Gibbes v McColl [1952] PGSC 8 (26 November 1952)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

BETWEEN:

ROBERT HENRY GIBBES and
MARY JEAN CHRISTINA
(Trading as Gibbes Sepik Airways)
Plaintiffs

AND BETWEEN:

KENNETH McCOLL
Plaintiff

AND:

ROBERT HENRY GIBBES and
MARY JEAN CHRISTINA GIBBES
Trading as Gibbes Sepik Airways)
Defendants

By Counterclaim

JUDGMENT DELIVERED 26TH NOVEMBER, 1952.

In this action the plaintiffs claim against the defendant £425. 5. 0. airfreight, and goods. And the defendant counterclaims against the plaintiffs £418. 4. 0 for damages for breach of contract to carry goods and airfreight in respect of those goods.

On an order of this Court made 21st October, 1952, the defendant was allowed in on his counterclaim, then out of time, conditioned that he admitted the plaintiff's claim.

The defendant, in his counterclaim, and also by his counsel Mr. Tonking, on the opening of the hearing, admits the plaintiffs' claim. Therefore, there will be judgment for the plaintiffs on their claim with costs to date of admission in the counterclaim delivered 10th July, 1952, such costs to be taxed.

On the counterclaim evidence was given for the defendant, McColl, by William Robert Crosbie and the defendant, from which it transpired that the counterclaim is based on an alleged failure by the plaintiffs to deliver at Chimbu ten bags of shell and one case of rum.

The plaintiffs in answer to the counterclaim, did not admit the contract of carriage and that the goods were not received for carrying for the defendant; and alternatively any alleged contract for carriage was subject to the condition that delivery on the ground at the aerodrome at Chimbu was good delivery, and denying that the goods were lost.

In their radiogram from the plaintiffs' solicitor to the defendant's solicitor dated 14th November 1952 the plaintiffs admitted receipt of the goods and the contract for carriage, (Exhibit "A"). The issue then is as to whether the goods were delivered at Chimbu.

Extracting now the material evidence of Crosbie –

In Chief:-

"When I sighted the aircraft I proceeded down to the airstrip. When I arrived at the airstrip the plane had landed. They were just commencing unloading. The pilot was Captain Zuydam. With him I proceeded with the unloading of the aircraft. I supervised the natives in the unloading. Captain Zuydam handed me the manifest."

Tonking: "I ask for the manifest". White: Produces Manifest Book.

Witness, looking at Manifest Book, page dated 9/11/51: "That is a copy of the manifest".

Manifest Book as to that page tendered, marked Exhibit "G".

Witness continuing: - "When I checked the cargo delivered against the manifest I discovered there were ten bags of Tambu shell short and one case of rum. I drew Captain Zuydam's attention to this, and he said that he would check up for me and find out where it was.

I remarked that I would not sign the manifest until such time as the missing cargo was found.

Usually it was my practice to sign the manifest as receipt for cargo. When the plane left Chimbu our own cargo was put in the store, and word was sent to the others that there was cargo for them.

The store is approximately 20 yards from where the plane was unloaded. Some time later I saw Mr. Robert Gibbes at Chimbu. That would be some time in January; towards the end of January.

Mr. Gibbes asked me about this Tambu. I said that it had not arrived. He said that it must have arrived. I told him to get in touch with Captain Zuydam who would tell him about the conversation we had had on the day the plane brought the cargo in. He said he would go to see Captain Zuydam.

Subsequently I saw Mr. Gibbes again - approximately two or three weeks later. Mr. Gibbes said that he had seen Captain Zuydam and Captain Zuydam had said he did not remember that particular load. And Mr. Gibbes said that in his opinion the Tambu was unloaded at Chimbu and he was going to put the matter in the hands of the police. I told him I would appreciate it very much if he would do that as it would clear things as far as we were concerned at the Chimbu end."

On cross-examination:

Q. "What have you done with the original manifest? A. I gave that to Mr. Passlow.

Q. When was that? A. That would be in January some time.

Q. Place the time. A. I think it would have been early in January.

Q. Passlow is agent for McColl at Madang? A. Yes.

Q. The usual custom is that the customer keeps the manifest and Gibbes keeps the copy in the book? A. That was the usual custom.

Q. At Chimbu if there were various persons on the manifest you would keep the original on behalf of all? A. Usually the others would get their own statement. On this occasion there was only one - the manifest.

Q. If there was freight on the plane for McColl you would normally keep the original manifest? A. Yes.

Q. You normally receipted the manifest, but on this occasion you refused to do so? A. Yes.

Q. That receipt would go on the carbon copy too? A. Yes.

Q. Would you like to try and find one manifest in that book (Exhibit "G") with a receipt on it? A. (Witness looking through Manifest Book, Exhibit "G"): I can see only two Chimbu manifests, and neither of them is signed. One is the manifest carrying the shell and rum. The other has nothing for us."

Q. The signature is given at the request of Gibbes Sepik Airways? Yes.

Q. I suggest that you are wrong. A. Yes. I probably was. I was referring to signing the freight notes.

Q. It wasn't the freight note in this instance? A. No.

Q. Where is McColl's business? A. At Chimbu.

Q. Where was he at the time? A. In Madang or Lae.

Q. He would generally be in Madang or Chimbu? A. He was generally in Chimbu. That was the first time he went away.'

Q. About when did he arrive back at Chimbu? A. About February.

Q. Where did you correspond with him? A. At Madang.

Q. You would know that this Tambu was coming up? A. I was not expecting that second lot.

Q. What do you use it for? A. We sell it in the trade store to the natives.

Q. It is trade currency? A. Yes.

Q. It is more important than the coin of the realm in Chimbu? A. It is quite a good asset.

Q. It is an essential part of a trader's stock? A. Yes.

Q. Apart from your conversations with Mr. Gibbes and Captain Zuydam at Chimbu you never communicated with Gibbes Sepik Airways? A. No.

Q. I suppose you were reflecting that any day after 9th November, the missing goods would turn up? A. No. I was leaving it to Mr. Gibbes and Mr. McColl.

Q. In view of your evidence that it was not the custom for them to ask you to sign the manifest would you like to withdraw this part of your evidence that you said to Captain Zuydam you would not sign the manifest until the cargo turned up? A. I said to Captain Zuydam 'I won’t sign for the cargo until such time as we can find out where it is'.

Q. Are you suggesting that Captain Zuydam asked you to sign for it? A. No.

Q. Apart from the manifest, no document exists which you could have signed? A. I have just passed the remark. I was not thinking of any other document.

On re-examination:

Q. On any other occasion has £412 worth of cargo been short delivered to you? A. No.

Q. Does that impress on your mind the conversation with Captain Zuydam? A. Yes.

The material evidence of McColl -

In Chief

"I left Chimbu on 2nd October last for Madang and remained there for approximately six months.

(Judge's note - In his closing address Mr. Tonking explained, which appeared to be the fact, that McColl did not spend the whole six months in Madang, but spent part of the time at Lae)

"Prior to leaving Chimbu I had a transaction with Gibbes Sepik Airways in respect of Tambu shell. While I was in Madang I had a conversation with their representative, Captain Manser, in respect of that transaction. After that conversation I posted a cheque to Gibbes Sepik Airways for £412. 6. 0. I produced the butt of that cheque." Tendered, marked Exhibit "H".

Witness continuing –

"Subsequently I had a conversation with Mr. Robert Gibbes in respect of that cheque. The conversation would be about a fortnight later; towards the end of January.

Later I had a conversation with Mr. Crosbie at Madang. That would be about the same time as the conversation with Mr. Gibbes

Then I had a conversation with my agent in Madang, a Mr. Passlow.

Then I saw Gibbes' representative at Madang, Mr. Mason. I said to him that certain cargo was not delivered at Chimbu - ten bags of Tambu and one case of rum. I asked him to see Mr. Gibbes and tell him the facts, and ask him to try to find the missing goods as the goods had been missing for approximately two months and I had stopped payment of the cheque of 14th January until such time as the goods were found and delivered.

Since then I have not received any information from Gibbes Sepik Airways in respect of these goods."

On cross-examination:

Q. Look at Exhibit "F" (White quotes "We have ...........Passlow").

It was after the middle of February that you cancelled the first cheque? A. The first cheque was cancelled when I found that the goods had gone astray. It would be after the middle of February.

Q. It was not until the middle of February that you yourself made any demand on Gibbes; apart from Mr. Crosbie? A. That is right.

Q. And your claim is you didn't know until then that they were missing? A. Yes.

Q. As I take it you are in a substantial way and wouldn't notice ten bags of Tambu missing prior to that? A. When I went to Madang I expected to be away only a fortnight, and Mr. Crosbie was holding those sorts of things pending my return.

Q. These goods were supposed to have been delivered on 9^th November, when Mr. Crosbie complained to Captain Zuydam. The first action on your part is not until three months afterwards. A. That was the first I heard of it.

Q. Mr. Crosbie told us that while you were away, he was in the habit of corresponding with you? A. Yes.

Q. Were you satisfied with Mr. Crosbie's business methods? A. Yes, quite satisfied.

Q. Yet the only explanation had is that Mr. Crosbie failed to inform you that Gibbes had failed to deliver about £400 worth of goods? A. Yes. He, no doubt, trusted in Mr. Gibbes to try to find them; having spoken to Captain Zuydam on taking delivery.

Tendered, by consent, on behalf of defendant is a letter from defendant to plaintiff's solicitor dated 3^rd March, 1952, (Exhibit "F"), reading as follows:

"Your letter of 29^th February to hand and contents noted. In regard to the amount due to Gibbes Sepik Airways, may we point out that the amount quoted by you is erroneous. The correct amount is £412. 6. 0 being for Tambu shell which was delivered to us at Chimbu. To date we have not had any further statements for any further amounts.

We have made one attempt to pay this account, vide copy of our letter enclosed. Up to about the middle of February, Gibbes alleged that the letter and cheque had not reached Wewak. We admit that letters can go astray in the post, as we have experienced this ourselves. However, just at the time we cancelled the first cheque, and prior to issuing another one, we discovered that Gibbes Sepik Airways had mislaid the following goods of ours, which consigned from Madang to Chimbu, through Mr. W. Passlow

6 cases Frigate rum	£49.10.0
1 case sandshoes	1. 0.0
13 bags Tambu shell	£487.10.0
Airfreight	49.4.8

This is a total value of £587.4.8. As soon as this came to our notice we contacted Gibbes Manager in Madang, Mr. Mason, and asked him to go into the matter, and in the meantime we would hold the cheque. The above goods were taken by Gibbes on 12^th November 1951. Up to date, as far as writer has been able to find out, despite many approaches to Gibbes, 3 bags of Tambu and five cases of rum and the sandshoes have been delivered. It was only the fact of holding up their cheque that they made any attempt at all to find the missing cargo; in fact they at first denied ever having carried it.

Now we would suggest that, since they have taken legal advice, despite their own indebtness, that the missing bags of shell, i.e. 10 bags, be retained by Gibbes replacing the amount they delivered to us originally, and that they replace 1 case of rum, to us. In other words they repossess their goods. Any other amounts which we may owe them, will be paid as they present their accounts.

A cheque for your costs is enclosed. Please advise with us if the above arrangement meets their requirements.

Yours faithfully,

(Signed) K. McColl."

Coming now to the evidence for the plaintiff. This was given by Patrick Stephen Jocelyn O'Connell Primrose, the plaintiff's Branch Manager at Goroka; and Marinus Zuydam, Chief Pilot of Gibbes Sepik Airways.

The material evidence of Primrose –

In Chief –

"I have refreshed my memory looking at the manifest (Exhibit "G") at page 22.

That manifest is in my handwriting. The signature at the righthand foot is my signature.

That cargo was brought to Goroka by Captain Zuydam on 8th November, 1951. He was booked through from Madang to Chimbu. He could not get to Chimbu on account of the weather, and he came to Goroka.

I unloaded the aircraft and put the cargo into the freight shed which was subsequently locked.

There were no documents accompanying the cargo.

Next morning I loaded the aircraft, and made out the manifest.

I gave the original copy to Captain Zuydam and also under the usual procedure I got him to inspect the loads to see that it was properly loaded into the aircraft.

He took off for Chimbu.

I have never received from McColl or Crosbie or from anyone on McColl's behalf any complaint about any shortage of any of the cargo on the manifest.

The aircraft was a Norseman. The normal payload of a Norseman from Goroka to Chimbu is approximately 1800 lbs. The figure 1813 on the manifest is in my figuring. That means pounds weight. "

On cross examination -

"Q.You weighed the individual items? A. I weighed all the cargo on the scales.

Q. Why didn't you put the individual weights? A. That didn't interest me. The individual weights would have been done at Madang.

Q. Is there any other manifest in that book which has not got the individual weights? A. There are. (Witness refers to manifest 30th November, 1951 from Goroka to Banz).

Q. Hasn't that got the individual weights shown? A. Not on the manifest.

Q. It shows the weights of packages? A. Yes. Because the Department of Civil Aviation regulations demand that.

Q. Were the 33 packages of uniform sizes? A. No, they would be varying sizes.

Q. Do you know what they were? A. No.

Q. How do you know they were varying sizes? A. Because they were shipped by a man named Mr. Taylor, a trader, and he brings his cargo into the office.

Q. That was a charter plane wasn't it? A. Not necessarily.

Q. You have no individual weights on the manifest of 9th November. How were you going to work out the freight? A. Under the procedure in the company I would not bill McColl. That was a charter.

Q. Did you have Mr. Passlow's despatch note when you made out this manifest? (Page 22 Exhibit "G") A. No, I had no papers at all.

Q. Did you arrive at this 1813 lbs in your head? A. No, I weighed them individually.

Q. Where is the record now? A. I don't know.

Q. Why didn't you put the individual weights in this book? A. I didn't think it necessary.

Q. Gibbes Sepik Airways accept goods to consignees at Goroka? A. Yea.

Q. And you as Goroka Manager deliver the goods to the consignees? A. Yes.

Q. Do you receive any receipts from the consignees? A. No. No receipts.

Q. Not on the manifest? A. Never on the manifest.

Q. On any other documents? A. If it is something really important for the Government the Stores Officer signs the Inward Freight Book which I keep.

Q. Where is that book? A. At Goroka. That is for Goroka and for forward freighting.

Q. You didn't know how long the cargo would be there? A. Yes, it was going through in the morning.

Q. I suppose 1,000 lbs of shell to a private individual meant nothing? A. No.

Q. Other than the two manifests mentioned by you the others show individual weights? A. Yes. That book does not cover a very long period.

Q. When was the first occasion you heard any complaint that the cargo was not delivered? A. Two or three months later.

Q. And you heard it from Mr. Gibbes? A. Yes."

On Re-examination –

Q. "When you said you were not interested in the individual weights what did you mean by that? A. If cargo comes from Madang it is charged from Madang.

The material evidence of Zuydam –

In Chief –

"Refreshing my memory from my pilot's log book - on 8th November the last trip was Madang to Goroka and stopped at Goroka overnight. The first trip on 9th November was Goroka to Chimbu and back to Goroka.

Looking at page 22 (Exhibit "G"), that cargo shown on that manifest was brought from Madang to Goroka and then out of the plane at Goroka, then put in the freight shed and locked up for the night. Next morning it was reloaded and flown to Chimbu.

I cannot remember exactly the unloading of the aircraft at Chimbu. It was more than a year ago.

Mr. Crosbie did not say anything to me about any shell or rum being missing, and I did not say that I would try to find it.

The normal payload of a Horseman from Madang to Chimbu would be about 18501bs.

Regarding that manifest the load was 1813 lbs.

If I were supposed to be carrying 1813 lbs and actually carrying only 800 lbs, if Crosbie had mentioned to me that I was 1,000 lbs short I would have checked up on it.

Before I take off I know what cargo I am carrying.

If I were supposed to be carrying 1800 lbs, but carrying only 800 lbs, I would be aware of it on take-off. Take-off would be shorter and from Goroka to Chimbu the climb would take much longer with a full load. I knew from the manifest that on 9th November last I was taking off from Goroka with 1813 lbs. It would have been impossible for me to have taken off 1,000 lbs light without knowing it."

On cross-examination-

Q. "Who told you what weight you had on when you left Madang on 8^th November? A. The Traffic Manager.

Q. Where did he get the figures from? A. From the person chartering the plane.

Q. You didn't know what goods were on the plane at Madang? A. Yes.

Q. Is there a paper in existence anywhere to show what goods were on the plane when you left Madang? A. I cannot answer that.

Q. Why did you leave Madang without an air manifest? A. There wasn't any.

Q. Why didn't you insist on one? A. There was an official document by Department of Civil Aviation - a Load Sheet.

Q. Where is that? A. Probably with the Department of Civil Aviation.

Q. Then where is the Company's copy? A. Probably in Madang.

Q. Who makes it out? A. The Manager makes it out, and I check up on the weight.

Q. When you sign for the weight you take a copy with you on the plane? A. Yes.

Q. Did you take your copy? A. Yes.

Q. Where is it now? A. I destroyed it most probably.

Q. When did you first hear a complaint about this cargo being missing? A. A couple of months ago in Port Moresby when Mr. White asked me.

Q. Didn't Mr. Gibbes ever mentioned it to you? A. No.

Q. Did you tell him that you didn’t remember the load and you knew nothing about it? A. Yes. (Witness hesitates and asks that the question be repeated).

Q. (repeated) A. No, I didn’t tell him that. I misunderstood your question when I answered 'yes' and asked for the question to be repeated.

Q. You do quite a lot of trips per month? A. About 100 hours a month, and about 200 landings a month. That is approximate.

Q. And on nearly all of these landings you are unloading and loading cargo? A. Yes.

Q. Most of the airstrips you go to are unattended? A. About 90% are attended.

Q. On the unattended strips when the locals see a plane coming in they are down to meet it? A. There is generally a police boy in attendance.

Q. Did you ever keep any record at all of my cargo delivered to an airstrip? A. Yes.

Q. Is that the regular practice of the Company? A. Yes.

Q. Did you ever receive a receipt for this cargo unloaded at Chimbu? A. No, I did not.

Q. Although it is the regular practice for you to receive receipts? A. Our Freight Note is always signed, and that is our receipt."

On re-examination-

"Q. And if there is no Freight Note what then? A. We just deliver it.

Q. If the place you arrive at is a Gibbes Sepik Airways Branch to whom do you deliver the cargo? A. To the Gibbes Sepik Airways Manager.

Q. What would you do with the Freight Notes in those cases? A. Hand them to the Manager.

Q. Would you see them after that? A. No."

On the above evidence I must decide whether the goods were delivered at Chimbu.

Mr. Tonking submitted, firstly, that the absence of any manifest from Madang grounded suspicion at the outset against the plaintiffs, and secondly, that Crosbie's refusal to sign the manifest at Chimbu was conclusive against the plaintiffs.

Zuydam answers the first submission - that because the freight was by charter plane he was not concerned in any manifest from Madang; that was for the charterer. But he was satisfied as to his payload on the loadsheet issued through the Department of Civil Aviation, the plaintiff firm's copy of which would be at Madang, and his copy he probably destroyed. Any defect in the absence of the manifest from Madang was cured by the manifest issued by Primrose at Goroka.

In deciding the second submission I must consider the evidence for both parties. Crosbie says the goods were not delivered at Chimbu. Zuydam says that they must have been. I must look to the circumstantial evidence for or against each contender.

Crosbie states that when he noticed goods missing he refused to sign the manifest as a receipt, which was his "usual" practice. On cross-examination he admitted that he was wrong in referring to the manifest, but was referring to freight notes.

Cross-examination of parties took place as to the alleged "usual" practice. I am concerned with the practice existing at Chimbu; and on the evidence of the different witnesses thereon I am of the opinion that the practice at Chimbu is that no manifest is signed as a receipt, but where a freight note is issued and the consignee is available for his signature the freight note is signed as a receipt, but otherwise the cargo is delivered onto the strip. This does not mean that Crosbie refused to sign for the cargo.

Crosbie received the manifest, that is the original, and "gave" it to Passlow, the Madang agent for McColl in January some time, "early in January". There is no evidence before me as to whether he actually handed the manifest to Passlow or forwarded it to him by mail. In view of the fact, if he is to be believed, that he had some two months previously challenged Zuydam to find and deliver the missing cargo, it could be reasonably expected that he would have informed Passlow of the missing cargo. Crosbie was in communication with McColl. But his only action in the matter, apart from his conversation with Zuydam, was some time in January, towards the end of January, he saw Mr. Gibbes at Chimbu, who said he would see Zuydam, and some two or three weeks later he again saw Mr. Gibbes at Chimbu who told him that the goods must have been delivered at Chimbu and that he, Mr. Gibbes, intended putting the matter in the hands of the police.

Crosbie was "leaving it to Mr. Gibbes and Mr. McColl".

On 14th January, 1952 McColl drew a cheque for £412. 6. 0 in favour of Gibbes Sepik Airways. Later, "towards the end of January" he had had a conversation with Mr. Gibbes in respect of that cheque. Either "later" or "about the same time" he had a conversation with Crosbie at Madang. Then he saw his Madang agent, Passlow. Then he saw Gibbes representative at Madang, Mr. Mason, when the following conversation took place: "I said to him that certain cargo was not delivered at Chimbu - ten bags of Tambu and one case of rum. I asked him to see Mr. Gibbes and tell him the facts, and ask him to try to find the missing goods, as the goods had been missing for approximately two months and I had stopped payment of the cheque of 14th January until such time as the goods were found and delivered." On cross-examination McColl claimed that he did not know until the middle of February that the goods were missing.

No evidence was adduced as to the actual date on which the cheque for £412. 6. 0 was cancelled; but in his letter to Mr. White dated 3rd March 1952 (Exhibit "F") McColl states "It was only the fact of holding up the cheque that they made any attempt at all to find the missing cargo; in fact they at first denied ever having ordered it." This conflicts with Crosbie's evidence.

For the plaintiffs, Primrose states that he prepared the manifest (Exhibit "G") on an actual check and weighing by him and that the cargo was loaded into the plane and inspected in the plane by Zuydam, after which Zuydam took off for Chimbu.

Zuydam contends that he delivered at Chimbu all the cargo in the plane. He admits that he did not remember exactly "the unloading of the freight, as it was over a year ago."

He denied Crosbie's allegation about any cargo missing or that he would take up with Mr. Gibbes. He also reasoned that it would have been impossible for him to have taken off from Chimbu 1,000 lbs. short weight in a payload of 1,813 lbs. He claims that his first knowledge of any complaint about the missing cargo was from Mr. White in Port Moresby a few months ago.

On cross-examination Zuydam firstly answered "yes" to the question "Did you tell him (Mr. Gibbes) that you didn't remember the load and you knew nothing about it?" but immediately he asked for the question to be repeated and answered "No, I didn't tell him that. I misunderstood your question when I answered 'yes' and asked for the question to be repeated." It may be suggested that this was a penetration of some weakness in Zuydam's armor, but on his demeanor in the witness box I am prepared to believe that he firstly misunderstood the question.

I have, for consideration:-

(a) Zuydam's contention that the goods were - they must have been - delivered at Chimbu, and supported by the evidence of Primrose.

(b) Crosbie's contention that the goods were not delivered at Chimbu, supported by McColl.

Zuydam denies any knowledge of any complaint about missing goods until some two months ago then through the plaintiff's counsel, Mr. White. Primrose's first knowledge of any complaint was from Mr. Gibbes in January or February.

Crosbie states that on 9th November last he complained to Zuydam and some time towards the end of January he complained to Mr. Gibbes. On the evidence he did not complain to Passlow or McColl as he was leaving it to Mr. Gibbes and Mr. McColl. McColl heard nothing of the matter until the middle of February last. His explanation for the lack of knowledge is that Crosbie, expecting him, McColl, to be away for only a fortnight, was holding the matter in abeyance pending McColl's return to Chimbu because he, Crosbie, trusted in Mr. Gibbes to try to find the missing goods having spoken to Zuydam on the 9th November.

I am unable to induce myself to accept the evidence for the defendant. I accept the evidence for the plaintiffs, and find that the ten cases of Tambu shell and the case of rum were delivered at the Chimbu airstrip. The counter claim is dismissed and there will be judgment for the plaintiffs on the counter claim with costs to be taxed.

(Sgd) A. KELLY, J.