1862. HOULDER บ. THE GENERAL cited Law of Carriers, p. 179:-"It is the duty of the consignee to inquire for and watch the ship's arrival, for it frequently happens that the ship arrives before he has received the bill of lading, and the master is not bound to keep the goods on board for an indefinite period, and if NAVIGATION no one claims them, he may land them, &c." Here there was nothing to take the case out of the ordinary law. The plaintiff had notice on the 4th that the goods were coming up on the 3rd, for he knew the steamer started on the Wednesday, and would arrive on the 5th or 6th, and the goods were not landed until the evening of the 7th; the steamer having to return on the morning of the 8th. COCKBURN, C. J.-I agree as to the general principle, that when the goods are sent, with a bill of lading or without, the shipowner has a right to expect from the consignee of the goods reasonable diligence to inquire after the arrival of the ship. But there is some evidence here of a usage or course of dealing, under which the consignee is not bound to do any thing until he gets notice of the arrival of the ship. And that must go to the jury. Denman then went to the jury, and called evidence to the effect above stated, that notices of expected arrivals were only sent to consignees of goods of great weight, for which they would be likely to send lighters, and that notices of goods arrived were only sent when they were landed, and that even after notice of expected arrival, there would only be twenty-four hours' time allowed in such a case as this. At the close of the case, COCKBURN, C. J. (to the jury).-This is a case of great importance. The question is, whether the defendants were bound to deliver the goods until paid wharfage and the other expenses incurred by the landing of the goods, as well as the freight. That depends on whether the plaintiff ought to have renewed notice from the defendants before VOL. III. F.F. COMPANY. 1862. HOULDER THE GENERAL COMPANY. the arrival of the goods. The defendants contend that there is a custom of the Port of London for the consignee to send for the goods within a reasonable period, and that if STEAM that is not done the carriers may land the goods and charge NAVIGATION for the wharfage; and that reasonable time had been limited by the witnesses in such cases as the present to twenty-four hours. But the plaintiff contends that the question of reasonable time did not arise till after he had received notice of the expected arrival. The custom of notice relied on by the plaintiff, if it exists, has by the evidence now narrowed down to the trade between Newcastle and London, and it appears to be a sort of alternative practice of notice of expected arrival being given under certain circumstances, and of actual arrival under others. It is for the jury to say whether any such custom has been established; they must be satisfied that if they started a ship to-morrow between Newcastle and London, they would be bound to give the notice contended for by the plaintiff; it must not be a mere occasional practice, but a practice binding upon all; it must not be limited, but must be universal and general, and applicable to every consignee. On the other hand, as to the custom pleaded by the defendants, they might have waived it, and relied on the general law; because, by the law, a carrier by land or sea is only bound, apart from special contract or custom or course of dealing, to take the goods to the place or port to which he goes. And it does not appear here, that it was the duty of the carriers to deliver the goods to the plaintiff, the consignee ; but that according to the course of business, the consignees send for the goods to take them away. And it is the duty of the consignee, apart from special custom or contract, to use due and reasonable diligence to discover when the ship arrives with his goods on board. Of course he cannot be expected to have his lighters always lying in the river ready to receive goods coming from abroad, but he is entitled to a reasonable it time after the ship has arrived. Then, in a case of this kind, what would be a reasonable time? If the law or the custom is, that the consignee is to send for his goods, how long is the shipowner bound to keep his goods on board? It is obvious that if he keeps them beyond a certain time, may be a cause of serious detriment to him. Here the steamer went back on the Saturday morning, and the goods were landed on Friday evening. Evidence has been given that, in the coasting trade, the universal time allowed to the consignee is twenty-four hours. If you think that a reasonable time, and that the consignee was bound within that time after the arrival of the ship to take his goods away, then the defendants were right, and are entitled to the verdict. The plaintiff's case is, that the question of reasonable time does not arise until he has had notice of the arrival; and that the custom in the Newcastle trade is to give the consignee notice either of arrival or expected arrival. It is for you whether that is established. It is, you see, a custom confined only to one port, and a custom in the alternative. And, moreover, here the consignee knew from the consignor the time of departure, and, therefore, the probable time of arrival. There is no evidence of a course of dealing between these parties, and the case rests on the general law and the alleged usage of the trade. Supposing there was no such usage to give notice, then the general case applies; and if there was, then, ought the defendants in this case to have given such notice? They could have found the address from the shipping note; ought they to have got it from thence? There can be no doubt they could have found the plaintiff's address had they looked at the shipping note. If, however, there was no such usage to give notice, then they were not bound to give any notice at all. In conclusion, his LORDSHIP left it to the jury to say, first, was there a custom of the Port of London such as the defendants contended for? Secondly, did the defendants keep the 1862. HOULDER V. THE GENERAL 1862. HOLDER บ. THE GENERAL goods on board for a reasonable time? Thirdly, were the In which case the question of reasonable time would not arise, as the plaintiff received no notice at all before the arrival. The jury found there was no such custom to give notice, and returned a verdict for the defendants. Verdict for the defendants. London Sittings. Trinity Term. When a seaman signs articles at a foreign port, there is an im TURNER v. OWEN. THE first count stated that the defendant promised to pay the plaintiff 57., in consideration that the plaintiff, at the request of the defendant, would assist in navigating a plied warranty ship from the Falkland Isles home, the said ship being at of seamanship, the Falkland Isles in a leaky condition, unseaworthy, and and the ship is unseaworthy, there is con- insufficiently supplied with seamen, and unsafe for the passage home. sideration for a new contract for extra reward to induce him to sail in her. Averment of performance. Breach non-payment. Common counts for work, &c. Pleas: 1. Denying the promise in the first count. 3. That the plaintiff, being a seaman, was bound and liable to serve and assist in navigating the ship from the Falkland Isles to a home port (the ship being then in the condition in the said first count mentioned), under and by virtue of certain articles of agreement before then lately made and entered into by and between the plaintiff and the defendant for wages and reward thereby made payable by the defendant to the plaintiff. And that such articles were in full force before and at the time of the making of the agreement. And that the promise declared upon was to pay wages over and above the wages mentioned in the articles. Issue. Lawrence and Prendergast for the plaintiff. M. Chambers and Brown for the defendant. In February, 1860, the ship of which the defendant was owner was four years old, A. 1, copper bottom, 776 tons register. And in March she sailed from England for Otaheite, laden with coal, intending to bring home guano from the Chinchilla Islands. The crew consisted of nineteen hands, all of whom had signed articles for the voyage out and home. On the 3rd July, on her return voyage, after taking in her return cargo, she met with rough weather, and on the 4th put into port at the Falkland Isles, making eight inches water, and with several sails split, yards broken, and other damage done, and moreover short of several hands through sickness. The crew refused to proceed, even with a promise of extra hands, considering the ship not safe. The leak being beneath the cargo could not be got at without taking out the cargo, and this was not done. On the 28th August the crew consented to proceed home, on condition that four extra hands were taken; and these hands, of whom the plaintiff was one, signed articles in the usual way. On the 30th August, just before the ship sailed, the crew refused to proceed unless the captain would pay each man 51. extra for the voyage, and he agreed to do so, and signed a memorandum to that effect:-"I agree to pay the crew as compensation for each man in the ship 51. for the passage home. (Signed) J. G., Master." To this it was added that the men were to do nothing but take in sails and work the pumps. On the 31st August the ship sailed, still leaking, and leaking the whole way home. The plaintiff was called, and it appeared that he had signed articles. He was asked as to a conversation between him and the captain before he had signed, in which he said he did not think the ship seaworthy, though the captain had represented to him that it was so. 1862. TURNER v. OWEN. |