032-NLR-NLR-V-59-THE-CEYLON-WHARFAGE-CO.-LTD.-Appellant-and-DADA-et-al.-Respondents.pdf
IIO M?EEEASOOKIYA, J.—Me Ceylon Wharfage Co., Ltd.'v. Dadd'. —
1957•'■ Present Weerasooriya, J., and Sansoni, J. ;. .. .THE CEYLON.WHARFAGE CO., LTD.; Appellant, and DADA el al„—' Respondents ’.
*S. G. 50S—D.C. Colombo, 27,821{AT. '"r
Carrier'■—Landing agent—ATon-delivery of goods deposited by him in Queen’s ware-■ house-—Limits of carrier's liability—Cus onis Ordinance, ss. 3G, 49._.
In the absence of a special agreement the responsibility of a carrier of goodsfrom ship to slioro ceases when the goods havo been duly deposited .by him inthe Queen’s warehouse.•'- W
A ;„> r;
YjlPPEAL from a. judgment of the District Court, Colombo. " •—Walter Jayaxcardene, with L. Mvluianlri, for defendant-appellant.
jS. J. Kadirgamar, with P. Somalilakam, for plaintiffs-respondents.
Our. adv. valt.
February 20, 1957. Weerasooriya, J.—
This is an appeal from the judgment and decree of the District'Courtof Colombo ordering the defendant-appellant (a company-carrying-onbusiness as landing and shipping agents) to pay to the plamtiffs-respoh-dents a sum of Rs. 1,000 as damages arising from the loss of. 19S cratesof potatoes which had arrived ex the s.s. Ram pang In the port of Colombo.
According to the plaintiffs-respondents the .19ST crates formed part of acargo of 500 crates of potatoes bearing specific marks and shipped onthe two bills of lading P4 and P5 to a third party from whom the plain-tiffs became the endorsees for value of the two bills and entitled to thesaid cargo. Apart from the question of the identification of the cargoby its marks, it may be taken as established on the evidence adducedat the trial, and in particular the documents P18 and P19, that the appel-lant company, in its capacity as a carrier by trade, landed the full quantityof the cargo into lighters at the ship’s side and, further, that out ofthat quantity the respondents had been able to obtain delivery of only 302crates from the Kochchikade warehouse (being a Queen’s’ warehouse)where in accordance with the procedure laid – down in .the CustomsOrdinance (Cap. 1S5) the full cargo had been' deposited. –
The duties and liabilities of a carrier by trade in a case like the presentone have been considered in Bag-soobhoy v. The Ceylon Wharfage Co., Ud.,1where it was held that upon proof of receipt of the goods by the carrierand their loss or nondelivery to the consignee, the carrier is liable unless'"he can bring himself within the exceptions (vis major and damnum fatale), ■the onus of proof being on the carrier. The decision in that ease that the .carrier was liable proceeded on the finding that he had failed to prove the
1 (IplS) 49 -V. L. Jl. 14-5.
WEERASOORIYA, JV—The Ceylon Wharfage Co., Ltd. v. Dada
1 11
delivery of the missing cargo at the Queen’s warehouse after taking charge-.of it from the ship’s side. Tn the present case it was, however, conceded:by learned counsel for the respondents at the hearing of the appeal thatthe 500 crates of potatoes had been duly deposited by the appellant in the-Queen’s warehouse. But, relying chiefly on the decision of this Court inCoonji Moosa v. The. City Cargo Boat Go.,1 he submitted that even so theappellant would be liable in regard to the non-delivery to the respondents,of the 198 crates (which fact, as stated earlier, may be taken as established)from the Queen’s warehouse. The short jjoint to be decided in tkis-appeal is, therefore, whether the appellant is liable for such non-delivery-after the cargo had been deposited in the Queen’s warehouse."
The letter P19 written by the appellant company to the respondentsstates that 19S crates (of potatoes) were lying at the Kochchikade ware-house, the suggestion being that the respondents should take delivery ofthose crates as part of the cargo which arrived ex the s.s. Eampaugalthough, according to a survey made a few days earlier, the potatoesin those crates had decomposed and a black liquid was exuding fromthem. This letter was sent with reference to the respondents’ complaintin P6 (with a c-opy to the appellant) addressed to the ship’s agents regard-ing the short delivery of 19S crates ex the s.s. Eampang. Certain evidencewas led at the trial by the respondents with a view to establishing that-the 198 crates referred to in P19 had come in an entirely different ship.Even if this evidence fell short of establishing that fact it would nothave availed the appellant company since, if it was liable for non-deliveryof the cargo from the Queen’s warehouse, it has not discharged the onusof proving that the 198 crates to which the respondents were referredin PJ9 formed part of the 500 crates ex the s.s. Eampang in respect ofwhich the bill PIS.had been rendered to the respondents and pa3rmcntreceived from the latter on the basis that they had been landed from theship. ,"-
The same point that arises for decision in this appeal was consideredin Coonji Moosci v. The City Cargo Boat Co. (supra) where it was heldthat though the carrier’s responsibility had ceased after the goods hadbeen deposited in the Queen’s warehouse he had, nevertheless, renderedhimself liable as warehouseman because, in terms of the contract in .evidence in that case, the goods were in his custodj' and control, he hadassumed responsibility for their loss from the warehouse and they werein fa'c-t- lost as a result of the negligence of his servants.
The evidence in the present case is that although the same Queen’swarehouse into which" the 509 crates of potatoes had been depositedalso contained cargo deposited by other landing companies the appellant"and the other landing companies each' maintained a staff of sorters,delivery clerks and watchers for the purpose of the delivery of the cargofrom the warehouse to the respective consignees after the various customsformalities had been complied with. Reliance was placed on this evidenceand also on the fact that payment had been recovered by the appellant . .-in terms of P18, for the submission of respondents’ counsel that thiscase too must be considered on the basis that (in the absence of express.-. 1terms to that effect) there must be read into the contract between t-h&=‘ 1.- ’ 1 (1947) 4.9 JT. L. R. 35. –
112- . WEERASOORIYA, J—The Ceylon Wharfage Co.9 Ltd. v. JDada
parties the implied terms .that the appellant was to retain custody ofthe goods and' be responsible for their loss" from the warehouse. I donot think;- however, that.tins submission can be accepted.- Even iffor the smooth operation of the delivery to consignees of cargoes tyingin deposit in the Queen’s warehouses the soveral landing companiesconcerned, with the permission of the customs authorities, maintaintheir own staff of employees it is clear from the evidence in this caseand from a consideration of sections 36 and 49 and other relevantprovisions of the Customs Ordinance that all goods while tying in depositin the Queen’s warehouses are exclusively in the custody and controlof the customs authorities for and on behalf of the Crown. No doubt,while the goods are tying there it is open to a landing company, .bycontract, to undertake liability as bailee or insurer of the goods. Butsuch a liability is not to be inferred from any of' the circumstancesalready referred to, and this was pointed out in the case of Athinarayana-pillai v. The Ceylon Wharfage Co., Lid.,1 which followed a very olddecision of this Court in Asana Marilcar v. Liver a,2 where most of thesubmissions addressed to us by learned counsel for the respondentswere considered and rejected. – In both those cases it was held thatin the absence of a special agreement by which the carrier became liableas bailee or insurer of goods in a Queen’s warehouse his responsibilityceased when the goods had been duly deposited in the warehouse.' Butin the more recent case of Hussain Alibhoy v. The Ceylon Wharfage Co.,Ltd.,3 the liability of a carrier of goods from ship to shore seems to havebeen considered by Gratiaen J. on the basis that one of the obligationsimposed on the carrier was “in due course to deliver at the (Queen’s)warehouses to each particular consignee any part of the cargo whichcould be identified (by reference to the relative documents) as his property”,provided the customs dues and the carrier’s landing charges were firstpaid ; and he came to the conclusion that even on that basis the carrierwas exempt from liability if the loss of the goods from the warehousewas “ purely fortuitous and due to inevitable accident ”. It seems,however, that the observations of Gratiaen J. in that connection werenot intended to imply that the obligation to give delivery from theQueen’s warehouse is one of the normal incidents of the contract ofcarriage of goods from ship to shore as in the concluding portion of hisjudgment he affirmed the view expressed in the two earlier cases thatthe carrier’s responsibility was at an end where the goods on beingdeposited in the Queen’s warehouse were exclusively-within the controlof the customs authorities."
The judgment and decree appealed from must be set aside and decreeentered dismissing the plaintiffs-rcspondents’ .action with costs in both
Courts..-
Siirsoxr, J:—I agree.-….
. — :Appeal allowed,
1 (1052) 53 X- L. R- 419..* (1903) 7 N. L. R. 15$.
3 (1954) 50 ir. L. R. 410,51 C. L. W. 05.