AM McDonald Co Ltd v USS Co of New Zealand Ltd [1958] SamoaLawRp 2; [1950-1959] WSLR 131 (11 November 1958)

[1950-1959] WSLR 131

HIGH COURT OF WESTERN SAMOA

A.M. McDONALD CO. LTD.

V

USS CO. of NEW ZEALAND LTD

HIGH COURT. Apia.
1958. 3, 11, November.
ROTHWELL J.

Claim for damages-goods shipped by defendant for delivery to plaintiff-goods damaged-signed receipt for plaintiff acknowledging goods in good order and condition-parole evidence to contradict receipt inadmissible-onus on plaintiff-defendant not liable.

Where goods had been delivered to the plaintiff and the plaintiff had issued to the defendant a signed receipt acknowledging the goods to be in good order and condition-

Held: In an action claiming damages for delivery of defective goods, that the defendant was entitled to rely on the receipt as a discharge from liability; and that parole evidence adduced to contradict, vary or add to the contents of the receipt was inadmissible against the defendant.

Judgment for defendant.

Metcalfe, for plaintiff.
Phillips, for defendant.

Cur. adv. vult.

ROTHWELL J.: This was an action for damages in which the plaintiff claimed that the defendant as lighterer for the Port of Apia, was responsible for damage by salt water contamination to twelve sacks of sugar which constituted part of a cargo of sugar being transported for delivery to the plaintiff. The cargo was unloaded from the S.S. "Waihemo" which was proved to have arrived at Apia on February 20^th 1958, and to have departed again on February 21^st 1958 having discharged all its cargo. All the sugar was brought ashore by lighters and off-loaded into the Customs shed from which it was delivered to the plaintiff substantially on February 24^th, 25^th, 26^th and 28^th. One bag out of the total cargo was in fact delivered on March 11^th, but it is not suggested that anything in this action turns on the delivery of that bag. In fact, it is alleged that all the damaged sugar was uplifted by the plaintiff on February 25^th.

An inspection of portion of the sugar was made by Mr Stunzner of the Health Department on March 12^th, and 12 bags were found to be contaminated by salt, and were condemned and destroyed by emptying into the harbour. This was done on that day.

The evidence of the delivery is contained in delivery receipts on the printed form of the defendant produced in evidence - there being two such receipts for February 24^th, six for February 25^th, one for February 26^th and two for February 28^th. These forms read 'Received in good order and condition the following packages ex S.S. "Waihemo" following which, there is a description of the goods received, and the document is signed by a tally clerk of the defendant and also by the tally clerk of the plaintiff.

Mr Stunzner produced the certificate which he gave on March 12^th 1958 certifying that he had destroyed twelve bags of brown sugar "badly soaked with salt water". He was definite that the testing and destruction of the sugar in question took place on the date of the certificate. A claim in writing was forwarded by the plaintiff to the defendant on March 13^th, and the original claim was put in evidence. It bore a reply signed on behalf of the defendant refusing to recognise the claim and stating that "as we were not previously notified of this damage, we cannot accept liability".

The defence said that all the sugar was signed for as being in good order and condition, and that no suggestion of defective condition was made until March 12^th, fifteen days after delivery of the alleged defective sugar.

The evidence of Mr Macdonald, the Managing Director of the plaintiff company, is (due to no fault of his own) not much help as it consists in the main of hearsay and repetition of matters told to him by members of the staff of the plaintiff Company. He was the first witness for the plaintiff and at the outset of his cross-examination, he admitted that there would probably be delivery receipts acknowledging the receipt of the sugar "in good order and condition"; but he immediately followed this admission with a statement that an employee of the plaintiff, at the time of the delivery, objected to the condition in which the sugar was being delivered to him - that a conversation took place with an employee of the defendant, and that delivery was accepted under protest. This evidence was inadmissible for two reasons: firstly - it was hearsay and related to conversations at which Mr Macdonald was not present; and secondly - it was evidence seeking to vary or contradict a written document signed by representatives of both the plaintiff and the defendant, and in my view binding accordingly. No objection was made by Counsel for the defendant.

It is not for the Court to take objections of this nature but for Counsel, who are in possession of the facts and should know whether evidence is admissible or inadmissible, to take the objection and have the matter determined. If this had been done in the present case I would have rejected the parol evidence and the proceedings would have been considerably shortened.

There was further hearsay from Mr Macdonald of verbal complaints at the time of acceptance, one of which was alleged to have been to the representative of the defendant in the presence of Mr Stunzner.

Mr K.F. Stunzner gave evidence of the testing on March 12^th, and his evidence is conclusive that on that date, there was contamination owing to the presence of salt. He said that the only representative of the defendant that he spoke to, in connection with the contamination, was the Manager "probably a week after the destruction". He said he did not remember any conversation between the tally clerk of the plaintiff and any employee of the defendant at the Customs shed on the day of the destruction.

Mr Douglas Atoa in charge of the bulk store of the plaintiff, said that he saw a number of wet sacks during the course of the delivery at the bulk store, and that he spoke to Avei the tally clerk of the plaintiff about this apparently defective condition, and he followed this up by giving (again without objection from Counsel for defendant) a hearsay version of the conversation alleged to have taken place between Avei and an employee of the defendant. He also stated that although he was present at the Customs shed after the destruction of the sugar, he heard no conversation between employees of the plaintiff and defendant respectively.