HERALD & WEEKLY TIMES, LTD. v. NEW ZEALAND SHIPPING COMPANY, LTD.

(1946) 80 Ll.L.Rep. 596

KING'S BENCH DIVISION.

Before Mr. Justice Morris.

Canadian Water Carriage of Goods Act, 1936 - Damage to cargo by sea water - "Act, neglect, or default of the master, mariner, pilot or the servants of the carrier . . . in the management of the ship" - "Any other cause arising with out the actual fault and privity of the carrier" - Unseaworthiness - Onus of proof - Shipment of newsprint in defendants' ship for carriage from St. John (N.B.) to Melbourne - Arrival at Sydney (N.S.W.) on Nor. 9, 1944 - Soundings regularly taken while in port - Water discovered in port and starboard bilges to No. 1 hold (where newsprint was stowed) on Nov. 17, when depths of 3 and 4 in. were found - Similar depths recorded until Nov. 20, when 3 ft. 6 in. of water was found in starboard bilge, indicating that water was present in No. 1 hold - Bilge and hold pumped dry in accordance with surveyor's recommendation - No under-water damage discovered by diver - Ship permitted to proceed to Melbourne, where ship was further surveyed - Soundings taken showing 3 and 5 in. of water in port and starboard bilges - Port bilge found on exposure to be full of water, further examination disclosing that port bilge sounding pipe was choked with sand to height of about 3 ft.; that number of bays in bilges were choked with sand; and that the cavity between tank top and close ceiling of No. 1 hold was packed solid with sand - Evidence that sand had been used as ballast on previous voyages, but that bilges were afterwards cleaned - Conflicting opinions as to cause of entry of water into No. 1 bilge - Suggestions made that valves in bilge pipeline were jammed; that they were blocked with sand; that they had been negligently left open - Probabilities - Canadian Water Carriage of Goods Act, 1936, Schedule, Art. III (2), Art. IV (2) (a), (q).