Scottish Court of Session Decisions

On 20th July 1904 M. Langlands & Sons, shipowners, Dundee, presented a petition in the Sheriff Court at Dundee, in which they sought to recover from D. M'Master & Company, spinners, South Anchor Works, Dundee, the sum of £53, 0s. 3d. as a balance still due for the carriage of goods from Liverpool to Dundee. The defenders without prejudice tendered £21, 10s., but refused payment in full on the ground of short delivery. A proof was taken.

The facts are given in the note of the Sheriff ( Ferguson), who on 4th April 1906 sustained an appeal from an interlocutor giving decree in terms of the tender pronounced by his Substitute ( Campbell Smith), on 28th February 1906, by the following interlocutor:—“The Sheriff having considered the cause, sustains the appeal: Recals the interlocutor of 28th February 1906 complained of: Finds in fact (1) that at two sales by auction in Liverpool on 20th and 28th January 1904 the defenders purchased a quantity of damaged jute; (2) that they contracted with the pursuers to carry the said jute by sea from Liverpool to Dundee for a payment at the rate of 10s. per ton, which was to cover freight and the cost of putting the jute on board at Liverpool; (3) that they handed to the pursuers two delivery notes for the said purchases; (4) that the pursuers arranged with a firm of carters to cart the said goods to their steamers at Liverpool; (5) that a quantity of jute, being the whole or nearly the whole, and believed to be the whole of the said purchases, was carted to the pursuers' steamers, was carried by them from Liverpool to Dundee, and was delivered by them on the quay at Dundee; (6) that the said jute was lifted at Dundee by carters in the employment of the defenders, and that its quantity was then found to be deficient to an extent not exceeding 58 pieces or thereby out of a total quantity amounting to about 3700 pieces; (7) that the whole quantity received by pursuers at Liverpool was carried to and discharged at Dundee, and that said loss, except to a certain extent accounted for by the condition of the goods, must have occurred either before shipment at Liverpool or more probably after delivery at Dundee; (8) that no document of the nature of a bill of lading or other receipt was produced or proved to have been granted by the pursuers acknowledging receipt of the specific quantities stated by the defenders; (9) that the account sued for is made up upon the actual weights of the quantities actually carried by the pursuers, and consists of freight, charges for cartage at Liverpool, and other incidental disbursements, and is correct: Finds in law (1) that the pursuers are entitled to payment of the sum sued for in terms of said account; (2) that the pursuers are not liable in damages to the defenders for the loss of said pieces of jute, and that the defenders are not entitled to deduct the value thereof from the freight due by them: Therefore repels the defences; Decerns in favour of the pursuers in terms of the petition: Finds the defenders liable to the pursuers in their expenses of the cause and of the appeal, but modifies the same to one-half of the taxed amount in respect of the unnecessary length of the proof and small amount of the sum at issue,” &c.

Note.—“The pursuers sue for £53, 0s. 3d., being the balance of an account of £93, 0s. 3d. for freight, a payment of £40 having been made to account. The freight is charged for the carriage of a quantity of more or less damaged jute from Liverpool to Dundee, and is calculated upon the actual weights carried. The correctness of the account as made up upon the weights received at the ship's side at Liverpool is not challenged, though not specifically admitted, and must be taken as representing the proper charge for the service rendered. The account was made up from the carters' notes of the actual weights ascertained by the independent Liverpool weighing authority of the jute loaded at Liverpool, and it was common ground that the weights in these notes and in the account coincided. The defence is that the full quantity of material which the pursuers were to receive at Liverpool and deliver at Dundee has not been received by the defenders; that they have a counterclaim against the pursuers for a portion of the goods lost amounting to £40, 16s.; and that they are entitled to deduct the amount of their claim from the freight due by them. If this loss in quantity occurred while the pursuers were responsible for the goods the defence is sound.

The pursuers' position is that they carried and delivered on the quay at Dundee the whole amount of the goods delivered to them at the ship's side at Liverpool, and have no responsibility for any loss that may have been suffered either before actual shipment or after actual discharge at Dundee. They further maintain that no actual loss of quantity beyond natural wastage in the circumstances, and ordinary shrinkage in the processes by which the jute has been treated, has been proved to have occurred. If either of these contentions is sound they are entitled to succeed.

It is in my opinion clearly proved that all that was loaded at Liverpool was discharged at Dundee, and there is no trace of any loss having occurred while the goods were on board the ship. It is, however, necessary to consider closely the subject-matter and the terms of the contract. If the pursuers have specifically acknowledged receipt of a precise quantity at Liverpool, and are proved to have failed to deliver that quantity at Dundee, they would in the absence of clear proof that the deficiency had occurred otherwise, be responsible. The subject-matter of the contract

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was two lots of jute that had been salved from two vessels, the ‘Highland Scot’ and the ‘Highland Brigade,’ which had met with misadventure. The cargo of the ‘Highland Scot’ was sold by auction on 20th January 1904 and that of the ‘Highland Brigade’ on 28th January 1904. At the first sale, that of the ‘Highland Scot’ cargo, the defenders bought quantities which are thus stated—37 bales, 7 broken bales, and 2095 pieces. At the second they bought, ex ‘Highland Brigade,’ 9 bales, 4 broken bales, and 466 pieces. I dismiss further consideration of the ‘Highland Brigade’ purchase, because it is in my opinion proved that the whole of that lot was bought on the day the last portion of the ‘Highland Scot’ quantity was despatched from Liverpool, and that the ‘Highland Brigade’ quantity was carried in two ships, and was fully delivered on the quay at Dundee. One piece is claimed as deficient upon it, but as there is not absolute certainty as to the precise number of pieces contained in a bale, there can be no proof that there was a piece lost. But while it was all carried on the two ships, it was not carried in the precise manner described in the manifests, upon reference to which—in so far as the quantities stated are concerned — the account is evidently made up, and therefore the value of the manifest as a receipt of quantities equivalent to a bill of lading is destroyed.

The contract was made in pursuers' office at Liverpool, and the only evidence of what transpired there is that of defender and his co-adventurer in the transaction, Mr Barclay. The pursuers' clerks had no authority to bind them otherwise than in terms of their sailing conditions. But the defender stated that his attention was not called to the sailing conditions, and that he was at the time ignorant of them. It is, however, proved that they had been fully and regularly published and sent to Dundee merchants, including the defender, and that he had at least once received a letter on business from the pursuers in which they were distinctly referred to. This is a very different state of facts from that in Henderson v. Stevenson ( 2 R., H.L. 75), and the case which most closely corresponds is the English one of Phillipp v. Edwards ( 28 L. J., Ex. 52), in which Chief-Baron Pollock said—‘We are of opinion that the contract is to be taken from the notice given in the papers in respect of the time for sailing, which was communicated to the public, as it appeared, not only on that occasion but on a variety of other occasions when the defendant's vessel sailed from that port.’ The case is not a direct authority, for the Court were satisfied that the plaintiff was aware of the conditions, but it was observed in another case by Lord Blackburn that Henderson v. Stevenson could only be an authority where the facts are clearly similar. In the view, however, that I take of this case it is not necessary to determine whether the defender was bound by the sailing conditions. If he was bound by them they would be conclusive, on the view of the facts which I proceed to state, in favour of the pursuers. There is no trace of any specific quantities having been stated at the interview at which the contract was made. It was to carry a quantity of jute—the property of the defenders—of from 100 to 150 tons in weight, at a slump charge of 10s. per ton, the 10s. covering any expenses incurred in getting the goods on board at Liverpool. The goods in this case were not being sent by the seller to the purchaser. It appears to me that they cannot be considered while in transit to the ship as in the pursuers' custody in the same sense as when actually on board. In arranging for their being brought to the ship's side the pursuers were not acting as carriers by sea, but merely assisting the defender, and their responsibility is not that of insurers if any loss occurred before the goods were put on board. As was observed by Lord Esher in one case, in the absence of express provision in a charter-party, an agreement that the ship should bring the goods from the shore where that was at a distance (or, as here, from a distance on land), would be an independent contract— Nottenbohn v. Richter, L.R., 18 Q.B.D. 63. But it is not proved that any loss occurred before shipment. I do not forget the point raised upon two of the counterfoils and the notes on the back, from which pursuers' agent suggested the failure to deliver forty pieces to the ship. But the explanation seemed reasonable, and I think the whole effect of the evidence is to support the conclusion that the whole amount bought was shipped. It was so stated by the pursuers as the result of their inquiries afterwards at Liverpool. At the same time it is to be observed that the delivery note handed to them in the case of the ‘Highland Scot’ cargo described it by reference to the lots in the catalogue, and not by numbers of bales and pieces. There is not produced any receipt by the pursuers, either in favour of the auctioneer's firm or of the carting contractors, which saddles them with a specific quantity, and I am not prepared absolutely to affirm that the total quantity described actually reached the ship at Liverpool. The total quantity stated in the manifest corresponds with the total quantity purchased by the defenders. The advice notes sent on arrival at Dundee are simply a statement of the quantities noted in the manifest as shipped in each of the three vessels. These documents have their origin, as far as specific quantities are concerned, not in any actual count at the ship's side, but on information made up apparently originally from the sale catalogues and weigh notes. A book kept by the pursuers, in which the carters who lifted the goods at Dundee for the East Port Calender, to which they had been transferred, and the quantities lifted by each, are noted, shows carters' signatures or quantities noted against the carters' names, as follows:—On 27th January, 14 bales; on 29th and 30th January and 1st February, 23 bales and 1193 pieces; and on

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3rd and 4th February, 978 pieces and a number of loose pieces. Assuming for the moment that these were all that were unshipped, there was therefore a deficiency of 7 bales and a surplus of 76 pieces. The 7 missing bales probably, but not unquestionably, represent the 7 broken bales in the catalogue, and if so they were counted by the witness Boultbee at Liverpool, and are said by him to have contained 134 pieces. There was therefore a net deficiency of 58 pieces, or, upon the whole transaction, 58 or 59 out of a total quantity of about 3700 pieces. The deficiency represents something less than two cart loads, even allowing nothing for the loose quantities, assuming the absolute accuracy of Boultbee's count, and also assuming, what is not proved, that all the bales which arrived in pieces at Dundee were the identical ones counted by him. It is in evidence that carters sometimes failed to sign the book and drove off, and there appears in the notes at the Calender the name of a carter who brought 30 pieces, which does not appear in the pursuers' book. On the other hand, the tallies kept in the Calender appear to correspond with the number of pieces signed for or noted in the pursuers' book, and in the case of any carter who failed to sign, the entry seems to have been made for him. Upon these facts it is, I think, quite clear that some 50 to 58 pieces less than the quantities stated in the catalogues of the sale at which defenders bought reached the East Port Calender, and I do not think it necessary to go into the long evidence as to what happened to the jute in the Calender, and the precise correspondence of the amounts subsequently sold, to one or other contention. The defenders' view upon this is consistent with pursuers' carters' receipt book, and the Calender tallies. At the same time my impression is that some shrinkage is made out but not sufficient to account for the ultimate deficiency in quantity stated by the defenders, and that in reducing the deficiency to 5000 odd yards the pursuers have counted part of the jute twice over.

The loss must have occurred either at the place of sale or between the place of sale and the ship at Liverpool, or between the ship and the carts at Dundee. In this conclusion I am supported by the conviction of the Sheriff-Substitute that ‘the issue most clearly proved is that the ship delivered all the goods it got.’ The first two alternatives are possible but not probable. Constructive delivery to the pursuers of the precise quantities is not made out, for there is no receipt of the character of a bill of lading properly made up, fixing them with precise quantities shipped on board. The probability is that the loss occurred at Dundee. Now, the unloading and carrying away of the jute ex ‘Highland Scot’ from the three vessels at Dundee went on on six days, the first being January 27th and the last February 4th. The ‘Princess Olga's’ cargo took from January 29th to February 1st to lift. The ‘Princess Maud's’ was lifted on February 3rd and 4th. It appears to me that it was on the ‘Princess Olga's’ cargo that the deficiency arose, and if this is so it negatives defenders' suggestion that on February 3rd 50 pieces, being part of his goods, went to the Trades Lane Calender, and supports the pursuers' explanation of the mistaken and transferred entry. This really reduces the question to one of law, which is—at whose risk were the goods after discharge from the ship on to the quays? Now, the terms of the pursuers' carter receipt book are somewhat against them, for they describe the day of lifting as the date of delivery. There is also evidence that some of defenders' witnesses understood that the liability of the ship only ceased on signature by the removing carter, and expressions are used or assented to by some of pursuers' witnesses which might bear this construction. On the other hand, if the sailing conditions of the pursuers are applicable to the transaction, it is clear that they have no liability after the goods are on the quay, and their advice notes expressly state that the goods are at owner's risk when on the quay. Putting aside for the moment the sailing conditions, I find the pursuers' tender distinct evidence that after the goods are on the quay they have no responsibility, and that the porters in loading on the carts are acting as the servants of the consignee and not as their servants. This evidence is supported by being in accordance with the sailing conditions, which proclaim to the public the pursuers' general profession and practice. Beyond that it is in accordance with the general rule of law, and in accordance with the practice of the port of Dundee, as explained in the case of the British Shipowners' Company v. Grimond ( 3 R. 968). The note of the Sheriff (Maitland Heriot) in that case deals with corresponding facts to these, which, in the absence of previous decision, would have caused, to my mind, great difficulty. ‘It is no doubt true that the owners' clerks’ (including the ship's clerk, see p. 969) ‘do not take a note of the bales in their respective books until they have been placed in the carts in lots of five for removal. This is what creates any difficulty that may exist in the case; but, on the whole, the Sheriff cannot regard that fact as determining the punctum temporis of delivery. … That period of marking their entries seems to the Sheriff to be adopted for the mere convenience of the clerks, and not as affecting the question of delivery.’ The judgment of the Sheriff was adhered to by the Court of Session. It is conclusive in support of the general rule that delivery is complete when the goods are put on the quay, and I am unable to distinguish the present case on any grounds strong enough to justify a different conclusion. (See also Knight Steamship Company v. Fleming, Douglas & Company, 25 R. 1070, and Petrocochino v. Bott, L.R., 9 C. P. 355). The case in favour of delivery is perhaps a more favourable one for the ship, where it is bringing a man's own goods, than where it is bringing goods

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from another consigner to a consignee who may not take delivery. In the two Dundee cases referred to, the question was as to liability for damage, but the legal principle must be the same for loss. On the proof there may be a great difference, and the fact of shortage on lifting raises a certain presumption against the ship. In this case, however, I am satisfied on the evidence that the ship discharged at Dundee all she received at Liverpool; that there is not absolute proof, but great probability, that she received the whole quantity at Liverpool; and that, if so, beyond a certain amount of wastage due to the condition of the cargo, the loss must have occurred after delivery on the quay at Dundee, and when the goods were at owner's risk. Expenses must follow the result, but the volume and expense of this case is so out of proportion to the sum at issue, that they are modified to one-half.”

The defenders appealed, and argued—The contract was to carry the goods from Liverpool to Dundee, and the pursuers were responsible for any loss in transit. It was proved that the goods had been received at Liverpool, and the onus was on the shipowners to show they had been landed— Smith & Company v. Bedouin Steam Navigation Company, Limited, November 26, 1895, 23 R. (H.L.) 1, 33 S.L.R. 96. The shipowner could only escape his responsibility by proving that less had been shipped than had been stated in the documents, here the marked catalogues and delivery orders — Horsley v. J. & A. D. Grimond, January 23, 1894, 21 R. 410, 31 S.L.R. 321. The shortage was also proved, but there was nothing to show that it had not occurred on board the vessel. No tally at the quay had been taken. If the shipowner had wished to escape responsibility he should have had a tally taken, and must take the consequences of not having done so. (On the question of the sailing conditions Richardson, Spence, & Company and “Lord Gough” Steamship Company v. Rowntree, [1894] AC 217, was referred to.)

The respondents argued—The contract was to carry an undisclosed amount of goods to Dundee according to weight only. The quantity shipped was not proved, for there was no tally taken at that time, and the delivery orders were merely a command to the merchants' agent, no duty being thereby put on the shipowner to check the quantity. If the goods were lost on the way to the ship negligence must be proved. The ship was therefore not charged with any specific quantity, but she was proved to have discharged at the quay all she had received. The shipowners' responsibility ceased when the goods passed over the ship's side— British Shipowners Company, Limited v. Grimond, July 4, 1876, 3 R. 968, 13 S.L.R. 623; Knight Steamships Company, Limited v. Fleming, Douglas, & Company, July 1, 1898, 25 R. 1070, 35 S.L.R. 834. The Sheriff was therefore right, and should be affirmed.