ALAGASUNDERAM CHETTIAR and another, Appellants, and THE INDIAN BANK LTD., Respon

001-NLR-NLR-V-72-ALAGASUNDERAM-CHETTIAR-and-another-Appellants-and-THE-INDIAN-BANK-LTD.-Respon.pdf


THE
NEW LAW REPORTSOF CEYLONVOLUME LXXII1969 Present: H. N. G. Fernando, C.J., and Wijayatilake, J.
A LA GASUN DERAM CHETTIARand another,.Appellants,and THE INDIAN BANK LTD., Respondent
S.C. SI-82165 (Inti/.)—D. C. Colombo, 52875jM
Carriage of Goods by Sea Ordinance (Cap. So)— Schedule, Article 1 (e), Article II,Article III Rule 6, Article IV Rules 1 and 2—Meaning of expression ** loss ordamage ”—Time limitation in Article III Rule 6—Circumstances when it isapplicable—Inapplicability in case of misdelivery of goods to wrong person.
The provision in Kule 6 of Article III of the Schedule to the Carriage of Goodsby Sea Ordinance that “ the carrier and tho ship shall be discharged from allliability in respect of loss or damage unjess suit is brought within one year aftordelivery of the goods or the date when the goods should have been delivered 11does not apply to a case where tho carriage contemplated in the bill of ladinghas been duly completed by tho discharge of the shipment consigned to Ceylon.Nor is tho time limitation in Rule C applicable to a case where tho carrior or itsagent has caused a complete misdelivery of the goods to somo person other thanthe person entitled to delivery.
Appeal from a judgment of tho District Court, Colombo.
Thiagalingam, Q.C., with D. S. Wijewardena, for the 2nd defendant-appellant in S. C. 81/65 and for the 2nd defendant-respondent in
S.C. 82/65.
Banganalhcin, Q.C., with J. A. L. Cooray and Gamini Dissanayake,for the 1st defendant-respondent in S.C. Sl/65 and for the 1stdefendant-appellant in S.C. S2/65.
U. IP. Jayeicardene, Q.C., with N. B. M. Daluwatle, K. N. Choksy andE. B. Paul Perera, for the plaintiff-respondent in both appeals.
Cur. adv. vult.LXXU— 1
!•J 4415 — 2.255 (0/60)
I
2H. N. tr. FERNANDO, C.J.—Alagasunderam Chclliar v.
The Indian Bank Ltd.
January 15, 1969. H. N. G. Fernando, C.J.—
The plaintiff in this action was the holder of certain Bills of Ladingrelating to a shipment of goods which was despatched from Tuticorin toColombo on a ship of which the 2nd defendant is alleged to have been theowner, proprietor or operator. The 1st defendant is alleged to have beencarrying on the business of shipping agents and also to have been theAgent in Colombo of the 2nd defendant.
According to the allegations in the plaint, the goods in question werebrought in the said ship to Colombo and were duly landed ashore inColombo. The plaint further alleged that it was the duty and businessof the 2nd defendant and/or the 1st defendant acting as Agent for andon behalf of the ship and/or the 2nd defendant to give delivery of thegoods in terms of the Bills of Lading to the plaintiff, but that neither the1st defendant nor the 2nd defendant gave such delivery. It was furtheralleged that the 1st defendant by its servants or agents wrongfully orunlawfully gave delivery of the goods to persons other than the plaintiffand that the 2nd defendant is liable in law for the negligence or fraud orthe breach of duty aforesaid.
Upon the basis mentioned above, the plaintiff prayed for a sum ofRs. 48,000 odd as the loss or damage suffered by him, in consequence ofthe failure on the part of the 1st and/or the 2nd defendant to deliver thegoods to the plaintiff.
Several issues were framed at the trial, some of which raised thequestion whether the liability of any of the defendants ceased when thegoods had been duly discharged from the ship at tire Port of Colombo.In addition, Counsel appearing for the defendants framed issues No. 17,18, 19 and 24 which wore as follows :—
“ Issue No. 17
Has this action been brought within one year of the date on whichthe goods should have been delivered ? ”
" Issue No. IS
If the answer to Issue No. 17 is in the negative, is the present suittime-barred ? ”
“ Issue No. 19
Can the 1st defendant and the 2nd defendant be sued together inone and the same action? ”
(5) If not, can the plaintiff maintain this action? ”
" Issue No. -24
In any event is the 2nd defendant discharged from any liability tothe plaintiff in respect of loss or damage sustained by him as more thanone year has elapsed from the date on which the goods should havebeen delivered? ”
R. N. G. FERNANDO, C.J.—Alagasunderam Cheiiiar v.3
The Indian Bank Ltd.
Counsel for the defendants moved that these issues be decided aspreliminary issues. In addition the learned trial Judge also regardedissues Nos. 13 and 20 as preliminary issues :—
■'* 13. Did the liability of the defendants, if any, to the plaintiffcease as soon as the said goods were lifted from and left the ship’s sideat the Port of Colombo?
20. If any or all of the issues (12) to (IS) are answered in theaffirmative, are the defendants under any legal liability to the plaintiff* in respect of the said goods? ”
Although the order of the learned trial Judge against which the 1stand 2nd defendants have appealed to this Court does not give separateanswers to the issues which have been reproduced above, the learned trialJudge concludes his order by a statement that ail the preliminary issuesare answered against the defendants, and he has further directed thatthe trial will proceed on the other issues.
The issues numbered 17, IS and 24 were designed to invoke the pro-visions of Article III Rule 6 of The Hague Rules which were given statutoryeffect by Ordinance No. IS of 1926 (Cap. 85 of the 1956 Edition of ourEnactments), and which are set out in the Schedule to that Ordinance.The same Rule 6, upon which the defendants here rely, was consideredin the judgment of this Court in Sri Lanka Shipping Co., Ltd. v. TheIndian Bank Ltd. (S.C. 441/64 F, S.C.M. of 1st March 1968) and thejudgment sets out my reasons for holding that the time limitation inRule 6 does not apply in a case where only a mis-delivery of goods, andnot actual physical loss of goods is involved.
Counsel for the 2nd defendant has argued that the recent case waswrongly decided by this Court, and in support of that argument he reliedon the decision of the House of Lords in the case of Admastos Shipping Co.Ltd. v. Anglo-Saxon Petroleum Co. Ltd.* One of the matters which arosefor decision in that case was the construction of statutory provisionin United States law corresponding to the provision contained in ArticleIV Rule 1 and Article IV Rule 2 of the Schedule to our Ordinance, Cap.
85 ; the particular question of construction was ** do the words ‘ loss ordamage ’ in s. 4 (1) or s. 4 (2) of the Act relate only to physical loss of,or damage to, goods ? ”.
In deciding this question Viscount Simonds approved and adopted thereasoning and conclusion of Lord Devlin in the lower Court which was asfollows :—
*' The last question asks whether the words * loss or damage * ins. 4 (1) and (2) of the Act relate only to physical loss of or damage togoods. The words themselves are not qualified or limited by anythingin the section. The Act is dealing with responsibilities and liabilitiesunder contracts of carriage of goods by sea, and clearly such contractual1 (1968) 71 N. L. R. 361.
• (1957) 1 A. E.R. 673 ; and (1958) 1 A. E. R. 725.
4
H. N. G. FERNANDO, C.J.—Alagnsmidcram Chetliar i‘.
The Indian Bank Ltd.
liabilities are not limited to physical damage. A carrier may be liablefor loss caused to the shipper by delay or misdelivery, even though thegoods themselves are intact. I can see no reason why the general words' loss or damage ’ should be limited to physical loss or damage. Theonly limitation which is, I think, to be put on them is that which is tobe derived from s. 2 which is headed : ‘ Risks The ‘ loss or damage ’must, in my opinion, arise in relation to the 'loading, handling,stowage, carriage, custody, care and discharge of such goods *, but issubject to no other limitation. In G. II. Renton cO Co. Ltd. v. PalmyraTrading Corpn. of Panama (5) {(1950) 3 All E.R. 957), the House ofLords held that the words ‘ loss or damage to or in connection withgoods ' in Art. Ill, r. 8, were not limited to actual loss of or physicaldamage to the goods; and I should give the same meaning to* in relation to 1 as to 1 in connection with ”(Anglo-Saxon Ltd. v.
Admastos Ltd. (1957) 1 A.E.R. 673 at p. 0S0).
With much respect I would adopt the opinion- of Devlin, J. that the“ loss or damage ” which is referred to in our Article IV must mean a lossor damage in relation to what is specified in our Article II, that is, “ theloading, handling, stowage, carriage, custody, care and discharge ofgoods ”,and I agree that the expression “ loss or damage ” in Rule 6 of Art. Illmust have the same meaning. Since this aspect of the matter was nottaken into account in my judgment in the recent Sri Lanka Shipping Co.case, Rule 6 of Art. Ill has now to be examined as read with Art. II.
Article II of the Schedule to our Ordinance (Cap. S5) corresponds tos.2 of the American Act to which Lord Devlin referred. This Articledeclares in general terms that the responsibilities and liabilities, and therights and immunities, set forth in the subsequent Articles will bo thoseto which a-carrier will be subject, and entitled, respective^', in relationto the loading, handling, stowage, carriage, custody, care and discharge ofgoods. The list here specified indicates in my opinion an intention toregulate the duties and rights of a carrier from the stage (of loading)when the carriage is about to commence, until the stage (of discharge)when the carriage ends. Tiie same intention is quite clearly indicated inthe definition of “ carriage of goods ” in Article I of the Schedule :—
(e) “Carriage ofgoods” covers.the period from the time when thegoods are loaded on to the time when they are discharged from theship.
In the present case, however, as also in the Sri Lanka Shipping Co.case recently decided in this Court, the carriage contemplated in the billof lading had been duly completed by the discharge- of the shipment-consigned to Ceylon. The loss or damage alleged by the plaintiff inthi3 case is therefore not one in relation to any of the matters which arcregulated by the provisions in the schedule to Cap. S5. On this ground,which was not relied on in the judgment in the recent case, I holdthat the limitation in Article- III Rule 6 docs not apply to the presentaction.
11. X. G. FERNANDO, C.J.—Alagasinulcram Chettiar v.5
The Indian Bank Ltd.
Although this finding is conclusive of the question whether the plaintiff’saction is time-barred, further examination of Rule G Article III hasrevealed additional reasons for the opinion expressed in the recentcase that its provisions are inapplicable to a case of alleged loss bymisdelivery ashore.
Thus the first paragraph of Rule 6 requires “ notice of loss or damageand the general nature of such loss or damage ” to be given to the carrieror its agent before or at the time of the removal of the goods into the cus-tody of the person entitled to delivery ; and the second paragraph statesthat the notice need not be given " if the state of the goods as at the timeof their receipt has been the subject of joint survey or inspection Thefourth paragraph of Rule G, again, affords to both the carrier and theconsignee an opportunity for insjjcction and tallying,with a view obviouslyto ascertaining the nature and extent of Joss or damage to goods. Hence,the 1st, 2nd and 4th paragraphs of Rule G when considered together arewhollyapplicable in a case in which.a consigneeisjremoving or about toremove t he goods, and at that stage becomes aware of actua 1 or apprehendedloss or damage, in which event he must immediately or within three daysgive notice to the carrier in order that the latter himself may by survey orinspection investigate the correctness of the consignee’s complaint; andif a proper notice of alleged loss or damage is not given, the fact of removalbecomes prima facie evidence of due delivery. lean seenothing in thesethree paragraphs which is reasonably applicable in a case where nogoods are available for removal by a consignee, for the reason that thecarrier or its agent has, as is alleged in the instant case, caused acomplete misdelivery to some person other than the person entitled todelivery.
It will bo seen that the limitation clause which requires suit to bebrought within one year after delivery or after due date for delivery isto be found in the 3rd paragraph of Rule 6, and that this 3rd paragraphis (if I may be permitted the expression) “ sandwiched ” between para-graphs, the terms of which are applicable only to actual physical loss oractual physical damage. I thus see very good reason for the opinionthat the 3rd paragraph was intended to apply only in case where goodsdelivered are alleged to be damaged or where there is an alleged shortdelivery.
I would add also that at the least it is doubtful whether the adoptionby the Legislature of a Rule in such uncertain terms can be regarded ashaving amended the provisions of the Prescription Ordinance in itsapplication to a claim of the nature made by the plaintiff in the instantcase.
For these reasons I must adhere in the construction placed by thisCourt upon Rule 6 in the case of Sri Lanka Shipping Co. Lid. v. TheIndian Bank Ltd. Counsel for the defence has adverted to the risk that,if no appeal to the Judicial Committee is taken from the present judgment
J 4415 (6/09)
G
Wyman v. The Queen
at this stage, the defence may be precluded from ultimately appealingagainst the present judgment on the point which I have been discussing.I must add therefore that although the present judgment will be bindingupon both the District Court and this Court in any further proceedingsin the present action, the defence will be entitled to rely uponthe limitation clause in Rule G in any apjical which may ultimatelybe preferred from tlie final determination of this Court of the presentaction.
In the result I affirm the finding of the trial Judge in this case thatthe issues numbered 17, IS and 24 must be answered in favour of theplaintiff.
In regard to issue No. 19, relating vo alleged misjoinder, and to issuesNos. 13 and 20, we are of oju’nion having regard to certain argumentsraised before us that a proper answer to those issues may depend onevidence concerning the custom and practice in the Port of Colomboand the functions relating to delivery of goods to consignees which areperformed by carriers and their agents. Wo set aside pro forma thefindings of the learned trial Judge on those issues, and direct that theybe answered only at the end of the trial.
The costs of this appeal will abide the ultimate decision of the case.
Case sent back for trial on certain issues only.