BOSK C.J.—A thinar ay anapillai v. The Ceylon Wharfage Co., Ltd.
1952Present: Rose C.J. and Pulle J.ATHTNABAY ANAPILLAI, Appellant, and THE CEYLONWHARFAGE CO., LTD., Respondent
S. C. 390—D. C. Colombo, 16,437
Carrier—Deposit and loss of goods in Government warehouse—Carrier’s liability—Customs Ordinance, s. 107.
A carrier is not liable for the value of goods which are lost in the Governmentwarehouse while the goods are not under the carrier’s control.
^ PPF.AT, from a judgment of the District Court, Colombo.
H. W. Jayewdrdene,.with S. T. K. Mahadeva, for the plaintiff appellant.H. V. Perera, K.C., with V. A. Kandiah, for the defendant respondent.
Cur. adv. vult.
February 29, 1952. Rose C.J.—
In this matter the plaintiff-appellant sued the defendant-respondentfor the recovery of Rs. 3,600 as damages for the value of 2,000 yardsof cycle valve tubes belonging to the appellant which were consigned tothe appellant on board the steamship ss. ‘ Pakhoi ’. The goods weredespatched from Tuticorin to Colombo harbour and arrived there on3.12.44. On 5.12.44 they were unloaded by the respondent’s servants -and deposited, upon instructions of the Port Controller, in the King’swarehouse. During the detention there and prior to the payment ofCustoms duty by the appellant, the goods, the subject matter of thepresent action, were lost.
The above facts are accepted by both parties and the question to bedecided is whether on these facts the respondent company is liable.
It must be remembered that at the relevant time—and this must,in my opinion, be taken to have been within the knowledge of bothparties—the custom in the Port was for the Port Controller to instructthe various carrying companies as to which warehouse the goods intransit were to be taken. Such instructions had to be obeyed by thecarrying company and it is clear from the evidence in the present casethat once the goods have been deposited in the King’s warehouse and thenecessary receipt handed over to the respondent’s servants, the task ofguarding the warehouse and the goods in it passes on to the CustomsDepartment who apparently employed guards for the purpose.
The matter appears to be covered in principle by As ana Marikar v.Livera 1 where it was held that the plaintiff could.not maintain the actionagainst the defendant (the carrying company) for the value of goodsfound missing in the Government warehouse as the defendant was notthe bailee of the goods after they had been warehoused there and the
1 (1903) 7 N. L. R. 158.
Kadibhoy o. Keseyanu.
fact that the defendant received payment of landing charges did notimply a contract that he was to do anything more than to land andwarehouse the packages with the Customs authorities.
The appellant endeavours to distinguish the present case from theabove on the ground that the respondent company had undertaken, afterthe payment of Customs duty by the appellant, to load the goods fromthe King’s warehouse on to the carts of the appellant. It seems to me,however, that that circumstance cannot alter the position as to theresponsibility for any loss that may have occurred previously in thewarehouse itself.
in my opinion to hold the defendant company liable for any suchloss, while the goods admittedly were not under their control, would beto import an additional obligation into the implied contract between theparties. It would in my opinion be incorrect to import into the contracta term that the respondent company are to be the insurers of goods duringthe retention by the Customs authorities in the King’s warehouse. It isnot even suggested by the appellant that there was any specific evidenceof the existence of such a special term.
I would add that on the facts of this case it would seem that theGovernment would be clearly liable for these losses were it not for thestatutory protection afforded by Section 107 of the Customs. Ordinance.
For these reasons the appeal must be dismissed with costs.
PulIjE J.—I agree.
ATHINARAYANAPILLAI, Appellant, and THE CEYLON WHARFAGE CO., LTD Respondent