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CAYLEY, Q.A., v. KERR.
D. C., Colombo, 1,629.
Shipping—Liability of master for non-delivery of goods received on board—Bill of lading unauthorized by matter—Receipt of goods by chief officerat part of ship’s cargo—Implied contract between matter and consignor—Action by consignee—Evidence.
The master of a ship has the whole conduct and management of theship and everything on board in his charge and custody.
If he is not himself the owner of the ship, he has this conduct,management, and custody as agent of the owner.
The chief mate of the ship is the master’s hand or servant to receiveon board for him goods into his custody, but is not generally authorizedto bind him by special promises.
Where, in a suit brought against the master of a ship for recovery ofdamages consequent upon non-delivery of goods received on board byhis chief mate, it was proved that 6. H. S. & Co., professing to act forthe master (but without due authority), acknowledged in a bill of ladingthat C. A. had shipped certain goods to be delivered at the port ofColombo unto 0. A., and it appeared that the chief mate of the shiphad received the goods in question on behalf of the master from a DockCompany in London without instructions as to their destination, or towhom they were to be delivered in Colombo,—
Held, that the master was not liable to O. A. on the bill of lading,or upon the implied contract created by the chief mate’s acceptance ofthe goods on board, in the absence of proof that the Dock Company hadcontracted on behalf of 0. A.
fT^HE Queen’s Advocate (the Hon. Mr. Cayley), by his informa-tion, gave the Court to understand that the defendantabove-named, being master of the ss. Eldorado, received on boardin London on 28th February, 1877, an iron girder of the valueof Rs. 835 belonging to the Government of Ceylon in good orderand condition, and agreed to deliver it in like good order andcondition (certain perils and casualties only excepted) to theGovernment of Ceylon or their assigns in Colombo ; that the saidgirder was duly delivered to and received by the defendantin good order and condition, and the delivery of the same inColombo to the Government of Ceylon or their assigns in likegood order and condition was not prevented by any of the perilsor casualties aforesaid; and all conditions were fulfilled, &c.,to entitle the said Government of Ceylon to have the said girderdelivered to them at Colombo, and yet it was not so delivered,but was wholly lost to them to the damage of Rs. 835. Theplaintiff prayed for such damages.
Though no mention was made in the information of a bill oflading, the defendant in his answer denied that he “ signed the
( no )“ bill of lading in the libel declared upon,” and said, by way ofdemurrer, that “ the plaintiff cannot have and maintain this actionM against him.” The defendant further said that, if the defendantand his servants were liable at all npon the bill of lading, theywere liable only for the safe carriage of the said goods till theyshould be placed in the tackles of the vessel and delivered there-from, and that the defendant was not responsible for the receptioninto the cargo boat of the goods in question, which were effected at therisk of the plaintiff, and that the loss in the libel alleged occurredafter the girder left the tackles of the vessel, and that thereforethe defendant was not liable. He further pleaded that under theexception in the said bill of lading contained, he was exemptedfrom all liability in respect of loss or damage occasioned by theact of God or the perils and dangers and accidents of the sea, andthat the loss of the said girder was occasioned by such perils,dangers, and accidents, and by the carelessness and negligenceof the plaintiff’s servants.
After argument had on the demurrer, the defendant was allowedto amend his answer by adding a denial that he received or agreedto deliver the girder as set forth in the information, and theparties proceeded to trial.
The bill of lading acknowledged that the Crown Agents for theColonies had shipped in good order and condition certain goods,including the girder which was the subject of dispute in thepresent case, &c., “ to be delivered, subject to the conditions and“ exceptions hereinafter mentioned, in the like good order and“ condition from the ship’s tackles [where the ship’s responsibility
“ shall cease] at the port of Colombounto the Officer Adminis-
“ tering the Government of Ceylon, &c. In witness whereof the
“ master of the said ship has signed three bills of lading
“ For the master, Gellatty, Hankey, Sewell & Go.,per P. MacSewell,“ Agents.”
It appeared in evidence that the defendant did not expresslyauthorize Gellatty, Hankey, Sewell & Co., or the ship’s agents, tobind him by their signature to a bill of lading executed inEngland, but that the chief officer of the Eldorado, whose duty itwas to receive cargo on board, had received the goods in questionon behalf of the master, and that the girder slipped from thesling while being hoisted over the ship’s side and fell into thecargo boat slantingly, and rolled out of it into the sea owing to aheavy swell.
The learned District Judge found that there was no evidenceto connect the defendant with the bill of lading, and that therewas no written document of any kind between the parties. He
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held that there was an implied agreement on the part of thechief officer acting for and in behalf of the master to deliver tothe plaintiff the girder actually received by him as cargo forfreight, and that though the girder fell into the boat “ clear of the“ ship’s tackle,” it was not such a delivery as to enable the plaintiffin the circumstances of the case to receive it, and that the lossconsequent upon such impracticable delivery should be borne bythe defendant, especially as there was no proof that the plaintiff’sservants were either careless or negligent. He also found thatthe loss was not occasioned by the dangers and perils of the sea,because though there was a pretty good swell on, which causedthe cargo boat into which the girder had fallen to partiallycapsize, yet the loss of the girder was due simply to its slippingfrom the slings from want of care either in securing it to theslings or in lowering it. He accordingly gave judgment forplaintiff as claimed.
On appeal by defendant, Layard appeared for him.
R. H. Morgan, for plaintiff respbndent.
Cur. adv. vult.
17th September, 1878. Phhar, C.J.—
This action is brought on behalf of the Crown against thedefendant, Kerr, who is described in the information or libel asmaster of the steamship Eldorado.
The information states that the defendant received on boardhis steamer in London on the 28th February, 1877, certain goodsbelonging to the Government of Ceylon, to wit, an iron girdermarked C ^ ^ of the value of Rs. 835*73, in good order andcondition, and did promise and agree to deliver the said irongirder in like good order and condition (certain perils andcasualties only excepted) to the Government of Ceylon or theirassigns in Colombo. And it goes on to complain that, althoughall things had happened to entitle the Government of Ceylon tohave the said iron girder delivered to them at Colombo in goodorder and condition, yet the said iron girder was not so delivered,but was wholly lost to the Government. And the plaintiffclaimed as damages Rs. 835*73.
It is not a little remarkable that this information omits to stateto whom the defendant’s promise, which is the ground of suit,was made. And it can hardly be assumed that the omission wasaccidental, because the whole giBt of the matter in issue betweenthe parties lies at this point.
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The answer of the defendant, as at first filed, was no answer atall. It assumed that the contract or promise relied upon by theplaintiff was contained in an unmentioned bill of lading, andthen proceeded both to demur and also to deny all liabilityunder this imaginary bill of lading.
It iB much to be deplored that such an example as this of looseand inaccurate pleading is to be found constituting the originalstructure of a not unimportant mercantile suit in tbe principalDistrict Court of this Colony.
At the trial the answer was amended by the addition of thetraverse : “The defendant denies that he received, or promised,“ or agreed to deliver the goods in the libel mentioned as in the“ libel alleged.” And I suppose it was taken as understood thatthe promisee of this promise set out in the information wasintended by the person who drew the information to be theplaintiff.
It is conceded on the part of the plaintiff that this promise wasnot put into writing, and that it was not actually expressed bythe defendant in any other way. The case of the plaintiff is,that it is to be inferred or implied from the facts which occurredin reference to the shipment of the girder.
These facts, so far as they are material, seem to be that thedefendant was master of the ss. Eldorado when she was in thecourse of being loaded in the docks of some unnamed DockCompany in London, probably in August, 1877 ; and that thegirder was then and there received on board the vessel by thechief mate in the manner described by him as follows :—
It was my duty as chief mate to receive the cargo on board. In thecourse of my duty I received goods shipped on behalf of the Crown Agentsto be cargo on the voyage in question for freight; and among these goods Ireceived the girder in question, acting on behalf of the master.
To the Court he said :—
It is almost invariable that the chief mates receive the cargo, acting in sodoing on behalf of the masters of ships.
On cross-examination he said :—
The girder came to the ship in a lighter, and as a rule the Dock Companyat London receive the greater part of the cargo and get it put on board.The Dock Company sends a clerk on board, but only to keep a tally of whatthe Company puts, and the chief mate receives, on board. I had no com-munication with the defendant in regard to the girder, nor did he ask meto take it on board. I gave a receipt to the Dock Company for the cargothey delivered to me. I am certain of this.
The master himself, when examined as a party not on oath,said :—
Before sailing I knew from the ship's owner's agents in London thatthere were Government goods on board shipped on behalf of the Crown
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Agents, snd to be delivered to the Government here. It was not till theday of the accident to the girder in question that I knew that particulararticle had been on board.
This is all the evidence in the case bearing on the issue betweenthe parties; and it is unfortunate that it should be so indefiniteas it is.
When the chief mate says, “ I received the girder acting on“ behalf of the master,” adding the explanation, “ it is almost“ invariable that chief mates receive the cargo, acting in so“ doing on behalf of the masters of ships,” I do not understandhim to mean that he ihad any special agency authority to bindthe defendant. On the contrary, I understand him simply toconvey : “ I only acted in this matter for the defendant, as it is“ the duty of all chief mates to act for their respective masters.”The master has the whole conduct and management of the ship,and everything on board is in his charge and custody. If he isnot himself the sole owner of the ship, then he has this conduct,management, and custody as agent of the owner or collectiveowners. The chief mate is thus the master’s hand or servant toreceive for him goods into his custody on board the ship, but isnot generally authorized to bind him by special promises. In thepresent caBe the utmost that can be gathered from the evidenceis, as it seems to us, that the girder came into the custody of thedefendant on board the Eldorado, in some docks in London,through the hands of the chief officer of the ship, to be carriedprobably to, and to be delivered over the ship’s Bide to somebodyat, Colombo. How its destination was originally made knowndoes not appear; and to whom the effort to deliver at Colombo,which the mate describes was made, is not disclosed. All thatcan be legitimately inferred from these facts is, I think, a promiseby the defendant to the person from whom the girder was infact received on board to carry it and to deliver it, in likecondition as it was received, to some consignee at Colombo. Ifwe assume that the plaintiff was that consignee, still it seemstolerably clear that the person from whom the girder was actuallyreceived, and to whom therefore in the absence of anythingexpressed on the point the implied promise was primarily made,was the Dock Company, whoever this may be. Possibly, as thechief mate himself seems to have thought, the Company acted in thematter of putting the goods on board for the Crown Agents, andso third hand (so to speak) for the plaintiff in thiB suit. In otherwords, it may be the case that the Crown is entitled to claim thebenefit, as principal of the implied promise, which seems fromthe facts to have been made by the defendant to the Dock
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1878. Company, by showing that the Dock Company made the contractPH—C.J. on its behalf. But nothing of the kind has been attempted. Andit seems to ns on the whole that the plaintiff has quite failed toprove that the defendant ever made with him, the plaintiff,the promise or contract of carriage on which the informationis based.
With this view of the case, we think the decree of the DistrictCourt is wrong, and ought to be set aside, and that the plaintiff’ssuit ought to be dismissed.
CAYLEY, Q.A., v. KERR