General Principle of Liability (VIII)
Continued from last Thursday
In the case of Millen v. Brasch & Co., a trunk was delivered by the plaintiff to the defendant to be consigned to Rome, but owing to the negligence of a servant of the defendant it was in error sent to New York and was in consequence lost to the plaintiff for a period of some seven months. The decision in this case is to effect that a carrier is, under the Carriers’ Act, protected not only from the loss of the article itself but also from all the consequences to the consignor or consignee arising from such loss. In the course of his judgement in this case, Lopes L.J. says:
‘But whether goods not permanently lost are lost within the meaning of the Carriers’ Act, must depend upon whether they have been lost by the carrier as distinguished from lost to the owner’.
Mr. O. Alakija in reply has referred to the case of H.C. Smith v. G.W.R. Co. ((1922) 37 T.L.R. 117) in which goods consigned at ‘owner’s risk’ had been entirely lost and in which the plaintiff had agreed that in such circumstances the defendant should not be liable unless the plaintiff should prove that such loss was due to the willful misconduct of the defendants, which he was, however, unable to do, and judgement in consequence went to the defendants.