H. ALIBHOY, Appellant, and CEYLON WHARFAGE Co. LTD, Respondent

119-NLR-NLR-V-56-H.-ALIBHOY-Appellant-and-CEYLON-WHARFAGE-Co.-LTD-Respondent.pdf

470
FERNANDO A.-T.—Alibhoy v. Ceylon Wharfage Co., Ltd.
1954Present: Gratiaen J. and Fernando A. J.H. ALIBHOY, Appellant, and CEYLON WHARFAGECo., LTD., Respondent
8. C. 51—D. G. Colombo, 22,279
Carrier by trade—Action for failure to deliver goods—Quantum of proof necessary—-
Vis major—“ Boat note ”—Customs Ordinance, s. 40.
Plaintiff sued defendant, a Company carrying on the business of landing andshipping of goods in the Port of Colombo, for their failure to deliver to the plaintiffa consignment of 436 bags of beans—each bag bearing the identifying mark“ I.O.T.C. ”—alleged to have been consigned to the plaintiff on the s. s. “ JuneCrest ” which arrived at the Port of Colombo.
' Held, that before the plaintiff could olaim damages from the defendant forIobs or non-dolivery of goods, ho had to prove that 436 bags bearing the identi-fying mark “ I.O.T.C. ” were actually delivered out to the defendant at the ship'sside.
Held further, that in the absence of-proof of negligence, the defendant, ascarrier, was not liable to deliver the goods in good condition. In order toestablish that the goods had deteriorated through negligence on the part of thedefendant, the plaintiff should have tendered evidence of the sound conditionof the goods at the time of the consignment and of the improbability ofdeterioration during transit..
A carrier's obligations towards a consignee discussed.
A.
XjlPPEAL from a judgment of the District Court, Colombo.
V. A. Kandiah, with G. F. Setknkavalar, for the plaintiff appellant.
S. J. V. Chelvanayakam, Q.G., with P. Navaratnarajah, and V. Ratna-sabapathy, for the defendant respondent.
Cur. adv. vult.
June 30, 1954. Fernando A.J.—
The plaintiff in this act-ion sued the defendant—a Company cairyingon the business of the landing and shipping of goods in the Port ofColombo—for their failure to deliver to the plaintiff a consignment of436 bags of beans alleged to have been consigned to the plaintiff on theS.s. “ June Crest ” which arrived at- the Port of Colombo on January13, 1947.
I shall assume (the learned District Judge has also done so) that theobligation owed by the defendant Company to the plaintiff is the saino asthat which was held in BagsoobJioy v. Ceylon Wharfage Go., Ltd1 to boowed by the same Company to a consignee of goods. Basnayake J.(at p.152) there defined the obligation in the following terms : “ Uponproof of receipt of the goods by the carrier and their loss or non-delivery to
1 (1948) 49 N. L. R. 145.
FERNANDO A-J.—Alibhoy v. Ceylon Wharfage Co., Ltd.
471
the consignee, the carrier is liable, unless he can bring himself within I hoexceptions (of vis major or damnun fatale), the onus of proof being onhim. The exceptions are not a valid defence when they have been broughtabout by the carrier’s negligence
The principal question which accordingly arose for determination Iswhether the plaintiff has proved that the consignment of 436 bagsbearing the plaintiff’s mark “ I.O.T.C. ” was actually delivered to thedefendant at the ship’s eide. The plaintiff has produced a certifiedcopy of the ship’s manifest and two bills of lading PI and P2 which wouldclearly establish, as against the owners or charterers of the vessel, that 436bags of beans marked I.O.T.C. consigned to him had been taken on boardthe “June Crest” at Mombasa. He has also proved that the entirecargo taken on hoard at Mombasa was consigned to Colombo, which wasthe first port of call, and that the defendant Company, upon directionsfrom the Port Controller, did receive and land the entire ship’s cargo.
On the^e facts it is argued for the plaintiff that he has proved that 436bags of l>eans bearing the mark I.O.T.C. were received by the defendantand that an obligation of the nature defined therefore arose. The case forthe defendant C > npany is that the evidence was insufficient to establish,as against the Company, that such bags were actually received, and theircase is supported by the following circumstances. The shipper of thegoods has not testified to the fact that the bags were duly marked asrequested by the consignee. There is no evidence, from the ship’s agents,either at Mombasa or at Colombo, that bags bearing those marks werereceived on board or delivered out. The boat notes covering fhe dis-charged cargo do not identify the bags by reference to markings (as s. 40of the Customs Ordinance requires), but only refer to the markings as" various the learned Judge has rightly accepted the evidence that therequirement of entering the precise markings on boat notes is notordinarily observed in regard to cargoes of grain.
I agree with the learned Judge that the ship’s manifest and t he bills oflading do not constitute evidence, as against the defendant Company,that the consignment of 436 bags did actually bear the markings r.O.T.C.,and (hat the Company cannot therefore be held liable to deliver the fullquantity of bags with those markings. The Company did actually tenderdelivery of 436 bags out of the quantity remaining unclaimed by otherconsignees, but the plaintiff declined to accept that tender.
The learned District Judge has decided upon fhe evidence that the de-fendant Company did receive at the ship’s side 145 bags consigned tothe plaintiff and bearing the relevant marks, that this quan'ity wasactually landed on shore, and that the Company failed and neglected todeliver this quantity to the plaintiff. He has held that tho Companyis liable to pay to the plaintiff the value of the 145 .bags which he fixesat Rs. 52 per bag on the basis of the landed cost. In regard howeverto 60 bags out of thut quantity he has fixed damages at a rate equal to75 per cent, of tho value, on the ground that the Company tendered deli-very of 60 marked bags which if accepted by the plaintiff could haverealised 25 per cent of the landed cost. In regard to these 60 bags, he
472
FERNANDO A.J.—Alibhoy o. Ceylon Wharfage Co., Lid.
has found thp,t the plaintiff wab not bound to accept them because theircontents “ had nearly perished ”, a circumstance for which he was ofopinion that the Company must accept liability.
The plaintiff has appealed against the judgment on the ground thathis claim in respect of the total consignment of 436 bags should havebeen allowed. The defendant Company in its cross-objections maintainsthat the plaintiff’s action should have been dismissed, and that in anyevent there was no proof that more than 60 “ marked ” bags of the con-signment were received by them at the ship’s side ; the defendant alsodenies liability for the alleged “ deteriorated condition ” of the contentsof the 60 bags.
For the reasons already stated, the appeal of the plaintiff must fail,and I have now to consider only the cross-objections raised by thedefendant.
The plaintiff himself was absent from Ceylon for part of the periodbetween the arrival and departure of the ship and his interests were beingrepresented by Messrs. Heptulabhoy and Co. One Mohamed Ali, anattorney of that firm, gave evidence to the effect that about 4th February,1947, he saw a stack of bags bearing I.O.T.C. marks at the CustomsWarehouse, that the stack contained about 200 bags, that from droppingson the floor lie identified them as containing Kaffir beans which was thedescription of the beans alleged to have been consigned to the plaintiff,and that he took a sample of the beans from the bags. Mohamed Alialso said that he thereafter filled up a bill of entry P 28 which does includoreference to the bills of lading P1 and P 2.covering the plaintiff’s consign-ment. The learned Judge does not accept this evidence as proving that200 marked bags were actually on the wharf, but he relies on it to supporthis ultimate conclusion that 145 marked bags were actually received by thedefendant. In my opinion it was quite unsafe to rely on Mohamed Ali'sevidence on this point. He has not explained why it was that if he saw200 of the bags and therefore passed the entry for the consignment, hefailed to take early delivery of what was available and thus to avoidheavy warehouse charges : he does not even allege that he asked thodefendant to give delivery of the part consignment ; nor is there any evi-dence that he informed either the plaintiff (who returned to Ceylon onFebruary 6th to attend to this very matter) or the defendant that he hadseen the 200 bags at the warehouse. His evidence is also inconsistentwith the letter (P 6) written by Heptulabhoy and Co. on 8th February inwhich they complain that “ the goods have-not been stacked according tomarks ” and with the plaintiff’s statement in his letter P7 of the 24thFebruary that “ I have made all possible efforts to trace the above at thoCustoms Warehouse, but I have not been able to locate same ”. Theonly reliable inference which can be drawn from these two letters is thattheir writers were not informed by Mohamed Ali of what he professes tohave seen on February 4th..
The ground upon which the learned Judge has relied for his finding that145 of the marked bags were received by the defendant makes it necessaryto refer to the practice of Customs officers in regard to the levy of customsduty on consignments like the one in question. Mr. Subramaniam who
FERNANDO A.J.—Alibhoy v. Ceylon Wharfage Co., Ltd.
47*
was Registrar of Customs at the relevant time deposed to the fact that theduty on a particular consignment is assessed only after at least one-thirdof the consignment has been landed ; that for this purpose the quantitylanded is stacked together-according to marks; that a test weighing of twobags taken from the stack is made in order to assess the weight of the wholeconsignment; and that the test weight is recorded on the back of theconsignee’s entry as -well as in a “ Blue Book Mr. Pullenayagam,the Landing Waiter, whose initials appear below the test weight recordingin the bill of entry P 28, gave evidence to the same effect. He was surethat one-third of the total consignment covered by the entry for these436 bags must have been landed and stacked by reference to marks at thetime when he made the test for the weight recorded by him. Pullenaya-gam was however not able to recall the actual oocasion or to apeak di-rectly to the fact that about one-third of the bags had actually been stackedtogether or that he actually examined a stack of marked bags. It is onthis evidence, together with Mohamed Ali’s story about the 200 bags, thatthe learned .lodge found that the receipt by the defendant of 145 markedbags (1/3 of the total of 436) has boon proved. In my opinion, the pre-sumption omnia rite esse acta, which would ordinarily justify such afinding on such evidence, is not applicable in this case owing to theexistence of spociul circumstances to which I shall refer immediately.
There was apparently in the Port of Colombo at the time when tho“ June Crest ” was in harbour severe congestion both of shipping and ofcargo ; so much so that the Port Priority Committee on 27th Januarydecided " to stockpile the cargo ’’from the “June Crest” i.e., to stackwithout reference to markings, and to advertise the sale of one consignee’scargo in order to make other consignees clear their cargo without delay,and on 5th February even contemplated special legislation to reduce thetime limit for clearance of goods ; and on 30th January the Chairman of thePort Commission “ beacause of the slow clearance from the harbourpremises ” authorised the Landing Companies discharging from the“June Crest ” and one other ship to charge consignees treble the normallanding rates. The Assistant Manager of the defendant Company, awitness whose evidence was referred to by the plaintiff’s Counsel as beingentirely reliable, stated that after the decision of 27th January, the cargofrom the “ June Crest” was to his : knowledge stockpiled without re-ference to marks, and the defendant’s Warehouse Superintendent made asimilar statement, so that there was clear evidence to the effect that afterthat day the markings were ignored for stacking purposes. The relevanceof this evidence upon the question whether the normal Customs pract icewas actually followed in this instance appears to have escaped the attentionof the learned Judge, and I do not imagine that he would have expresslydisbelieved the Company’s two witnesses on this point. In the facetherefore of positive evidence that stacking by marks had ceased on 27thJanuary, I am of opinion that it was not justifiable to rely on an inferenceto the contrary which is all that the evidence of the Customs officersaffords. Even as to them, this opinion does not involve a disbelief of theirevidence. They only speak to the normal practice of stacking by marksbefore the first weighing, a requirement which might reasonably havebeen relaxed by them having regard to the severe congestion particularly
474
FERNANDO A.J.—Alibhoy e. Ceylon Wharfage Co.. Ltd.
Affecting the "June Crest’s ” cargo and to file fact that Customs duty wasleviable on all the consignments (totalling some 50,000 bags) at the iden-tical rate. In these circumstances, identification of markings and contentsof the bags was of no real importance for Customs purposes. Moreover, theinference that at least 145 I.O.T.C. marked bags must have been passedby the Customs officers is contradicted by the unexplained failure ofHeptulabhoy and Co. to remove that part of the consignment which uponthat inference must have been ready and available for delivery on 4thFebruary. I think for these reasons that the finding that 145 markedbags were actually delivered to the defendant’s Company cannot bemaintained.
It follows that, out of the total quantity of the 436 bags which the de-fendant Company is alleged to have received from the “ June Crest ”, theonly bags proved to have borne the markings I.O.T.C. were the 60 bagst raced by the Company and tendered for delivery to the plaintiff. In re-gard to these, the learned Judge held that the plaintiff cannot be compelledto accept them “ because their contents had nearly perished ”, but inrespect of them he allowed the plaintiff only 76 per cent, of their value onthe ground that if accepted the plaintiff could have realised about 25 percent, of their value. The bags were apparently infected with weavils, acircumstance attributed by the plaintiff to the fact that they were foundstacked with other weavil infected bags. The question which has here tobe decided is whether the defendant Company is liable for the allegeddeterioration in the contents of the 60 bags.
The principle laid down by Basnayake J. in Bagsoobhoy v. CeylonWharfage Co., Lid. (supra) does not impose on the defendant Company anabsolute liability to deliver the goods in good condition, and only rendersthe Company liable for loss or non-delivery. In order to establish that thegoods had deteriorated through the negligence on the part of the defendantCompany, the plaintiff should have tendered evidence of the soundcondition of the goods at the time of the consignment and of the improba-bility of deterioration during transit. Even in an action against theship owner, the production of the manifest and bills of lading would notto my mind avoid the necessity of evidence of this description. In theabsence of such evidence, as well as of other evidence in proof of negligenceas having caused the deterioration, the defendant Company cannot be heldresponsible for the actual condition at the time of tender. Even the vaguesuggestion, if accepted, that the bags became contaminated by contact. with the other infected bags is insufficient evidence of the defendant’snegligence, since there is nothing to $ebut the possibility that the otherinfected bags themselves formed part of the plaintiff’s own consignment. I
I am of opinion that the defendant Company duly carried out its obli-gation to the plaintiff by tendering delivery of the 60 marked ones whichhad been traced, and is not therefore liable for any damage suffered by theplaintiff in consequence of his refusal.of the tender.
The plaintiff’s appeal is dismissed with oosts. The CToss-appeal of thedefendant Company is allowed and plaintiff’s action is dismissed withcosts.
47a
GHATIAEN J.—Alibhoy v. Ceylon Wharjnge Co., Ltd.
CiRATIAEN J.
The facts relevant to this appeal are set out in the judgment of mybrother Fernando, with whose conclusion I am in complete agreement. Idesire only to make some reference to the legal issues which generally arisein coses of this kind.
It is necessary to analyse the obligation which the company undertookwhen it was entrusted by the Port Controller with the duty of dischargingcargo from s.s. “ June Crest ” on the arrival of the vessel in Colombo.Abnormal conditions were admittedly prevailing in the port, and acarrier would have found it quite impossible to identify each consignmentof the cargo (by reference to the relative shipping documents) as and whenit was being passed over the ship’s side into lighters.' This responsibilitywas not ini|M>sed on the Company by the directions of the Port Controlleror by the terms of any contract (express or implied) between the Companyand either the owners of the ship or the consignees of the cargo. Somereference has been made to section 40 of the Customs Ordinance which pro-vides that each “ boat note ” must specify “ the marks or other de-scription ” of each package unladen from a ship. This requirement wasadmittedly not meticulously observed. Indeed, it could not have been,w ithout disorganizing completely the work which the Controller required tolie curried out us expeditiously as possible in the public interest. It issuflicient to say that even if a carrier’s failure to observe this requirementmight have constituted a technical breach of the statute, it has no bearingon the cpiestion of his civil liability.
The obligations in fuct imposed on the company were :
to receive all cargo actually discharged into lighters from the vessel ;
to transport this cargo, as quickly as was practicable, to such of tho
Queen’s warehouses as were allocated for the purpose ;
(II) in due course to deliver at the warehouse to each particular con-signee any part of tho cargo which could be identified (by re-ference to the relative documents) as his property provided thatthe Customs dues and the company’s landing charges (at ratestixed by the Controller) were first paid.
What then was the standard of care towards a particular consignee whichthis particular situation demanded of the company from the time when thecargo was received into the lighters 1
A Ilench of two Judges has decided in Btujsoobhoy’s case1 that theHoman-Dutch law applied to a case of this kind. Wo aro bound by that,ruling. Accordingly, tho liability of a carrier by trade (unless enlarged bycontract) is not quite so wide when goods aro being conveyed in lightors asin tho case of a common carrier in England, but is very similar for allpractical purposes. He is not an insurer of the goods entrusted to himfor carriuge ; nevertheless he is liable for their loss or deterioration while inhis custody unless lie can prove that it was occasioned by vis major or datn-
' (litIS) 40 .V. L. li. 145.
478
GRATI.AEN J.—Alibhoy t>. Ceylon Whxrjigz Go., Lit.
num fatale—see Voel 4. 9. 2. and Treglida tfe Go., v. Sievrightl. In otherwords, the onus is on him to establish that he had taken all duo caro andnot been negligent ”—Furriba v. Dickenson a.
It might be asked what, under modem conditions, would constitute v»*major so as to relieve a carrier by trade ol liability. The answer is thatthis term is not necessarily restricted to “ an act of God ” or to the conse-quences of piracy, ship-wreck, thunder) lightning, or hostile action by theQueen’s enemies. It is sufficient for the carrier to rebut the initial pro-sump tion of negligence (which the law imputes to him) by proving that tlioloss or deterioration of the goods resulted from some cause which was“ utterly beyond his power to prevent ”—per Buchanan A.C. J. in Magagav. Cole3. The standard of care demanded of a carrier by trado isexacta diligentia so that he is exempt from liability only if the loss was“ purely fortuitous and due to inevitable accident ”—Postmaster-General r.van Niekerk *. It is a question of fact whether exacta diligentia wasexercised in any particular case.
The origin of a carrier’s obligation towards a consignee can in appro-priate case be traced to the express‘Or implied terms of contract onteredinto between them (the consignor being the agent to make it)—CorkDistilleries Co. v. Great Southern and Western Sly. Co.h which was appliedby Jayatilleke J. to the facts which arose in Cunji Moosa v. City CargoBoat Co. 6. But I find it difficult to read an implied contract into atransaction where, as here, the Port Controller, exercising specinl powersunder Emergency Regulations, himself selects a particular carrier tohandle cargo discharged from a vessel in the port and in due course todistribute it between various consignees to whom the carrier must lookfor payment. In such a situation the duty to exercise exacta diligentiais equally imposed, but it seems more logical to trace the obligation to“ a peculiar incident of the law relating to carriers ” than to the legalfiction of an implied promise. Wessels on Contrast, Vol. 1, para. 258.
Let us also examine the obligations of a carrier in this and similarsituations where the goods, having been landed into the Queen’s warehouses,are awaiting delivery to the consignees. ' If, at any time during thisperiod, the goods are exclusively within the control of the Customs autho-rities, the carrier’s responsibility is for the time being at an end. AsaruiMarikar v. Livera 7 and Athinarayanapillai v. Ceylon Wharfage Co. Ltd. 8If, on the other hand, they remain under the carrier’s control as a bailee orcustodian for hire, the same duty of exacta diligentia is imposed on him aswhen he was actually transporting the goods—Ounji Moosa's case (supra),and Bagsodbhoy's case (supra). Unless the matter is regulated by specialagreement the question as to who was 4n effective control of the goods atthe time of their loss or deterioration is always the deciding factor.
Turning now to the case immediately under consideration every bag ofgrain discharged from the ship into the company’s lighters has beenaccounted for. The plaintiff was unable to prove, as against the company,that the cargo discharged from the vessel in fact included 436 bags bearing
{1897) 14 S. C.76.» (1878) 7 H. L. C. 269
(1906) 23 S. C.180.• (1947) 49 N. L. R. 35.
» (1908) 25 S. C.434.7 (1903) 7 N. L. R. 158.
(1918) C. P. D. 378..• (1952) 53 N. L. R. 419.
Annatnalai Cheittar v. Qreaay
477
the identifying marks “ I.O.T.C. ” (consigned under the bills of ladingP i and P 2) in addition to a number of other bags bearing similar marks(consigned to him under P3 and P4 and taken delivery of from the ware-houses on or before 27th January, 1947, by their purchasers for value).The shipowner’s acknowledgments contained in the bills of lading PI, P 2,P 3 and P4 are certainly evidence against them, but they do not bind thecompany. The documents produced in the case prove that out of theentire cargo actually landed into lighters, every bag which was proved tohave borne the identifying mark ‘‘I.O.T.C.” has been accounted for.Out of these, 60 bags were eventually traced and mado available fordelivery to the plaintiff against the bills of lading P 1 and P 2. Hisrefusal to accept them discharged the company from any further liabilitytowards him in respect of them.*
The question remains whether the plaintiff is entitled even to claimdamages from the company for the alleged deterioration of the contentsof these 60 bags between the date on which they were discharged intothe company’s lighters and the date on which they were eventuallytendered to him. The answer is clearly in the negative. There is noevidence of any kind as to the condition of the grain in these bags whentlioy came into the company’s custody, and it is therefore impossible toassess tho extent of their subsequent deterioration (if any). That theremust have l»eon some deterioration during this latter is, I concede, ex-tremely probable. But the chaotic conditions prevailing in the harbourami in tho warehouse during the relevant period were the effective causesof the delay in tracing them and of their consequent deterioration. Thesewere circumstances which were “utterly beyond (the company’s) power toprevent ”—Fumba’a case (supra).
For these reasons, I agree to the order proposed by my brother Fernando.
Appeal diamiaaed.
Croaa-appeal allowed.