068-NLR-NLR-V-71-THE-CHINA-PACIFIC-NAVIGATION-CO.-LTD.-HONG-KONG-Appellant-and-MESSRS-JAFFERJE.pdf
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The China Pacific Navigation Co. Ltd., Hong Kong
v. Messrs Jafferjee Brothers
1968Present: Alles, J., and Tennekoon, J.
THE CHINA PACIFIC NAVIGATION CO. LTD., HONG KONG,Appellant, and MESSRS JAFFERJEE BROTHERS,
Respondents
8. C. 1411965—D. C. Colombo, 52716
Contract—Carriage of goods by sea—Goods damaged in transit—Consignee's claim fordamages on ground of improper stowage—Burden of proof.
Where a consignee of goods sues the carrier for damages on the ground thatdamage was caused to the goods as a result of improper stowage on boardthe ship during its voyage, it cannot be said that the carrier did not “ properlyand carefully ” stow the goods, unless there is evidence (1) of a custom of thetrade that the goods should be stowed in a particular manner or (2) of specialdirections by the consignee as to the manner of stowage or (3) that the carrierought to have known that special storage arrangements were necessary forthe goods. In the absence of any such evidence, the plaintiff cannot succeed inhis claim even if he places prima facie evidence of the sound condition of thegoods at the time they were placed on board the ship at the port of embarkation,unless he establishes beyond doubt that there was some external cause or eventon board the vessel which directly resulted in the damage to the goods.
Appeal from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with A. N. U. Jayewardene and 1.8. de Silva,for the defendant-appellant.
8. Nadesan, Q.C., with B. A. B. Candappa and J. Lalith C. Rodrigo, forthe plaintiffs-respondents.
Cur. adv. wit.
ALL.ES, J.—The China Pacific Navigation Co. Ltd.,301
Hcng Kong v. Messrs Jafferjce Brothers
March 9, 1968. Allks, J.—
The defendant appeals from a judgment of the District Court awardingthe plaintiffs a sum of Rs. 18,848 70 being the assessment of damagessuffered in respect of a contract of carriage of a consignment of 800 bagsof chillies carried in the defendants’ steamship * Clyde Breeze* from theport of Whampoa in China to Colombo. The plaintiffs’ case was that thechillies were damaged as a result of improper stowage on board the vesselduring its journey from Whampoa to Colombo. According to the Bill ofLading (PI) 800 bags of ‘ dried red colour chillies, quality 1959 crop of theWenkiang and Mien Yang variety, packed in new single gunnies * wereshipped on board the ‘ Clyde Breeze * in * apparent good order andcondition * on 13th March 1960 and arrived' in the port of Colombo on28th April 1960. The plaintiffs’ cargo was stowed in Hold No. 14together with 472 bags of chillies of the * Yitu Yitu ’ variety belongingto another consignee. The discharge of the cargo contained, in . HoldNo. 4 commenced on 30th April 1960 and continued till about 25th May1960. On 14th May 1960, a fire was discovered among the bags ofchillies in Hold No. 4 ; the Port Fire Bridge was summoned and thefire was brought under control after about five hours by spraying seawater on some of the bags. Out of the plaintiffs’ consignment, 278 bagswhich were found to be blackened, had been discharged by 9th May 1960,before the fire broke out on 14th May 1960; the rest of the consignment wasstill on board the vessel; out of this quantity, 341 bags were condemnedby the authorities as unfit for human consumption and were dumped intothe sea; 181 bags had got wet by sea water and were discharged in adamaged condition. In this action, the plaintiffs claimed damages inrespect of the 341 bags which were not delivered at all and for the 459bags which were partially damaged, and alleged that the damage resultedfrom improper stowage on board the vessel. The defendants on theother hand maintained that the plaintiffs had failed to prove thecondition of the chillies at the time of shipment and attributed thedeterioration of the chillies and the fire to inherent vice in the cargo.The learned trial Judge has drawn the inference from the evidence calledby the plaintiffs that the damage to the chillies resulted from improperstowage.
Musater, the Superintendent of the Port Fire Brigade, came on boardthe ‘ Clyde Breeze ’ in connection with the fire that had been reportedto him at 9.26 a.m. on 14th May 1960. He was informed by the ship’sofficers that a pungent smell of burning chillies was found on openingHold No. 4 and he noticed a stack of chillies in bags smouldering andsmoke rising from the bags. He was unable to get to the bottom of thehold because the hold was completely packed with cargo except for tenfeet from the deck level, downwards. According to P6, which was Mus-afer’s report on the fire, * as the top tiers of the chilly bags were shifted onto the deck and the smouldering bags exposed to air, a number of themburst into flames. All this time a minimum quantity of water was usedto save the cargo from water damage. But as soon as the flamRa shot up
302ALLES, J.—The Chinn Pacific Navigation Co. Ltd..
Hong Kong v. Messrs J offerjee Brothers
two spray jets were usedto prevent the fire spreading. ’ In
Musafer’s opinion, the fire had commenced from the centre of the stackof bags and was due to spontaneous combustion.
Rajamoney, who had been a Lloyd’s surveyor for nearly eight years’visited the ‘ Clyde Breeze * on 15th May 1960 and thereafter daily fromthe 16th to the 19th of May and the 10th June, and inspected the cargoin Hold No. 4. His first visit was at the instance of the defendants’agents, Razack & Company and at the time of his visit there were 755bags in Hold No. 4. Rajamoney’s observations were incorporated in hisreport P3 issued to Razack & Company dated 16th May 1960. Thecontents of P2 and P3 are almost identical and his report on the conditionof the plaintiffs’ consignment was to the following effect:—
(а)181 bags were wet by water but unaffected by fire. The contents ofthe bags were found to be mouldy but saleable and taken deliveryof by the consignees.
(б)341 bags were damaged and found to be unfit for human consump-tion and were retained on board and dumped into the sea on 6thJune, 1960.
(c) 278 bags discharged before the fire were inspected in the warehouseand consignees’ stores and found to be discoloured and impoverished.The bags were however sound and unaffected but th9 chillies hadlost their characteristic colour and pungency. He attributeddeterioration of these chillies to heating.
Rajamoney’s personal observations of his inspection of Hold No. 4 shedssome light on the manner of stowage. In his report P3, he has includedthe Master’s protest and according to Rajamoney, the Master informedhim that a consignment of rice bran shipped at Rangoon had been stowedon top of the chillies which were already in the hold. There is circum-stantial evidence which supports the Master’s statement that bags of ricebran had been stowed on top of the chillies. Rajamoney found damagedbags (which included a portion of the plaintiffs’ consignment) at thebottom of the hold ; the rice bran had been picked up at Rangoon in thecourse of the voyage ; the boat notes P14, P15, P16 and P17 establishthat 622 bags of rice bran which constituted the entire consignment,were discharged before the fire and this consignment must have taken thespace of the 10 feet below the deck which was noticed by Miisafer when hevisited the vessel on 14th May. The evidence is that each bag of ricebran weighed between 112 and 140 pounds and that a bag of chilliesloosely packed weighed approximately 55 pounds. The pressure there-fore of the 622 bags of rice bran must have been considerable and it issubmitted by Counsel for the respondent that this fact alone was suffi-cient to indicate that the chillies were improperly stowed. Rajamoneystates that he noticed that the bags of chillies were stowed against thebulkhead, stacked tier upon tier without any dunnage and with no airchannels between the tiers. According to Rajamoney, the bags had got
ALLES, J.—The China Pacific Navigation Co. Ltd.,
Hong 1£ong v. Messrs Jafferjee Brothers
303
damaged by; heating due to ineffective ventilation. The heating hadcommenced from the centre of the bags – and once the .smoulderingcommenced it would have taken time to catch fire. In his view, thedeterioration of chillies and the subsequent fire was the result of thepressure of the bags stowed on top of the chillies coupled with theineffective ventilation available.
Hoffmann, who was called as an expert stated that chillies had atendency to generate heat. In his view, chillies should be stackedloosely and ventilation was necessary to allow the heat that is naturallygenerated by chillies to some extent to dissipate. Hoffmann, whoexpressed his views after an examination of P2, P3 and PC, supportedRajamoney when he stated that if the cargo was pressed and confined,temperature would build up in the centre particularly at the bottom andwith-the increase of temperature heating takes place and fire is causedby spontaneous combustion when air is introduced.
On the evidence of Musafer, Rajamoney and Hoffmann, the learnedtrial judge came to the conclusion that there was improper stowage onboard the vessel which ultimately resulted in insufficient ventilation andcaused the spontaneous combustion of the chillies and accordingly holdthat the plaintiffs were entitled to succeed.
It is common ground that the contract of affreightment in this case isto be found in the Bill of Lading PI, and the Hongkong Carriage ofGoods by Sea Ordinance of 1928 w hich has been marked * X ’ in theseproceedings.' The Bill of Lading itself contains no special provisions inregard to the manner and conditions of stowage. Section 2 of ArticleIII of the Ordinance reads as follows:
“ Subject to the provisions of Article IV, the carrier shall properly
and carefully load, handle, stow, carry, keep care for and discharge
the goods carried. ”
The question that arises for consideration in this case is whether, inspite of the acceptance of the evidence of Musafer, Rajamoney andHoffmann, the learned trial Judge was justified m reaching the conclusionthat the damage to the chillies arose as a result of improper stowage tomake the defendant liable under the contract.' [
•it
/ '
There is no evidence in this case of any custom of the trade that chilliesshould be stowed in a vessel in a particular manner. The evidence of thewitnesses called bn behalf of the plaintiffs only relate to their specialknowledge of the perishable nature of the consignment and the desirabilityof stowing the goods in a particular manner. Their evidence doesnot establish any kind of custom in the trade well known to the parties asto the manner in which a consignment of chillies should be carried.Having regard to the absence of any special directions by the shipper as tothe manner of stowage, have the defendants * properly and carefully ’stowed the goods on board their vessel ? The consignment of chillies
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ALLES, J.—The China Pacific Navigation Co. Ltd.,
Hong Kong v. Messrs Jafferjee Brothers
belonging to the plaintiffs was only a small part of the cargo carried onthis vessel and the shippers would normally have been aware that in thecourse of the voyage to Colombo, the carrier would have to pick up othercargo at other ports. There is evidence in this case that a heavy cargo ofrice bran was loaded on this vessel at Rangoon. In my view if theshippers wished to safeguard their cargo, they should have given specialdirections that no heavy cargo should be loaded on top of the chillies. Ofcourse this would have raised the cost of freight, for if such acondition was imposed, it would have been necessary for the carrier tounload the consignment of chillies at Rangoon, load the rice bran andthen reload the chillies. Again, if the shippers were aware that chillieswere goods that generate their own heat and that unless they werestowed in a manner specially appropriate to goods of that kind, they woulddeteriorate quickly, it was, in my view, incumbent on: the shippers, ifthey wished to avoid the activation of an inherent vice in the chilliesthemselves by being treated as cargo requiring no special stowageprecautions, to give specific directions to the carrier that no heavy cargoshould be loaded on top of the chillies, that the carrier shouldexpeditiously transport the cargo to the port of discharge and that thereshould be sufficient ventilation between each layer of bags and around them.In the absence of any such special directions, it cannot be said that interms of the contract the carrier had not * properly ’ stowed the chillieson board the vessel. The evidence accepted by the trial Judge is based oninferences drawn from the fact of spontaneous combustion, blackeningand loss of pungency ; these are not necessarily the result of improperstowage. This condition may have arisen owing to the nature of thecargo, the ordinary temperatures prevalent in the hold of a ship voyagingthrough the climatic regions which it had to pass during some of thehottest months of the year ; the voyage itself took about one and a halfmontns and the discharge of the cargo was not completed till anothermonth went by. I would in this connection quote the worcb of LordReid in the House of Lords in the recent case of Albacora S. R. L. v.Westcott and Laurence Line Ltd.1 This was a case in which the consigneessued the carrier for damages to a consignment of wet salted ling filletsconveyed from Glasgow to Genoa. It was not disputed that the condi-tion of the fish deteriorated in the course of a long voyage because theywere not refrigerated below a certain temperature to prevent the multipli-cation of bacteria. The holds of the vessel were not refrigerated and ‘ noone appears to have realised that at any time until evidence was led at theproof. No special instructions were given by the consignor ; and none ofthe ship’s officers concerned with the loading and care of the cargo wereaware of the particular conditions of temperature and access to air inwhich the bacteria could be activated. This was an unusual cargo forsuch a voyage and it was not proved or argued that they ought to havebeen aware of this danger. ’ Lord Reid did not accept the submission onbehalf of the shippers that the word ‘ properly ’ means ‘ in the appropriatemanner looking to the actual nature of the consignment, and that it is
1 (1966) Vol. 2 Lloyd's L.w Pep oris 5 3 at p. 57.
ALLES, J.—The China Pacific Navigation Co. Ltd.,
Hong Kong o. Messrs J offerjee Brothers
305
irrelevant that the ship-owner and the ship’s officers neither knew norcould have discovered that special treatment was necessary’. Heagreed with Lord Kilmuir in Renton v. Palmyra Trading Corporation ofPanama1 that the word ‘ properly ’ means in accordance with a soundsystem. He then explains what he considered to be a sound system inthe following language :—
“In my opinion the obligation is to adopt a system which is sound inlight of all the knowledge which the carrier has or ought to have aboutthe nature .of the goods. And if that is right then the respondent^did adopt a sound system. They had no reason to suppose that thegoods required any different treatment from that which the goods infact received.’’
The House of Lords unanimously dismissed the shippers’ appeal and heldthat the carrier was not liable for the deterioration of the cargo.
In the instant case, in my view, similar considerations apply* If theshippers professed to know the conditions in which the chillies shouldhave been transported, it was their duty to inform the carrier of thespecial conditions that were necessary for the transport of consignmentof .this nature and in the absence of any such information to the carrier,and in the absence of any evidence to establish that the carrier ought tohave known that special storage arrangements must be made for a cargoof chillies, it could not be said that the defendants were in breach oftheir contract to ‘ properly and carefiilly ’ stow the chillies on boardtheir vessel.
The only other manner in which the plaintiffs can succeed in thisaction is to establish that there was some external cause or event onboard the vessel which directly resulted in the damage to the consign-ment of chillies. In such a case it will not be necessary for the plaintiffseven to establish the sound condition of the chillies before they wereplaced on board at the port of embarkation. If the question is left indoubt, as to whether the damage to the consignment arose as a result ofthe deteriorated condition when shipped or from some cause that aroseon board the vessel, the plaintiffs will not be entitled to succeed. Inthis case, there is an absence of evidence of any deterioration of the goodsat the time of shipment—-they were accepted on board ship in apparentgoodorder and condition and it is not open to the plaintiffs to maintain,in view of what has been stated earlier, that the defendants had notproperly stowed the chillies. In this connection, the facts of this case aredifferent from the facts in Hoore v. Harris2. In that case, the position ofthe plaintiffs, the shippers, was that during the voyage an epidemic ofscarlet fever broke out among the steerage passengers and under theadvice of the surgeon, chloride of lime and carbolio acid was widelyused all over the ship. The packages of tea were stowed under the cabinoccupied by some of the infected passengers and when the packages* (1957) A. C. 149 at 16^• (1876) Law Times 519
26-PP 006137(98/08)
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ALLES, J.—The China Pacific Navigation Co. Ltd.,
Hong Kong v. Messrs Jafferjee Brothers
■ were opened at the port of disembarkation, they were found to beimpregnated with carbolic acid. Their Lordships in the Privy Councilheld that the plaintiffs made out a strong prima facie case that thedamage was done on board ship and made the following observationsat p. 520 :—
“ They also think that the Judges gave undue weight to the consider-ation that the plaintiffs offered no proof of the condition of the teawhen shipped. There is not, and, in the nature of things, cannot be,any general rule of law or evidence on the subject. It must depend onthe circumstances of each case, how far such proof is necessary, andthe case is said to be inconclusively proved without it. Where, forinstance, a cargo of grain is found to be heated—a damage which mayarise either from its bad condition when shipped, or from some cause •existing in the ship—it may be essential to prove the state of thecargo before its shipment. But where, as in this case, noxioussubstances, calculated to produce the peculiar damage actually present,are found to have been used in close proximity to the tea, cause andeffect are so nearly brought together that a conclusion can be reachedwithout proof of its condition at the time of shipment.”
In the present case, in view' of what I have stated earlier on the issueof proper stowage, there is at the lowest, a doubt as to whether the carrierwas responsible for the fire on board ship and in the circumstances it isnot quite necessary to deal with the question whether the plaintiffs inthis case had satisfied the Court of the condition of the chillies at the timethe consignment was placed on board at the port of embarkation. Sincehowever this matter has been argued at length in the course of the hearing,we propose to express our views on the point raised.
According to the defendants the deteriorated condition of the chilliesat the time of discharge was not necessarily attributable to improperstowage after shipment but was equally consistent with the chillieshaving been in that condition at the time of shipment. It was submittedby Counsel for the defendant-appellant that when the carrier acceptedthe goods as ‘ being in apparent good order and condition * there was nowarranty regarding the quality of the chillies and that the burden wason the plaintiffs to prove the condition of the chillies as being sound atthe time of shipment. It was conceded by Hoffmann that between theharvesting of chillies, the storage in the shippers’ warehouse and stowingon board the vessel, perishables like chillies could be affected and thatthe process of deterioration could have commenced even before shipment.Counsel therefore submitted that although PI described the chillies as* dried red colour chillies of the 1959 crop ’ there was no guaranteethat chillies of this quality were put on board the vessel and that theburden was on the consignee to prove the sound condition of the chilliesat the time of shipment. In support Mr. Jayewardene for the appellantshas referred to several authorities, to some of which I shall presentlyrefer. Mr. Nadesan on the other hand submitted that he had established
ALLES, J.—The China Pacific Navigation Co. Ltd.,
Hong Kong v. Messrs Jafferjee Brothers
307
the quality of the chillies at the time of shipment and referred to P4the invoice sent to the consignee by the shippers and also to P7 themanifest of the cargo on board the * Clyde Breeze ’ which described theconsignment as ‘ dried red colour chillies I am unable to agree withCounsel’s submission that P4 and P7 constituted an admission by theship-owners in regard to the quality of the chillies. These descriptionswere apparently obtained from the Bill of Lading PI and if the words inPI are not indicative of the quality of the chillies it necessarily followsthat the descriptions in P4 and P7 cannot be any evidence of any suchindication. In the cases cited by Mr. Jayewardene, in support of theproposition that the burden was on the consignees to establish the condi -tion of the cargo before it was put oh board the vessel for shipment tomake the carrier liable for any loss or damage, there was always evidenceof the physical condition of the cargo before shipment and no reliancewas placed on any of the shipping documents. In The Ida1 the shippersled evidence of their agents at Port Said who inspected the consignmentof cotton seeds. In Peter der Grosse 8 the plaintiffs proved that the consign-ment of feathers and the down was of first class quality. In The Tromp 3,The Skarp4, Martinaeus Ltd. v. Royal Mail Steampacket Co.6 and Dent andothers v. Glen Line 8 the shipowners were aware of the bad condition ofthe cargo before shipment and in spite of this knowledge issued cleanBills of Lading and consequently in all these cases, the ship-owner washeld to be liable. In order therefore to make the ship-owner liable theremust be evidence—direct or circumstantial—that the cargo had notdeteriorated at the time of shipment.
The learned trial Judge has arrived at the conclusion in this case thatthere is no evidence that the chillies that were shipped were in animmature or wet condition. There is some evidence to support this finding.According to Rajamoney, if the 278 bags of chillies were dischargedbefore the fire immature and wet, he would have expected to find stainson the gunnies in which the chillies were packed and the contents to bemouldy. This was the condition in which he found the 181 bags thathad become wet by sea water. According to Hoffmann, if immaturechillies had been shipped, he would have expected them to be reducedto small pieces by the time they reached the port of Colombo. Hoffmannalso negatived the possibility of the chillies of the Yitu Yitu variety,which was more combustible than the plaintiffs’ consignment being thecause of the fire. The inference to be drawn from the evidence of Raja-money and Hoffmann is that the chillieB were not in a deteriorated condi-tion at the time they were put on board the vessel at Whampoa. I agreewith the proposition of law submitted by Counsel for the defendants thatthe words * in apparent good order and condition.’ are not indicative ofan admission by the ship-owners of the quaility of the chillies at the timeof shipment. Channel!, J. in Compania Naviera Vascongada v. Churchilland Rim 7 draws the distinction between * condition * -and * quality
1 (1875) 32 Law Times 541.* (1935) P. D. 234.
(1876) 34 Law Times 749.• (1912) 106 Law Times 638.
(1921) 125 Law Times 637.• (1940) Uoyds Reports 72.
1 (1906) 104 Law Times 61.
308
Lucian dz Silva v. Singam
Condition * he says ‘ refers to external and apparent condition ’ and
quality ’ to what is usually not apparent or to use the words ofSir Robert Phillimore in Peter der Orosse (supra) the chillies * apparentlyand so far as met the eye and externally were placed in good order onboard the ship
In my view the shippers in this case have, through the evidence ofHoffmann and Rajamoney, placed circumstantial and prima facie evidenceof the sound condition of the chillies at the time of shipment. In thecase of The Ida (supra) the plaintiffs, the consignees did not succeed intheir action against the ship-owners because in the view of TheirLordships in the Privy Council—
(а)* they had failed to launch their case by prima facie evidence ofthe condition of the cargo ; and
(б)they had not adduced any conclusive or any cogent evidencefor the purpose of showing that the damage whioh the cargosustained on the voyage was due to the fault of the ship-owner.’
In the present case although the plaintiffs have placed prima facieevidence of the sound condition of the chillies at the time of shipmentthey have failed to prove that the damage to the consignment was dueto improper stowage in terms of the contract. We therefore set asidethe judgment and decree of the District Court awarding the plaintiffs asum of Rs. 28,848*80 being the assessment of damages in respect of thebreach of the contract of affreightment and we allow the appeal of thedefendants and dismiss the plaintiffs’ action. The appellants will beentitled to their costs in appeal and in the trial Court.
Tennekoon, J.-—I agree.
Appeal allowed.