Maurice Roche Ltd. v. Port (Cargo) Corporation
Present: Manicavasagar, JM and Samerawickrame, J.MAURICE ROCHE LTD., Appellant, and PORT (CARGO)CORPORATION, COLOMBO, Respondent__S. C. 605165—D. C. Colombo, 57571JM
Port (Cargo) Corporation—Its legal position as carrier by trade—Scope of its liabilityto a consignee of gocds—Pert (Cargo) Corporation Act No. 13 of 1953, ss.4 (1), 26, 63 (3) to (6), 65 (1) (b), 75, 79—Customs Ordinance (Cap. 235), s. 40.
"Where goods belonging to a consignee are damaged by the Port (Cargo)Corporation in the course of being conveyed from ship to shore, the legalrelationship of the Corporation to the consignee is that of a carrier by tradein respect of an implied or tacit contract for the carrying of the goods from thevessel to the shore. Accordingly, the Corporation is liable, except in case ofvis >• ajor or damnum fatale, to compensate the consignee for the damage causedto the goods. In such a case, it is unnecessary to consider whether therewas negligence on tho part of the Corporation.
Quaere, whether section 75 (1) (a) of the Port (Cargo) Corporation Act whichprovides that “ no suit or prosecution shall lie against the Corporation for anyact which in good faith is done or purports to be done by the Corporationunder this Act ” is applicable in respect of a claim based on negligence.
196 MAXICAVAS AG A R, J.—Maurire Rorhe Ltd. v. Port (Cargo) Corporation
A.PPEAL from a judgment of the District Court, Colombo.
C. Ranganathan, Q.C., with K. N. Chobty, A. Perera and Mis* N.Naganathan, for the plaintiff-appellant.
B. Wikramanayake, Q.C., with K. Thevarajah and E. P. P. Perera,for the defendant-respondent.
Cur. adv. vult.
December 14, 1907. Manic avasagar, J.—
I am in complete agreement with the conclusion reached by mybrother, Samerawickrame, but I desire to refer in a general way to thelegal relationship between the Port Cargo Corporation and the consigneeof goods under the Act of 1958.
The Act has done away with the landing agencies which were engagedin the Port of Colombo in transporting goods be;ween ship and shore,and cast a general duty on the Corporation to provide efficient andregular services, referred to as “ Port Services ”, for stevedoring, landing,and warehousing cargo….and any other services incidental thereto(Section 4 (1) (a)). The Act further provided for the levy of chargesfor services rendered by the Corporation (Section 4 (1) (6), prescribedthe time when such charges should be paid (Section 63 (3) to (6)), andmade provision for the sale of such goods if the charges are not paid,and the goods not removed by the owner (Section 65 (1) (6)). Theserights and duties which are almost similar to those which carriers bytrade had prior to the Corporation taking over the port services, arein my view sufficient to constitute the Corporation a carrier by trade :the legal relationship between the Corporation as a carrier by trade,and the consignee has not been affected by the Act, except where it hasbeen limited by certain provisions in the statute.
In Alibhoys case w hich wras decided before the Act, Gratiaen J. observedthat the origin of a carrier’s obligation towards a consignee was traceableeither to the express or implied term of the contract, though in theparticular case he found difficulty in inferring an implied contractbetween the carrier and the consignee. The question whether a contractcan be implied is one of fact, and in my view the Corporation, havingregard to its duties and rights, must be deemed to transport goodsfrom sh’p to shore for the benefit of the owner (the consignee) on thebasis of an implied contract. The liability of the Corporation musttherefore be determined b}1- the principles of Roman-Dutch Lawapplicable to carriers by trade, unless it is protected by the Act. TheCorporation like any other carrier is under an absolute duty to make goodall loss or damage unless it can be shown that this was due to damnum
1 (1954) 56 N. L. R. 470, at page 476.
SAMJERAWICK-RAilE, J.—Maurice Roche Lid. o. Pori (Cargo)
fatale or vis major, the burden of proving this being on the carrier. Noneof these defences has been established by the evidence. It only remainsto consider whether Section 75 and/or 79 prior to the amendmentprotects the Corporation from liability : the latter has no relevance tothe facts of this case. Section 75 protects the Corporation from anyaction for any act done in good faith by the Corporation : but thisprovision, I have no doubt, applies to obligations arising ex delicto,and not to contractual or quasi-contractual obligations. In any eventwhen an act is claimed to have been done in good faith, I lean to theview that it must be shown to have been done with due care and
attention : the Act provides for efficient and regular port services,and if an act is done inefficiently or negligently the plea of good faithmust fail.
This is an appeal from the dismissal of an action brought by theplaintiff-appellant for the recovery of a sum of Rs. 26,15192 from thedefendant-respondent. The claim was in respect of damage caused togoods contained.in 61 packages consigned to the plaintiff-appellant bythe s.s. “ Birkenfels ” when the said packages were in a lighter ownedand operated b}r the defendant-respondent in the course of beingconveyed from the vessel to shore.
The plaintiff-appellant made his claim on three alternative grounds.They were :—
that the damage caused was due to the negligence of the defendant-
respondent and/or its servants or agents.
the goods had been received by the defendant-respondent in
good order and condition in the capacity of a common carrieror a carrier by trade and when the defendant parted with thecustody of the 61 packages, they were in a damaged condition.
the defendant-respondent took custody of the said goods in good
order and condition in pursuance of a contract for fee or rewardand when the defendant-respondent parted with the custodyof the 61 packages they were in a damaged condition.
The defendant-respondent denied that it had been negligent andfurther averred that they carried the goods under a statutory dutyimposed on them and that even if they were negligent they were e xemptfrom liability by virtue of the provisions of Section 75 of the Port (Cargo)Corporation Act No. 13 of 1958.
SAMERAWICKRAME, J.—Maurice Roche Ltd. v. Port (Cargo)
The relevant provisions of Section 75 are as follows :—
“ (1) No suit or prosecution shall li::—
(a) against the Corporation for any act which in good faith is doneor purports to be done by the Corporation under this Act;”
Mr. C. Ranganathan, Q.C. submitted that the section afforded adefence only in respect of a claim made on a delictual liability. InSubbiah v. The Town, Council of Point Pedro1, statutory provisions similarto this section have been interpreted to apply only in respect of a wrongfulor delictual act and not to apply to a failure to carry out a contract—vide Subbiah v. The Town Council of Point Pedro1, and the authoritiesreferred to in the judgment in that case. I am of the view that Section75 affords a defence, if it is applicable, only to the first ground set outby the plaintiff-appellant. Mr. Ranganathan further argued thatthe requirement of “ good faith ” in the section implied the presence ofdue care. Though there arc authorities that support this position,there are others that take the view that good faith has no relation tothe manner in which a thing is done but refers to a state of mind.. Aftercareful consideration, I am not satisfied that the finding of the learnedDistrict Judge that the defendant-respondent acted in good faith iswrong. Accordingly, the defendant-respondent has a good defenceexempting it from liability in respect of the claim based on negligence.
It is, therefore, necessary to decide whether the plaintiff-appellanthas established either the second or third ground relied on by them.
Mr. E. B. Wikramanayake, Q.C., appearing for the defendant-respondent, contended that the plaintiff appellant had failed to place anyevidence before the Court that the defendant Corporation was a commoncarrier and that the true position was that the defendant performedstatutory duties in transporting goods from ship to shore. Section 4 (1)of the Port (Cargo) Corporation Act No. 13 of 1958 provides :—
“ It shall be the general duty of the Corporation—
(а)to provide in the Port of Colombo and in any other port that
may be determined by the Minister by Order published inthe Gazette efficient and regular services (hereinafter referredto as ‘ port services ’) for stevedoring, landing and warehousingcargo, wharfage, the supply of water and the bunkering ofcoal and any other services incidental thereto ; and
(б)subject to the provisions of sub-section (2), to conduct the business
of the Corporation in such manner, and to make in accordancewith the provisions of this Act such charges for services renderedby the Corporation, as will secure that the revenue of theCorporation is not less than sufficient for meeting the chargeswhich are proper to be made to the revenue of the Corporation,and for establishing and maintaining an adequate generalreserve. ”
J (1956) 58 N. L. R. 477.
SAMERAVICi£RA3U3, J.—Aluurice Roche Ltd. r. Port (Cargo)
By virtue of an order made in terms of Section 26 of the Act, theservices referred to in Section 4 (1) were at the relevant date performedexclusively by defendant Corporation. It is, therefore, contended thatthere was a statutory duty on the defendant to convey all goods consignedto any person in the Island that were on board a ship that came intothe port of Colombo from the ship to shore. I am unable to agree withthis contention. Section 4 (1) requires the defendant to provide efficientand regular services inter alia for landing goods. Such services had to beavailed of by parties who desired goods to be landed. Consignees mayi lion wives not tn-.Uo rv.iv prior rerw.*: v« U.e Corporation to land theirgoods bur. sucii a request may be made by the Master of the ship orthe Ships’ Agent cither on behalf of the consignee or otherwise. Itmust be borne in mind that Section 4 (1) was operative at a time whenthe defendant Corporation did not exclusively perform their serviceand when Port entrepreneurs were still permitted to operate. I am,therefore, of the view that the statutory duty on_ the defendant wasnot the actual landing of the goods but the providing of services forlanding goods.
The next matter for decision is whether the plaintiff-appellant hasled evidence to show that the defendant Corporation Avas a commoncarrier. The Port (Cargo) Corporation Act No: 13 of 1958 itself cast onit the duty of providing services for landing goods. If it carried out theduties cast on it by the statute, it necessarily held itself out as willingto carry goods for any person provided it was paid the proper charges.It may be presumed that it did carry out the duties imposed on it bylaw. Apart from that, the position taken up by it in-its ansAver wasthat it carried the goods in pursuance of a statutoiy duty. It appearsto have been common ground that the Corporation carried goods forall persons and the only difference betAveen the parties being whetherit did so in pursuance of a statutory duty or of a contract, express orimplicit. I, therefore, hold that it has been proved that the defendant-respondent Avas a common carrier and/or carrier by trade.
It is necessary to consider whether there was a contract either express,implied or . tacit, between the plaintiff-appellant and the defendant-respondent to carry the goods of the former from ship to shore. Thereis no evidence of any Avritten or express agreement. I think, hoAvever,that when the Master of the ship discharged the goods into the lighterof the defendant-respondent, there was a request that the defendant-respondent should carry the said goods from ship to shore and an impliedpromise to pay the charges. If it is necessary to analyse the agreementand to reduce it to offer and acceptance, I think that there was a conti-nuing offer by the defendant-respondent to carry the goods of any andall persons who required their services for the conveyance of goodsfrom ship to shore. When goods were discharged by the Master of thevessel into a lighter of the defendant-respondent, there avos acceptanceof that offer and consequently an implied or tacit contract. The question,
SAMERAWICKRAME, J.—Maurice Roche Ltd. v. Port (Cargo)
however, remains whether the contract was made by the Master onbehalf of the carrier, that is the owner or charterer of the ship or theconsignor of the goods or the consignee, namely, the plaintiff-appellant.The title to the goods at that time was in the consignee, the plaintiff-appellant, and prima facie, therefore, one would think that the contractwas made on his behalf. Further, Section 40 of the Customs Ordinance(Chapter 235) states as follows :—
“ The unshipping, carrying, and landing of all goods, and the bringingof the same to the proper place for examination or for weighing, andthe putting of the same into and out of the scales, and the measuring,counting, unpacking, and repacking, and the opening and closing ofthe same, and removing to and placing them in the proper place ofdeposit shall be performed by and at the expense and risk of theimporter, consignee, or agent ”. In terms of this provision, thelanding of goods had to be performed by and at the expense and risk ofthe plaintiff-appellant. If the plaintiff-appellant employed a carrierto do the landing, the liability as between the plaintiff-appellant andthe carrier would be, in terms of the contract, between them. Thefact that the duty of landing goods in terms of the law was on theplaintiff-appellant also supports the position that the contractwith the defendant-respondent in respect of the conveyance of thegoods from ship to shore was made on behalf of the plaintiff-appellant.
Again, the Bill of Lading, P 1, contains in clauses 7 and 8 of the con-ditions of carriage, provision that any lightering in or at ports of loadingor ports of discharge were to be for the account of the merchant and thatloading, discharging and delivery of the cargo should be arranged bythe carrier’s agents, unless otherwise agreed and the loading, storing anddelivery should be for the merchant’s account. The term ‘merchant’has been defined in the Bill of Lading to include the shipper, the receiver,the consignee, the holder of the Bill of Lading and the owner of the cargo.
' In clauses 7 and 8 of the conditions of carriage, the term ‘ merchant ’is obviously used with the meaning consignee or owner of the goods. I,therefore, hold that there was an implied or tacit contract between theplaintiff-appellant and the defendant-respondent for the carrying of thegoods from the vessel to the shore.
The liability of a common carrier or a carrier by trade, whether underthe English law or under our Common Law, is similar. As such carrier,the defendant-respondent was under the obligation of delivering thegoods to the plaintiff-appellant in the same condition in which he receivedthem, unless he was able to show that damage had been caused to thegoods by vis major or damnum fatale.—vide Davis v. Lockstone.}. There isno evidence of any unusual weather conditions or other circumstanceswhich amounted to vis major. “ Damnum fatale ” means loss by accidentwhich could not possibly have been foreseen and/or guarded against.
11021 A. D. 153.
SAMEKAWICKKAME, J.—Maurice. Roche Ltd. v. Port (Cargo)201
It cannot be said that the injury to the lighter, which resulted in damageto the goods, could not have been guarded against. Indeed, there issubstance in the contention put forward by Mr. Ranganathan that thoughit was the duty of the Port Commission to keep the quay and its fendersin good order, there was a duty on the defendant-respondent to have takencare that its lighters should only be moored where it was safe to do so.It is unnecessary to consider the question whether there was a failureof the defendant to take such care which amounted, in the circumstancesof this case, to negligence. It is sufficient to state that the damage tothe goods was by no means damage which could not have been avoidedhad due precautions been taken. I, accordingly, hold that the defendant-respondent is liable to compensate the plaint iff-appellant for the damagecaused to the goods of the pla int: ff-appellant.
It is necessary,-at this stage, to deal with a point taken by Mr. Wikra-manayake. He submitted that the plaintiff-appellant had failed toraise an issue whether the defendant-respondent was a common carrier.Paragraph 3 of the plaint alleged both cumulatively and in the alter-native, that the defendant-respondent were clearing, shipping andlanding agents, warehousemen, common carriers, carriers by trade,bailees, and depositories. Issue 1 was framed with reference to paragraph3 of the plaint. Nevertheless, the parties appear to have fought thecase on the footing that the plaintiff’s allegation was tliat the defendantwas a common carrier and/or took custody of the goods on a contractfor fee or reward. The learned District Judge so set out the positionin the opening paragraph of his judgment. Where a party’s position hasbeen put fully before the Court and has been understood by the opposingparty and the Court, it does not follow that “if sufficient facts have beenproved entitling the appellant to succeed in a claim to be indemnified,
. he must be denied justice merely because his pleader has overstatedhis client’s case and the Judge framed an issue embodying that over-statement. ’’—vide Gratiaen J. in reliance of a dictum by Lord Atkinsonin 64 N. L. R. at page 59.
The learned District Judge has not answered the issue in regard todamages because it was not necessary for him to do so in view of hisanswers to the previous issues. The case must, therefore, now be sentback to the trial Court in order that the quantum of damage may beassessed. The trial Court may allow the parties to lead evidence on thismatter and thereafter assess the amount payable to the plaintiff-appellant.
We, accordingly, allow the appeal of the plaintiff-appellant and setaside the judgment of the learned District Judge. We further holdthat the plaintiff-appellant is entitled to payment of damages by thedefendant-respondent and we send the case back for assessment of thequantum of the said damages. The plaintiff-appellant is awardedcosts of appeal and of the proceedings already had in the trial Court.
MAURICE ROCHE LTD., Appellant, and PORT (CARGO) CORPORATION, COLOMBO, Respondent