On Wednesday forenoon an action was tried having an important effect on the shipping and forwarding trades. It was an action of special ( ) brought by Mr. Thompson Smith, owner of the schooner Europe, against Messrs. Jones & Walker, forwarders, to recover damages for the detention of the schooner at this port an unreasonable time. Verdict for the plaintiffs, £15 damages.
It appeared by the evidence adduced on the trial, that in May last the schooner Europe took on about 6000 bushels of wheat at Toronto, consigned to Messrs. Jones & Walker, and 4 or 500 barrels of flour, consigned to Messrs. Macpherson & Crane. The schooner arrived here on a Wednesday evening, and next morning the captain went to Jones & Walker's office with his bill of lading, and asked them where he should discharge the wheat. They told him that they were not ready to receive it, their stores being full, but they expected barges up every day, and he was to hold on till they came. The captain discharged the flour to Macpherson & Crane that forenoon, which occupied about two hours and a half. On Friday morning he went again, with his mate, to Jones & Walker to know when they would receive the wheat; he was told that the barges had not arrived, but would undoubtedly be there in the morning, and he must wait till then. He told them that he should expect to be paid for his detention; and they replied that if they had to pay any thing for it, they should charge the owners. Saturday came, but no barges, and in the afternoon Jones & Walker gave the bill of lading back to the captain, with a note stating that as their barges had not arrived, he was at liberty to take the wheat to any other forwarder. He accordingly offered it to Macpherson & Crane, who accepted it, and on Monday and Tuesday it was delivered to them. The owner brought his action for the detention, and also for the loss of a trip. For the wind having just then proved fair, first for going up the lake, and then for returning, three schooners which came into port about the same time as the Europe went to the head of the lake and returned with cargo, before she could get away from Kingston. She had a cargo of wheat waiting for her at Toronto, and could have made the trip as fast as they did, if she had not been detained.
For the defence, Mr. Henderson, the forwarder merchant, was called, who stated that it was common to detain schooners here three or four days when not ready to receive the cargo; that he frequently had done so, and never paid for detention except once, when he detained a vessel for six days, and paid for two days' detention. He also stated that a vessel would wait a day for barges, rather than discharge wheat into the (stores), it was so much easier and quicker to discharge into the barges. Evidence to the same effect was given by the clerks of Macpherson & Crane.
Mr. Campbell, Counsel for the plaintiff, in his (closing) address to the Jury argued that the custom which had been set up by the forwarders was an unreasonable custom, and therefore could not be pleaded to the detriment of his client; - for no custom of trade is binding in law unless it be in itself a reasonable custom.
This view was taken by the Chief Justice in his charge to the Jury. He thought that a forwarder could not be expected to be at all times prepared to discharge a vessel as soon as she arrives, and therefore one day should be allowed for them to prepare; but after that it was unreasonable to expect a vessel to wait for their convenience. He would therefore suppose that the Jury would agree to allow the plaintiff for the days he was detained after the first. But he did not think that any thing should be allowed for the loss of the trip.
Accordingly the Jury found for the plaintiff three days detention of his vessel, at £5 per day, but nothing for the loss of the trip. It is thus established that if vessels be detained by forwarders more than one day before proceeding to unload them, they must pay for the detention.