p.1 To the kind attention of a friend who was present when the following judgement was rendered, we are indebted for the report of a trial, involving principles of great importance to that class of our mercantile community who are engaged in the Upper Canada Trade. It establishes the opinion of the Court upon the liabilities of common carriers.
James F. Smith vs W.L. Whiting
This action was tried at the City of Toronto before the Honorable Chief Justice Robinson on Wednesday the 10th of April, when a verdict was found for the defendant.
The circumstances of the case appeared from the evidence at the trial to be as follows:- The plaintiff's Agent at Montreal delivered some merchandise to the forwarding house, of which the defendant is Agent and a member, to be forwarded to the plaintiff at York. No agreement was made between the parties or their agents, but the goods were received by the defendant in the usual course of business. This was in October, 1833. They were put on board a batteau of the largest class, with a careful conductor, and well manned. At Coteau Du Lac this
batteau and some other batteaux and barges were taken in tow by the steamboat Neptune to be towed across Lake St. Francis. They left the Coteau about sunset, with fine weather and a fair but light wind. In the night a storm arose, and it was judged necessary for the safety of the boats and on account of the darkness of the night, which was increased by rain, to come to anchor. While lying at anchor, notwithstanding the greatest care and exertions of the master and men of the steamboat, and the master and men of the batteau, the bow of this batteau was stove, and the plaintiff's goods by that means damaged. The defendant insisted that the damage happened by the Act of God, for which he was not answerable, and the jury under the direction of the Court found in his favour. They were asked by the Court to express their opinion on several questions, viz.:-
1st - Whether there was any want of care or prudence in leaving Coteau du Lac in such a manner and under such circumstances? The jury said there was no want of care.
2nd - Whether the accident happened from stress of weather? The jury found it did.
3rd - Whether if the steamboat had not been there, this batteau would have left the Coteau at the time it did and would have been exposed to the same danger? The jury were of opinion it would.
The plaintiff has leave to move the Court of King's Bench, if he pleases, to set aside the verdict for the defendant, and enter one for him, for the amount claimed, if the Court shall judge an action to lie in his favor under such circumstances. [Montreal Gazette]
p.2 The Ottawa steamboats have commenced their regular trips, and it is but justice to the agent Mr. Cushing, of this city, to notice the comfort and convenience he has ensured to the public in the fitting up of the respective steamboats on the line. The Ottawa has been refitted with artificial bilges, which has the effect of rendering her extremely steady without diminishing her superior speed; she is commanded by Capt. Lyman, as her former commander, Captain Lighthall, has been appointed to superintend the towing and regulating the barges through the Carillon and Chute a Blondeau Canals up to Grece's Point, where they enter the Grenville Canal, all of which, under the prompt management of Captain Haynes, are now, we rejoice to say, navigable. For this purpose he has the St. Andrews steamer under his command. The Shannon is commanded by her old and well known master, Capt. Kains. It is expected that in the course of the next week, some of the Kingston steamers will arrive at Bytown to continue the line to that place from Montreal, and permit the trip to be effected in four days (unless prevented by adverse gales or other extraordinary contingencies.) The arrangements which have been made for this object cannot fail to ensure much comfort and satisfaction to passengers, and the greatest possible security and expedition in the transit of freight, and though last mentioned, yet not the least in importance, as we have heard, at very reasonable rates. [Montreal Gazette]
Sir John Colborne has conferred the situation of Collector of the Customs at Port Hope, upon Capt. Kingsmill, late of the 66th Regiment. [ib]
St. Lawrence Canal - We are informed that the Commissioners are to receive after the 1st of June, £10,000 monthly, until the sum of £70,000 is expended - this is as much as they asked for this season - double that amount will be expended the next. Mr. Jones, President of the Board, has gone to York, it is said, for the purpose of making arrangements with the Receiver General for drawing the money as it may be required. The Engineer, Mr. Mills, has been sent for, and is expected in next week - as soon as he arrives, the Commissioners will meet and mark out that part of the route which they intend to improve in the first instance, and advertise the same for Contract.
We believe the Commissioners have not yet determined which end of the Canal they will commence first - we would therefore take the liberty of suggesting the propriety of completing that part between this place and Milleroche in the first place - for in that case the present navigation will not be interrupted. By looking over the Engineer's report, it will be found, that if the Long Sault is commenced first, the boats will have to find some other channel for ascending than our side, and if compelled to make use of the South side, they will only be able to ascend empty. The question then arises, how are the goods and merchandise to be got up? The Laws of the United States will not allow us to break bulk without the payment of duties - therefore all must be carried from the foot of Milleroche, to the head of the Long Sault, and all boats must go up on the American side, and then return to the head of the Long Sault to receive their goods - with all those difficulties staring us in the face, we trust the Commissioners will adopt our suggestions, for if they do so, they will find that the navigation will not be so long impeded. [Cornwall Observer]
p.3 We solicit the attention of our readers to the following letter of Mr. Kirkpatrick, acting Collector at this port. From an article which has appeared in the Ogdensburgh paper, and from remarks in the British Whig, it is to be inferred that this gentleman has manifested a disobliging and arbitrary spirit in the performance of his public duties; but on the contrary, it will be seen that he has even gone out of the way to accommodate. The office hours of the Custom House are regulated by law - see 4th Geo. IV. chap. 11, sec. 5. - and we can assure the Ogdensburg editor that if our laws had to the full been "executed in their proper spirit," there have occurred instances, where much more inconvenience than the mere detention of a boat would have been the result. It is to be expected of no public office, either here or in the United States, that it should be kept open at all hours of the day.
We have often met courtesy at the hands of the American revenue officers, but when next a comparison is made between them and those of our own Province, we would state: A party of ladies and gentlemen, who were merely on a pleasure tour to Oswego during this week, arrived in that village in the steam-boat, and previous to landing, their trunks were all opened, and their personal apparel inspected. When did such a thing occur here?
Those Editors who have copied either of the articles alluded to, would do well to copy this statement.
To the Editors of the Chronicle & Gazette.
Kingston, 25th April, 1834.
Gentlemen; - Observing in the British Whig of the 18th inst., and in the Ogdensburgh Republican of the 22nd inst., editorial articles strongly animadverting upon me in my official capacity, for having detained the steamboat United States in this Port, on the morning of the 18th inst., until 10 o'clock, because she had on board a few dutiable articles, I beg leave to state for the information of the public, some particulars respecting the case, which if known to the Editors in question, have been carefully concealed by them.
On the first trip of the steamboat United States this season, I was called on by the Master about 5 o'clock A.M., to take the report of his vessel. I did so, and then told him that although the hours at which his boat was advertised to arrive at this Port were not during the office hours appointed by law, yet I should be happy to afford him, in common with the Masters of all other American and British steamboats, every accommodation in my power; and that at no matter what hour the boat arrived, provided the cargo to be discharged consisted only of passengers and their luggage, he should be at liberty to proceed on his route, by merely leaving a written report of such arrival at the office, or with one of the Deputies. But that in the event of his having dutiable articles on board, I should require him to remain until they were entered and the duty paid according to law; stating to him that the office was opened for such business at 10 o'clock during the month of April, and at 9 o'clock during the summer. He expressed himself much pleased with the proposed arrangement, and assured me that he did not intend to bring any freight here, but that his principal object was that his passengers should not be detained beyond the time mentioned in the advertisement. I was not a little surprised, after this conversation, to be called upon by the same gentleman on the next trip of the boat, at about 5 o'clock A.M., and requested to receive the duties upon some goods which were on board the boat. Without inquiring what they were, I refused; and as I acted strictly according to law, and he in direct opposition to the arrangement agreed upon between us a few days previous, I conceive no apology is necessary for my conduct on the occasion. I have since been told by him that it was contrary to his wishes that the property was shipped at Oswego, and that he told the owner of it, that the duty would not be received until the office hour appointed by law.
For the correctness of the foregoing statement, I appeal to the Captain of the steamboat United States.
I am, Gentlemen,
Your Obedient Servant,
Stafford F. Kirkpatrick, Deputy Collector.
We have been informed that the fine steam packet St. George will go on a pleasure trip to Oswego on some day in the beginning of next week, and return the day following - of which more particular notice will be given.
The Splendid Fast Sailing Steam Boat
Capt. Charles M'Intosh, Master,
Propelled by two low pressure Engines of Fifty Horse Power each, will, until further notice, leave the different Ports as follows, viz.:
Prescott, every Thursday Evening.
Brockville, Thursday Night.
Kingston Friday Forenoon.
Toronto, (late York) Saturday Afternoon.
Niagara, every Monday afternoon at 4.
Toronto, Tuesday morning at 9.
Kingston, Wednesday morning at 6.
Brockville, Wednesday afternoon.
No Luggage or Parcels taken charge of, unless booked, and paid for.
This boat will be found, by the Travelling Community, not surpassed by any other on Lake Ontario, for elegance, comfort, and speed.
The Cobourg will wait the arrival of the Montreal Stages, before leaving on her upward trip. For freight or passage apply to the Master, or Purser on board.
Cobourg Steam Boat Office,
Toronto, April 22nd, 1834.
THE STEAM BOAT
Capt. J. Ballentine,
Will leave Ogdensburgh for Kingston every Tuesday, Thursday and Saturday mornings, at 8 o'clock; touching at Prescott, Maitland, Morristown, Brockville, Alexandria Bay, and French Creek. Returns the following days, touching at the same places as above.
Ogdensburgh, April 18th, 1834.