BASXAYAKT!, C.J.—Sdndia Steam Navigation Co., Ltd. v.The Attorney- General
Present:Basnayake, C.J., and Pulle, J.
SCINDIA STEAM NAVIGATION CO.. LTD., Appellant, andTHE ATTORNEY-GENERAL, Respondent
S. C. 21—D. C. Colombo, 33028 iM.
Contract for carriage of goods by sea—Sills of ladings—Evidential value thereofconcerning weight, number and quantity of goods shipped.
Where the bills of lading containing the terms of a contract for the carriageof goods by sea expressly provide that the weight, contents and value of thegoods shipped are unknown, they do not afford prima fade evidence of theweight, number and quantity stated therein as shipped.
XjlPPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with S. J. Kadirgamar and Ralph de Silva, forDefendant-Appellant.
C. AUes, Deputy Solicitor-General, with W. Ladduhetty, CrownCounsel, for Plaintiff-Respondent.
October 28, 1958. Basnataks, C.J.—■
This is an action by the Attorney-General on behalf of the Crownagainst the defendant, the Scindia Steam Navigation Company Limited,in which a sum of Rs. 14,279*19 is claimed as damages for breach of acontract for the carriage of goods by sea. It is agreed that the terms ofthe contract are to be found in the documents PI, P2 and P3, which arethe bills of lading issued at Rangoon by the agent of the defendant tothe shipper, the State Agricultural Marketing Board, Union of Burma.The Attorney-General claims that the shipper delivered at Rangoon tothe defendant company a total number of 100,652 bags of rice, eachweighing 160 pounds, and that the defendant failed to deliver thosebags of rice at Colombo. In order to establish this claim the Crownrelies on the statements of particulars of the shipments in the documentsPI, P2 and P3. PI is a bill of lading issued on 14th September 1953.It is issued in respect of a consignment of rice declared by the shipper as" 2187 Bags Pull Boiled Rice 1953 crop each 159*74821 lbs. nett Tons155*19*1*13 nett ”, P2 is issued on 16th September 1953 in respect of aconsignment of rice declared by the shipper as a total of 47,992 hagsweighing 3,382 tons 0 ewt. 1 qr. 14 lbs. nett. This according to theshipper’s statement represents a total of seven items. P3 issued on17th September 1953 is in respect of a total of 50,473 bags declared by
2J. 2T.B 22116-1,095(2/60)
BASIS!"AYAKE, C.J.—Soindia Steam Navigation Co., Ltd. v.
The Attorney- General
the shipper art unspecified number of which are 158 lbs. each- and therest 160 lbs. each in weight. This consignment is said to weigh 3,566tons 8 cwt. 1 qr. and 1 lb. nett.
Each of the bills of lading is subject to the following condition“ This Bill of Lading is issued subject to the further conditions :—
NUMBER and CONTENTS
Weight, contents, and value when shipped unknown. The com-pany is not to be responsible for any loss, damage or delay whatsoever,directly or indirectly resulting -from insufficiency of the address, orpacking, internal or external; nor for condition of contents of re-shippedor re-exported Goods.”
There is also the following stamped endorsement on each of the billsof lading :—■
“ SHIP NOT RESPONSIBLE FOB
DAMAGE EBOM HEATING AND/OB CAKING OF NEW BICEGRAIN OB BRAN; OBLITERATION OF MARKS, DETERIO-RATION OF CONTENTS OR STAINING OF BAGS CAUSED BYTHE NATURE OF CONTENTS AND/OR SHORTAGE OFWEIGHT CAUSED BY THE EVAPORATION OF CONTENTS ;BURSTING OF BAGS AND LOSS OF CONTENTS.
SHIP NOT RESPONSIBLE FOR WEIGHT OF BAGS ONOUT-TURN.”
It is also agreed by the parties that the courts in Ceylon have jurisdic-tion in this matter and that, as stated in the bills of lading, the TndmnCarriage of Goods by Sea Act, No. TCX VI of 1925, and the schedule-theretoare to be regarded as applicable to this contract.
The Crown sought to establish its case by producing the bills of ladingand claiming that according to the bills of lading 100,652 bags of riceeach Weighing 160 lbs. had been delivered to the defendant and thatthe defendant had failed to deliver this number of bags each containing160 lbs. of rice at Colombo. The Attorney-General relied on the hearsaystatement of the carrier in the bills of lading for which he did not vouchand from which he expressly dissociated himself and offered no proofeither oral or documentary that each of the bags of rice weighed 160pounds, nor did the Attorney-General establish by evidence that the totalquantity of rice handed over by the shipper at Rangoon was not dis-charged by the carrier at Colombo. It is in evidence that the shipcarried exclusively rice consigned by the shipper to the Director of FoodSupplies, Colombo, and that after it left Rangoon it did not call at anyother port on its way to Colombo. In order to succeed in this actionthe Attorney-General must establish that the defendant failed to deliver
Ekanayake v. Banaweera
the quantity of rice handed to him by the shipper at Rangoon for trans-portation to Colombo. He must prove by evidence that the shipper-handed to the defendant’s ship 100,652 bags of rice each -weighing 160 lbs.This he cannot do except by calling a witness or witnesses able to speakto that fact. He has failed to do so. In view of the conditions in thebills of lading quoted above he is not entitled to rely on the weight,number and quantity given in them as establishing his claim.
Learned counsel for the appellant referred us to the case of the NewChinese Antimony Company, Limited v. Ocean Steamship Company,Limited1, where it was held that where bills of lading were qualified by theuse of such words as “said to be … ” or “ weight etc. unknown”
they do not afford prima facie evidonce that the stated weight or quantitywas shipped. The burden is on the plaintiff to establish the facts onwhich he relies to succeed in his case. Apart from the conditions above-mentioned there is in the instant case in the defendant’s favour the addedcircumstance that the ship was loaded only with rice consigned to theDirector of Food Supplies, Colombo, and that she did not call at anyintermediate port before reaching Colombo.
The officers of the Government of Ceylon had access to the ship andthey had every opportunity of satisfying themselves that every grain ofrice put into the ship at Rangoon was landed at Colombo. The Attorney-General does not claim that any part of the rice loaded into the ship atRangoon has been retained in the ship’s hold.
We therefore set aside the order of the learned District Judge anddismiss the plaintiff’s action with costs in both courts.
Pulle, J.—I agree.
SCINDIA STEAM NAVIGATION CO.LTD , Appellant, and THE ATTONEY-GENERAL , Responden