SOMASUNDERAM v. SELVANAYAGAM et al

122-NLR-NLR-V-24-SOMASUNDERAM-v.-SELVANAYAGAM-et-al.pdf


( 406 )
lass.
Present: Bertram G.J. and De Sampayo J.
SOMA SUNDER AM v. SEEVANAYAGAM et al.
310—D. C. Jaffna, 15,326
Charter party—Agreement to hire ship for taking paddy from Akyab toJaffna. If no license was given, agreement to ship paddy fromAkyab to Pawmban—Advance given—Action to recover advancewhen ship was not hired.
Respondents agreed to charter to plaintiff -a sailing vessel forshipping paddy from Akyab to Jaffna at a specified rate per bag;and plaintiff advanced Rs. 1,700, which sum was to be deductedfrom the freight. If the Government of India did not grantlicense to export paddy to Jaffna, it was agreed that paddy shouldbe shipped to Faumban. The export of paddy to Jaffna was pro-hibited by Government, and plaintiff alleged that he was unable toget permission to export paddy to Faumban. He su£d for therecovery of the money advanced. The defendant claimed in recon-vention damages for breach of contract.
Held, that plaintiff was not entitled to recover the advance, andthat defendant was not entitled to recover anything in respect ofthe breach.
HE facts of this case are as follows: —
It was agreed between the parties that the respondents shouldcharter to the plaintiff-appellant a sailing vessel called “ Meera Mobie-deen Sammadhany Hydroos,” in order that the charterer, the appellant,might ship paddy from Akyab to the ports in Jaffna.
It- was further agreed by the charter party that of this sum ofRs. 1,700, Rs. 800 should be credited to the first, trip and Rs. 900 for thesecond trip. It was also agreed that 2,800 bags should be transportedin the first trip and 2,700 bags in the second trip, and that the freightchargeable was Re. 1 13/17 per bag.
The charter partyfurther stipulated that if providentially the
Government did not grant license to load and remove paddy fromIndia to Jaffna, then, that both parties should arrive at a settlementregarding the transport of cargo from Akyab to Faumban.
In January, 1920, during the season when paddy is shipped fromAkyab to Ceylon, the system of paddy control by the Government ofIndia came into operation, and licenses to- ship paddy by private sailingvessels were refused.^
Plaintiff alleged that certain Chet-ty firms- on behalf of the generaltrading community of Chetties inquired from the Director of CivilSupplies of Madras, whether paddy could be transported by sailingvessels from Akyab to the South Indian ports, viz., Faumban andother adjoining ports, and the replies were received that- licenses werenot given.
(407)
Under these circumstances the plaintiff-appellant was unable toship paddy from Akyab, and, therefore, claimed from the detendante-respondents the anm of Bs, 1,700 which had been advanced to them*and on the respondents refusing to return the said sum of money, theappellant sued them for the recovery of the sum. The defendants-respondents pleaded by their answer that they were not liable torefund the said sum of money, and claimed in reoonvention a sum ofBs. 1,375, which they said was the difference between the freight whichthe respondents expected to earn from the appellant and the freightwhich they earned from the Indian Government by transportingpaddy from them about that period.
The ease proceeded to trail on the following issues: —
Of the advance of Bs. 1,700, was Bs. 800 to be appropriated to
the first trip and Bs. 900 for the second trip?
Was the charter party to take effect at Akyab, if not, where?
(8) Were plaintiffs unable for causes beyond their control to shippaddy as agreed?
When the charter party was entered, was it in the contemplation
of parties that licenses to ship might be refused?
Was license available to ship paddy to South Indian ports?
Even if license was available, does the charter party have a final
agreement regarding transportingpaddyto South Indian
portB, or has it a final agreement regarding Jaffna porta only?
Are the defendants liable to return to plaintiffs Bs. 1,700
advanoed, or any portion thereof, if so, how much?
Is plaintiff. liable to pay defendant Bs. 1,275 or any amount?
Did the IndianGovernment preventexportof paddy to ports
in SouthernIndia? If so, didthe plaintiff apprise the
defendant of it before the vessel left Bangoon, and was theagreement cancelled? Even if he did, is he not still liable topay balance freight dne?
Was it in thecontemplation of theparties,that license would
bo refused to export paddy to South Indian ports?
Is it competent to the plaintiff to adduce oral evidence to vary
the charter party?
The District Judge (G. W. Woodhouse, Esq.) dismissed plaintiff’saction, with costs, and entered judgment for defendant.
The following is the concluding portion of the judgment of theDistrict Judge:—
This charter party was entered into at a time when there wasscarcity of rice in Ceylon, and there was difficulty about getting con-signments of paddy and rice from Burma. It- was feared that theIndian Government would prevent the exportation of paddy to Ceylon.Hence it is that the parties inserted in the charter party the furtheragreement that if, by reason of the Government not granting licenseeto export paddy to Ceylon, the vessel could not '’be loaded in Akyabfor Jaffna, the charterers shall ship paddy to ports of South India nofarther than Paumban.
I do not agree with plaintiff’s counsel that here was no definiteagreement that, failing Jaffna, the voyages were to be made to SouthIndian ports. Ho doubt the details as to freight, quantity, number of
1828.
Eotnaatsn-deram «.Sehxsnaya-, ff0”1
( 408 )
voyages, Ac., would* have to be arranged when the contingency arose,hut these could all have been done at Akyab between plaintiff's agentand the master, or between plaintiff and the defendants who couldhave used the telegraph for the purpose.
X hold that it was in the contemplation of the parties that if Govern-ment refused licenses to ship to Jaffna, then the charterers were to loadlor South Indian ports. As to whether the plaintiff was preventedfrom shipping to South Indian ports also, I shall consider later.
It seems that if no licenses were granted by the Government to carrypaddy by sailing vessels from Akyab, either to the ports of Jaffna orto any port in South India, and it was impossible for the plaintiff toload paddy, or the defendants' vessel to leave the port with the paddyif loaded, thecontract isdissolved (c/. the findingof theCourt of
Appeal in Cunningham v. Dun.1) It is perfectly clear that the plaintiff'sobject was to get their consignments of paddy to Jaffna.
There was money in it, if he could do so. Even after he wasapprised of the fact that no licenses were being issued for Jaffna,plaintiff kept urging thedefendants to make theirmasterload the
paddy, which plaintiff's agent had bought and had ready at Akyabto be shipped.
It is admitted now, that .no shipments were allowed to Jaffna. Bothparties were aware of the fact directly the vessel arrived at Akyab.It would seem that plaintiff was waiting for something to happenwhich wouldremove the prohibition.Otherwise therewasnoreason
why the plaintiff should not at once have loaded for Paumban.
The evidence,shows thata limited number of licenses, atany rate,
•were allowedto SouthIndian ports.Plaintiff appearsto havewaited
until it was too late; and then he .was refused a license when he askedfor it.
Now the rule as to this is that if the charterer fails to load within thestipulated time,or if thereis no stipulated time, thenwithina reason-
able time, the master may sail home again (Bradford ®. Williams),2 andif he does so, no. claim for damages on the charterer's part arises,but the' partyclaiming damagesmust take suchsteps asmay be
reasonable todiminishthe damages,and cannot recoverinso far
as his damages are inflamed by his own unreasonable conduct Bradfordv. Williams (supra). I think the .shipowner was justified in waitingas long as he did, although it was certain at the time the vessel put intoAkyab that licenses would not be issued to sailing vessels to carrypaddy to Jaffna, there was a chance of the prohibition being removed.Moreover, thechartererhad agreed that, failing Jaffna, hewould load
for South Indian ports, not further than Paumban. –
Had the master sought other employment at that time, it would-havehad the effectof exonerating thecharterer and dissolving thecontract.
He appears tohave waited untilit became certainthat thecharterer
conld not loadcither for Jaffnaor for the SouthIndian ports- He
then shipped paddy for the Government and earned 12 annas (75c.)per bag.„
The defendants give credit to the plaintiff for the money he advancedand the amount actually earned,and claimed thedifferencebetween
those sums and what the defendants would have earned, if the firstvoyage named in the charter party had been made. In my opinionthe demand is perfectly just.
* (1X78) 3 C. P. D. 443 and 48 L. J. C. 68.
2 (1878) L. It. 7 Ex. 259 ; 41 L. J. Ex. 164.
( 409 )
I would answer the issues thus—
The advance of Rs. 800 was for the first voyage, and that of
Rs. 900 for the second (see charter parly).
Ishouldsay Rangoon,the port fromwhichthe vessel had to
proceed in Markali to be at Akyab to load.
Yes, that is, the shipment to Jaffna, but he could, if he had used
due diligence, shipped to South Indian ports.
Yes.
Yes, hutat the timeplaintiff applied forlicenses, none was
available. So far asI can gatherfromthe evidence there
was no prohibition of exportation of paddy by sailing vessels-to South Indian ports. Certainquantities – were allocated
to certain ports, and a limited number of licenses issued.Presumably those who applied in time got licenses.
Yes.
The defendants, apparently, admit their liability to pay back the
sum of Rs. 1,700, for they give credit to plaintiff for thatamount. I might state here that the rule as to freightwhich is advanced is that it is irrecoverable, though thefreightis not- earned(Per JBlackburnJ. inAllison v. Bristol
Marine Insurance Company).1
{&) The amount claimed is due.
(9) See answer to issue 5. The plaintiff did not apprise the defend-ants of the fact before the vessel left Rangoon. Possibly,if he did so, the contract might have been dissolved. Itseems, however, that at the time the plaintiff claims to havegiven the information, the vessel was on its way from Rangoonto Akyab.
(10; No. The parties appear not to have suspected that licenseewould be- refused for South Indian ports not beyond Paumban.
(11) No.
Plaintiff's action is dismissed, with costs, and judgment for thedefendants for the amount (Rs. 1.275) claimed in reconvention.
So
deram v-
Thn charter parly was as follows: —
Translation.
On this 7th day of November, 1919.
Corresponding to the 22nd day of April of the year Sitterti (Tamildate) to agreement of charter party entered into by V. SaravanamuttuSeJvanayagam and V. Saravanamuttu Somasnndram of Velvaddituraiwith P. A. R. Jj. Somasunderampillai Chetty of Jaffna is as follows:—
That we, the said Selvanayagam and Somasunderam, are the ownersof the brig Meera Mohideen Sammadhany Hydroos," which haa thecapacity of carrying a load of about 2,800 bags (of paddy) on herfirst trip and about 2,700 bags (of paddy) on her second trip.
That we, the said owners, agree that our above said brig will havetwo voyages bringing the cargo of paddy as mentioned above fromAkyab, and the freight agreed upon between us and the above-namedSomasnndram Chetty is Re. 1J per bag. ■ Having thus agreed, we, theowners of the vessel, have received from the said Chetty a sum ofrupees one thousand seven hundred (Rs. 1,700) in advance.
J (1876) 1 A. C. 209.
( 410 )
That it ia farther agreed by as, the aaid owners, that our vessel willsail for Akyab in the Tamil month of tfarakali, and as soon a3 it reachedthe harbour of Akyab, we will inform of it to the said Chetty, and onreceiving his order, we will receive the consignment of paddy or riceas weighed out tons at Akyab, and carry it over to one of the portsat Jaffna, discharge it-, and give it in charge of the Customauthorities there. We further agree to deduct for the first tripfrom the total amount of freight doe to us at the rate mentionedabove a sum of rupees eight hundred (Bs. 800) being the ^part ofadvance intended for the first trip of the amount received by us inadvance as mentioned above, and for the second trip to deduct fromthe total amount of freight due to us a sum of rupees nine hundred* (Bs. 900) being the part of advance intended for the second tripand received by us as aforesaid. We further agree that we will alsodeduct from the amount freight due to us a sum of rupees five hundred(Bs. 500) for each of the trips, swhich amount to be paid to the masteror tindal of the vessel at Akyab and taken account of in the Bill ofleading.
But, providentially, if the Government does not grant permit for theexport of paddy from India to Jaffna, we both, the parties concernedin this charter party, agree that paddy should be exported by the said-vessel to Paumban and other Indian ports which lie within Paumban, andwe both, the contracting parties, will make reasonable arrangementsregarding such exports.
We, the said owners of the said vessel, further agree and bond our-selves, we will bring two consignments, paddy for the said Chetty fromAkyab, and discharge the cargo either at the Eankesantorai port orat the Kayts port. We further agree that for bringing the secondconsignment from Akyab, if our vessel does not sail in time, or if shesails later than the other vessels and be too late, we will return to thesaid Chety the amount *of Bs. 900, and which received as advance forthe second trip, thus agreeing we signed this document.
Pereira, K.C. (with'him S. Rajaratnam), tor the appellant.
Hayley (with him J. Joseph), for the respondent.
March 7, 1928. Bertram C.J.—
Mr. Hayley be his very able argument has elucidated a somewhatobscure case. He pressed upon us this proposition; that acceptingthe learned Judge’s findings and inferences of fact, the story was1this:—The ship came to Akyab, and at the time it got there, itbecame clear that the primary object of the contract, namely, theshipment of rice to Jaffna, could not be accomplished. Thereupon,he says, an obligation arose upon the plaintiff to proceed upon thealternative line provided for by the contract, namely, to see to theshipment of rice to Paumban or other Indian ports. He says thatthe plaintiff chose to wait in the hope of some favourable circum-stance arising. He waited too long and then found that even thealternative course provided for by the contract became impossible.He says that the plaintiff himself took the responsibility for this,and is responsible to the defendant for the loss which consequentlyarose.
( 411 )
There is only one flaw in this argument. As it seemB to mepersonally, though 1 admit that two constructions are possible,I feel a difficulty in agreeing that the terms of the clause discussedin argument are so explicit as to bring about an immediateobligation. As 1 understand, the parties agreed, that if shipment toJaffna proved impossible, they would mutually make arrangementsfor shipment to Paumban or some other neighbouring port. Ifeel a difficulty, therefore, about giving the defendant damagesin respect of the alleged breach.
On the other hand, it seems to me that on that supposition theplaintiff on his side is entitled to nothing. It is clear to me thatthe payment of Bs. 1,700 which he made was an advance in respectof freight ultimately to become due, and on the authorities citedby Mr. Hayley, in particular, the case of Allison v. The BristolMarine Insurance Company (supra), 1 do not think that the advanceis recoverable. I think that the justice of the case will be sufficientlymet, if we determine that the plaintiff is not entitled to' recoveranything in respect of the advance, and that the defendant is notentitled to recover anything in respect of the alleged breach. Inthe circumstances each party should pay its own costs both hereand below.
De Sahpayo J.—I agree.
Varied.