037-NLR-NLR-V-07-ASANA-MARIKAR-v.-LIVERA.pdf
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1903.
March 16.
A SANA MARIK AR v. LIVER A.
D. G-, Colombo, 13,923.
Shipping and landing agent—Contract with steamer agents to bring cargo ashore-and deliver into Government warehouse under control of Collector of‘ Customs—Loss of package after delivery into Government warehouseAction by owner of package against landing agent for value of package—BesponsibiUiy of bailee—Ordinance No. 17 of 1869, s. 83.
Where A imported a package of goods by a steamship, the owners ofwhich had entered into a general contract with B that he should receiveall its cargo into his boats and bring them ashore and deliver them into>the Government warehouse provided by Ordinance No. 17 of 1869—
Held, that A could not maintain an action against B for the value ofhis package found missing in the Government warehouse, as he was notbailee of it after it had been warehoused there; and the mere fact ofhis having received payment of the landing charges of the defendant didnot imply a contract that he was to do anything more than land andwarehouse the package with the Customs authorities.
T
HE plaintiff in this case imported a package of umbrellas bythe steamship Clan Chisholm, and the defendant, who was
carrying on business as a shipping and landing agent underthe style of the Cargo Boat Despatch Company, landed thatpackage into one of the Government warehouses on the 5thApril, 1900. When the plaintiff went to the Customs to pay thedues and clear jbhe package, he found it missing. The plaintiffinstituted the present action to recover from the defendantRs. 550 as the value of the package of umbrellas, alleging thatthe defendant cleared the said package from the steamship, andIn consideration therefor received from the plaintiff certaincharges, but failed and neglected to deliver the said package tothe plaintiff, and thereby the same was wholly lost to the plaintiff.
The defendant denied his liability on the ground that he didnot contract with the plaintiff to clear goods for him, and that byvirtue of an agreement with the agents in Colombo for the ClanLine of Steamers it was his duty to receive all their cargo intohis boats and bring them ashore and deliver them into theGovernment warehouse assigned to those ships by the Collectorof Customs; that, among the goods so cleared and delivered wasa case of umbreEas, in respect of which the plaintiff paid to himcertain charges, and that if the plaintiff was the consignee of thesaid case it was his tluty to clear it from the Queen’s Warehouse;and that after, the defendant’s delivery of* it into that warehousehis liability ceased under the provisions of section 83 of theOrdinance No. 17 of 1869.
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The'issues framed were as follows:(1) Was there any contraot
between the plaint*'# and defendant, either express or implied, bywhich the defendant was bound to land- the- case in questionand deliver it to the plaintiff ?(2) If there was, did the defendant
in breach of such contract fail to deliver the oase to the plaintiff ?
If so, what damage has plaintiff sustained ?
The Additional District Judge, Mr. Felix Dias, found thatthough the Crown was the owner of the warehouses in the Customsand the Collector kept their keys when they were looked at night,and a Customs officer was posted at each warehouse to see that nogoods left the premises without payment of' the Governmentdues, yet neither the Collector nor any of his officers assumed anyresponsibility for the custody of the goods unless the owner ofthe goods proved, under section 88 of the Ordinance No. 17 of 1869,the loss to have been due to the wilful misconduct of a Customsofficer. If the defendant was a mere carrier between ship andshore, one would naturally expect him not to have meddled withgoods after he had put them in the warehouse and got his boat-note initialled or .signed by the proper authority, but his dutieswent very much further according to his evidence. He had his■own storekeepers and watchers within the warehouse and in■charge of the heap of goods landed by him until they were alldelivered to consignees.
The Court therefore held that the defendant was the custodianof the goods he landed, and that the plaintiff as consignee wasentitled to demand delivery from him upon an implied promiseto so deliver on payment of his landing charges. The Courtentered judgment for plaintiff for Bs. 550.
The defendant appealed.
Dorrihorst, K.C. (with him H. J. C. Pereira), for appellant.—Defendant had no contract with the plaintiff. Section 83 of the■Customs Ordinance protects the Crown from liability for loss ofgoods from the warehouse except under certain circumstances.That provision implies that*the Crown was liable before the passingof that Ordinance. The Government, therefore, must be lookedupon as the true bailee, though protected by law; therefore thedefendant cannot be treated as the bailee. [Lavard, C.7.—Muchwould depend upon the bill of lading.] The bill of lading isnot produced. How can a mere lauding ‘agent be. held liable for■ a loss which did not occur while the package* was hi his custody ?Defendant could not deliver the, package he took from the ship’sside to the plaintiff. He was bound to {ilace it in the Government-warehouse. Having ’delivered it there, his whole duty was
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1803.March 16.
fulfilled, and he is not liable to the plaintiff. [Layard, C.J., to therespondent’s Counsel—Was the defendant agent for the plaintiffor agent for the steamer?]
M. de Saram for plaintiff, respondent.—Agent for both.But as defendant looks to the plaintiff for payment he mustdeliver the goods to. the plaintiff. [Layard, C.J.—If defendantlooks to you for payment, do you mean he has a lien on thegoods until payment? If so, he can sue you in the event ofyour not taking up the goods.] That aspect of the case doesnot concern me. [Layard, C.J.—I.t. does. If .there is a contractbetween him and you', he could sue you.] Assuming there wasno contract, still he must deliver the goods to me because hetook charge of the goods from the ship’s side as a commoncarrier. [Layard, C.J.—There is no evidence that he is a com-mon carrier. If a common carrier carries my goods without myconsent, does a contract arise?] Yes. It is not sufficient for himto deliver my goods into the Customs; he must deliver them tome. He is liable for the loss; his watchers are in the warehouse.Unless he is liable, he would not incur the trouble .and expenseof watching. [Layard, C.J.—But his watchers cannot watch thereby night. The Collector of Customs closes the warehouse at the endof the day, and the defendant has no opportunity of watching. Arogue with a false key opens the warehouse at night and removesthe goods. Who is responsible for the loss ? You pay thedefendant for landing, but not for watching.] If he puts my goodsinto a warehouse where a theft may take place, he is responsible.[Layard, C.J.—But the law compels the defendant to carry thegoods into the Government warehouse. His liability to obey thelaw is greater than his liability to deliver the goods to you. Heis certainly responsible for loss between the ship and the shore.]Somebody is responsible to me for loss* in the warehouse.[Layard, C.J.—Yes; the Government is, but-the law protects it.]Defendant did not deliver the goods to me, but to some one else,and that is no answer to me. [Layard, C.J.—You mean hewrongfully took your goods. Then there was no implied contractsuch as .you rely upon.] D. C., Colombo, 68,826, reported inR&mandthan, 1877, p. 56, seems .to be a case in point. – [Layard,C.J.—I do not think the case applies.]
Cur. adv. vult.
16th March, 1903. L<yard,*C.J.—
The defendant carries on the business of landing and shippingcargoes. He has obtained from Messrs. Finlay, Muir & Co. theexclusive privilege of landing goods for the Cl'an Line of Steamers,'
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for which they are agents, except, he says, in a few cases wherethe consignees, with the express sanction of the ships’ agents,receive the goods on board themselves. In February, 1900, apackage of umbrellas arrived at Colombo by one of the Clan Lineof Steamers consigned .to the plaintiff. The .defendant landed allthe goods which arrived from this port by that steamer, includingthe package of umbrellas, the plaintiff’s property, and warehousedthem at a warehouse indicated by the Collector of Customs. Whenthe plaintiff went to obtain delivery at the Customs he could notfind the package of umbrellas. He now seeks to recover from thedefendant the value of the missing package of umbrellas.
There is nothing to show in the evidence that tiiere was anyexpress contract between the plaintiff and defendant. Thereappears to have been an express agreement with the owners of theClan Line of Steamers that the defendant should land all goodsarriving in their ships and should deliver them at the Customs pre-mises. The defendant is not a warehouseman. All goods landedby him appear from the evidence to be warehoused by the Customsauthorities, who receive them into their warehouse and- theredetain them until the Government dues are paid. That theCustoms authorities {i.e., the Crown) are the real warehousemenis evidenced by the fact that they make a charge for warehousingif the goods are not removed in three days.
It is argued for respondent in this case that, though there is noexpress contract upon which the defendant could be sued by theplaintiff, there is an implied contract to land, warehouse, anddeliver to the plaintiff. It seems to me doubtful whether anysuch contract can be implied at all in this particular case.. Thedefendant was acting under an express contract with the ship-owners, the Clan Line. It is suggested that, because he paid thedefendant the landing charges, an implied contract arises not onlyto land the goods and deliver them to the Customs authorities, butsubsequently to deliver them from the Customs warehouse to theplaintiff. Is such the case ? Say the plaintiff had demanded hisgoods from the defendant, merely tendering him the amount duefor landing, could he have compelled the defendant to deliver tohim the goods? Certainly not. Theje might be freight due on thegoods, and until such freight was paid the goods,.would be underlien to the shipowner, and the plaintiff could not demand deliveryof his goods by merely paying the defendant's charges for landing.Assuming there was an implied contract of ‘some kind betweenplaintiff and defendant, what was it ? According to "defendant’sevidence, when he undertakes to clear sfnd deliver goods to con-signees he enters intef a special agreement with them. In those
March16.
LayarU,
C.J.
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1903. cases he pays all the harbour dues, duty, &c., and Bends the goodsMarch 16. on to the consignees. He acts then as agent of the consignees, and- Layabd, c.J. takes upon himself the duty of clearing the goods at the Customsand of delivering the goods to the consignees. Bid the defendantundertake the duty of warehouseman until plaintiff came to takedelivery? The evidence shows that the practice is that, on aconsignee taking delivery at the Customs, one of the defendant’sservants fills up a cart note and signs it, and this is countersignedby the Government landing waiter if he is satisfied that allGovernment dues have been paid, but the landing waiter deposesthat a cart note alone signed by him would be sufficient authorityto pass out goods, whereas one signed by defendant’s servant alonewould not. The Custom House authorities could not make acharge for warehousing if they are not the actual warehousemen.The presence of watchers of the defendant as well as his store-keeper in each warehouse where he landed goods, it is argued,shows that he is the real warehouseman. ■ This is explained by thedefendant to be done for the purpose of recovering the landingcharges and also for securing the safe custody of those' goodswhich be had expressly contracted to deliver. His watchers wereonly there by day; at night he had no means of controlling orsafeguarding the goodsof which,it is said,hewas bailee.. The
contention that goodscould notbe stolenatnight except bv
the Collector of Customs, in which case the Crown would beresponsible, depends upon a- mere assumption. Why should notthe place be broken into? Moreover, if the defendant and notthe Crown were thebailee, thedefendantwould be liable no
less if the goods were stolen bya servantofthe Crown, e.g..
the Collector of Customs, who, it is admitted, had sole controlat night.
It is further significant thaj- the plaintiff on missing the packagedoes not apply to the defendant, but searches the Customs ware-house himself, employing for the purpose a Custom House coolywho worked for him, and also that the agents of the shipowners,Messrs. Finlay, Muir & Co., paid the Customs duty leviable on themissing package, apparently recognizing that the goods were
imported (i.e., landed) on their account.
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J am1 not satisfied that after the 5th April, 1900, when thepackage passed ‘the tallyman at the jetty and was warehoused inthe Government warehouse, the defendant was bailee at all of thatpackage. There is nothing to show that payment by the plaintiffof the landing charges supported a contract by defendant to doanything more than to land the goods and warehouse them withthe Customs authorities.
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Accordingly, 1 think this appeal must be allowed and the con-sideration should not weigh in such cases that, if the defendant isnot liable, the plaintiff has no remedy by reason of the statutoryprotection of the Crown under section 88 of the Customs Ordinance.That is not a circumstance which can affect the question of thedefendant’s liability.
Moncbeiff, J.—
I am of the same opinion. The principal question was, whatwas the defendant’s relation to the plaintiff’s goods after theywere landed and warehoused? The evidence leaves no room fordoubt. When the goods were warehoused the defendant, whoacted as a mere landing agent, had no further responsibility inconnection with them. True, he maintains a staff at the ware-house and busies himself with the goods when they are delivered.But it is clear that he is there only by the permission of theCollector of Customs, partly that he may have a chance of gettingpayment of his landing charges and partly for reasons which havenothing to do with this case. The goods were warehoused by theCustom House authorities, whose liability is carefully defined byOrdinance.
1903.
Monk 16.,
Layabs, C.J.