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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Dunlop and Company 1 v. George Anthony Lambert and Others [1839] UKHL MacRob_663 (16 July 1839) URL: http://www.bailii.org/uk/cases/UKHL/1839/MacRob_663.html Cite as: [1839] UKHL MacRob_663, (1839) Macl & Rob 663, 7 ER 824, 6 Cl & F 600 |
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Page: 663↓
(1839) 1 Mac&Rob 663
REPORTS OF CASES UPON APPEALS AND WRITS OF ERROR, AND QUESTIONS OF PEERAGE, DECIDED BY THE HOUSE OF LORDS, Session of Parliament 1839, 2 & 3 VICTORIA.
(Appeal from the Court of Session, Scotland.)
1 st Division.
(No. 22.)
[
Counsel: [
Sir William Follett.]
[
Attorney General (Campbell) —
James Anderson.]
Subject_Carrier — Contract — Risk. —
In an action by consignors for value of a puncheon of whiskey thrown overboard, and lost, against ship owners, who by bill of lading acknowledged the shipment of the goods in good order and condition, “to be delivered in the like good order at Newcastle,” dangers and accidents of the sea excepted, and which bill of lading the consignors transmitted to the consignee, with an invoice of the price, including the amount of freight and of the insurance paid by consignors, and charged against the consignee,—the consignors libelled a contract by the ship owners to deliver the goods at Newcastle, and also an agreement by the consignors to be answerable to the consignee for the safe delivery of the goods. The judge at the trial directed the jury in point of law, “That as it appeared that the pursuers at the time of furnishing the spirits in question had sent an invoice thereof to the purchaser, bearing that the same had been insured, and that the freight thereof and insurance were charged against the said purchaser in the invoice, the pursuers were not entitled in law or interest to recover the value of the said puncheon from the defenders—”Held (reversing interlocutor of the Court of
_________________ Footnote _________________
1 15 D., B., & M., 884. 1232.
Page: 664↓
Statement.
On the 31st of August 1833 the appellants, who are wholesale spirit merchants, sent to the agents at Leith of the respondents, who are ship owners, a puncheon of spirits, to be carried to the purchaser, Mathew Robson, near Newcastle, and a bill of lading was granted by the respondents agents to the appellants in these terms:—
“Mr. Mathew Robson, Collier Row, by Houghton-le-Spring, W. D. No. 1369, 105 gs. care of Mr. Lattimer, Newcastle.
To be taken out in running days after ship's arrival, or to pay guineas per day demurrage.
Shipped by William Dunlop & Co., in good order and condition, in and upon the good ship Ardincaple, whereof Macleod is master for the present voyage, and now lying in the port of Leith, and bound for Newcastle, one puncheon of spirits, bung-full, with excise permit, being marked and numbered as in the margin, and to, be delivered in the like good order, and well conditioned the foresaid port of Newcastle, (all and every other dangers and accidents of the seas, rivers, and navigation, of whatsoever nature and kind, excepted,) unto Mr. Mathew Robson, Collier Row, by Houston-le-Spring, or to his assigns, freight for the said goods being paid by William Dunlop & Co. at primage and average accustomed. In witness whereof the master or purser of the said ship hath affirmed to two
Page: 665↓
bills of lading, all of this tenor and date, one of which being accomplished, the other to stand void. Dated in Leith, 31st August 1833. (Signed) Laing and Sword, Agents.”
The appellants transmitted to Robson, along with the bill of lading, an invoice, and a letter (in part), in the following words:—
“Mr. Mathew Robson, Edinburgh, 31st August 1833.
Bo t of William Dunlop & Co.
Rectified British Spirits and Compounds.
One puncheon maltaqua, fine quality, W.D. & J.B.,
No. 1369,—105 g. 11 O. P. are 116 gs. p. 12 s. 9 d.
£73
19
0
To freight paid to Newcastle, 10 s.; insurance, ½ per cent.
0
18
0
Puncheon with spirits not to be returned
1
0
0
£75
17
0
Mr. Mat. Robson, Edinburgh, 31st August 1833.
We hope the above will reach you in time and give satisfaction. We reckon the quality very fine, and we trust this will be the introduction to many good transactions between us both. For amount, we enclose our draft at three months, payable in London, which please return us accepted and domiciled on approval of the shipment. The spirits will be in Newcastle on Monday morning if all is well, and your farther orders will very much oblige yours respectfully, Wm. Dunlop & Co.”
In the manifest of the cargo of the Ardincaple, there was the following entry:—
“Consignee, Mathew Robson; residence, Newcastle; goods, marks, &c., one puncheon
Page: 666↓
whiskey, freight paid, 10 s.; amount total invoice, 75 l. 17 s.”
The goods having been lost, and not delivered, the appellants brought an action against the respondents for the value thereof; and (by their amended summons) libelled, “that upon the 31st day of August last the pursuers shipped on board the steam ship or vessel called the Ardincaple of Newcastle, then lying at the port of Leith, and bound for Newcastle, one puncheon of spirits, bung full, with excise permit, marked W. D., No. 1369, 105 gs.; addressed to Mr. Mathew Robson, Collier Row, by Houghton-le-Spring, care of Mr. Lattimer, Newcastle, to be delivered in good order and well-conditioned, at the aforesaid port of Newcastle, as addressed, conform to memorandum, receipt, or bill of lading granted by Messrs. Laing and Sword, agents at Leith for the owners of the said steam ship or vessel, bearing date the said 31st day of August last, and acknowledging that the freight for the said goods was paid, to be produced in process, and here referred to, and held as repeated brevitatis causa; the pursuers at the same time having undertaken by their agreement, and being answerable to the said Mathew Robson for the safe delivery of the said puncheon;” and the conclusion was for payment of the value of the goods to the appellants.
The respondents, among other defences, objected to the title or interest of the appellants to sue for and recover the amount (the said defence being designated preliminary). The Lord Ordinary pronounced the following interlocutor, disposing of the preliminary character of the said defence:—
“20th June 1835.—Lord Fullerton. Having heard
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parties procurators, finds that the averments of the pursuers are relevant to support their title and interest to insist in the present action, and therefore repels the preliminary defences as urged in bar of further procedure in the action, and appoints issues to be prepared in common form upon the matter in dispute.”
The cause then went to trial on the following issues:
“1. Whether on or about the 31st day of August 1833 the pursuers shipped a puncheon of spirits on board the Ardincaple of Newcastle, a vessel belonging to the defenders, for the purpose of being conveyed to Newcastle, and delivered to Mathew Robson, Collier Row, Houghton-le-Spring, care of Mr. Lattimer, Newcastle? And 2. Whether the defenders wrong fully failed to deliver the said puncheon to the said Mathew Robson, and are indebted and resting owing to the pursuers in the sum of 75 l. 17 s. or any part thereof, with interest thereon, as the value of the said puncheon of spirits.”
The case came on for trial before the Lord President and a jury, on 21st March 1837. The appellants, among other evidence, adduced the deposition of Robson, who stated that he believed that the loss of the said puncheon was sustained by Messrs. Dunlop.
The respondents led no proof, and admitted the shipment, the loss and non-delivery, and amount of the claim, as stated.
The judge directed the jury that “the pursuers appeared to be entitled to a verdict upon the first issue, and that the only question in dispute related to the second issue; and did direct the said jury in point of law, that as it appeared that the pursuers, at the time of furnishing the puncheon of spirits in question,
Page: 668↓
The appellants took an exception to this direction. The jury then returned the following verdict:—
“We find, on the first issue, that the defenders (respondents) were liable for the loss of the puncheon of whiskey, their servants having placed it on deck, without authority from the shippers.
We therefore find, on the second issue, that the defenders (respondents) wrongfully failed to deliver the puncheon to Mathew Robson; they not having stowed it in the hold, as they were bound to do, prevented his recourse on the underwriters.
On the last point of the second issue, we find that the defenders (respondents) are not liable to the pursuers (appellants) for the value of the spirits, because they were not, at the time of the loss, the rightful owners of the goods in question, their invoice shewing that their right in the whiskey ceased at the time of shipment.”
The bill of exceptions was afterwards heard before the court, (along with a separate motion by the appellants for a new trial), the pursuers maintaining for argument in support of their exception,—1st, that the respondents plea was excluded by the previous interlocutor of the Lord Ordinary; and 2d, that the objection was not well founded in itself.
The court pronounced the following interlocutor,
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“Edinburgh, 30th June 1837.—The Lords, after hearing counsel for the parties, disallow the bill of exceptions in this case; refuse the motion for a rule to shew cause why a new trial should not be granted; Find the defenders (respondents) entitled to expenses since the date of trial; appoint an account thereof to be given in, and remit the same to the auditor to be taxed and to report.”
Judgment of Court, 6th June 1837.
The court subsequently pronounced judgment, and awarded expenses, by the following interlocutor:—
“Edinburgh, 6th July 1837.—The Lords having heard parties on the motion of the defenders (respondents), apply the verdict, assoilzie the defenders, find expenses due, subject to modification, appoint an account thereof to be given in, and remit the same to the auditor to be taxed and to report.”
Dunlop and Co. appealed.
It has become unnecessary to repeat the arguments adduced, and authorities founded on, by the appellants and respondents respectively, in so far as they bear upon the judgment, the same having been fully explained by the Lord Chancellor in moving the judgment of the House of Lords.
Ld. Chancellor's Speech.
Page: 670↓
The summons stated the case in these terms:—
“That upon the 31st day of August the pursuers shipped on board the steam vessel, then lying at Leith, one puncheon of spirits, bung-full, with excise permit, marked W. D., No. 1369, 105 gallons, addressed to Mr. Mathew Robson, Collier Row, by Houghton-le-Spring, care of Mr. Lattimer, Newcastle, to be delivered in good order and well-conditioned at the aforesaid port of Newcastle, as addressed, conform to memorandum, receipt, or bills of lading granted by Messrs. Laing and Sword, agents at Leith for the owners of the said steam ship or vessel, bearing date the said 31st day of August last, and acknowledging that the freight for the said goods were paid, to be produced in process and here referred to; the pursuers at the same time having undertaken by their agreement, and being answerable to the said Mathew Robson for the safe delivery of the said puncheon.”
My Lords, in the progress of the cause certain issues were directed, which issues were in these terms:
“First, Whether on or about the 31st day of August 1833 the pursuers shipped a puncheon of spirits on board the Ardincaple, a vessel belonging to
Page: 671↓
the defenders, for the purpose of being conveyed to Newcastle, and delivered to Mathew Robson, Collier Row, Houghton-le-Spring, care of Mr. Lattimer, Newcastle? And, secondly, whether the defenders wrongfully failed to deliver the said puncheon to the said Mathew Robson, and are indebted and resting owing to the pursuers in the sum of 75 l. 17 s. or any part thereof, with interest thereon, as the value of the said puncheon of spirits?”
One question raised upon the appeal was, how far the liability of the defenders to the pursuers was put in issue by the mode in which these issues were directed, it being stated that it had been made a matter of defence that the pursuers were not the right parties, and that that question was not intended to be included in the trial of the issue; certainly, that point was raised upon the pleadings, and I apprehend it is equally clear that the point was left open upon the issues. The second issue was, “Whether the defenders wrongfully failed to deliver the said puncheon to the said Mathew Robson, and are indebted and resting owing: to the pursuers in the sum of 75 l. 175. or any part thereof.” It is quite obvious that if it was not intended to leave that question of the legal liability open it would not have been laid in those terms; it would have been sufficient to direct a trial of the first issue, Whether the pursuers had shipped a puncheon of spirits on board the vessel, and whether it was lost by the defenders having wrongfully failed to deliver the said puncheon of spirits; but the latter part of it, whether the defenders were indebted and resting owing to the pursuers in the sum of 75 l. 17 s. or any part thereof, with interest thereon, as the value of the said
Page: 672↓
My Lords, at the trial the deposition of Robson, the consignee, was adduced; it stated “that he gave a bill for 75 l. 17 s., the value of the spirits. The bill was renewed in consequence of another puncheon being sent a month later; that deponent desired Mr. Dunlop to insure the same, and to charge the expenses of that and the freight and the invoice to deponent; that the said puncheon was to be safely delivered on the quay at Newcastle before deponent was to consider it his property; deponent has not received a farthing for the loss.” Then he states “that he made an affidavit that the puncheon was ordered from Messrs. Dunlop, and lost at sea; that deponent got a letter from Newcastle from the agents of the Ardincaple there, stating that he had to make an affidavit before a magistrate that the puncheon that was lost was his.” There is also in evidence the fact that the bill of lading was in these terms:
“Shipped by William Dunlop & Co., in good order and condition, in and upon the good ship Ardincaple, whereof M'Leod is master for the present voyage, and now lying in the port of Leith and bound for Newcastle, one puncheon of spirits, bung-full, with excise permit, being marked and numbered as in the margin, and to be delivered in the like good order and well-conditioned at the aforesaid port of Newcastle, (all and every other dangers and accidents of the seas, rivers, and navigation, of whatsoever nature and kind, excepted,) unto Mr. Mathew Robson, Collier Row, by Houghton-le-Spring, or to his assigns, freight for the said goods
Page: 673↓
being paid by William Dunlop and Co. at primage and average accustomed.”
The invoice stated the property in these terms:
“One puncheon of spirits,” giving the description, “73 l. 19 s.; to freight paid to Newcastle, 10 s., insurance, half per cent., 18 s.; puncheon itself, 1 l.; making 75 l. 17 s.”
That was accompanied by a letter written by Dunlop & Co. to Robson, in these terms:
“Owing to our young friend John Dunlop having met with a rather serious accident by a fall from or a crush by a gig, in the country, where he is still, not being in a state to be removed for a day or two, the above has been too long in being forwarded, as your friend's letter was locked up in his desk, and we did not know till last night by a note from him that it was to be forwarded at all; we hope it will reach you in time and give satisfaction; we reckon the quality very fine, and we trust this will be the introduction to many good transactions between us both; for amount we enclose our draft at three months payable in London;”
the draft being 75 l. 17 s.; and in the manifest of the cargo entered “Consignee, Mathew Robson; one puncheon whiskey, freight paid, 10 s.; letter written, 8th October; 75 l. 17 s.”
My Lords, on the trial of these issues before the Lord President, Robson's deposition on oath, which had been taken under a commission, was, along with other evidence, submitted to the jury; after which the Lord President directed the jury in these terms:
“The Lord President observed that under the admissions made by the defenders counsel the pursuers appeared to be entitled to a verdict upon the first issue, and that the only question in dispute related to the second issue;
Page: 674↓
did direct the said jury, in point of law, that as it appeared that the pursuers, at the time of furnishing the puncheon of spirits in question, had sent an invoice thereof to Mathew Robson, the purchaser, bearing that the same had been insured, and that the freight thereof and insurance were charged against the said Mathew Robson in the said invoice, the pursuers were not entitled in law or interest to recover the value of the said puncheon from the defenders.”
The pursuers excepted to that direction, and it was brought under the consideration of the First Division of the Court of Session; and the judges in that division, by a majority
1, (one
2 of the judges being of a different opinion,) approved of the summing up and direction of the Lord President, disallowed the bill of exceptions, and the direction of the Lord President therefore was affirmed, and the new trial refused. From that judgment an appeal has been brought to your Lordships house; and the question is,—whether, in point of law, that summing up and direction of the Lord President is maintainable, namely, whether it be law in Scotland,—the law of Scotland being in this respect the same as the law of this country,—in a question between a carrier and the person to whom the carrier is responsible, in the event of property being-lost, whether it be true in law, that the sending an invoice to the consignee, by which it appeared that the property had been insured and the freight paid by the consignor, and the amount charged by the consignor to the consignee, deprived the consignor of the power of suing, and of an interest or right to recover the value of the property. My Lords, it is
_________________ Footnote _________________
1 Lords President, Gillies, and M'Kenzie.
2 Lord Corehouse.
Page: 675↓
On reference, however, to the authorities it will be found that although that is the general inference, and where nothing particular passes, that it is universally true, it is capable of variations. If a particular contract be proved between the consignor and the consignee,—and it does not follow that the circumstance of the freight and the insurance being paid by the one or the other is to be considered a conclusive evidence of the ownership,—as notwithstanding the ordinary rule, of course there may be special contracts;—where the party undertaking to consign undertakes to deliver at a particular place, and if he undertakes to deliver at a particular place, the property, till it reaches that place, and is delivered according to the contract, is at the risk of the person consigning; so although the consignor may follow the directions of the consignee, and deliver the property to be conveyed, either by a particular carrier or in the ordinary course of business, still the consignor may make such a contract with the carrier as will make the carrier liable to him. There are, therefore, an infinite variety of circumstances which may occur in which the ordinary rule will turn out not to be the rule to regulate
Page: 676↓
My Lords, a reference to the authorities cited in the argument shows that no such rule of law exists, and that that circumstance is not conclusive. That is the only circumstance your Lordships have to consider. The Lord President directed the jury, that that fact was conclusive,—so conclusive as to withdraw from their consideration other circumstances which might have been material to be considered, for instance, how far Robson's evidence was evidence which they ought to believe. In order to show how utterly impossible it is that that rule should be conclusive, your Lordships will permit me to observe that where a person desirous of having goods sent to him orders them from a distance, he necessarily must have added to the price not only the expense of the carriage but the risk of the carriage, for the owner of the goods will not deliver those goods at Newcastle at the same price at which he would deliver them at Edinburgh; there is the market price or the
Page: 677↓
My Lords, this does not rest on general principles only, for it has been the subject of several adjudicated cases. I would again call your Lordships attention to the summons, which states two grounds: first, the special contract with the carrier, by which he agreed to deliver at Newcastle; and then it states the fact, that, as between the consignors and the consignee, the consignors were under an undertaking to deliver the spirits at Newcastle. If the latter fact had been proved there could not have been any question that the consignee had nothing to do with the goods until they arrived at Newcastle, and were actually delivered to him there; and if
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My Lords, in order to prove that notwithstanding the ordinary right of the consignee to bring an action against the carrier for the loss of the goods he has undertaken to convey,—that notwithstanding that being the general rule, the right of action and the liability may be varied by special contract entered into between the consignor and the consignee, and that the payment of insurance by the one or the other is not conclusive evidence, I would refer to three or four cases in which that doctrine is very clearly established.
The first case in point of date, my Lords, is Davis and Jordan v. James, in 5 Burrow, 2680, in which the statement was that the vendors the manufacturers had delivered goods to a carrier, who undertook to carry for a certain price, and to deliver at a certain time. The action was brought, in consequence of the goods being lost, by the consignor, and it was contended that the consignee was the party who ought to bring the action. Lord Mansfield says, “there was neither law nor conscience in the objection. The vesting of the property may differ according
Page: 679↓
My Lords, the next case in point of date is the case of Moore v. Wilson, 1 Term Reports, 659; the action was by the consignor; the declaration stated, that the defendant undertook to carry the goods “for a certain hire and reward, to be paid by the plaintiff,” which the defendant's counsel contended did not prove the declaration. That agreed with the view of Mr. Justice Buller, who nonsuited the plaintiff, whereupon a motion for a new trial was made, and Mr. Justice Buller said he had mistaken the law, for “that whatever might be the contract between the vendor and the vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable.”
A case was referred to, Dawes v. Peck, in 8 Term Reports, 330, in support of the law as laid down by the Lord President. In that case the consignee had directed the goods to be sent by a particular carrier; and the court, holding that the consignor, by delivering the goods to the carrier so designated, had parted with the property, held that he could not maintain an action.
The same doctrine was laid down in another case, where there was a mere delivery to a carrier without any particular contract between either the consignor and
Page: 680↓
In Brown v. Hodgson, in 2 Campbell's Nisi Prius Cases, page 36, the bill of lading stated that the goods were shipped by order and on account of the consignee; Lord Ellenborough held that the consignor could not in
Page: 681↓
But in the same volume, 2 Campbell's Nisi Prius Cases, page 639, in King v. Meredith, where the action was by the consignor against the consignee, for the price of the goods lost in the carriage, it appeared that the consignor was to pay the carriage, and it was objected that the goods were therefore at his risk, so that he could not maintain an action against the consignee. It was said he could not maintain the action because his paying the carriage was conclusive that the goods were at his risk. Mr. Justice Lawrence says, “The mode in which the carrier was to be paid makes no difference. The moment the spirits were delivered to him the property vested in the defendant; the plaintiffs, by paying the carrier, did not become insurers of the spirits while in the hands of the carrier.” There, again, is a fact which, according to the law as laid down by the Lord President, would have been conclusive, but in that case the court assumed that the right might be in one party, where the other party had paid the freight.
There is a case very strongly applicable to the present, the case of Joseph v. Knox, in 3 Campbell's Nisi Prius Cases, 320; that was an action against the owner of a ship, on a bill of lading signed by the master,
Page: 682↓
“I am of opinion that this action well lies; there is a privity of contract established between these parties by means of the bill of lading. That states that the goods were shipped by the plaintiffs, and that the freight of them was paid by the plaintiffs in London; to the plaintiffs, therefore, from whom the consideration moves, and to whom the promise is made, the defendant is liable for the nondelivery of the goods. After such a bill of lading
Page: 683↓
has been signed by his agent he cannot say to the shippers they have no interest in the goods, and are not demnified by his breach of contract. I think the plaintiffs are entitled to recover the value of the goods, and they will hold the sum recovered as trustees for the real owner.”
The same question arose between other parties in a similar case 1, and Lord Ellenborough again laid down the same doctrine.
These authorities, therefore, my Lords, established these propositions: that although, generally speaking, where there is a delivery to a carrier to deliver to a consignee, the consignee is the proper person to bring the action against the carrier if they should be lost; yet the consignor may have a right to sue if he made a special contract with the carrier, and the carrier has agreed to take the goods from the consignor and to deliver them to any particular person at a particular place, which special contract supersedes the necessity of showing ownership in the goods; and by authority of the case of Davis v. James 2, and the last case of Joseph v. Knox 3, that the consignor is enabled to maintain an action, though the goods may be the goods of the consignee.
But the authorities also go to this: that although ordinarily speaking the consignee would be the party to bring the action, yet that the consignor also is entitled where there is a contract to deliver at a particular place, if the risk is in the consignor; and therefore the circumstance of the paying freight or the paying insurance, though it is a circumstance to be taken into consideration, as it is not conclusive on the question
_________________ Footnote _________________
1
Van Omeron v. Dowick,
3 Camp. 322.
2 5 Burr. 2680.
3 3 Camp. 320.
Page: 684↓
The House of Lords ordered and adjudged, That the said interlocutors complained of in the said appeal be and the same are hereby reversed: And it is further ordered, That the cause be remitted back to the Court of Session in Scotland, with directions to allow the bill of exceptions, and to grant a new trial, and to determine all questions of expenses between the parties in the said Court of Session, and to proceed otherwise in the said cause as shall be just, and consistent with this judgment.
Solicitors: Deans and Dunlop — Johnston and Farquhar, Solicitors.