( 818 )
Present : Bertram C.J. and Ennis J.
HAMEED v. THE FISCAL, WESTERN PROVINCE.
65—D. C. Colombo, 1,106.
Seizure of boats by Fiscal—Boats leaky—Action for damages against
The Fiscal seized certain boats belonging to plaintiff under awrit. The boats were old and leaky, and could not be kept afloat,except by intermittent baling. The CFew who used to do this leftthe boat when the boats were seized. The Fiscal informed theplaintiff that the men had left the boats.
Held, that it was not the duty of the Fiscal to engage a crew forthe purpose of preserving the boats.
In this action the plaintiff sued the Fiscal of the Western Pro-vince for the recovery of a sum of Rs. 18,337 as damagesconsequent on the sinking of three cargo boats belonging to him,whilst iu the custody of the Fiscal, under seizure in action No. 52,701of this Court, as a result of the gross negligence and gross want ofordinary diligence of the o&cers of the Fiscal in mooring the boatstoo close together, in failing to provide adequate crews to protectthe boats in rough weather, and in failing to make provision for thebaling of water out of the boa'ts: —-
The District Judge H. A. Loos, Esq., held as follows: —
The seizure took place on December 1, 1920, in the afternoon whenthe boats had already been moored by the plaintiff’s men in the usualplace in the harbour, and apparently in the usual manner.
The boats when seized were, as admitted by plaintiff, in a leakingcondition, and had been in a leaking condition from July, 1920; in fact,the plaintiff stated that at the time of seizure the boats leaked to suchan extent that if the water was not baled out, there would be about. 10inches depth of water in five days' time as the result of the leaking.
The plaintiff's case is that the Fiscal’s officers shifted the boats fromthe positions in which they had been moored by his own men, and tiedthem up in contact with each other, with the result that they knocked .against each other and were damaged, and the leakage increased;that the Fiscal failed to provide men to bale out the water from theboats, or crews to shift the boats away from each other when theweather becomes stormy and the sea rough; and that the boats, three,became full of water and sunk, and he has lost them altogether, two ofthe boats having sunk on the night of December 20, 1920, and the otherone on the night of January 6, 1921
I am not prepared to accept the evidence of the plaintiff's witnessesas to the Fiscal’s officers having changed the boats from the positionsin which they had been moored by the plaintiff’s men
( 814 )
Hamced t>.The Fiscal.WesternProvince
The chief cause of the- loss of the boats, according to the plaintiff, isthat they were allowed to be in contact with each other; admittedly,the boats were, for several days at all events, in the same position inwhich they had been moored by the plaintiff'p men, and if it is the fact,as I hold it is, that they remained in that position all throughout, thenthey were in contact with each other owing to the act of the plaintiff'smen.
The questionarises then,whether itwasnotproper that the boats
should have been moored so as to be in contact with, each other—theplaintiff'sownwitness Lyleadmittedthathehas seencargo- boats
.sometimestiedup togetherand sometimesseparately—heis an En-
gineer who has not much to do with work in the harbour, but he alsostated that “ Lighters and vessels are always kept apart sufficientlyclear, so that they may not knock against each other and get damaged.*'
That is apparently a general statement which oh his own showing isnot strictly accurate, for he admits that he has seen cargo boats some-times tied together.
The defendant's witness, Zarephe, however, who is a member of afirm possessing 80 cargo boats in the harbour, and whose business isconnectedwiththe harbour,and whohasanexperienceof eighteen
years in connection with cargo boats in the harbour, states that theirboats, are always moored in contact with each other, whether theweather be good or rough, with fenders in position, and he gives thereason for their so doing
This witness* evidence which is apparently disinterested, and whichI am prepared to accept completely, disposes of the main ground onwhich the plaintiff rests his case.
What then was the cause of the sinking of the boats. In myopinion it was the leaking condition of the boats, inadequate baling,and the stormy weather which prevailed on the night-R on which theboats were sunk.
The plaintiff was in financial straits towards the end of the year 1920,the boats in question were practically bis sole assets and the only meansof earning an income, he knew that his boats were in a leaking con-dition; that it was absolutely necessary that they should be regularlybaled out in order to keep them afloat; that the Fiscal'r officers wereignorant of such matters, so that it seems to me in the highest degreeimprobable that he would not have provided for the baling out of theboats, and I have no reason to doubt, as the defendant's witnessesstated, that the plaintiff’s men did remain on the boat-s and continueto bale out the water till December 28, 1920.
One of the Fiscal's officers, Gabriel Perera, states that he sent wordto the plaintiff on December 28, 1920, that his men had left the boats,and also informed Nagoor Meera, the execution-creditor, that they badgone, and requested him to send men to bale out the water from thebouts.
Neither the plaintiff nor Nagoor Meera sent any men thereafter todo the baling till December 30, 1920, and on the night of December 29,1920, the stormy ’ weather, which it is established prevailed, caused twoof the boats to fill with water and sink.
On December 30, 1920, the plaintiff appears to have sent some men.who did the baling for about half an hour and then left, and NagoorMeera also appears to have sent some meu, who finding on arrival thatthere were men already baling out the water, the plaintiff’s men wentaway. From January 2, 1921, however, some men baled out the waterat the instance of Nagoor Meera, but in spite of that fact one of the two
( SIS )
remaining boats was sunk rinriDg (he bud weather which prevailed on 1922.the night of January 6, 1021, a fact which seems to establish that the Hameed vboats of the plaintiff were in such a bad and leaking condition that the The Pieced,probability is that, even if they bad been regularly baled out, the three Westernboats which did sink would have keen sunk during the stormy weatherin any event.
The plaintiff has, iu my opinion, failed to establish that the defendanthas been guilty of gross negligence or gross want of ordinary diligencein resgeet- of the boats seized, for I hold on the second and third issnesthat the boats were not moored too close together by defendant thatthey were iu fact not moored *uy the defendant at all; that if he did failto provide adequate crews to protect the boats in rough weather, such-failure did not materially affect the matter, for the boats would probablyhave sunk even if there had been no such failure, owing to the bad con-dition of the boats, and that there was no need for him to provide forbaling out the water .as the plaintiff's men had been attending to thework, and when they ceased to do so, the defendant informed the plaintiffand the judgment-creditor of the fact.
As regards the fourth, fifth, and sixth issues 1 have already indicatedhow I would decide them. 1 hold that the plaintiff did provide crewsand attend to the baling of the boats during the whole period practicallythat the boats were under seizure, and that in my opinion the evidenceindicates that the boats would have sunk in any case owing to their badCondition during the stormy weather that prevailed on the nights ofDecember 29, 1920, and January 6, 1221.
As regards the first issue I hold that the boats were sunk white in thecustody of the officers of the defendant.
Croos-Da Brera, for the appellant.
Hay ley, for respondent.
October 2, 1922. Bertram C.J.
This is an action by a judgment-debtor against the Fiscal alleginggross negligence and gross want of ordinary diligence on the partof the Fiscal’s officers with regal’d to certain boats belonging to theplaintiff, which were seized and held by, the Fiscal in the course of anexecution. The two main grounds of negligence alleged may besummarized as follows: The first was that the officers of the Fiscalcommitted gross negligence in mooring the boats together in such amanner that they became peculiarly liable to damage from heavyweather. On that point- the learned Judge has made an explicitand reasoned finding of fact. He does not believe that the Fiscal’sofficers had taken any special measures for mooring the boats in anyparticular way. He is of opinion that they were moored as theywere left by the plaintiff’s own men, and that there was no necessity,in any case, that cargo boats of this description 'should be mooredseparately. -This finding of fact cannot be effectually challenged.
The second suggested ground of negligence was this: It was that,when the cargo boats in question were abandoned by the plaintiff'sown men, a duty arose on the part of the Fiscal himself to engage a
Hamid v.The Fiscal,WesternProvince
crew for the purpose of preserving the boats. The boats were inpoint of fact very old and leaky. They could not be kept afloat,except by intermittent baling. This intermittent baling would,in the ordinary course, have been carried out by the crew while theywere employed on their work on behalf of the plaintiff in the harbour.But as soon as they ceased to so being employed and consequentlyceased to be earning money, the crew were not paid any wages bythe plaintiff; and therupon abandoned the boats. When this'happened on December 28, 1020, one of the Fiscal’s officers sentword to the plaintiff that his men had left the boats. He alsoinformed the judgment-creditor, who himself had an interest inthe boats being advantageously sold, that the crew had gone, andhe requested him to send men to bale out the water from the boats.This was clearly a very reasonable step to take. The question is,is there any further obligation upon the Fiscal in the circumstances?Was it his business to make good the default of the owner? Thereare no definite authorities as to the degree of care which the Fiscalunder auch circumstances should take.
Mr. Croos-Da Brera cited to us a passage from Beven on Negligence,Book II., Chapter II., p. 269, which-states how the law has beenworked out in America. It is stated in the same authority thatStory puts the liability of an officer, such as the Fiscal, on the samefooting as that of a bailee for hire. Under our own legal system theliability of the Fiscal is determined by section 862 of the CivilProcedure Code, which declares that the Fiscal is exempt from civilliability except in cases, amongst others, of gross negligence or grosswant of ordinary diligence.
I do not thir.l: it has been made out that there is any duty uponthe Fiscal, when he seizes property of this kind, ter take any positiveor active measures for its preservation. If a large ship in theharbour was seized, a Fiscal's officer would be put on board, andthe crew would be left to look after the ship and to preserve themachinery and to save the ship from any incidental dangers to whichit might be exposed. I cannot see that the Fiscal has any largerduty in the case of these cargo boats. I cannot see how he can bejustly charged with gross negligence when he did nothing morethan what the plaintiff’s men did. The plaintiff was given anopportunity of preserving his boats, but did not use it. I thinkthat all that can be expected of' the Fiscal was to give that noticewhich his officers gave, and though I have sympathy with theplaintiff, who has lost his means of livelihood while, they were inthe custody of the Fiscal, I cannot see that the Fiscal is under anylegal liability, and I would dismiss the appeal, with costs.
Ennis J.—I agree.
HAMEED v. THE FISCAL, WESTERN PROVINCE