responsibility. But, apart from any by-laws, the utmost the Board could be called upon to do with respect to goods so left would be to protect them as best it could with the appliances at its disposal. This was done in the present case. Had, then, before the iron was wetted, the time arrived at which it had become the duty of the consignee to take delivery of the iron from the Board? If the Board elects to take delivery of goods from the ship and to deliver them to the consignees, then, as the consignees admittedly cannot be expected to take them immediately they are placed on the wharf, it follows that the consignees must have a reasonable time allowed to take them, and that during such time the goods would be in the custody of the Board as a bailee for reward. The reasonable time must be reasonable from a business point of view, and the reasonableness must be determined in each case by the circumstances which exist when the particular goods are being discharged, and which are known to exist both by the Board and the consignee: See Hick v. Raymond & Reid(1). The Board by By-law 213 and by its practice has considered that in ordinary circumstances twenty-four hours would be a reasonable time. But that cannot be always the case. The Board may receive goods late on a Saturday afternoon. It would be altogether unreasonable to expect a consignee to start to take them before working-hours on the Monday morning at the earliest. So in the case of the discharge of a large English steamer like the Mamari": Mr. Rawson admits that it would have taken a week to get all the cargo off the wharf. In the present case thirty-two cases of the iron were discharged on Wednesday, the 7th of November, 128 on Thursday, the 8th, 286 on Friday, the 9th, and 193 on Saturday, the 10th. By By-law 297 the ordinary business hours upon the wharf are to be from 8 a.m. to 5 p.m., Saturdays, Sundays, and holidays excepted, and on Saturdays from 8 a.m. to 1 p.m. By-law 299 prescribed that certain days "shall be observed as holidays," and amongst them was the Prince of Wales's Birthday, the 9th of November. If a consignee chooses to arrange with the Board that he will take delivery of his goods on a holiday, or out of the ordinary business hours, there is nothing to prevent such an arrangement. In the absence of any arrangement, and in the face. of the Board's own by-laws, it would be unreasonable to expect a consignee to take delivery at these times. Here admittedly Mr. Hogg never consented to take delivery on the (1) [1893] A.C. 22. C.A. 1901. OTAGO HARBOUR BOARD v. JOHN LYSAGHT. VOL. XX.-35. C.A. 1901. OTAGO HARBOUR BOARD v. JOHN LYSAGHT. Friday or on the Saturday afternoon. If holidays intervene, and there is a risk of perishable goods being injured by exposure on the wharf, the wharfinger, under By-law 229, can refuse to allow them to be landed. Looking at the whole of the circumstances in evidence, and more particularly at the fact that the Friday was a holiday, I do not think that Mr. Hogg was in default in not having taken delivery of the iron that was damaged before mid-day on the Saturday, when it suffered injury. It might be said that by that time he should have at any rate received some portion of the iron, notwithstanding the Friday holiday. But I think it is pretty clear that the first iron which came out, and which in the ordinary course should have been removed first, was that which had been the best protected, and which was taken by Thomson, Bridger. As to the great bulk of the iron, and as to the iron which was damaged, I do not think that the consignee was in default in not having removed it before the time at which the rain came which caused the injury. For the above reasons I think that the Board is liable. As to the amount of damage, I am satisfied that the mode adopted by Messrs. Edmond and Gow was the only practical business mode of ascertaining the extent of the injury. Nor, in my opinion, was it practically or reasonably possible for the consignee to have taken any steps which would have lessened the extent of the injury. It has been suggested that, as some of the cases were tallied as stained" when they came out of the ship, the iron in these cases had already suffered injury. But it is shown that these cases were dry when they came out of the ship, and it is not proved that the stains were caused by water. It also appears that a very slight stain would be sufficient to cause them to be tallied as stained. Furthermore, the cases would not be opened when received from the ship, so that the outside sheets only would be visible, and the stained appearance would be on these. It would not follow that any other sheet would be defective. As the cases each contain from over thirty to fifty-nine sheets, according to the size of the iron, the fact that a receipt was given to the ship for some of the cases as stained would not sensibly lead to the conclusion that the iron in them was necessarily depreciated in value. I think, therefore, that the plaintiffs, Messrs. Lysaght & Co., the owners of the iron, are entitled to recover £275, the amount claimed The Harbour Board appealed. Sim, for the appellant Board :— At the time when the iron was damaged the Board was a gratuitous bailee, and liable only for gross negligence. The charge under By-law 228 is for receiving and delivering only, not for storage. Under By-law 213 a consignee is entitled to twenty-four hours' free storage. If goods are not removed within the twenty-four hours, the Board can either act under section 73 of "The Harbours, Act, 1878," or can store and charge under By-law 213, or can press the consignees to take the goods away. In any case, if the goods are not removed within the twenty-four hours the Board is placed in the position of an involuntary bailee, and is liable only for gross negligence, its only duty being to use reasonable care, having regard to all the circumstances: Heugh v. The London and North-western Railway Company(1); Beven on Negligence (2). Williams, J., has found that the Board did all that it could with the appliances at its disposal. It therefore was not guilty of gross negligence. Assuming that the Board was a bailee for reward and guilty of negligence, By-laws 211 and 240 protect it. Those by-laws are authorised by subsections 3 and 5 of section 215 of "The Harbours Act, 1878." The section gives an absolute discretion in regard to the fixing of times. Kruse v. Johnson (3) and Bell v. Johnston (4) show the principle on which by-laws will now be looked at. By-law 211 applies as soon as the goods are placed on the wharf, as the consignee can take them away then. "Owner's risk" covers even gross negligence: McCawley v. Furness Railway Company(5). Even if the by-laws are not authorised, they operate as notices to consignees, and those who allow their goods to remain must be taken to assent. A carrier can (apart from statute) exclude his liability even for gross negligence, by notice brought to the attention of the party: Shaw v. The Great Western Railway Company(6). Here it was admitted that the consignees knew of these by-laws. A written notification, under By-law 240, that storage was not available was not necessary. The conversations amounted to verbal notification. The Board was therefore relieved from responsibility. The Board never consented that the iron should remain after the twenty-four hours for storage. After the twenty-four (1) L.R. 5 Ex. 51. (2) 2nd ed. 1101. (4) 18 N.Z. L.R. 185. (5) L.R. 8 Q.B. 57. (6) [1894] 1 Q.B. 373, 380 81. C.A. 1901. ОТАСО HARBOUR v. JOHN LYSAGHT. C.A. 1901. OTAGO HARBOUR BOARD v. JOHN LYSAGHT. contract. hours, therefore, at all events, it was a gratuitous bailee. Assuming the Board to have been a bailee for reward under Bylaw 213, it would be protected by By-law 211 as part of the In any case, there can be no claim in respect of goods discharged within twenty-four hours of the damage being done. On the evidence, the consignees did not remove part of the goods within a reasonable time. They were not prevented by circumstances beyond their control, as in Hick v. Raymond & Reid (1). A holiday was no excuse for not removing them, if it could have been done; and, on the evidence, it could, easily. As a matter of law, valuers' fees were not recoverable. Hosking, for the respondents: The Board received these goods, under By-law 228, as bailees for reward. By-law 233 refers to the Board as wharfingers. The duties of a wharfinger and a warehouseman are often found in combination: Beven on Negligence (2). It was so here. The charge for receiving and delivering, eo nomine, must be regarded as also a remuneration to the Board for the safe keeping of the goods whilst they were in its hands, and the Board could not get rid of its responsibilities so long as it retained the goods: Mitchell v. The Lancashire and Yorkshire Railway Company(3); Chapman v. The Great Western Railway Company(4); Cairns v. Robins(5); White v. Humphery(6); Andrews v. The Queen (7). The Board was, at all events, bound to retain the goods for a reasonable time: Chapman v. The Great Western Railway Company(4); Patscheider v. The Great Western Railway Company (8). And the actual circumstances must be looked to in determining what was a reasonable time; not what would ordinarily have been enough: Hick v. Raymond & Reid(9). There was no notification under By-law 240. The Board can only rely on By-law 211. But that does not apply if the Board elects to act as wharfinger under By-law 228. By-law 228 and the following by-laws are under the heading "Regulations relating to Wharfinger's "Duties." By-laws 229, 232, 233, 236, and 237 are all inconsistent with 211 applying. By-law 241 expressly recognises the Board's liability for negligence. If By-law 211 was in (1) [1893] A.C. 22, 31. (2) 2nd ed. 1005-7. (3) L.R. 10 Q.B. 256, 260. (4) 5 Q.B.D. 278. (5) 8 M. & W. 258, 263; 10 L.J. Ex. 452. (6) 11 Q.B. 43. (7) 15 N.Z. L.R. 562. (8) 3 Ex.D. 153. (9) [1893] A.C. 22, tended to apply to the case of the Board acting as a wharfinger, the Board has no authority to pass a law exonerating itself from its own negligence: Sherwin v. The Commissioner of Railways(1). Such a by-law would be unreasonable where the duty of wharfinger is being undertaken: Peek v. The North Staffordshire Railway Company(2); and here there was no alternative rate and no option of going elsewhere. The bylaws, if so intended, are contrary to the spirit of "The Harbours Act, 1878," sections 72 and 73 of which provide what is to be done where goods are not removed. There was no notification under By-law 240; and, in any case, that by-law does not exonerate where there is negligence. Damage by the elements or otherwise does not include damage through negligence: Wilson, Sons, & Co. v. Owners of Cargo per "Xantho "(3); Hamilton, Fraser, & Co. v. Pandorf & Co.(4). These by-laws cannot be treated as the terms of a contract, the respondents being compelled to do business with the Board, and the element of consent being absent: London Association of Ship Owners and Brokers v. London and India Docks Joint Committee(5); Pollock on Contracts(6). As to the damages, the fees for the examination are objected to; but that is the usual business course, and the point was not taken in the Court below. Sim, in reply: Mitchell v. The Lancashire and Yorkshire Railway Company(7) is against the respondents, and shows that a carrier can get rid of his liability as an insurer before he gets rid of the goods: Beven on Negligence(8). In Slattery v. Naylor(9) there are strong observations against disallowing by-laws on the ground of unreasonableness. By-laws 211 and 213 must be read together. They are quite general, and apply to all goods, whether placed on the wharf by a consignee or by the Board. They are made under sections 72 and 73, the wording of which is quite general. So long as the compulsory character of the Board's interference continues By-law 211 does not apply; but so soon as the goods are at the disposal of the consignee it begins to apply-or, at all events, after twenty-four hours. (1) 2 N.S.W. L.R. (L.) 209. (2) 10 H.L.C. 473; 32 L.J. Q.B. 241. (3) 12 App. Cas. 503, 510, 515. (4) Ibid, 518, 524, 526, 528. (5) [1892] 3 Ch. 242, 252. (6) 6th ed. 10, 11, 46. C.A. 1901. OTAGO HARBOUR v JOHN LYSAGHT. |