Harbour Bye-Laws, no goods (except timber) discharged from any vessel are to be allowed to lie on any of the quays or in any of the sheds during a longer period than forty-eight hours, and if any goods are not removed within that time, the harbourmaster or superintendent or any sergeant of police is authorised to remove them at the expense or risk of the owners or consignees.

The defenders maintained upon the evidence that by the custom of the port of Dundee with regard to the discharge of such cargoes as the one in question, the consigner was not allowed to take away his goods until they had been checked and identified or allotted by the ship's clerk, and until he had the permission of the ship's clerk to remove them. There was no averment to this effect upon record. The defenders contended that in consequence of this custom delivery of the goods was postponed until the consignees had authority from the ship's clerk to remove their bales. The defenders also maintained upon the evidence that by the rules of the port the harbour porters were not allowed to take any orders except from the ship until they had the permission of the ship's clerk to load a particular bale upon the consignee's cart; that the harbour porters were consequently subject to the orders and control of the ship up to that point; that in this case it was in pursuance of orders from the ship that the defenders' bales were placed upon the roadway and the vacant ground where they sustained damage, the head porter, before putting any bales upon these places, having consulted the ship's agent, and having been directed by him to wheel the jute there; that the porters were paid extra by the ship for doing so; and that the vacant ground and roadway were not proper places for storing jute. They further maintained upon the proof that they were prevented from getting away the jute which was lying on the vacant ground owing to its being underneath bales belonging to other consignees, which was the result of its being not only placed by the porters upon an improper place, but piled up there one bale upon the top of another. Generally they maintained that in order to give the ship a quick discharge, the cargo had been put out much quicker than the consignees could take it away, and that the proper places for putting jute having become in consequence blocked, the cargo was simply dumped down anywhere without any regard to the legitimate interests of the merchants.

The pursuer on the other hand maintained upon the evidence that the defenders' jute suffered damage through being left lying for an unnecessary length of time on the vacant ground and roadway; that the reason why it was so left was not because of any delay on the part of the ship's clerk (no such delay being proved), or on account of their being unable to get at their bales, but because owing to the large quantity of jute then being landed at Dundee, and the consequent difficulty of obtaining cartage and warehouse accommodation, they had no means of taking it away, and no place to take it to, and because in this state of circumstances they simply left their bales lying on the quay in defiance of the harbour regulations. They also maintained that the harbour porters were in the employment of the consignees.

By interlocutor dated 4th April 1898 the Sheriff-Substitute ( Campbell Smith), after certain findings in fact and law to the effect that delivery of the jute did not take place till the ship's clerk had permitted particular bales to be separated and transferred to the carters or other servants of the consignees, that until then the ship was not freed from the duty of taking proper care of the jute, and that in this case, prior to delivery, the jute had suffered damage through their fault, sustained the defenders' claim of damage and plea of compensation, found no debt due, and therefore assoilzied the defenders, with expenses.

Note.—“It seems to me that the law applicable to the present case is to be found

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in the cases of British Shipowners v. Grimond, 3 R. 968, and Avon Steamship Co. v. Leask & Co., 18 R. 280. The former case resembles the present in many details, and was pressed upon me in argument as conclusively settling the whole case in the pursuers' favour, although a judicious silence was observed regarding the small element of unloading in wet weather. Beyond question there are many superficial points of resemblance, but the evidence has appeared to me to necessitate a different verdict upon the central issue of fact, videlicet, the question of completed delivery, and therefore the application of a different principle of law. I can accept the law unhesitatingly in regard to holding the ship liable for putting the jute ashore in sleet or snow when in the course of delivery through the air. I cannot follow it without violence to the positive conviction that it is clearly proved that delivery in this case was not completed in fact, as the Court appear to have held it to have been in that case by the adoption of the dogma that passing the ship's rail operated complete delivery. No doubt in both cases the jute was passed over the ship's side; but in this case after it so passed it was injured by wet and mud before the defenders had the opportunity to take delivery of any part of it, or to ascertain specifically what part of it was their property, or to be their property. I therefore think the principle of justice, strictly and chiefly applicable to the present case, must be found in the second case. Part of the cargo in that case, which was salt in hulk, and all delivered over the ship's side, was delivered into the water, and that kind of sure but questionable delivery was not found to free the ship from the ordinary liability of carriers. That salt never reached its owners. The jute in this case eventually through the avenue of ship's tackle, harbour porters, and ship's clerk, was put on wheels for its owners, but before it had been selected from the hotchpotch of jute for them it had been defiled by various applications of more or less dirty water, and a good deal depreciated in value. The ‘Knight Bachelor’ carried a cargo of 42,045 bales of jute to consignees, or more than five times the number carried by the ‘British Princess’ to Grimond and three other consignees, and arrived when Dundee harbour was crowded. At the time it was being unloaded several other ships were unloading jute in different parts of Dundee harbour. There was a scarcity of cartage and hardly any spare warehouse accommodation. Limited though it was, the harbour porters, despotic themselves, and despotically selected by the Harbour Trust, were too busy to afford time to pile the bales and so utilise the stinted warehouse and pier accommotion. Even the quay was overcrowded with goods and carts, and in order to find space on which to put down the cargo of this ship and let it go off for new cargoes as fast as possible, part of that cargo was put down all over a roadway with gutters at the side that ran with water whenever there was a heavy shower, and also upon a site reclaimed from the Tay, and made of dredgings from the river, furnace cinders, and the general rubbish of the town. When this reclaimed, but still waste, ground was selected as a place for storing jute, it was hard with the hardness of a month's hard frost, and it was a tolerably safe place so long as the frost lasted, but in this country frost cannot be expected to last many months at a time, and it seems to me that it was a piece of grave imprudence on the part of those ruling this discharge of jute to assume that it was unlikely that the frost would not give way before the jute could be removed. There is some not very satisfactory evidence that the ground was sprinkled with sawdust to the depth of about an inch. An inch of new or of old waxcloth, or of boards, might have been a somewhat effectual protection against the melting of the ice permeating this floor of frozen mud, but I think nothing less than a row of 3-inch battens, or three or four rows of deal boards, should have been trusted as effective dunnage on ground like this, and I doubt if less should have been used to bridge the possible pools and gutters of the roadway. Had the bales of jute, with the proper marks, been selected, and the lorries of the consignees been waiting, I see no objection to this frozen mud as a locus for the delivery of the jute, but I do hold it to be an outrage to common sense and reason for any carrier for hire, or without it, to lay down the goods of unknown owners upon ice however thick, or upon frozen rubbish and water, and leave it to the risk of destruction, and to escape from making reparation if it has been destroyed, on the strength of any technical definition of complete delivery. The bill of lading, in the absence of the consignee, authorises the ship warehousing the goods at the consignee's expense, and how could the consignee fail to be absent when he did not know where to find his goods?

The evidence of the pursuers has been arranged and adjusted to the end of enabling all the facts of this case to be packed into the limits of the decision against the Grimonds. No pressure that I know of, hydraulic or spiritual, can enable that feat to be accomplished. The delivery at the ship's side during the discharge of the ‘Knight Bachelor,’ was one of the most hopelessly impossible of miracles. That such delivery was expected without any exception by the owners is certainly not to be inferred from the bill of lading. No doubt that document says that the goods are to be delivered from ‘the ship's tackles (where the ship's responsibility shall cease),’ but subject to ‘exceptions and conditions,’ one of which gives the master power to warehouse or discharge into lighters goods of which the consignee has not at once taken delivery, ‘at the risk and expense of the owners of the goods,’ and another is to retain the goods by way of lien in security of charges due by the owners. How to give effect to either of these conditions if delivery is effected by passing the ship's side, may have been discovered but has not yet

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been expounded. The intelligent commercial gentleman who acted as agent for this ship certainly did not know it, for in the exercise of the ship's lien he lodged 50 bales of the defenders' jute in a warehouse in security for the balance of the freight now sued for, but after much logical reflection of course, and it may be some legal advice, he came to see that, if these 50 bales were delivered to their owner when they passed the ship's rail, the ship could have no continuing lien over them; therefore to show the consistency of his faith in the magical effect of passing the ship's rail, he (in surrender of the right of lien) gave up these bales to the defenders, and now trusts the abstract principle in preference to the bill of lading and the right to lock up in security 50 bales of concrete jute. The power given in the other condition to place goods in warehouses and in other safe places rather seems to exclude the power of placing them on thin ice, or on frozen mud, or in any way risking their destruction before complete delivery has become possible and actual.

The pursuers do not deny that the defenders' jute suffered through the carelessness or fault of some person or persons. They indicate that the harbour porters and the defenders themselves are both to blame, the former in laying down the jute in dangerous places, and the latter in not taking it smartly enough out of these places. I have a suspicion that the defenders were not so prompt in lifting the goods as they might have been from the frozen mud, but they had the excuse of not knowing where to find jute with the proper marks, and in not being able to get at it for superincumbent jute even when they knew where it was. I have not found clear proof of any fault or slackness on their part.

As to the harbour porters, their position and duties are somewhat obscure. They are appointed by the Harbour Trust, but it does not seem that they are bound to obey anyone in particular, or to pay any attentive heed to the orders of those from whom they expect payment for the work they do in distributing the hotch-potch of jute tumbled out of the ship as fast as four steam-engines can do it. I am satisfied that they cleared the jute from the ship's side far more with the view to let the ship away as quickly as possible, than to keep the consignees' jute as safe as possible, and that no man's jute ought to have been put on the roadway or on the frozen mud without two or three inches of effective dunnage below it. I assume that the harbour porters are always well selected, but I am not able to assume that they have always been properly directed and advised. However I look upon them as part of the mere mechanism of delivery, and that the ship is bound to watch over the entire process of delivery. It did and does not seem to me that there is any serious dispute about the amount of damage done to the defenders' jute. My impression is that it must be considerably undercharged. The damage was not all caused in one way. It was caused by snow and rain as the bales passed between the ship's holds and the pier, by exposure to wet on the harbour porters' barrows, by wet derived from the roadway and the thawing mud. How much injury was done in each of these ways, and perhaps in other ways, I have no means of ascertaining. I assume it to be law that a carrier who delivers goods in an injured condition, and can prove no legal excuse for himself, must make reparation for the whole injury done to the articles with the care of which he has been entrusted—that, in short, he is bound to deliver in good order, or prove that he could not help it or was not bound to help it.”

The pursuers appealed to the Court of Session, and argued—The delivery to the merchants was complete, and the shipowners' responsibility at an end when the bales were taken from the ship's tackles— British Shipowners Company, Limited v. Grimond, July 4, 1876, 3 R. 968; Petrocochino v. Bott (1874), L.R., 9 C.P. 355; Thorsen v. M'Dowall & Neilson, March 18, 1892, 19 R. 743. The fact that the goods had to be checked by the ship's clerk did not suspend delivery— British Shipowners Company, Limited v. Grimond, cit. The harbour porters were the servants of the consignee— British Shipowners Company, Limited v. Grimond, cit. The case of Avon Steamship Company, Limited v. Leask & Company, December 18, 1890, 18 R. 280, had no bearing upon the present, as in that case there was no delivery alongside, the salt falling into the sea before it reached the quay at all. Here it was not disputed that the cargo was put upon the quay and into the hands of the harbour porters in perfectly good condition. For what happened to it after that the pursuers were not responsible. This was the case at common law, but apart from that it was here specially stipulated in the bill of lading that the ship's responsibility was to cease when the goods were taken off the ship's tackles. But further, even if the pursuers were responsible for the cargo being put on the waste ground, they were not liable, in respect that the damage was caused not by the jute being put there, but by its being left there by the consignees until after the frost broke, their reason for doing so being not that they could not get it, but that owing to the large quantity of jute then arriving they had nowhere to put it. For loss so occasioned the pursuers were not responsible. The case of Marzetti v. Smith & Son, 49 L.T. 580, had no bearing upon the present.

Argued for the defenders and respondents—(1) The jute was damaged before delivery to the consignee was completed. Delivery was not complete until the goods were under the “dominion and control” of the consignee— Meyerstein v. Barber (1886), L.R., 2 C.P. 38, per Willes, J., at p. 50; Maclachlan on Shipping, 459. “Dominion and control” did not pass to the consignees here until the bales were checked by the ship's clerk. Up to that point the porters were under the orders of the ship. It was completely proved that by the custom of

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the port the consignee was not entitled to take away his goods until they had been checked by the ship's clerk. In view of this fact British Shipowners Company, Limited, v. Grimond was an authority in the defenders' favour—see per Lord Justice-Clerk Moncreiff at p. 072. No custom was averred here, but the whole proof was before the Court, and the question arose incidentally to the question of when delivery took place. The answer to that question depended upon the custom of the particular port and the particular trade— Maclachlan on Shipping, 459. Delivery at Dundee meant delivery there according to the custom of the port and the trade, and the bill of lading was subject to the custom of the port and the trade— Marzetti v. Smith & Son, 49 L.T. 580, where the bill of lading was in the same terms as here; Abbott on Shipping (13th ed.), 456, foot; Budgett & Company v. Binnington & Company [1891], 1 Q.B. 35, per Lord Esher, M.R., at page 38. The custom founded upon here was an eminently reasonable one, because if each consignee were entitled to insist upon taking the particular bales belonging to him from the ship's tackles, the ship would be detained for an inordinate length of time. An arrangement was therefore made that the ship should retain control until the different lots had been sorted out, and given by the ship's clerk to the different consignees. (2) Even supposing that the damage was sustained after delivery took place, still the shipowners were liable, because the ship's representatives had no right to direct the cargo to be put in an improper place, and they were responsible if this was done by the harbour porters, who according to the evidence took no orders at that stage from anyone except the ship— Avon Steamship Company, Limited v. Leask & Company, cit. In British Shipowners Company, Limited v. Grimond, cit., it was apparently conceded that the shipowners had no right to put the cargo down on a wet quay. In Petrocochino v. Bott, cit., it was not said that there was anything improper in the place where the cargo was placed. The ship was not entitled simply to dump down the cargo wherever they could find room without regard to the interests of the consignees. This was what was done here. The vacant ground and roadway were improper places to put jute upon from the first. What happened was that, to obtain a quick discharge, the cargo was put out so rapidly that it could not be taken away, because the ship's clerk had not time to apportion it as required, with the result that it was put in an improper place, and so piled up that it could not be got away for some time, and suffered damage in consequence. For this the shipowners were liable.

At advising—