The Maritime History of the Great Lakes
Montreal Gazette (Montreal, QC), June 4, 1842

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p.2 In a late number we took occasion to offer some remarks upon a trial which took place before Mr. Justice Macaulay at the Newcastle District Assizes, between Messrs. Macpherson & Crane and Mr. Ham, in which a verdict was returned for the latter, under circumstances upon which we felt bound to make some animadversion - dissenting from a decision so manifestly unjust, and censuring the conduct of a body of men, who, apparently regardless of the duties they were called upon to perform, seem to have laid aside the character of sworn jurors, and adopted that of interested partizans. A similar case now demands our attention. The principle involved being so important to those engaged in the carrying trade, who are principally resident here, and whose interests are those of the whole mercantile community, is sufficient apology for again bringing up the subject.

Every individual will be prepared to admit the position that if forwarders are to be held liable to the extent assumed by the decision already alluded to, they must look for protection to an increased tariff of freights; it cannot be otherwise. As with Insurance Companies, so in the present case, the rate of charge must be in proportion to the amount of risk incurred. Common sense would teach this to be the only basis upon which business could be transacted; and carrying out the argument, the burthen must fall upon the producer. This fact is apparently lost sight of; but if it is not the effect of the judgements now rendered, the public will be indebted to the firmness of the parties against whom these actions have been brought, in resisting the illegal decisions of interested parties.

We are pleased to find that the views we have already expressed were not only sustained by Mr. Justice Macaulay, but that Mr. Justice Jones has thrown the weight of his legal knowledge and attainments into the scale; leaving us to infer that the justice of the case is fully supported by the laws regulating commercial transactions; and that when carried before a Court which knows not the influence or the sympathies which unfortunately in this country affect to so great an extent the majorities of juries, so unreasonable a doctrine as that which has recently been inculcated and attempted to be enforced, will be thrown aside.

The case which has called forth the present remarks was argued before Mr. Justice Jones at the Gore District Assizes, held at Hamilton. As the journals of that town do not furnish a report of the proceedings, we are indebted to private information from a source in which we can place the utmost confidence. From this we learn that Mr. Ewart of Dundas, on his own part, and as executor to the estate of the late Jas. Crooks, brought an action on similar grounds to the case before cited, to recover the value of property destroyed by the calamitous fire of the 18th of April, 1840; a fire which will be long remembered by the citizens of Kingston. The case was ably opened by Mr. Boulton for the plaintiff, who assumed the ground that the property being once received by the defendants, they were liable as common carriers. Mr. Draper, for the defendants, in a masterly and eloquent manner, argued that they were not in this instance, nor could it be proven that they were at that time to be considered as common carriers, inasmuch as they had received the property to be stored for the plaintiff until such time as they were prepared to forward to Montreal; and this point he clearly showed, and his evidence were conclusive in substantiating the fact. One of the witnesses, Mr. McDonald, was ordered to communicate to the agents of the defendants, and their numerous customers, that no produce could be forwarded, and therefore that none should be sent on, during the month of April. It was also shown by Mr. Gunn, who was acting in the capacity of agent for Mr. Ewart between the 4th and 7th April, that he, then in charge of the two cargoes of flour, belonging to the plaintiff, on his arrival in Kingston (being duly apprised of the defendant's inability to forward previous to his leaving) was desired to go round to the forwarders, and give them the identical property which was unfortunately destroyed.

Now, this gentleman, acting under directions from Mr. Ewart, clearly substantiates the fact, that the defendants could not, and were not, prepared to act as common carriers at that time. Mr. Gunn, on enquiry, found that the plaintiff's best interests would be served by leaving the property with the defendants; he, accordingly, made arrangements with them to store the said goods, until such time as they were in a position to assume the duties of carriers, which would be on the arrival of boats by the Rideau Canal. It must be borne in mind that the fire occurred on the morning of the 18th April; and it was clearly shown that no barges could, by any possibility, have arrived before the 27th, nine days after, by the evidence of Captain Hunter, one of the oldest masters on that route, who stated, that on the evening of the 27th, he arrived at Kingston, having used every exertion to get through as early as the ice and other natural obstacles of the navigation at that period presented.

The Court expressed the opinion, that if the defendants were at the time prepared to forward, they were then decidedly liable; but if their season of forwarding had not commenced, and that the plaintiffs were made aware of it, and in the face of such knowledge persisted in sending on their produce (as was fully shown by the evidence of Mr. Gunn, the plaintiff's agent in the matter,) then the defendants were not liable, and they ought to give a verdict accordingly. The Court also cited a case which would bear on this: - It was of a merchant, in England, who, being a large importer of wool, was in the habit of employing a forwarder, or common carrier, in the transit of his wool. He, finding that he had not sufficient room for storing what he required, made an arrangement with his forwarder to give storage for a part, such as his own premises could not contain; a fire occurred shortly afterwards, and the property so stored with the forwarder was destroyed. An action was brought to recover against the forwarder, whose defence was that his liability had ceased when the goods were stored by order of the plaintiff. As a matter of course, the defendant gained the action.

Some may say this is not a case in point, but it is, nevertheless. The defendants Messrs. Macpherson & Crane, made the plaintiffs aware that they could not take his flour. The communication was made by letter of 4th February from the defendants to Mr. Ewart, and also through Mr. Browne, of Hamilton, who distinctly remembers having told the plaintiff previous to the departure of the flour, which caused him to send an agent in the person of Mr. Gunn. Now, the plaintiff being in full knowledge of the defendants' incapacity to forward, did, in spite of such instructions, send down his property. Was it not, then, at his own risk? and did not the defendants store it under such understanding, by arrangements made with the plaintiff's agent, Mr. Gunn, in the capacity of warehousemen, and not as common carriers; inasmuch as they were not prepared to forward until the arrival of barges, which did not take place until the 27th April, nine days after the destruction of the property? Most clearly so. Under these circumstances, the Judge distinctly stated, as the opinion of the Court, that the defendants were not liable - that their liability had not commenced.

In the face of these facts, however, and the opinion of the Court, so decidedly expressed, a verdict was returned for the plaintiff of 4253 Pounds 16s.; the amount claimed was 5247 Pounds 14s. 7d. Now, it may be asked, if this intelligent Jury were convinced of the justice of the claim of the plaintiff, why did they not award the full amount of damage claimed? 987 Pounds, 18s. 7d. forms a serious item of retrenchment. In fact, the verdict is one totally inexplicable to us; we cannot account for it, except by entertaining suspicions of the integrity and independence, or of the intelligence of the Jury. We shall not attempt to divine motives, but leave the matter to the decision of the public, whose interests are affected in no ordinary degree; convinced that justice will yet be meted out, and that the defendants - who, in addition to unprecedented misfortunes by the calamity which has given birth to the questions pending, have been made the subjects of an unjust prosecution - will yet be relieved of the additional burden sought to be imposed. [Kingston News]

A most extraordinary escape from death occurred on Monday last to a son of Captain Macaulay of Toronto, on the passage down of the steamer Niagara. The young man was on the promenade deck, and attempted to cross underneath the walking-beam while the opposite end was down, on a platform which appeared to be secure, but the instant he put his foot on it, he was precipitated among the works below, and was naturally supposed by those who saw him to be instantly crushed; but an obstruction he met with in falling enabled him with great presence of mind to grasp the rods of the air pump; he thus sustained himself for some minutes, being drawn up and down, till the engine could be stopped to release him from his perilous situation. He was but slightly injured. [Kingston News]

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June 4, 1842
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Rick Neilson
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Public domain: Copyright has expired according to the applicable Canadian or American laws. No restrictions on use.
Maritime History of the Great Lakes
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Montreal Gazette (Montreal, QC), June 4, 1842