AF00101281 Premiers correspondence 1947-1948. NRS-12060 [9/3452] 47/3607 - Flipbook - Page 12
as that claim is for damage which common experience shows is
the normal result in the case of such a breach of such a contract. Where damage of an abnormal kind is complained of, however, the defendant is not adequately warned of the claim against
him unless that damage is expressly and particularly pleaded."
(Salmond and Williams on Contract 2nd ed. p. 579).
I think that the carrier is liable to pay under the
, head of general damages fE6- value of the lost goods, that is
'
the cost of the original goods unless they have been replaced
(or it is intended so to do) when the value claimable, if
In the latter
4 proved, is the cost at the date of replacement.
the injured
on
duty
the
note
to
ary
circumstance it is necess
damage, involvthe
te
mitiga
to
s
effort
able
party to make reason
time to avoid
able
reason
a
within
ement
replac
ing, in this case,
additional costs.
I have been unable to find any authority on the specific
question whether the Department has a claim for a rebate of a pro
portion of the freight charged I think that by analogy to the
shiS ping casesin which it has been held that freight paid in ad
for
t vance cannot be recovered tb:at in the present case a claim
part of the freight could not be sustained.
t rebate of
I think further that, provided the loss can be "expressly and particularly pleaded the carrier would be liable to pay
as special damages the freight which would be payable in fo
wardng another package of goods in replacement of that lost,
but would be so liable only if another package was in fact
sent thus incurring a liability to pay additional freight.
Article 24 of the Conditions provides that "where in
any country legislative provisions conflict with these Conditions of Carriage the latter shall be applicable only in so far
as they do not conflict with such legislative provisions."
The Legislature of the Commonwealth has, in pursuance
of th9tonvention of Warsaw, enacted the Carriage by Air Act
1935 but the position under the present contract would not be
thereb7 affected (Cf. PhillipPson v. Imperial Airways Ld. supra
at pp, 369-70 in which the Act considered was similar if not
identical with the Commonwealth Act).
Should negotiations with the carrier not achieve the
desired result it will be necessarY to bring an action within
two years from the date on which the carriage stopped.
Paper6 herewith.
Crown Solicitor,
