PORT CARGO CORPORATION, Appellant, and K. M. MOHIDEEN, Respondent

086-NLR-NLR-V-71-PORT-CARGO-CORPORATION-Appellant-and-K.-M.-MOHIDEEN-Respondent.pdf


Port Cargo Corporation v. Mohideen
409
1969 Present:H. N. G. Fernando, C.J., and Wljayatllake, J.PORT CARGO CORPORATION, Appellant, andK. M. MOHIDEEN, Respondent3. G. 574/66 (F)—D. C. Colombo, 63324/M
Port Cargo Corporation—Goods 'discharged by it from a ship and thereafter depositedin a Government warehouse—Loss of the goods from the warehouse—Whetherthe Corporation is liable for such loss to the consignee—Burden of proof—Extent of Corporation's liability as a carrier—Port (Cargo) Corporation Act,No. 13 of 1958, 8s. 4 (1), 5 (1) (g), 79—Customs Ordinance, ss. 47, 69, 108.
Certain goods consigned to the plaintiff were pilfered- while they were in aGovernment warehouse after they had been landed on shore by the Fort CargoCorporation according to custom and deposited in good condition in the ware-house. The plaintiff claimed that the Corporation was liable for the loss ofthe goods from the warehouse. He based his claim on the ground that therewas prima facie proof that the goods were stolen as a result of a wrongful orunlawful act on the part of the Corporation or its servants. – Alternatively, itwas argued on behalf of .the plaintiff that there was ample evidence uponwhich to find that there was an implied contraot upon which the Corporationassumed the obligations of a common carrier or carrier by trade, and that oneof these, obligations was to store the goods in the warehouse and to be responsiblefor their care and custody while in the warehouse.
The evidence showed that the Corporation’s officers and servants were onduty in the warehouse at all times throughout +be day and that the Customsauthorities were in exclusive control of the warehouse during the night. -TheCorporation recovered charges from consignees for handling goods from thetime of commencement of discharge from ships and until the time of theirremoval from the Port premises, but there was always on duty at least oneCustoms officer, who had effective custody'and control of the goods lying inthe warehouse, and no goods could be removed from the warehouse exceptunder his authority after some other Customs officer had passed a Bill of Entryupon payment of duty. The plaintiff did not prove any “ special agreement ”by which the Corporation undertook liability for care and custody of the goodseven during the day.
Hdd, (i) that, if the only basis of the liability of the Corporation was to befound in section 79 of the Port (Cargo) Corporation Act, the burden lay on theplaintiff in the first instance to prove some negligent or unlawful act of theCorporation or its servants.
(ii) that section 79 of)the Port (Cargo)! Corporation Act prevented theCorporation from assuming by contract, whether express or implied, a liabilitymore wide in respect of goods lodged in the Customs warehouse than theliability referred to in that section-
LXXI—18
410
H. N. G. FERNANDO, C.J.—Port Cargo Corporation t>. Mohideen
A.PPEAL from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with 'Mark Fernando and E. B. Paul Pereratfor the Defendant-Appellant.
G. Ranganathan, Q.C., with K. N. Choksy and Miss N. Naganctthan,for the Plaintiff-Respondent. ■
Cur. adv. vuU.
January 23, 1969. H. N. G. Fernando, C.J.— –
The Port Cargo Corporation established under Act No. 13 of 1958,now provides all “ port services ” in the Port of Colombo, that is to say“ services for stevedoring, landing and warehousing of cargo, wharfage. . — ., and any other services incidental thereto ”. According to thefindings of fact reached in this case by the District Judge—
2 cases qf sewing machine needles consigned to the plaintiff arrived
at the Port of Colombo on the SS “ Mannar ”, and accordingto the prevailing custom, the defendant, the Port CargoCorporation, through its agents and servants took charge ofthe cases, landed them on shore and deposited them in a Queen’s*warehouse on 11th December, 1962 ;
the 2 cases remained in the Queen’s warehouse until 13th December
on which date a bill of entry was signed by an appropriateofficer of Customs in terms of s. 47 of the Customs Ordinanceas authority for the delivery of the cases to the consignee ;
in accordance with custom, the cases were removed from the
warehouse on 13th December by the defendant’s officers andservants for the purpose of delivery to the plaintiff by loadingthem in a lorry, but it was found at this stage that ammoniawas pouring out of the cases ;
on examination by a ship’s surveyor, the cases were found to contain
sulphate of ammonia and broken pieces of wood and gunnysacks; some of the metal bands of the cases were found to bebroken;
.(5). upon the evidence, it was held that the cases, which had containedsewing needles at the time of their deposit in the warehouse,had been tampered with and their contents pilfered while theywere in the warehouse.
B. N. Q. FERNANDO, CUT.—Port Cargo Corporation v. Mohidt.cn411
Paragraph 10 of the plaint in this action averred that the non-deliveryof the two cases of needles was due to the negligence and/or defaultand/or wrongful and/or unlawful acts or omissions of the defendant orof ite officers, agents or servants, consisting inter alia of—
the failure to exercise due -care and diligence in looking after
and/or safeguarding the said two cases and the contents
thereof;•
the failure to take necessary steps to guard against theft or pilferage
of the said two cases and/or their contents ;
failure and/or negligence in not securing the said two cases in
special grilles within the warehouse.
It is clear that in this paragraph the plaintiff sought to exclude hiscase from the operation of section 79 of Act No. 13 of 1958, which providesthat the Corporation shall not be liable for any loss or damage to goodsdeposited in a Government warehouse, unless such loss or damage hudbeen caused by the negligence or by the wrongful or unlawful acts of theCorporation or any of its officers, servants, etc. The learned District -Judge has held that the plaintiff paid warehouse rent in this case on thefooting that the warehouse in question is a warehouse approved unders. 69 of the Customs Ordinance and that this is sufficient evidence of thefact that the two cases of needles were deposited in a warehouse referredto in s. 79. During the argument in appeal, Counsel appearing for theplaintiff did not contest the correctness of this finding. There was infact other evidence concerning the practice in the Port which was quitesufficient to establish that these cases were in fact deposited in a Queen'swarehouse.
Upon the issues framed upon the cause of action pleaded in paragraph10 of the plaint, the learned District Judge has held that there was nopositive evidence of negligence, but that a presumption of negligencearose because the Corporation took charge of a consignment in goodcondition, whereas when the plaintiff went to obtain delivery, the packagescontained sulphate of ammonia instead of sewing machine needles.On the ground that the substitution could not have taken place withoutthe intervention of some person whilst the packages were in the custodyof the Corporation, the learned Judge found in the circumstances primafacie proof that the goods were stolen as a result of a wrongful orunlawful act oh the part of the Corporation or its servants.
In appeal, Counsel appearing for the Corporation has argued that,in the absence of proof of negligence or of some wrongful or unlawfulact on the part of the Corporation or its servants, si 79 of the Act protectsthe Corporation from liability. The argument, in other words, is thatthis is not a case in which the principle of res ipsa loquitur can apply topermit negligence to be pres unfed, because it is only the loss which hasbeen proved and not the time at which or the manner in which the loss
412H. N. Q. FERNANDO, C.J.—Port Cargo Corporation v. Mohideetl
Occurred. Where for instance a motor vehide mounts a pavement and8trikes a pedestrian, or where a person is injured by the fall of goods fromthe side of a ship, there is evidence of a fact showing the manner inwhich injury was actually caused to the plaintiff, and a presumption ofnegligence can arise from the proved fact; but the mere fact of injury,without proof of the manner in which it was caused, cannot give rise tothe same presumption.
Counsel for the Corporation also argued that s. 79 of the Act isequivalent to the “ owner’s risk clause ” in an ordinary contract ofcarriage, and that where such a clause is invoked, there is a burden onthe plaintiff to prove actual negligence on the part of the carrier or itsservants. Counsel relied in this connection on the decision of the Houseof Lords in Smith v. Great Western Railway Company in which LordBuckmaster stated the law aB follows ;—
“ I am unable so to regard this clause ; it is in my opinion a clausewhich throws upon the trader, before he can recover for any of thegoods, the burden of proving in the first instance that the loss sustainedarose from the wilful misconduct of the company’s servants. It isperfectly true that this results in holding that the apparent protectionafforded to the trader is really illusory; it practically gives him noprotection at all, for it is often impossible for a trader to know what itis that has caused the loss of his goods between the time when hedelivered them into the hands of the railway company’s servants andthe time when they ought to have been delivered at the other end ofthe journey. The explanation of the loss is often within the exclusiveknowledge of the railway company, and for the trader to be compelledto prove that it was due to wilful misconduct on the part of the railway■ company’s servants, is to call upon him to establish something whichit may be almost impossible for him to prove. Hone the less, that isthe burden that he has undertaken, and the question is whether inthis case he has afforded any evidence which calls for an answer on thepart of the railway company. All he has been able to show is this:he has proved the delivery of the goods in the manner that I havementioned to the railway company’s servants, and he has put in evidencea correspondence between himself and the railway company, and theiranswers to certain interrogatories.”
If then the only basis of the liability of the Corporation is to be found ins. 79 of the Act the burden lay on the plaintiff to prove some negligent orwrongful or unlawful act as being the cause of the loss of his goods;and if so his inability to adduce such proof must result in the dismissalof his action.
For an alternative cause of action, the plaintiff pleaded that theCorporation, having had the custody, control, charge, and care of the twocases, was under a legal duty or obligation to look after and deliver' the
1 {1922) 1A. 0.178.
H. N. G. FERNANDO, C.J.—Port Cargo Corporation o, Mohideen413
cases to the plaintiff in good and proper order and that the Corporationwas liable for the breach of this duty or obligation. The learned Judgehowever, has not answered issue No. 4 (a) which raised the questionwhether the Corporation took the cases into custody on an express orimplied contract to land, warehouse and deliver the cases to the plaintiff;and the answer to issue No. 10 shows also that the learned Judge regardedthe case as being one only of a breach by the Corporation of a duty imposedon it by the Act. Thus the learned Judge has not held that there wasany express or implied contract for the breach of which the Corporationis liable.
Despite the fact that the trial Judge has not held in this case that therewas an express or implied contract between the plaintiff and the Corpora-tion, Counsel for the plaintiff has argued that there was ample evidenceupon which to find that there was here an implied contract upon whichthe Corporation assumed the obligations of a common carrier or carrierby trade, and that one of these obligations was to store the goods in thewarehouse andi to be responsible for their care and custody while in thewarehouse.
The evidence referred to in this connection may be summarized asfollows:—
(а)in respect of each Warehouse there are in attendance during the
day a number of officers and servants of the Corporation,' suchas a Unit Supervisor apparently supervising the Corporation’sactivities on a wharf or Quay, a Storekeeper who checks goodsat the time of their deposit in the Warehouse and at the timeof their delivery out of the Warehouse ; delivery checkers tocheck goods in the Warehouse before -delivery out; and workerswho perform the tasks of stacking, weighing and openingpackages, of moving packages, to other places as and whenrequired by the Customs authorities, and of carrying and loadingpackages for the purpose of delivery out of the Warehouse andof the port premises ;
(б)these officers and servants are on duty at all times throughout the
day, and it is claimed that they are in a position to see thatgoods in the Warehouse are not stolen, damaged or tamperedwith at such times ;
(c) the Corporation recovers' charges from consignees for handlinggoods from the time of commencement of discharge from .shipsand until the time of their removal from the Port premise^:'
While admitting that the Warehouses are locked by Customs authoritiesat fixed-times in the evening, that the keys of the warehouses are in thecustody of those authorities, that the Customs and the Police-performbhe duty of guarding warehouses duriiig the night, and that the Corpora-tion has no responsibility for the safe custody, of goods between the hours
414
H. N. G. FERNANDO, C.J.—Port Cargo Corporation v. Mohideen
of 4.30 p.m. and 7.30 a.m., Counsel nevertheless argued that the factssufficed to establish that the Corporation does assume liability for safecustody during the day and that this liability is equivalent to the liabilityof a warehouseman who stores goods for reward. On this basis, Counselargued that the Corporation must be held liable for negligence in thiscase because no evidence was led to establish that the Corporation or itsofficers and servants took due care and precaution for the safe custody ofthe plaintiff’s goods while they were in the warehouse. There being inthese circumstances an implied contract for the safe custody of thegoods, it was urged that s. 79 of the Act does no more than state theordinary obligation of a warehouseman for reward, and that a breach ofthat obligation was established by proof of the loss.of the goods, and inthe absence of proof of due care and precaution on the part of theCorporation.
In regard to the fact that the Corporation does not have custody andcontrol of goods in a Warehouse during night hours, it was argued thatthe presumption of regularity must apply to establish that the warehousewas duly locked and guarded at night, and that in the absence of anyevidence showing that there had been any tampering with the warehouseitself or its locks, the possibility of pilferage at night' was excluded. Onthese grounds it was urged that the learned trial Judge should have foundthat the pilferage in this case occurred diming the day, that is to Say ata time during which the Corporation did have effective custody of thegoods in the warehouse.
I have to consider therefore whether in all the circumstances it isreasonable or possible to infer that the Corporation did have effectivecustody and control of these goods, and did impliedly undertake theobligation to keep the goods in safe custody at least during the day.
A similar question was considered in the case of A&ana Marilcar v.IAvera'. In that case a Landing Company had the exclusive privilegeof landing goods from a particular line of steamers and accordingly landedall the goods consigned to the Port of Colombo which arrived on one. such steamer, including a package of umbrellas consigned to the plaintiff.The package was duty deposited in a warehouse indicated by the Collectorof Customs, but when the plaintiff went to obtain delivery he could notfind the package of umbrellas, and he sued the Company for the valueof the package. It is useful for present purposes to cite at length fromthe judgment of Layard C.J.:—
“ . . . There appears to have been an express agreement with theowners of the Clan Line of Steamers that, the defendant should landall goods arriving in their ships and should deliver them at the Customspremises. 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 there detain
1 (1903) 7 N. L. S. 158.
H. N. G. FERNANDO, C.J-—Port Cargo Corporation v. Mohideen 415
them until the Government dues are paid. That the Customsauthorities (i.e., the Crown) are the real warehousemen is evidencedby the fact that they make a charge for warehousing if the goodsare 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 the plain*tiff, there is an implied contract to land, warehouse, and deliver to theplaintiff. It seems to me doubtful whether any such contract canbe implied at all in this particular case. The defendant was actingunder an express contract with the shipowners, the Clan Line. It issuggested that, because he paid the defendant the landing charges,an implied contract arises not only to land the goods and deliver themto the Customs authorities, but subsequently to deliver them from theCustoms warehouse to the plaintiff. Is such the case ? . Say theplaintiff had demanded his goods from the defendant, merely tenderinghim the amount due for landing, could he have compelled the defendantto deliver to him the goods ? Certainly not. There might be freightdue on the goods, and until such freight was paid the goods would beunder lien to the shipowner, and the plaintiff could not demanddelivery of his goods by merely paying the defendant’s charges forlanding. Assuming there was an implied contract of' some kindbetween plaintiff and defendant, what was it ? According todefendant’s evidence, when he undertakes to clear and deliver goodsto consignees he enters into a special agreement with them. In thosecases he pays all the harbour dues, duty, &c., and sends the goods onto the consignees. He acts then as agent of the consignees, andtakes upon himself the duty of clearing the goods at the Customs andof delivering the goods to the consignees. Did the defendant undertakethe duty of warehouseman until plaintiff came to take delivery ?The evidence shows that the practice is that, on a consignee takingdelivery at the Customs, one of the defendant’s servants fills up acart note and signs it, and this is countersigned by the Governmentlanding waiter if he is satisfied that all Government dues have- been paid but the landing waiter deposes that a cart note alone signedby him would be sufficient authority to pass out goods, whereas onesigned by defendant’s servant alone would not. The Custom Houseauthorities could not make a charge for warehousing if they are notthe actual warehousemen.. The presence of watchers of the defendantas well as his store-keeper in each warehouse where he landed goods,it is argued, shows that he is the real warehouseman. This is explainedby the defendant to be done for the purpose of recovering the landingcharges and also for securing the safe custody of those goods whichhe had expressly contracted to deliver. His watchers were only thereby day ; at night he had no means of controlling or safeguarding thegoods of which, it is said, he was bailee. The contention that goodscould not be stolen at night except by the Collector of Customs, inwhich case the Crown Would be responsible, depends upon a mereassumption. Why should not- the place be broken into ? Moreover,
416
H. N. G. FERNANDO, C.J.—Pori Cargo Corporation v. Mohtdeen
if the defendant and not the Crown were the bailee, the defendantwould be liable no less if the goods were stolen by a servant of theCrown, e.g., the Collector of Customs, who, it is admitted, had solecontrol at night.”
I can see no difference of substance between the practice of the Portreferred to by Layard C.J. and the practice which now prevails. Todaythe Port Cargo Corporation takes the place of landing companies andperforms port services. But today, as in 1903, there is a Customs landingwaiter in charge of a warehouse; the landing company (nowthe Corporation) has its servants in a warehouse to stack and movegoods ; its servants participate in the delivery of goods to consignees,but no goods can be delivered without the authority of the landing waiter;a warehouse is at night exclusively under the control of the Customsauthorities.
It can be said today as was said, in 1903 that “ the Customs authoritiescould not make a charge for warehousing if they are not the actualwarehousemen ” ; that the Corporation has no means of controlling orsafeguarding the goods at night, and that goods can well be stolen atnight by Customs officers themselves. According to the evidence inthis case there is always on duty at each warehouse at least one Customsofficer, and it is he who has effective custody and control of the goodslying in the warehouse ; goods cannot be removed from the warehouseexcept under his authority, and his authority for delivery out of the■warehouse is given (as it was in fact given in this case) only after someother Customs officer passes a Bill of Entry upon payment of duty bymeans of the endorsement ** satisfied ” being made thereon.
The essential point in my opinion is that goods are detained in aCustoms warehouse solely because of the requirements of the CustomsOrdinance that they be so detained until Customs and harbour dues areduly paid or secured. The Customs authorities owe a duty to the State,not only to recover these dues, but to ensure that goods are not takenout of the Customs warehouse unless these dues are paid. This dutycannot be duly performed if the Customs do not in fact have continuousand effective control of goods in the warehouses. ' The fact of this controland the liability of the Customs for safe custody is recognised in theCustoms Ordinance (now in s. 108), although that liability has alwaysbeen arbitrarily (and perhaps even unreasonably) limited. .
The judgment in Asana Marikar's case has not been disapproved ofat any time. On the contrary it was followed in The Ceylon WharfageCo. Ltd. v. Dadal, and both the abovementioned decisions were followedwith approval in the unreported case of Cargo Boat Despatch Co. Ltd. v.Moosajees Ltd. (S. C. 500/59—S. C. M. of 6th July, 1964) 2.
1 (1957) 59 N. L. R. 110.* (1964) 71 N. L. R 225.
417
H. N. O. FERNANDO, C.J.—Port Cargo Corporation v. Mohideen
Counsel for the plaintiff has relied on the decision in the case of CoonjiMoosa & Co. v. The City Cargo Boat Co.x. The judgment of Jayetileke, J. *in that case shows that he apparently misunderstood the reasons for thedecision in Asana Marikar v. Livera. He appears to have thought thatin the earlier case the goods were shown to have been lost after theCustoms authorities had closed the warehouse and locked It. Indeedthat was not the fact, for there was no evidence whatsoever to establishthe time at which the package of umbrellas was removed from the ware-house, or could have been presumed to have been so removed. It isevident from the judgment of Layard C.J. that he relied principally onthe possibility of Ipss at a time when the warehouse was locked and thatthe existence of this possibility was a factor which in his opinion negativedan implied contract for safe custody by the Landing Company.
However, even if the judgment of Jayetileke, J. be correct, the casebefore him was one in which there was in fact proof that the goods wereactually stolen during the day. The judgment is no authority for theproposition submitted in the present case that the presumption ofregularity justifies an inference that goods missing from a warehousecannot be stolen during the night.
In the later case of Alibhoy v. Ceylon Wharfage Co. Ltd.2, JusticeGratiaen pointed out that if at any time during the period when goods arein a -warehouse wraiting delivery to the consignees, they are exclusivelywithin the control of the Customs authorities, the carrier’s responsibilityis for the time being at an end, and that “ unless the matter is regulatedby special agreement the question as to who was in effective control ofthe goods at the time of their loss or deterioration is always the decidingfactor”. I find nothing in this statement which might support theproposition that goods missing from a warehouse can be presumed, inthe absence of evidence to the contrary, to have been removed from thewarehouse during the day,
Gratiaen J. did however admit the possibility that goods in a warehousecan remain under the carrier’s control as a bailee or custodian for hire,and that if so, the same duty of exacta dUigentia is imposed on the carrier.This opinion, that Landing Companies at the Port of Colombo maysometimes assume the obligations of a custodian for hire, was I thinkjustified by practice which at sometimes did prevail in the Port. . Atone time it would appear that a warehouse might have been assignedexclusively for the deposit of goods landed by a particular LandingCompany, and according to statements in some judgments of this Court,it would appear that in such a case the Landing Company would assume aresponsibility to the Customs for the custody of goods and for the duepayment of the duties thereon. In such a situation a Landing Companymight in some cases have contracted with consignees to keep the goods insafe custody and thus assume the liability of a bailee. Again, in AsanaMarikar'8 case, there was apparently evidence that a Landing Company.
1 {1947) 49 N. L. R. 35.1 (1954) 56 N. L. R. 470.
33 – PP 006137 (98/08)
418 H. N. G. FERNANDO, C.J.—Port Cargo Corporation v. Mohideen
did sometimes assume liability for safe custody of goods even whiledetained in a Queen’s warehouse. But the reference to this matter inthe judgment of Layard C.J. shows that this liability was assumed onlyby special agreement. Gratiaen J. also used the same expression in asimilar context. But in the present case the plaintiff did not even attemptto prove any “ special agreement ” by which the Corporation undertookliability for care and custody even during the da}'. Indeed, havingregard to the fact that the Port Cargo Corporation is a body establishedby Statute, I doubt whether the Corporation has power validly toundertake the liability of a custodian for hire.
Counsel for the plaintiff argued that the power conferred by s. 5 (1) (g)would authorise the Corporation to enter into such a contract. I ammuch inclined to the opinion that s. 79 of the Act would prevent theCorporation from assuming by contract a liability more wide in respectof goods lodged in the Customs warehouse than the liability referred t6in that section. While s. 5 (1) (gr) confers on the Corporation a generalpower to enter into contracts, s. 79 is a special provision which limitsthe liability of the Corporation for loss or damage to goods dischargedfrom ships by the Corporation and thereafter deposited in a Governmentwarehouse…
I must now refer to an alternative argument of Counsel for thedefendant.
The learned trial Judge observed that it is reasonable to infer that themachine needles had been removed from the case on shore rather thanon the vessel. Counsel for the defendant sought to canvass this findingas the evidence was meagre. He submitted also that there is no proofthat when these cases were despatched from Germany they 'containedneedles. He relied in this connection on the latter P4 dated 18thDecember 1962 addressed by the plaintiff to Delmege Forsyth & Co.Ltd. where it is stated that “ the above two cases have been landed on11th December 1962 in D. Q. 2 Warehouse. All the hands of the cases wereintact. But while the cases were removed for loading into the lorry ourwharf clerk found ammonia pouring out from the cases …. and thecases are found to contain ammonia, empty gunny sacks and timberpieces instead ”.
It is noteworthy that no ‘ bad cargo sheet ’ has been produced in evidenceand the trial Judge has made note of this fact. Therefore, it may safely. be presumed that the cases were intact when they were warehoused.It may well be that the vniter of the letter P4 was referring to the stageof warehousing and not to the stage of detection of the ammonia pouringout.
As for the submission that there is no proof that the cases did in factcontain needles, the documents, particularly, the invoice P7 appears toafford adequate proof on the balance of evidence. An objection had been
WTJAYATILAKE, J.—Port Cargo Corporation v. Mohideen
410
taken to this document being marked in the absence of a representativeof the exporter. This matter was considered by the District Judge andthe objection was over-ruled. In the circumstances of this case we areunable to say he was wrong in doing so. Furthermore Counsel for thedefendant in the District Court in the course or his address, referringto issue 2 stated that “ the Court will answer in the affirmative ”.At the least this statement shows that the question whether the cases'contained machine needles was not seriously disputed at the trial.
Mr. Jayewardene has addressed us at length on this aspect of the caseand submitted that even if there was such an admission it is open to thisCourt to answer this issue differently if the facts warrant it. We thinkit is now too late to entertain this submission.
For these reasons the appeal has to be allowed and the plaintiff’saction dismissed. The plaintiff must pay to the defendant the costs ofthe action in the District Court, and one-half of the costs of thisappeal. ■■•
WlJAYATILAKE, J.
I have had the privilege of perusing the judgment prepared by MyLord the Chief Justice. With great respect I am in entire agreementwith it. I have little to add of any value, except to make the followingobservations:—
The learned trial Judge was of the view that “ warehousing ” includesthe process of taking care of the cargo warehoused as well and thatdecisions of Court pertaining to the liability of private landing companiesrvill hot apply in the case of the Port Cargo Corporation after 1958.This appears to be based on a wrong appreciation of the function of ware-housing. There is nothing to show that the Government in creating thePort Cargo Corporation undertook a greater responsibility than privatelanding companies. If it did it should have been set down directly inthe Act."•
Section 79 speaks of lodging or depositing in any such warehouse orother place of deposit as is provided or approved by the Government.Once the Port Cargo Corporation lodges or deposits in such place it wouldappear that their responsibility ends. It is also significant thatthe Corporation deposits or lodges in places as directed by Customs.Tho distinction between warehouse rent and handling charges too isrelevant. See document Pll.
It is in evidence that the loss of the needles had been reported to thePolice but no evidence has been led to show what had transpired at anyinquiry held by the Police. If a charge of theft was fvamed againstanyone it would show from whose possession the good;; were alleged tohave been taken. Vide section 366 of the Penal Code. In the instantcase the evidence led in regard to the alleged theft of needles is nil and itwould be a matter of conjecture as to when the goods were taken out of
420
Dissanayake Punchi Mahatmayo v. JVijedorw
the cases. It may well be during the day or night. Even the availableevidence has not been called to throw more light on the precise natureof the custody of the goods. The wharf clerk of the plaintiff’s firmG. K. Sofalas has not been called. This is a conspicuous omission. Thedefence too could have assisted Court by calling their store-keeper of theparticular warehouse but he too has not been called. Thus it wouldappear that the two principal actors in this transaction are not beforeus.
Before I conclude I am constrained to make the observation that thepresent situation in the Port, appears to be very unsatisfactory and theimage of this Island will suffer irreparably by a continuance of theprocedure now in vogue owing to the opportunity afforded for shiftingresponsibility when a loss pccurs as in the instant case. While we aredealing with a case of needles and ammonia I might comment that thewhole atmosphere of the Port is tainted with a cloud of suspicion andfraud. However, in the present state of the Law it would appear thatthe Courts are helpless to give relief except to draw attention to Section79 (2) of the Act which provides for an ex gratia payment in a fit case.In my view the instant case merits consideration.
Appeal allowed.