Bagsoobhoy v. The Ceylon Wharfage Co., Ltd.
1948Present: Jayetfleke and Basnayake JJ.
BAGSOOBHOY, Appellant, and '1'H.K CEYLON WHARFAGECO., LTD., Respondent.
S. C. 333—D. G. Colombo, 15, 431
Common carrier—Failure to deliver goods—Carriage by barge or lighter—English orRoman Dutch Law—Carrier by trade—Liability in damages—Defences avail-able—Civil Law Ordinance (Chapter 66).
A barge or lighter is not a ship within the meaning of the Civil Law Ordinance,and the law relating to the carriage of goods by barge or lighter is the RomanDutch law.
Under the Roman Dutch Law a carrier by trade is not bound to carry foranyone who demands his services. Under both English and Roman Dutchlaw a carrier is liable, upon proof of the receipt of the goods by him and theirloss or non-delivery to the consignee, unless he can bring himself within theexceptions, the burden of proof being on him.
Assena Mari tear v. Livera (1003) 7 N. L. R. 158 distinguished.
Appeal from a judgment of the District Judge, Colombo.
A. Hayley, K.C., with V. A. Kandiah, for the plaintiff, appellant.—The District Judge has held that the defendant company is a commoncarrier. But he further held that there was no contract between theplaintiff and the defendant and also that all the bags received for carriageby the defendant had been landed at the Government warehouses.The judge therefore felt that he was bound by the decision in AssenaMarikar v. Livera1 and accordingly dismissed the plaintiff's action. Thefinding by the Judge that the defendant is a common carrier is correct.But his findings that there was no contract between the plaintiff and thedefendant and that the defendant had landed and delivered at the Govern-ment warehouses all the bags received by bim from the ship are clearlywrong and can be demonstrated to be wrong. The evidence availableproves conclusively that all the bags consigned were put into defendant’sbarges or lighters from the ship, but there is no evidence that all the bagswere landed at the warehouses. The evidence rather shows that therewas a shortage in landing amounting to considerably more than the219 bags which are the subject of this action.
The law applicable in this case seems to be the English Law. SeeCarriage of Goods by Sea Ordinance (Cap. 71), but on this matter RomanDutch Law seems to be the same as the English Law. See 1 Halsburyp. 545 and 3 Maas dorp pp. 278 and 279 (2nd ed.).
In regard to the question whether there was a contract between theplaintiff and the defendant, on the evidence it is quite clear there is acontract. In the circumstances of this case the consignee is the properperson to sue. See 4 Halsbury p. 95; Roscoe's Digest of the Lawof Evidence 696 (18th ed.) ; Proprietors of Cork Distillery Go. v.Directors of the Great Western and Southern Railway Go. (Ireland)'2.
1 (1903) 7 N. L. R. 158.» L. R. (1874) 7 H. L. 269 at 277.
Bagaoobhoy v. The Ceylon Wharfage Co., Ltd.
The defendant is liable as carrier or warehouseman or as both. Thejudge finds be is a common carrier. There is ample evidence on tbepoint. A common carrier is an insurer of goods delivered to him andcan escape liability only by proving that loss was due to act of God,King’s enemies, &c. A common carrier is liable without proof of negli-gence on his part. As to who are common carriers and their liabilitiessee 4 Hats bury pp. 2 and 3.
See also Thomas <Sc Co. v. Brown1 ; Liver Alkali Company v. Johnson2 ;Hill v.' Scott3.
As a warehouseman the defendant is a bailee and therefore the burdenwas on the defendant either to deliver the goods or to explain whathappened to them. See 1 Halsbury p. 545. The defendant is liable intort too as he has taken the plaintiff’s goods with or without plaintiff’sconsent and either lost them or failed to deliver them to the plaintiffthrough negligence .
The decision in Assena Marilcar v. Livera (supra) has no application tothe facts in this case. Here there is no evidence that all the bags weredelivered at the warehouses. In that case there was no proof that thedefendant was a common carrier. In this case it was never the defenceof the defendant tlvt the goods were lost at the warehouse. Further thedefendant has previously acknowledged his liability for shortages and haspaid for such losses. The defendant’s attempt to escape liability byreason of the circular issued by him must clearly fail.
V. Persia, K.C., with Ivor Misso, for the defendant, respondent.—The District Judge has held that the defendant was a common carrierand was absolutely liable to make good the losses occurring duringcarriage even by theft, &c., but as the defendant has delivered at thewarehouses all the bags he received from the ship the defendant’s liabilityended, on the authority of the decision in Assena Marikar v. Livera(supra).
The finding that the defendant is a common carrier is clearly wrong.The Judge has not rejected the evidence of Mr.. Galbraith and this isconclusive on tbe matter that the defendant is not a common carrier.The burden is on the pis in tiff to prove that the defendant is a common.carrier as, under the Boats Ordinance, • all boatmen are not commoncarriers. That burden has pot been discharged. Carrying on a publicemployment as a carrier ;s a necessary condition of a common carrier butis not a sufficient condition of a common carrier. A person must under-take to carry goods for all to be a common carrier. If a carrier has aright to refuse he is not a common carrier. See Nugent v. Smith4 ; BelfastRopework Co. Ltd. v. Bushell5.
If the defendant is not a common carrier he is only liable if there wasnegligence. Negligence has not been proved nor has it been put in issue.Misconduct or negligence may be inferred from non-delivery in ordinarycircumstances hut in tbe extraordinary circumstances such as wereprevalent at the relevant time such a presumption is not justifiable.
1 (1899) 4 Times Report of Com. Cases 186 at 189.
* L. R. (1872) 7 Exchequer 267.
3 L. R. (1895) 2 Q. B. D. 371 at 375 and 376.
‘ L. R. (1875) 6 C. P. D. 19 at 26, 423, 433.5 (1918) 1 K. B. 210 at 214.
•BASNAYAKJ3 J.—Bagsoobhoy v. The Ceylon Wharfage Co., Ltd. 147
Even for each a presumption to arise the issne mustfirst be raised. Noissue as to misconduct or negligence was raised. Therefore no presumptionof misconduct or negligence can arise. The circular notice showed thebona fides of the defendant. On the evidence it is quite clear that allgoods taken from the ship were delivered at the warehouses. Thereforethe defendant is not liable.
A. Bayley, K. C., in reply.—The test of common carrier in Nugent v.Smith (supra) is a dictum which never became law as all the text bookwriters, even after its decision, do not follow that dictum.
Cur. adv. vvZt.
March 4, 1948. Basnayake J.—
Krimbhoy Bagsoobhoy the plaintiff appellant (hereinafter referred to asthe appellant) is a merchant and Commission Agent carrying on businessin Colombo for over thirty years. For the purpose of his business heimports goods chiefly foodstuffs from abroad. The Ceylon WharfageCo., Ltd., the defendant respondent (hereinafter referred to as the re-spondent company), is a company incorporated in England having itsregistered office in London and carrying on an extensive business atColombo as clearing, landing and shipping agents, warehousemen andstevedores.
About May 30, 1942, a consignment of 743 bags of foodstuffs consignedto the appellant by one V.V. Shanmuga Nadar & Bros, arrived in Colomboharbour by the S. S. Ninghai a steamship owned by the British IndiaSteam Navigation Company whose agents at Colombo are MackinnonMackenzie & Co., Ltd. The appellant became the assignee of anotherconsignment of 500 bags of foodstuffs consigned by the same steamer toone S. Subramaniam Pillai by one S. V. Sadachalam Pillai of Tuticorin.
On the arrival of the S.S. Ninghai the respondent company obtaineddelivery of the appellant’s goods at the ship’s side on production of therelative bills of lading and gave the shipowner a full receipt therefor.Thereafter the respondent company conveyed the goods in its ownlighters in charge of its servants and landed and placed them in twoKing’s warehouses known as F2 warehouse and Delft warehouse whencethey, save and except the goods in regard to which this action has beenbrought, were in due course upon payment of its charges placed by theservants of the respondent company in carts provided by the appellantfor conveyance to his place of business.
For the due and proper performance of its duties the respondentcompany maintains a large organization. It has its own tally clerkswho go on board the ship and receive the goods on behalf of its customers,its own lighters and lightermen, its own warehouse superintendents,storekeepers and tally clerks in each of the King’s warehouses togetherwith a staff of day watchers, stitchers and labourers for unloading,stacking in the warehouses and delivering the goods to carts or othervehicles for conveyance to the business premises of the respective con-signees. For its services it charged a flat rate per bag, the rate varyingaccording to the weight of the bag.
148 JBASNAYAKE J.—Bagaoobhoy v. The Ceylon Wharfage Co., Ltd.
The present action is inst:tuted in respect of the failure of the re-spondent company to deliver 219 of the 1,243 bags of foodstuffs receivedby the respondent company on behalf of the appellant from the ship-owner. The action is based on breach of contract by'the respondentcompany “ to clear, land and deliverto the plaintiff ”, the goods receivedby it on the appellant’s behalf. The resopndent company denies thecontract alleged by the appellant and avers that it unloaded and landedthe cargo in pursuance of a longstanding arrangement with the ship-owners'. It also specially denies negligence as alleged by the appellantand pleads that owing to the exceptional conditions prevailing in the portof Colombo at the material time it is not liable for any loss of any cargoreceived by it at that time.
At the trial ten issues were settled. Of these it is sufficient for thepurpose of this decision to specifically mention the two following issues :—“ (1) In 1942 did the defendants carry on business as
Common carriers ?
clearing and landing agents ?
Did the defendant company agree and undertake with the plaintiffand/or Mackinnon Mackenzie Company to clear, land and todeliver to the plaintiff in carts or conveyances provided by theplaintiff certain consignment of goods belonging to the plaintiffex S.S. Ninghai on or about May 30, 1942 ? ”
The learned District Judge held that the respondent company was acommon carrier and that it was a clearing and landing agent but thatthere was no contract'between the appellant and the respondent company.He also held that there was a contract between the respondent companyand Mackinnon Mackenzie & Co., Ltd., the agent of the shipowner. Hedismissed the appellant’s action on the authority of the decision of thisCourt in the case of Assena Marikar v. Livera1.
In appeal counsel for the appellant contended that the authority onwhich the learned District Judge rested his decision has no applicationto the facts of this case. A close examination of the facts on whichAssena Marikar v. Livera (supra) was decided reveals that counsel’scontention is correct. Counsel for the appellant while maintaining thatthe learned District Judge’s finding that the respondent company was acommon carrier was correct urged us to reverse his finding that therewas no contract as alleged in the plaint. Counsel for the respondentcompany challenged the finding that it was a common carrier whilemaintaining that there was no contractual relations between the appellantand the respondent company. '■/
I shall first deal with the respondent company’s claim that in regardto the cargo in dispute it acted as landing agent for the shipowner. Theevidence of the arrangement between7the shipowner and the respondentcompany is by no means precise, /itdlppears that since about 1900 therespondent company had a general^ authority to go on board shipsbelonging. to the British India^Steam Navigation and receivecargo therefrom. In regard to the «argo which the consignee took deliveryat the ship’s side through the agency of the respondent company it acted
1 (1903) 7 N. L. R. 158
BASNAYAJtE J.—Bagsoobhoy v. The Ceylon Wharfage Co., Lid. 149
for the consignee, in regard to the cargo that was not delivered to theconsignee at the ship’s side it seems to have acted for the agents of theshipowner. In view of the general authority of the respondent company,when cargo arrived by ships of the British India Steam NavigationCompany consignees have found it convenient to engage it because anyother landing agent was not permitted to go on board ship without aspecial authority from the shipowner’s agent.
The letter P6 is consistent with the appellant’s position that therespondent company landed his cargo in pursuance of a standing agree-ment with him. In law where the shipowner lands the cargo withoutdelivering it at the ship’s side, unless otherwise provided by any specialcontract or statute, his liability does not cease on the landing of thecargo though his liability as carrier may. [Hailsham Vol. 30 page 696.]An examination of the clauses as to delivery in the bills of lading D1 andD2 confirm the view I have expressed above. They provide as follows :—“ In all cases and under all circumstances the Company’s liabilityshall absolutely cease when the goods are free of the vessel’s tackleand thereupon the goods shall be at the risk for all purposes and inevery respect of the shipper or the consignee. ”
“ Bills of Lading must be presented and delivered up cancelledbefore delivery of goods will be granted. The Company is to have theoption of delivering these goods, or any part thereof, into receivingship, on boat or craft, on landing them at the risk and expense of theshipper or consignee as per scale of charges to be seen at the Agent’soffice, and is also to be at liberty until delivery to store the goods orany part thereof in receiving ships, godown, or upon any wharf, theusual charges thereof being payable by the shipper or consignee. TheCompany shall have a lien on all or any part of the goods againstexpenses incurred on the whole or any part of the shipment. "
The shipowner or his agent has not been called to say that he exercisedthe option of landing the cargo at the appellant’s risk. In fact there wasno occasion for it seeing that the appellant was prepared to take deliveryat the ship’s side, nor was he entitled in law to land the cargo at theconsignee’s risk when the respondent company produced the documentsof title and took delivery on behalf of the consignee and gave a completedischarge. When a ship arrives in port the shipowner is bound uponpayment of his charges and production of the bills of lading to deliver tothe consignee his goods over the ship’s side if so required. [Abbott onShipping p. 445—13th Ed.] If the consignee fails to take delivery themaster may land and warehouse the goods at the consignee’s risk ifempowered by the terms of the contract or by the custom of the port.[Hailsham Vol. 30 s. 694.]
The learned District Judge’s decision on this point cannot, therefore,be upheld.
It is in evidence that for a period of over 15 years when goods consignedto the appellant arrived in Colombo by any ship owned by the BritishIndia Steam Navigation Company, the respondent company land anddelivered the goods as a matter of course. It even paid, on more than oneoccasion, claims for loss made by the appellant.
160 BASNAYAKE J.—Bagaoobhoy v. The Ceylon Wharfage Co., Ltd.
The respondent company admits that the goods specified in the billsof lading D1 and D2 were received from the shipowner and it does notseriously dispute the non-delivery of 219 bags of the cargo so received,nor is any explanation offered as to how the loss occurred. It howeverseeks to escape liability by virtue of a circular dated April 28, 1942, P16.This circular was sent to all the consignees whose names were on a listkept by the respondent company and copies were posted in each of theKing’s warehouses in which the respondent company operated. Itreads:—
“ We have to inform you that the conditions in the harbour preventus from performing services to our clients in the usual manner andwhile we are doing everything in our power to overcome all difficulties,we regret that we cannot accept any responsibility for theft, pilferage,shortage, damage, or misdeliveries of cargoes which were either inwarehouses, barges, &c., on and after 5th April, and until such time aswe can assume full control of our activities. ”
There is no proof that the circular was sent to the appellant, or thathe was fixed with knowledge of it. He not only denies that he receivedit but also denies all knowledge of it. Unless knowledge of the circularis directly or constructively brought home to the appellant he is not inlaw bound by it. It is not sufficient to show that notices have beenpublicly posted up in the carrier’s office, in writing or in print. Unlessthe party who is to be affected by it is proved to have read it or othercircumstances are adduced which establish his knowledge of it he willnot be subject to its limitation. Even a notice published in a newspaperis not sufficient proof unless accompanied by some evidence that theparty is accustomed to read the newspaper so as to lay a foundation forpresuming knowledge. In all causes where notice cannot be brought hometo the person interested in the goods, directly or constructively, it is amere nullity, and the carrier is responsible according to the generalprinciples of the common law. [Story on Bailment 6th Ed. paras. 558.560.]
Although the learned District Judge says :—
“ From all the evidence led one cannot but arrive at the conclusionthat the shipping agents did deliver all the bags to the defendantcompany who landed them in the Government warehouses as is shownby exhibits D4 to DIO. ”
I am unable to find, either in the documents mentioned by him orelsewhere, any support for his statement. I shall first discuss thedocuments mentioned by the learned Judge. D4 is a general sufferanceinwards authorising the unloading of sundry goods from the Ninghaiinto Delft warehouse. D6 and D8 are requests by the respondentcompany to land some of the cargo from the Ninghai into F2 and Koehi-kade warehouses respectively. None of the documents afford proof ofthe deposit of cargo in Government warehouses. D5, D7 and D9 arethree sets of boatnotes which bear on their face remarks which go toshow how many of the packages specified therein were actually landed.D5 is a set of 38 boatnotes. Their examination reveals that 292 of thepackages specified therein were not deposited in the Delft warehouse.
BASNAYAJBlE J.—Bagsoobhoy v. The Ceylon Wharfage Co., Ltd. 161
Tile 4 boatnotes marked D7 reveal that 329 of the packages enteredtherein were not deposited in the warehouse while the 23 boatnotesmarked D9 show that 3 packages in excess of the total quantity specifiedwere deposited in the warehouse. The nett result is that 618 of thepackages specified in D5, D7 and D9 which the respondent company ontheir own documents received from the shipowner were not delivered atthe King’s warehouse and are unaccounted for. DIO and Dll afford noproof of landing of their packages.
The respondent company’s own documents which I have examinedabove completely negative Mr. Galbraith’s statement:—
“ So far as we are concerned there was no shortage from that ship.
We received a certain number and we delivered a similar number. ’ ’
What then is the respondent company’s liability in respect of the lossand what is the law that applies in the determination of that liability ?
According to the Civil Law Ordinance the law relating to the carriageof passengers and goods bj' ships, and carriers by land is the Englishlaw. Questions relating to the carriage of goods by land do not arise inthe present case. Here we are concerned with the law applicable to thecarriage of goods by boat or barge or lighters, as boats used for the tran-sport of goods in the port of Colombo are commonly called. It wasargued that the law relating to carriage of goods by ship is the law thatapplies. I am unable to agree with this contention. The expression“ ship ” is not defined in the Civil Law Ordinance and should thereforebe understood in its ordinary meaning. The Oxford Dictionary definesthe word as any sea going vessel of considerable size. The New StandardDictionary defines it as a large sea going vessel. A sea going vessel is or>ethat crosses the high seas. Coasting vessels and vessels that ply betweenship and shore do not come ■within the ordinary meaning of the expression“ sea going vessel ”. The wide meaning given to the expression “ ship ”in the Merchant Shipping Acts cannot in my opinion be imported to ourCivil Law Ordinance. Nor will in my view the words “ and generallyto all maritime matters ” afford sufficient authority in this context forextending the English Law relating to ships to the carriage of goods bywater in Ceylon. The preceding words clearly limit the scope of thegeneral words.
If English Law is not the law that applies, the questions arising fordecision must be solved according to Roman Dutch Law subject, ofcourse, to any statutory modification of that law. There is no evidencethat the lighters or barges used by the respondent company' were boatslicensed under the Boats Ordinance. We need not, therefore, considerthe provisions of that Ordinance. Neither the provisions of the MasterAttendant Ordinance nor the Customs Ordinance affect the questionsarising herein which must therefore be decided by the rules of RomanDutch law alone.
Under that law the liability of a carrier depends on whether he is acarrier by trade or has merely consented to a particular act of carrying.A carrier by trade is governed by the Praetor’s Edict “ De Nauti3Caponibus et Stabulariis ” [Digest Bk. IV Tit. 9.]. Grotius [Maasdorp’stranslation p. 671] Van Leeuwen [Censura Eorensis V. 30.3.6] and Voet
152BA8NAYAKB J.—Bageoobhoy v. The Ceylon Wharfage Co., Ltd.
[Comm : ad. Pand: IV, 9.10.] (Sampson’s translation p. 133) are allagreed that the Edict is a part of the Roman Hutch law except in regardto the penalty for double damages which according to Gronewegen hasbeen abrogated [Gronewegen He Legibus Abrogates ad. Dig. IV. 9-]-The liability of carriers other than those who are engaged in the trade ofcarrying is determined according as whether the carriage is gratuitous orfor a price. Where the carriage is gratuitous the contract is regardedas a depoaitum and the depositary is only bound to show ordinary diligence.He is not liable for loss by accident or slight negligence. The onus is onthe consignor. Where the carriage is for a price the contract is one oflocatio operia mercium vehendarum and the carrier must in the performanceof his duty show the skill of an ordinary reasonable carrier. He is notliable in case of theft or robbery or for any loss which could not havebeen averted by’the exercise of the care of an ordinary reasonable carrier.The onus, unlike in the case of gratuitous carriage, is on the carrier.
In order to ascertain the liability of the respondent company we mustfirst decide whether it is a carrier by trade or not. This is a question offact. On the evidence in the case there can be no doubt that the re-spondent company is a carrier by trade. There is both oral and docu-mentary evidence which points unmistakably to this fact. I shall there-fore make no further reference to the law relating to other carriers andshall now proceed to discuss the law applicable to this case. But beforeI do so, I shall refer briefly to the major differences between the liabilityof a common carrier under English law and a carrier by trade under theRoman Dutch law. Under both systems the carrier is not liable for lossoccasioned by inherent vice or negligence of the consignee. The otherexceptions to a carrier’s liability are—under the English law, Act of Godand King’s enemies, and under the Roman Dutch law, Vis Major anddamnum fatale. Act of God and damnum fatale are the same and compriseshipwreck and natural causes ; but Via Major is wider concept thanKing ’s enemies. It not only included loss occasioned by foreign forcesand pirates but also extends to losses by fire and robbery. Under theEnglish law the common carrier is bound to carry for anyone whodemands his services. There is no authority for saying that such anobligation exists under the Roman Dutch law. In fact Morice even goesfurther. He says :—
“ Lastly, it must be noted that carriers by sea, inn-keepers andstable-keepers are not, like common carriers, in English law, underany compulsion to receive goods entrusted to them. They are free. contractors.” (Morice on English and Roman-Dutch Law, p. 188, 2nded.).
Under both systems, upon proof of receipt of the goods by the carrierand their loss or non-delivery to the consignee, the carrier is liableunless he can bring himself within the exceptions, the onus of proofbeing on the carrier. The exceptions are not a valid defence wherethey have been brought about by the carrier’s negligence.
In the present case the conduct of parties and the evidence is sufficientto justify an inference of an agreement not only to carry the appellant’sgoods but to carry them subject to the liability of a carrier by trade. The
HOWARD C.J.—Qnanaidh v. Kandiah.
appellant has proved that the respondent company received his fulT.cargo and that it has failed to deliver 219 bags of that cargo. Therespondent company has failed to prove delivery of the 219 bags even atthe Sing’s warehouse and has not brought itself within any of theexceptions which exempt it from legal liability. We need not in view ofour finding of fact that the respondent company has failed to provedelivery of the lost bags at the King’s warehouse discuss its liability onthe footing they were lost after deposit in the warehouse.
For the above reasons the judgment of the learned District Judge isset aside and the appeal is allowed with costs.
Jayutii.kke J.—I agree.
BAGSOOBHOY, Appellant, and THE CEYLON WHARFAGE CO., LTD., Respondent