Sri Lanka Law Reports
f1981) IS. LR.
SRI LANKA PORTS AUTHORITY AND ANOTHER
SAMARAKOON, C. J., SAMERAWICKRAME, J. AND ISMAIL, J.S.C. No. 66/79—D.C. No. 1/757(M).
NOVEMBER S. 1980 AND FEBRUARY 23.1981.
Contract—Port (Cargo) Corporation —Common carrier—Duty cast by statute—Plea ofimmunity—How taken—Port (Cargo) Corporation Act. No. 13 of 1958, sections 4(1).4(1)(b). 5(1)(y). T9—Documents read in evidence without objection at close of case—Administration of Justice Law, No. 21 of 1975, section 457—Evidence Ordinance,section 32(2).
The plaintiff claimed from the Port (Cargo) Corporation the value, of the cargoshort-loaded during transhipment in the Port of Colombo on the basis that theCorporation was under a contractual duty to keep the cargo in safe custody and tore-load the same for onward carriage. In the alternative, the plaintiff pleaded that theloss was caused by the negligence of the Corporation's officers and agents. Thedefendant pleaded the benefit of an immunity set out in section 79 of the Port (Cargo)Corporation Act, No. 13 of 1958.
it was contended, inter alia, on behalf of the Corporation:
(a) that the Corporation was not a common carrier and was not liable as such;
ib) that the plaintiff was only the ship owner and not a true owner of the goodsand therefore, there is no proof that it was liable to the true owner of thegoods or that it made good the loss to the true owner;
(c) that the' plaintiff's claim fails in view of the immunity set out in section 79of the Port (Cargo) Corporation Act.
(a) The statute casts on the Port (Cargo) Corporation a duty in law to provide suchservices as are referred to in section 4 of the Act. The Corporation held itself out to alland sundry that it would do the work, inter alia, of stevedoring provided its chargeswere paid. The fact that it did so under a statutory duty and under a statutorymonopoly is immaterial. The fact that it held itself out as willing to carry goods for anyoerson provided it was paid the proper charges, made it a common carrier and/or carrierby trade.
It) Since no issue was raised in regard to the plaintiff's liability to the true owner of thegoods and such a dispute was not presaged in the answer, the question cannot be raisedin appeal.
(c) Where the benefit of the immunity set out in section 79 of the Act is claimed, thefacts and circumstances relied on must be clearly pleaded and strictly proved. A mere
Sri Lanka Ports Authority v. Jugolinija-Boal East (Samarakoon, C. J.)
statement of the fact of the loss coupled with the plea that such loss was not occasionedby negligence or wrongful or unlawful act, is not a claim of immunity Within themeaning of section 79 of the Act.
Per Samarakoon, C. J.
"If no objection is taken, when at the close of a case documents are read in evidence,they are evidence for all purposes of the law. This is the cursus curiae of the originalcivil courts."
Cases referred to
Morris Roche Ltd. v. Port (Cargo) Corporation, (1967) 71 N.L.R. 195.Johnson v. Midland Railway Co., (1649/ 4 Ex. 367.
APPEAL from a judgment of the Court of Appeal,
Mark Fernando, with Miss A. K. Wickramasinghe, for the defendants-appellants.
Nimal Senanayake. with K. P. Gunaratne, Miss S. M. Senaratne, Saliya Mathew,and Mrs. A. B. Dissanayake, for the plaintiff-respondent
SAMARAKOON, C. J.
Cur. adv. ntlt.
This case arises out of the loss of cargo during transhipment in thePort of Colombo. The m.v. "VELEBIT'' carrying cargo for onwardshipment to Rangoon in Burma entered the Port of Colombo on7th June, 1974. The cargo consisted of cartons which wereunloaded into lighters belonging to the Port (Cargo) Corporation(second defendant-appellant hereinafter referred to as the'Corporation') by the Corporation's employees. They werereloaded on the 3rd July, 1974, on board the m.v. "TRIGLAV"lying in the Port of Colombo. Thirty-seven cartons were shortloaded, of these 6 cartons were subsequently accounted for, andthe Corporation admits that it short loaded 31 cartons, in respectof which this claim is made.
The plaint is interesting for its brevity if not for its paucity.It does not state what interest, if any, the plaintiff-respondenthad in the cargo or the motor vessel. It merely states that cargofrom the m.v. "VELEBIT" was discharged by the Corporationpursuant to a contract entered into between the Corporation andthe Ceylon Shipside Services Ltd. acting as agents for theplaintiff-respondent It states further that the Corporation wasunder a contractual duty to keep the cargo in safe custody andreload same for onward carriage to Rangoon. This reloading was
Sri Lanka Lm Reports
done on the 3rd July on the m.v. "TRIGLAV" but a quantityof 31 cartons of bleached mercerised cotton yarn was short loaded.The plaintiff-respondent claimed its value of Rs. 103,780.90(US $12,900.05) with legal interest In the alternative theplaintiff-respondent pleaded that the loss was caused by thenegligence of the Corporation's officers and agents. TheCorporation in its answer admitted the short loading of 31cartons but said it was unaware of their contents, description andvalue. It denied any contractual obligation to reload on boardm.v. "TRIGLAV" but avoided stating the exact nature oftransaction, legal or otherwise, by which it came to discharge them.v. "VELEBIT" and to reload the same on the m.v. 'TRIGLAV".It also pleaded the benefit of an immunity set out in section 79of the Port (Cargo) Corporation Act No. 13 of 1958.
At the trial the following issues were framed:
"1. Did the defendant Corporation in about June, 1974, enterinto a contract with the plaintiff's agent to discharge cargoex m.v. "VELEBIT" and to keep such cargo in safecustody and reload on board m.v. "TRIGLAV" ?
Of the said cargo has the defendant short loaded 31
if so, what damages is the plaintiff entitled to recover
from the defendant?
In any event, were 31 cartons of the said cargo shortloaded on account of the negligence of the defendant?
If so, what damages is the plaintiff entitled to recover?
In any event, can the plaintiff have and maintain thisaction in view of section 79 of the Port CargoCorporation Act?"
The Corporation did not raise any issue on value but had itrecorded that it disputes the value and description of goods. Aftertrial the learned District Judge answered all the issues in theplaintiff's favour and entered judgment in the sum claimed. TheCorporation appealed to the Court of Appeal and that appeal wasdismissed. This Court granted the Corporation special leave toappeal.
Sri Lanka Ports Authority v. Jugolinija-Boal East (Samarakoon, C.J.)
Counsel for the appellants has advanced a fourfold argument:
That the Corporation was not a common carrier and wasnot liable as such.
The plaintiff-respondent was only the ship-owner and notthe true owner of the goods. There is therefore no proofthat it was liable to the true owner of the goods or that itmade good the loss to the true owner.
The contents of the cartons and their value were notadmitted and plaintiff-respondent has failed to provethese facts.
Damages have not been proved.
With regard to the first contention counsel for the appellantssubmitted that the case was not fought on the basis that theCorporation was a common carrier. Paragraph 4 of the plaintpleads that the Corporation "in the ordinary course of its businessentered into a contract with Ceylon Shipside Services Ltd. actingas Agents for the plaintiff-respondent to discharge cargo ex-VELEBIT in June 1974 and to keep such cargo in safe custodyand reload same on the orders of the plaintiff's Agents for onwardcarriage to Rangoon". The Corporation denies any contractualobligation but states that when the m.v. "VELEBiT” arrived atthe Port of Colombo on the 7th June, 1974, the cargo in questionwas discharged by its employees into lighters belonging to it.They remained in the lighters till they were loaded onto the m.v."TRIGLAV" which arrived in the Port on the 3rd July, 1974.The Corporation contends that it was merely discharging astatutory function under the Port (Cargo) Corporation Act of1958 "by virtue of the fact that the plaintiff (respondent) iscompelled to make use of the services of the defendant(Corporation) in the Port of Colombo", and therefore no questionof contract arises in this matter. This contention means that therespondent willy nilly had to let the Corporation discharge andtranship the cargo. In the result no contractual relations couldarise.
Section 4 (1) of the Act 13 of 1958 imposed on the Corporationthe general duty of providing in the Port of Colombo "efficientand regular services" (referred to as Port Services) "for stevedoring,landing and warehousing cargo, wharfage, the supply of water and
Sri Lanka Law Reports
the bunkering of coal and any other services incidental thereto".At all times material to this case the Corporation had the monopolyof providing such services in the Port of Colombo as no rival waspermitted by law. Section 4 (1) (b) cast on it the general duty toconduct its business in such manner and to make such charges forservices rendered as to secure a proper and sufficient revenue forthe Corporation. Section (5) (1) (g) empowers it to enter intocontracts in these words:
"(5) to enter into and perform all such contracts as may benecessary for the performance of the duties and theexercise of the powers of the Corporation
No express contract has been entered into in terms of the aboveprovision for transhipping the cargo of the m.v. "VELEBIT" butlevies have been made according to charges set out in a circulardated 73.11.1973 sent to all Steamer Agents (P2). E. H. Joseph, awitness for the plaintiff-respondent, stated that transhipment ofthe cargo was entrusted to the corporation and that he, on behalfof the respondent, was bound to pay the charges set out in P2which were in fact rates agreed upon between the corporation andsteamer agents operating in Colombo. It is therefore necessary todecide the exact legal status of the corporation and the legalnexus as between the parties. The statute casts on the Port (Cargo)Corporation a duty in law to provide such services as are referredto in section 4 of the Act. Stevedoring is one of them. (Videsection 80). In the absence of such a statutory obligation shipsentering the Port of Colombo would be left high and dry by anunreasonable monopolist. The manner of providing such serviceshas been left to the corporation with only a stipulation that theybe regular and efficient. The corporation held itself out to all andsundry that it would do the work inter alia of stevedoring providedits charges (which had been previously notified to all concerned)were paid. These were services which had been provided by privatestevedores in the harbour before the corporation assumed amonopoly over such trade. The fact that it did so under a statutoryduty and a statutory monopoly then becomes immaterial. Thefact that it "held itself out as willing to carry goods for any personprovided it was paid the proper charges" made it a commoncarrier and/or a carrier by trade, per Samerawickrame, J. inMaurice Roche Ltd. v. Port (Cargo) Corporation (1) at 199. Everyperson who requires the services of a stevedore in the Port ofColombo has the right to call on the Corporation to receive and
Sri Lanka Ports Authority v. Jugolinija-Boal East (Samarakoon, C. J.)
carry goods according to its public profession and the Corporationis bound to do so if payment is made or offered in accordancewith published rates. Any refusal entails liability. Johnson v.Midland Railway Co. (2). I am in complete agreement with thisstatement of the law and I hold that the corporation is a commoncarrier. I am also in agreement with Samerawickrame, J. that therewas a continuing offer by the Corporation to carry goods of allpersons who required their services and "when the goods weredischarged by the Master of the vessel into a lighter of the(Corporation), there was an acceptance of that offer andconsequently an implied or tacit contract". (Vide ibid page 199).
The next question raised was that the respondent was not thetrue owner and there was no evidence that he was liable to thetrue owner or that he made good the loss. The trial has proceededon the basis that the respondent was the ship owner and thereforethe carrier of the goods. Such a dispute was neither presaged in theanswer nor was any issue raised on it to be decided by the Judge.It cannot be raised now in appeal.
The further question to be decided is the contention that therespondent has failed to prove the contents and value of thecartons and therefore the claim for damages must fail. The trialJudge has accepted the evidence of witness Joseph as to the valueandcontents of the cartons. Document D1 dated 26.01.76 written bythe Agent of the respondent to the corporation refers to a claim inrespect of "mercerised cotton yarn". The reply to it by theCorporation (D2) is a mere denial of liability. Those with otherdocuments, listed by the corporation, were not objected to bythe respondent at the preliminary hearing of the case. They weremarked in evidence at the trial. Their contents were therefore inevidence of the facts stated therein without the maker beingcalled (vide section 457 Administration of Justice Law, No. 25 of1975). The learned trial Judge has also relied on the contents ofdocument P1 written to the Agents in Sri Lanka by their Agents inRangoon. At the preliminary hearing Counsel appearing for theappellants stated that he was admitting all documents listed by therespondent except documents listed in item 7 in column II. PI wasone of item 7. When P1 was marked during the trial objection wastaken "as the author of P1 has not been called". I take it, whatwas meant was, that P1 be rejected unless the author was calledto prove the document. Counsel for the respondent closed his caseleading in evidence P1 and P2. There was no objection to this by
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counsel for the appellants who then proceeded to lead hisevidence. If no objection is taken when at the close of a casedocuments are read in evidence they are evidence for all purposesof the law. This is the cursus curiae of the original Civil Courts.The contents of P1 were therefore in evidence as to facts therein(vide section 457 Administration of Justice Law, No. 25 of 1975)and it is too late now in appeal to object to its contens beingaccepted as evidence of facts. Furthermore the trial Judge has, inthe course of his order, accepted the document in evidencein terms of the provisions of section 32 (2) of the EvidenceOrdinance. I cannot therefore agree with the contention that theorder of the trial Judge on this point is wrong.
In the course of the argument reference was made to theprovisions of section 79 of the Port (Cargo) Corporation Act. Itreads thus:
"79(1) All goods which are lodged or deposited in any suchwarehouse or other place of deposit as is provided or approvedby the Government or which are carried in any lighter or bargeof the Corporation shall be at the risk of the owner, importer,exporter, shipper or consignee of such goods, and he shall have noclaim on the Corporation for the loss of any such goods, or anydamage to any such goods, caused by fire, theft or other causeunless such loss or damage has been caused by the negligence orby the wrongful or unlawful act of the Corporation or of anyof its officers, servants or agents.
Nothing in sub-section (1) shall preclude the Corporationfrom making any ex-gratia payment to any person in respect ofany loss or damage referred to in that sub-section."
Originally the section did not provide for carriage in a lighter orbarge nor did it include 'exporter* and 'shipper'. These werebrought in by amending Act No. 67 of 1961. The immunity mustbe clearly pleaded and strictly proved. This immunity extends toloss by "fire, theft or other cause". Such a cause has not beenpleaded by the appellants and the Court was not seized of anyfacts upon which it could have held that the Corporation wasimmune from liability in this case. It is when the cause is allegedand/or proved that the claimant is in a position to establish thatthe loss so caused was occasioned by the negligence or by thewrongful or unlawful act of the Corporation or of any of itsofficers, servants or agents. As the immunity is in respect of the
SC Sri Lanka Ports Authority v. Jugolinija-Boa! East (Samarakoon, C. J.)
loss of or damage to goods which are lodged or deposited in awarehouse or place approved by the Government or are beingcarried in a barge or lighter of the Corporation, the fact orcircumstance relied on must be pleaded. Having regard to theabove considerations merely stating the fact of the loss of 31cartons coupled with a plea that such loss was not occasioned bynegligence or wrongful or unlawful act is not a claim of immunitywithin the meaning of section 79 of the Act.
I dismiss the appeal with costs.
SAMERAWICKRAME, J.-l agree.
ISMAIL, J.—I agree.
SRI LANKA PORTS AUTHORITY AND ANOTHER v. JUGOLINIJA- BOAL EAST