039-NLR-NLR-V-61-S.-A.-L.-ABDUL-LATIFF-et-al-Appellants-and-CEYLON-WHARFAGE-CO.LTD-Respondee.pdf
SAXSONI, J.—Abdul Latiff v. Ceylon Wharfage Co., Ltd.
169
1959Present:Sansoni, Jand fi. N. 6. Fernando, J.
S. A. L. ABDUL LATIFF et ah, Appellants, and CEYLON WHARFAGE
CO., LTD., Respondent
S. G. 625—D. C. Colombo, 38,8S4/M
Carrier by water—Liability for loss of goods received by him—Via major—Inevitableaccident.
Plaintiff sued the defendant Company for the recovery of damages for thenon-delivery of a portion of the bags of cement belonging to the plaintiff whichthe defendant had undertaken to unload from a ship. The non-delivery wascaused by the sinking of a barge of the defendant while it was carrying the goodsin question. The evidence showed that “ the barge, lowered with the tide,settled on pinnacles of rock, which pierced the bottom ” and that the damageto the bottom of the barge was due to its “ settling on or striking some submergedrock or something at the bottom of the harbour There was also evidencethat there was unusual blowing and swell but not to an exceptional degree.
Held, that, on the evidence, neither vis major nor inevitable accident couldbe pleaded in defence.
A
laPPEAL from a judgment of the District Court, Colombo.
W. Jayewardene, Q.C., with V. A. Kandiah and N. B. M. Dalu-watte, for the plaintiffs-appellants.
Edmund J. Cooray, with E. B. Vannitamby and Hanan Ismail, for thedefendant-respondent.
Cur. adv. vult.
May 29, 1959. Saitsoni, J.—
A consignment of 10,161 bags of cement ordered by the plaintiffsarrived in Colombo harbour on s.s. Kaiyo Maru on 23rd October 1955.The Port authorities entrusted the task of landing the goods brought bythat ship to the defendant. It is not in dispute now that 500 bags whichwere received by the defendant at the ship’s side were not delivered tothe plaintiffs, who accordingly brought this action to recover a sum ofRs. 4,250 at the rate of Rs. 8/50 per bag.
The evidence shows that the 500 bags in question were unloaded fromthe ship into a barge W195 belonging to the defendant on 2nd Novemberand this barge was brought, along with two other barges belonging to thedefendant, to the jetty at Hangar warehouse. The goods in the othertwo barges were unloaded by about 8 or 8 *30 p.m., and barge W 195 wasthen brought alongside the jetty and landing commenced. After120 bags of cement out of a total of 1,280 bags which were in the bargehad been unloaded, it started to rain and unloading ceased for the night.
On the morning of 3rd November, at about 8■30 or 9 a.m., the lighter-man Punehi Singho opened the hatches and found that there was a gooddeal of water in the barge. An alarm was raised and efforts were madeto pump out the water but the barge sank in a short time. It was raiseds—!LXI
2J. JB 18300—1,995 (11/50).
170
SANSQNI, J.—Abdul Latijf v. Ceylon Wharfage Co., hid.
out of the water on 18th November, and inspected on 21st Novemberby Mr. Rees who was called in by the defendant to examine its conditionand to report on the cause of its sinking. His findings appear in thereport furnished by him on 24th November.
Mr. Rees is a Chartered Marine Engineer and a ship surveyor. He hashad experience of the waters of Ceylon since 1939, and during that periodhe has inspected barges and craft plying in the harbour. His evidencehas not been challenged, and his opinion given both in evidence and inhis report, as to the cause of the sinking, seems to me to be decisive.To quote from his report: “ The barge sank between 9 and 9 • 15 a.m.on 3rd November about one hour before low water. Even when sunkone gunwale was showing above water level. From my inspection of thebarge and the preceding remarks, the obvious and only conclusion is thatthe barge, lowered with the tide, settled on pinnacles of rock, whichpierced the bottom ”. In giving evidence Mr. Rees said that from themoment the barge received that damage it would have taken 20 to 30• minutes to founder, and in his opinion the damage he found on the bottomof the barge was due to its c' settling on or striking some submerged rockor something at the bottom of the harbour ”. As the report also makesit clear that apart from this damage the barge was in very good condition,unseaworthiness was ruled out as a cause of the barge sinking.
The defence put forward to the plaintiffs’ claim appears in paragraphs4 (c) and (d) and 5 (a) of the answer. The defendant there pleaded thatas a result of strong wind and heavy swell the bottom of the barge strucka submerged object and sank in spite of every care and precaution takenby the defendant, and in spite of every effort to keep it afloat, and withoutany negligence on the part of the defendant. The defendant pleadedinevitable accident, Act of God, damnum fatale and vis major as the causeof the sinking. It is to be noted that in the answer there is no referenceto the barge having lowered with the tide, although this was the directcause of the damage according to Mr. Rees. Issues were framed inaccordance with the averments in the answer to which I have referred,and there is no mention in them of the tide. In the view I take of theevidence regarding wind and swell the omission becomes important.
The learned District Judge dismissed the plaintiffs’ action on the groundthat the cause of the sinking of the barge could not have been anticipatedor prevented by the defendant, because it struck against some object atthe bottom of the sea when it was being rocked about on account of theswell.
I might here set out a very brief outline of the nature of the action and■ the rights and liabilities of the parties. The Praetors’ Edict is the basisof our common law in regard to an action of this nature. It ran :
Unless carriers by water, innkeepers, and stable-keepers restore whatthey have received from anyone to take care of, I will give judgment. against them”. (Dig. 4.9.1) In dealing with the praetorian actionquasi ex contractu Yoet says : “ It lies for their making good all damagewhich has been sustained in whatever- manner to the property receivedby theft, spoiling or otherwise, with the exception only of what clearlyappears to have perished by inevitable loss or vis major, as by shipwreck
171
SANS0X1, J.—Abdul Latiff v. Ceylon Wharfage Co., Ltd.
or outrage of pirates (Voet 4.9.2—Gane’s translation). Theeomment of Vand.erlin.den on this passage is : “But the opinion appearsto have been correctly given that inevitable loss and vis major excusethe receiver only in the case where he can clearly show that the disasterwas such as neither he nor bis people could have forfended, whatever thedegree of diligence they had employed. Examples of that sort are foundin fixes arising from lightning or from neighbouring houses, in shipwreckand the violence of robbers ” (Gane’s translation Vol. 1 page 767).
They are made insurers of the goods. They are bound absolutely,although the goods perished or were damaged without any default ontheir part—see Davis v. Lockstone l. The opinion expressed by Gratiaen
J.in Alibhoy v. Ceylon Wharfage Co., Lid. 2 that a carrier by trade is notan insurer of the goods entrusted to him for carriage is contrary tothe view of Lee—An Introduction to Roman-Dutch Law (5th edition)page 317, and McKerron—The Law of Delict (5th edition) page 96.
Now the defendant’s case at the trial was that on the morning of 3rdNovember there was strong wind and heavy swell, and it was sought toattribute the damage to the barge to the weather conditions prevailingat the time. But I think the best evidence on the question of thestrength of the wind has been given by the Assistant Meteorologist,Mr. Seneviratne, who has spoken to the speed of the wind from 1 a.m. on2nd November to 6.30 p.m. on 3rd November, as recorded on the anemo-graph at the Pilot Station. Although the wind reached a maximum speedof 37*5 m.p.h. at 4 p.m. on 2nd November the speed was less than 10 m.p.h.from 8 a.m. to 11.45 a.m. on 3rd November. It is therefore not possibleto accept the evidence of any witness who has stated that there was strongwind at the time the barge sank.
Then with regard to the question whether there was a heavy swell, thelighterman Punchi Singho stated that there was heavy blowing and swellon the morning in question and so did Serang Sebastian Pitchai. Mr. Jansz,an Assistant Superintendent employed by the defendant, said that therewas unusual swell that day. Even if one were to accept all this evidencewith regard to the swell, the question arises whether the swell was of sucha nature as to bring it within the defence of vis major. I derive assistanceon this point from the case of New Eeriot Gold Mining Company Ltd. v.Union Government 3 where it was held that vis major or casus foriuitusincludes all direct acts of nature, the violence of which could notreasonably have been foreseen or guarded against, and that a. defenceof vis major should not be upheld save on the clearest evidence. It wasincumbent on the defendant to establish that the swell on the morningin question was of an extraordinary and well-nigh unprecedented kind.Even if the evidence of the eye-witnesses is accepted on this point, andwe have been warned that some allowance must be made in cases of thiskind for exuberance of language, it goes no further than proving that theswell was heavy but not to an exceptional degree.
Since the evidence regarding wind and swell fell short of establishinga ease of vis major, it seems to me that the defendant failed to dischargethe burden that lay upon it upon the issues suggested at the trial. But
1 [1921) A. D. 153.s (1955) 66 iv. L. it. 475.
3 [1916) A. D. 415.
172SANSOSII, J.—Abdul Latiff v. Ceylon■ Wharfage Co., Lid.
the defence based on wind and swell was entirely unsupported by thereport and evidence of Mr. Rees and his explanation as to why the bargesuffered damage to its bottom. The direct cause, according to him,was the lowering of the barge with the tide, and not a rocking about in aswell. The defendant cannot disclaim the evidence given by its ownexpert, and I think this case must be decided on the basis that the bargewas moored at a spot where it would lower when the tide went out andsettle on some submerged object. I think the learned Judge has over-looked this all-important aspect of the case. But let me consider thecase as if the issues covered the question of the barge lowering with thetide and thus settling on a submerged object. This would seem to raisea defence of damnum fatale, or inevitable accident.
Wow an accident is inevitable if it is one which cannot be avoided bythe exercise of ordinary care and caution. But if it results from a dangerwhich ought to have been foreseen and could have been guarded against,it is not an inevitable accident. These are the views expressed in TheMerchant Prince 1. What evidence is there in this ease that the slightestprecaution was taken against this heavily loaded barge striking a sub-merged object in low water ? I can find nothing in the record to showthat such an eventuality was ever considered by the defendant or itsservants. It does not appear that any effort has been made even sincethis accident to ascertain what this submerged object was or how it cameto be there. Mr. Rees was asked in cross-examination whether he hadany idea of the depth of the water around this jetty and the other smalljetties near the warehouses, but he said he did not know. He saidthat there was a chart of the Colombo harbour, but he did not know if itgave the depth near any of these jetties. No chart has been producedin evidence, so we do not know what information such a chart contains.
Having regard to the nature of the duty imposed on the defendant,which is to use the greatest diligence and to prove that every care hadbeen taken by it of the articles entrusted to its custody, and that theirloss was purely fortuitous, it was surely the defendant’s duty to provethat it made every effort to ensure that its barges plied only in such partsof the harbour as were considered safe. If it relies on ignorance of thepresence of any rocks or other submerged objects which might at low tideendanger a barge that is tied up by a jetty, it must show that such ig-norance was not due to absence of due enquiry. There is a total absenceof evidence on any of these matters. That may be due to the nature ofthe defence put forward, for as I have pointed out no notice seems to havebeen taken of the very significant part played by the tide in this accident.
Mr. Cooray urged that; the defendant was bound to obey the orders ofthe Port authorities in regard to the particular jetty at which the goodswere to be discharged. But this is another matter altogether. It wasthe duty of the defendant to make sure, before it obeyed such orders,that it was reasonably safe to tie up its barges at the particular jetty,and to draw the attention of the Port authorities to any dangers thatmay attend obedience to those orders. It has failed to perform this duty.Mr. Cooray also submitted that barges laden with goods had been tiedup at this jetty for many years and had suffered no damage. But there
1 118S2) P. 179.
H. 1ST. G. FERNANDO, J.—Ueoof v. Nadarajah Ghettiar
173
was no evidence that barges carrying goods of the ■weight carried by thisbarge at the relevant time had been tied up there at low tide and goneunscathed, for only then could it be presumed that the submerged objectgot there recently and unexpectedly.
The defendants have therefore failed in any view of the matter to showthat this case fell within either of the exceptions vis major and damnumfatale. With regard to the quantum of damages, although the plaintiffswrote to the defendant claiming a sum of Rs. 3,795 as value plus dutyand dues and landing charges, the value here is the invoice value. Butthe evidence of the plaintiffs’ manager, which has not been contradictedand is supported by documents produced by him, shows that the marketprice of a bag at the relevant time was as high as Rs. 9 25. It cannotbe said that the claim of Rs. 8-50 per bag is excessive.
I would therefore allow this appeal and give judgment for the plaintiff'sas prayed for with costs in both Courts.
H. If. G. FTjnasTAiiTDO, J.—I agree.
Appeal allowed-