[1921-1929] WSLR 3

HIGH COURT OF WESTERN SAMOA

IRVING HETHERINGTON CARRUTHERS
as executors and trustee of the Will of Eli Hutchinson Jennings deceased

v

C.M. GREY, C.O. ANDERSON AND S.H. MEREDITH
as "the Apia Stevedoring Syndicate"

1921. 6, 13 September.
WILSON C.J.

Damage to consigned goods - whether responsibility of shipowner or stevedorers.

Having found, as a matter of evidence, that the plaintiff's goods were damaged while in the care of the defendants held, inter alia, that the plaintiff can only recover the value of the goods at cost to him in Apia without profit on resale.

Judgment, in part, for plaintiff.
Dunkley, for plaintiff.
Roberts, for defendant.

Cur. adv. vult.

WILSON C.J.: This is a claim for a total of £145.4.1 brought by the plaintiff against the defendants, alleging that the defendants while lightering certain cargo consigned to the plaintiff in the Apia Harbour on or about the 7th day of July 1921 damaged one case of goods and rendered the contents useless. The claim is made up of the invoice value of the goods contained in the case £83.14.6 insurance, freight, landing charges, and Customs duty £25.3.7 and loss of profit on sale of the goods £36.6.0. The defendants are common carriers who undertake the duty of carrying goods brought into the Apia Harbour by ships from oversea from such ships lying at anchor in the harbour to the wharf on the foreshore, and it was while the case of goods in question was being transferred from the Steamer "Tofua" to the Customs shed on the wharf that the contents thereof were damaged. There is no dispute on this point, or on the question of the fact that the goods wore damaged. The contest lay as to whose was the responsibility, whether the accident happened through the default of the ship or of the defendants. For the plaintiff the evidence of Mr O.A. Rixon, Third Officer of the S.S. Tofua and a Fijian hatchman employed on the Tofua, was taken on 30th August before Mr. Wooodward a Commissioner of this Court and at the hearing it was ordered that the depositions be filed and that the plaintiff be at liberty to put them in evidence. Mr Rixon states that he was an eye witness of the accident. According to his evidence a net sling holding some ten parcels of cargo was lowered over the side of the ship at No. 1 hatch into a lighter secured close to the side of the ship. Three men were in the lighter to receive the cargo and the net was lowered to the position indicated by them - about the centre of the lighter - and they began to distribute the contents of the net about the lighter and while moving the case in question it fell into the sea and after some delay was recovered by means of a net sling used at Mr Rixon's suggestion. Mr Rixon says that he drew the attention of Mr. Railey, who was employed by the defendants on the ship during the discharge of cargo, to the wet case lying on the lighter, and also called the Assistant Purser of the ship to note the marks on the case. The Fijian hatchman Eroni says he also saw the accident, as he was controlling the lowering of the cargo into the lighter, and he corroborates Mr. Rixon's statement that this case was one of a number in a net sling and his version of how the case got into the water At the hearing Mr Mulqueen at present Acting Manager at Apia for the Union Steamship Company Ltd, but in July the Wharfinger for the Company, deposed that the case was brought to his notice in the Customs shed a week after the Tofua had sailed, and that no notification of the accident having occurred had been given by the defendants to the Company. For the defendants, Mr Anderson who manages the affairs of the Syndicate says that he first knew of the accident on a day which coincides with the day on which the damaged case was brought to the notice of Mr. Mulqueen. He does not exclude the possibility that his attention was drawn to it by another of the defendants' servants when it was being transferred from the lighter to the Customs shed, though he says he has no recollection of this. The defendants also called a Niue Islander named Foba who was overseer of the labour on the Tofua on 7th July, and another Niue Islander named Peti who was one of the three men in the lighter at No. 1 hatch on that day. Both these men state that the damaged case was lowered from the ship after word had been passed up that the lighter was full, that it was enclosed in a sling with another case only and not in a net, that it was negligently lowered so that the sling struck the outer gunwale of the lighter and this one case fell into the sea and the other into the lighter. Mr Rixon denies that word was passed up from the lighter that it was full before the sling net was sent down. Mr. Railey was called and specifically denied Mr Rixon's evidence that the latter called his attention to the wet case on the lighter. He did not himself see the accident and says his first knowledge of the damage was when he saw the case in the Customs shed and drew Mr Mulqueen's attention to it. This then is the relevant evidence as to how the damage occurred. The only eye witness who is not a native is Mr Rixon. If I believe his evidence on the point then clearly the defendants are responsible; if I believe that of Foba and Peti they are not. My experience of native witnesses has been that they are not trustworthy in their recollection of happenings, nor have they a strong sense of responsibility in giving evidence on oath. I cannot attempt to reconcile the evidence given by Mr Rixon and Mr Railey, neither of whom do I credit with intentionally stating what is untrue. The evidence of Peti and Foba discloses discrepancies which incline me to reject it and accept the version of the accident given by Mr Rixon and Eroni. My view of the credibility of the evidence of the latter is strengthened by the fact that neither Peti nor Foba nor either of the two other men in the lighter made any report to their employers that the case had been damaged through the negligence of the ship. It appears to me to be highly improbable that if the case had not been damaged by the negligence of the men in the lighter they would have refrained from doing what was plainly their duty and to their personal interest, that is to at once report the circumstances to their employers. On the other hand if they felt themselves culpable there was every incentive to say nothing.

I find therefore that the plaintiff 's goods were damaged while in the care of the defendants and that the plaintiff is entitled to recover from the defendants the value of the goods landed at Apia. It is clear that the plaintiff can only recover the value of the goods, that is their cost to him at Apia without profit contemplated on their sale. As to the charges from Auckland to Apia and Customs duty the plaintiff was in the circumstances mentioned at the hearing unable to prove the items making the total of £25.3.7. Mr Roberts for the defendants gave an assurance that if these items if proved were recoverable the defendants would arrange the amount with the plaintiff. Had the items been proved the plaintiff would be entitled to judgment for the aggregate, and as the plaintiff's counsel at the hearing in effect elected to take a non-suit in respect of them I now formally non-suit the plaintiff on that part of the claim. Judgment will be for the plaintiff for £83.14.6, with Court costs £2.11.0, Solicitor £7.6.0 and witnesses' expenses - Rixon 15/- Eroni 6/- Mulqueen 10/-. No allowance is made for Mr Buss who was called on the question of profits.