050-NLR-NLR-V-71-CARGO-BOAT-DESPATCH-CO.-LTD.-Appellant-and-MOOSAJEE-LTD.-Respondent.pdf
Cargo Boat Despatch Co. Ltd. v. Moasajee Ltd.
225
1984 Present: T. S. Fernando, J., and Sri Skanda Rajah, J.CARGO BOAT DESPATCH CO. LTD., Appellant, and MOOSAJEE
LTD., Respondent
8. C. 500/59—D. C. Colombo, 45008/M
Corner by trade—Carriage of goods from ship to shore—Extent of the obligations imposedon the carrier.
Where a carrier by trade is employed to transport goods from a ship to theCustoms warehouses, the carrier’s responsibility comes to an end when thegoods, on being deposited in the warehouses, are exclusively within the controlof the Customs authorities,
21-PP 006137 (98/08)C
226 T. S. FERNANDO, J.—Cargo Boat Despatch Co. Ltd. v. Moosajee Ltd.
A.PPEAL from a judgment of the District Court, Colombo.
Ranganathan, for defendant-appellant.
W. Jayewardene, Q.C., with N. R. M. Dalmoaite, L. C. Seneviratneand N. E. Weerasooria (Jnr.), for plaintiff-respondent.
Cur. adv. tmil.
July 6, 1964. T. S. Febnando, J.—
The S. S. Lenko arrived in the port of Colombo on June 7, 1957, witha cargo of 99,520 bags of Saphos ground phosphate (fertilizer) and 350empty bags, making a total of 99,870 bags. This cargo was intended forfour consignees, one of them being the plaintiff company to which 4,000bags were consigned. There were no special markings t.o distinguish thebags intended for the different consignees. All bags had only the stamp‘ Saphos * on them.
In accordance with the arrangement obtaining in the port, the PortPriority Committee entrusted the discharge of the entire cargo from theship in question to the defendant company which has been held by theDistrict Judge to be a carrier by trade. The employees of the defendantreceived the entire cargo into lighters over the ship’s side between the19th June and the 4th July.
The three other consignees have removed the cargo respectivelyconsigned to them. Delivery of the 4,000 bags consigned to the plaintiffwas commenced only on the 18th July. By the end of the next day, the19th July, delivery was taken by the plaintiff only of 3,527 bags. Ac-cording to the plaintiff’8 own witness the delay in taking delivery was dueto a strike of the plaintiff’s own employees. The balance 473 bags wasnot to be found. In the present action the plaintiff sought to recoverthe value of the 473 bags short delivered, claimed to be Rs. 6,183 04.Giving credit to the defendant in a sum of Rs. 810 which the plaintiffadmitted was owing to the defendant, the plaintiff asked for judgment-in a sum of Rs. 5,373 04. At the end of the trial, the learned DistrictJudge entered judgment in favour of the plaintiff for the said sum ofRs. 5,373 04. The appeal seeks a reversal of this judgment.
The trial judge has held (i) that he was not satisfied that the defendanthas landed into the Customs warehouses the entire cargo received by thedefendant from the ship; (ii) that, assuming that the entire cargo hasbeen landed into the warehouses, the shortage or disappearance of 473bags of Saphos could not have taken place without the cognizance of thedefendant’s employee at the barrier to the warehouse in which the 4,000bags destined for the plaintiff had been stored *, and (iii) that the loss was
T. S. FERNANDO, J.—Cargo Boat Despatch Co. Ltd. o. Moosajeo Ltd. 227
due to the refusal or neglect of the defendant's employees to issue thecart passes which alone would have enabled the plaintiff to remove thegoods consigned to it.
It was contended by counsel for the defendant that the learned trialjudge’s finding No. (i) referred to above is wrong and is contrary to thevery evidence led on behalf of the plaintiff. Nadarajah, a clerk of theCustoms Department, who was the principal witness called for the plain-tiff in regard to the question of landing and delivery of the goods, statedthat “ the number (of bags) receipted and landed was 99,870 ” ; “ theentire 4,000 bags had been landed into the (Hangar) warehouse ” ; “ 4,000bags were landed into the H. 3 (an abbreviation for Hangar No. 3) ware-house ”, “ nothing else had been landed into this warehouse ”. All thisevidence was given in examination-in-chief. He was, of course, speakingfrom the documents produced on behalf of the plaintiff. He was theonly person called to speak to these which included the relevant boat notes.The boat notes serve not only as a receipt to the master of the ship show-ing that the cargo has been landed into the boats over the ship’s side butalso to fix the owner and tindal of the boat with responsibility for the duelanding and delivery at the Customs Warehouse of the cargo specifiedtherein.
While the evidence of Nadarajah prima faci-e established due deliveryor landing at the Customs warehouse, the learned trial judge appears tohave undertaken by himself an examination of the various boat notescovering the 99,870 bags, and has observed that in one of them (boat notebearing No. 874) the full quantity of 626 bags specified has not beenreported landed. From an entry which appears to read “ landed 448only—short ”, the trial judge concludes that 626 less 448, i.e., 178 bagswere not landed. He has taken no note of the initials “ R. L. C. ” appear-ing at the foot of that boat note, and it is common ground that theseinitials stand for “ reported landed correct ” and are made by someofficer on behalf of the Customs. Where Nadarajah was the witnesswhom the plaintiff called to explain the documents which were them-selves produced on behalf of the plaintiff, it was, in my opinion, impera-tive that Nadarajah should have been questioned on the entry before anyinterpretation other than that given by him was placed on it. It was nota self-explanatory entry when it was accompanied by the other entry' R. L. C .' If there was to be interpretation of the entry, that inter-pretation should have come from Nadarajah or the interpretation placedby the judge should have been suggested to him. With respect^ in theface of Nadarajah’s evidence, the interpretation placed by the judgeassumes the character of a speculation.
A similar failure to question Nadarajah occurred in respect of the otherboat note which the judge refused to accept at its face value. This isboat note bearing No. CPC. 18 in respect of 1,046 bags. There isone entry on this note that 771 bags were landed and another entrythat 276 bags were landed^. These add up to 1,046 bags. The learned,
228 T. S. FERNANDO, J.—Cargo Boat Despatch Co. Ltd. v. Moosajee Ltd.
judge refers to the absence of the initials “ R. L. C. ” on this boat note,and concludes that there has been some short delivery of this number ofbags as well. The Customs Department, it must be assumed, is no lessinterested than a consignee himself in seeing that cargo taken over theship’s side is landed into the warehouses. There is no suggestion that theCustoms Department has raised any question of a short-landing into itswarehouses of the cargo ex S. S. Lenko. On the contrary, the evidenceof Customs clerk, Nadarajah, suggests clearly a landing of the full cargospecified in the ship’s manifest. In the present instance, of course, theplaintiff had paid customs dues and charges apparently even before thecargo had begun to be warehoused. There is no evidence that the otherconsignees had done the same, but the payment of customs duee andcharges is something that will come to be checked up only when thegoods are sought to be cleared and taken out of the warehouses, andthere is no reason to think that customs checkers at the warehouses wouldhave known of the payment of dues or that, had they known, they wouldhave been indifferent as to the quantity warehoused.
A reference to the plaint and the issues framed also justifies theargument of counsel for the defendant at the hearing of the appeal beforeus that the plaintiff relied in this case principally on a failure by thedefendant to deliver the entire number of bags consigned to it. Thatfact may explain why, in leading the evidence of Nadarajah, the landingof the 4,000 bags into the warehouses was assumed on the documentsrelied on by the plaintiff company itself.
The circumstance that 473 bags were actually short is taken by thelearned trial judge as indicating a failure to land that number of bagsinto the warehouses. It may be equally consistent with a loss from thewarehouses after landing has been effected. Nor can the fact that thedefendant wrote to the plaintiff at one time that the bags said to be shortwere in one warehouse and at another time that they were in some otherwarehouse help to decide the question of non-delivery into the warehouses.These warehouses, according to the evidence, are very large places inwhich large quantities of various kinds of cargo are stacked, and the factthat the defendant was unable at one time to say into which particularwarehouse of the three warehouses in respect of which sufferance hadbeen granted to the defendant to land this ship’s cargo the plaintiff’sbalance Saphos had been delivered is understandable.
In the course of his judgment, the learned trial judge observes thatNadarajah called by the plaintiff company to prove its case has beenfully exploited by the defendant company to advance its defence. It issomewhat difficult to understand this observation. It is legitimate forone party to elicit from a witness of his opponent any facts that wouldbe favourable to it, but in the present instance all the evidence thedefendant sought to utilise was elicited from Nadarajah in the course ofhis evidence-in-chief. In the face of Nadarajah’s evidence in respectof the documents, inferences from an examination of the documents
T. 3. FERNANDO, J.—Cargo Boat Despatch Co. Ltd. v. Moosajee Ltd:929
undertaken by the learned judge on his own, without at least a questioningof Nadarajah, the plaintiff’s own witness, were not, in my opinion,permissible in the circumstances. Moreover, the inferences made byhim from entries or the absence of entries on the documents specified byhim are by no means plain.
In my opinion, the evidence called for the plaintiff itself established alanding into the Customs warehouse or warehouses of the 4,000 bagsconsigned to the plaintiff. Finding No. (i) reached by the learned trialjudge has, therefore, to be reversed.
What is the result of the finding now reached by me that there was alanding into the Customs warehouse of the full consignment ? Severalfairly recent cases have dealt with the liability of a carrier by trade.These have been referred to by the learned District Judge in hisjudgment, and their effect has been correctly summarised by him. Thelearned judge himself apprehended that, according to the law as set outin these decisions, a carrier by trade can avoid liability if he proves hehas duly landed all the cargo received into the Customs warehouses.In view of the reversal of finding No. (i) referred to above and theconclusion that there has been due delivery into the warehouse, thedefendant is not liable to make good any damage suffered by thieplaintiff by a loss occurring thereafter.
The position would have been different if the defendant had under-taken an additional liability as bailee or insurer of the goods while theywere lying in the Customs warehouse or warehouses. There is noevidence of any such undertaking by the defendant. When the PriorityCommittee allocated the business of landing cargo ex S. S. Lenko tothe defendant, a carrier by trade, certain obligations attached to thedefendant when it undertook the work. Gratiaen J. in Alibhoy v. CeylonWharfage Co. Ltd.1 has set out what he understood to be the obligationsthereby imposed on the carrier. It must, however, be emphasized that,in setting out the obligations as he did, he was only making reference tolegal issues that generally arise in cases of this kind. In regard to theseparticular statements relating to the obligations imposed on a carrier,Weerasooriya J. (Sansoni J. agreeing), in the later case of The CeylonWharfage Co. Ltd. v. Lada2, stated :*—
“ It seems, however, that the observations of Gratiaen J. in thatconnection were not intended to imply that the obligation to givedelivery from the Queen’s warehouse is one of the normal incidents ofthe contract of carriage of goods from ship to shore as in the concludingportion of his judgment he affirmed the view expressed in the twoearlier cases that the carrier’s responsibility was at an end where thegoods on being deposited in the Queen’s warehouse were exclusivelywithin the control of the Customs authorities.”
I am in entire agreement with the observations reproduced immediatelyabove and, in view of my reversal of finding No. (i) as already stated,it follows that the plaintiff’s action should have been dismissed.
» (1954) SO N. L. B. atpagz 476.• (1957) 59 N. L. B. at page 112.
230
TAMBIAH, Jf.—Dhamminda Nayake Thero v. Ceylon Theatres Ltd.
On account of the result thus reached, it becomes unnecessary in thestate of the relevant law, to consider the correctness of the alternativefindings of the learned District Judge.
The judgment and decree appealed against are set aside. I direct thatthe plaintiff’s action be dismissed with costs in both courts and decreebe also entered directing the plaintiff to pay to the defendant the sum ofRs. 810, admitted to be due to the defendant, with legal interest on thatsum from 25th September 1958 to date of decree and thereafter on theaggregate amount of the decree till payment in full.
Sri Skahda Rajah, J.—I agree.
Appeal allowed.