Coonji Moosa <fc Co. v. The City Cargo Boat Co.
1947Present:Jayetileke J.COONJI MOOSA & CO., Appellant, and THE CITYCARGO BOAT CO., Respondent.S. C. 238—C. R. Colombo, 95,329.
Carrier—Liability to vendee—Loss of goods from warehouse by day—Negligence ofcarrier’s watchers—Ds'posit of goods in warehouse—Customs Ordinance,ssctions 30 and 49.
Where tho master of a boat authorised a Customs house agent to makearrangements with the defendants, who carried on business as landing agents,to land the plaintiff’s goods—
Held, that the contract was made on behalf of the plaintiffs as owner ofthe goods and that there was privity of contract between the plaintiffs anddefendants.
Held, further, that, where the goods were deposited in the warehouse for thepurposo of ascertaining the duty payable and were lost during the day owingto the negligence of the defendants’ watchers, the defendants were liable indamages to the plaintiff.
.'Isami Marikar v. Livera (1903) 7 N. L. R. 158 distinguished.
111943) 44 N. L. R. 379.
36 JAYETTLEKE J.—-Coonji Moosa <k Co. v. The City Cargo Boat Co.
Appeal from a judgment of the Commissioner of Requests,Colombo.
F. A. Rayley, K.C. (with him M. Rafeek), for the plaintiff,appellant.
H. IP. Thambiah, for the defendant, respondent.
Cur. adv. vult.
Novembci 25, 1947. JayetieekE J.—
The plaintiffs imported 71 bundles of dry fish from Bangalore by aboat bearing No. 55.
The boat arrived in the Colombo harbour on or about January 7, 1944.
By P3 dated January 7, 1944, the master of the boat authorisedThamotheranrpillai. a- Customs house agent, to act as his agent in regardto the cargo, and Thamolherampillai made arrangements with thedefendants, who cany on .business as landing agents, to land the cargo.
According to the manifest of the cargo of the boat, there were 401package.:' consigned to various persons in Colombo. Under section 36 (1)of the Customs Ordinance (Cap. 185), the defendant had to obtain asuffercncc from the Collector of Customs to land the packages, and theyhad to laud the packages at the place appointed and expressed in suchsufTerencc. The sufrerence which was issued in respect- of these packageswas not produced at the trial. The defendants landed the said packagesand took and deposited them in a King’s warehouse. They wereobliged to do so under section 36 (1) of the Ordinance.
When goods are deposited in the King’s warehouse, the importerhas to make a full and complete entry in- respect of the goods withinthree clear days from the date of landing, and to pay all duties due and.payable on such, goods and remove the goods. If he fails to do so, heis liable to pay double rent for every period of 24 hours during such timeas the goods may remain in the warehouse.'
On January 10, 1946, the plaintiffs made an entry PI in respect of56 bundles of dry fish and paid the duties payable on them. Thereafter,the defendants removed the goods from the King’s warehouse, put theminto carts, arid received from the plaintiffs their landing charges. Fouror five days later, the plaintiffs made another entry P 2 in respect of theremaining 15 bundles. At that time the 15 bundles were in the ware-house. Dewasagayam, a landing waiter, weighed two of tbe bundlesin order to fix the amount payable as duty and entered the weight inthe blue book. As the Supervising Officer, who bad to pass the weightshad not arrived, the plaintiffs were unable to obtain the delivery orderimmediately. In the course of the day, the 15 bundles were stolenfrom the warehouse.
The plaintiffs instituted this action against the defendants for the-recovery of the value of the 15 bundles alleging that they were stolenowing to the negligence of the defendants.
The defendants denied that they had a contract with the plaintiffsand they. pleaded that, in any event they could not be held responsibleas the goods were stolen from the King’s warehouse.
The learned Commissioner of Requests held in the defendants’ favouron both points and dismissed the plaintiff’s action.
JAYETILEKX J.—Coonji Mocsa <fc Co. v. The Ctiy Cargo Boat Go. 37
The first question that arises is whether the plaintiffs had a contractwith the defendants to land his goods. The law on this point seemsto be fairly clear. Generally speaking, when goods are delivered bythe vendor to a carrier, to be forwarded to the vendee, the property inthe goods vests immediately in the vendee ; and he is, therefore, theproper party to sue the carrier for the loss or non-delivery of the goodsor for any injury done to them (sec Dutton v. Solotnonson1). The con-tract of carriage is, therefore, between the carrier and the consignee, andthe consignor is merely the agent of the consignee to make the contract(sec Cork Distilleries Co. v. Great Southern and Western Railway Co.-).A carrier is usually the agent of the consignee to receive the goods.At the termination of -the voyage, it is the duty of the consigneeto take delivery of the goods, according to the terms of tho contractof carriage, and the custom of the port. If he fails to do so, tho ship-owner, i.e., the captain or the ship's agents may generally, on his behalf,make arrangements to land tho goods at a sufficient and proper wharf(Symons v. The Wharf and Warehouse Co. Ltd.3).
In the present case, as the plaintiffs and the other consignees failedto take delivery of the goods consigned to them when the boat arrivedin the Colombo harbour, the master of the boat authorised Thamotheram-pillai, a Customs house officer, to make arrangements to unload and loadthe goods. Acting on that authority, Thamotherampillai made aproposal to the defendants orally to unload and land the goods whichthe defendants accepted. Though the contract was not made in thoname of the plaintiffs, it was made on their behalf as owners of thegoods. I am, therefore, of opinion that the plaintiffs had a contractwith the defendants.
The next question is whether the defendant’s responsibility ceasedwhen they deposited the plaintiff’s goods in the King’s warehouse.This is a mixed question of law and fact. In Cairns v. Robins 1 andChapman v. Great Western Railway Co.3, it was held that after theresponsibility of the carrier, as a carrier has ceased, the carrier if heretains the goods in his possession—either under a contract or in accor-dance with the usual course of dealing between him and the owner—rrenders himself liable as a warehouseman. A person -who undertakesto warehouse the goods of another for reward is a bailee of the goodsand is liable for loss arising from his own negligence or from the negli-gence of his servants. In Hudson v. Baxendale6 and Crouch'v. GreatWestern Railway Go.7, it was held that where the carrier retains the goodsin his possession either expressly as a warehouseman, or in respect ofhis lien for the carriage, he is bound, whilst they are in his possession,to keep them with reasonable care, and to deal with them in a reasonablemanner in respect of time and place.
The evidence of the Customs officers shows that, when a ship comesinto the harbour, the Port Controller allots to the landing agents a ware- -house to keep the goods that are landed, till the duties that are payableare ascertained. The landing agents are in charge of the goods duringthe day and the Customs authorities during the night. After the duties
1 (1803) 3 B. P. 682 at 584.* (1841) 8 M. tfc W. 258.
* (1874) L. R. 7 H. L. 269 at 277.6 (1880) 5 Q. B. D. 278i
3 (1878) 1 S. C. C. 92.« (1857) 2H.&N. 575.
7 (1858) 3 H. <& N. 183 at 202.
38 JAYETILEKE J.—Coonji Mooaa <fc Co. v. The City Cargo Boat Co.
are paid by the consignees, the landing agents recover their landingcharges, and deliver the goods to the consignees, by putting them intothe carts engaged by them.
The second defendant corroborated the evidence of the CustomsOfficers. He admitted that he was under an obligation to take the goodsinto the King’s warehouse and put them into the consignee’s carts, andalso that he employed watchers to guard the goods in the warehouseduring the day. But he made the following statements with regardto his liability for any loss sustained by the consignees while the goodswere in the King’s warehouse. He said :—
“ (a) Once the goods are landed and put into the warehouse we arenot responsible for the safe custody of the goods.
Once the goods are landed in the wharf on the orders of theShipping Co., we are not responsible to deliver the goods tothe consignee if we have a contract with the Shipping Co.Before the war, although the goods were in the Kong’s ware-house, we were responsible for the goods. ”
These statements imply that, before the war, the defendants acceptedliability for losses while the goods were in the King’s warehouse, andthat, after the war, they did not do so.
There is nothing in the evidence which shows that there was anypublic notice or declaration by the defendants limiting or in any way•affecting their liability after the commencement of the war.
However that may be, on the evidence it is clear that the plaintiff’sgoods were taken into the King’s warehouse by the defendants, notfor the purpose of warehousing them, but for the purpose of ascertainingthe amount that was payable as duties in respect of the goods. Sections36 and 49 of the Customs Ordinance draw a distinction between “ takingand depositing ” goods and “ warehousing ” goods in the King’s ware-house. After “ taking and depositing ” the goods in the King’s ware-house, the defendants had watchers to guard the goods till the ware-house was closed and locked by the Customs authorities. P 8 showsthat the defendants claimed a lien ever the goods for their landing charges.
It seems to me that the goods remained in the defendants’ custodyduring the time the warehouse was kept open, and that they werelost owing to the negligence of the defendants’ watchers. The defen-dants are, therefore, liable to make good the loss suffered by theplaintiffs.
Defendants’ Counsel relied very strongly on the judgment of thisCourt in Asana Marikar v. Livera1. In that case the Court was ofopinion that there was no contract between the plaintiffs and the defen-dants, and that even if there was a contract, the defendants could notbe held responsible because the goods were lost after the Customsauthorities had closed the warehouse and locked it.
For the reasons I have given above I would set aside the judgment•of the learned Commissioner and direct that judgment be entered.for the plaintiffs as prayed for in their plaint. The plaintiffs will beentitled to the costs of appeal.
1 [1903) 7 N. L. R. 15S.