KRISHNA NAIK AND SONS, MERCHANTS Vs. CAYYAR IRVINE AND CO, LTD, GLASGOW, BY THEIR AGENTS, PIERCE LESLIE AND CO LTD

JUDGEMENT

(1.) The essential facts of this case are simple. Plaintiffs are merchants of Mangalore. In September-October 1915 their English agents shipped to them consignments of steel and soap by defendants Steamship "Clan Mackellar". Freight was paid in advance. The "Clan Mackellar" arrived at Bombay with the goods onboard on 3-11-1915. She was then requisitioned by the Government of India, and passed out of the hands of the defendant s company. Defendants after some correspondence and after being requested by the plaintiffs to send the goods down to Mangalore despatched them to that port by the S.S. "Airemoor" belonging to the B.I.S.N. Co. They were delivered to plaintiffs in February 1916 on payment of freight from Bombay to Mangalore, and sundry other charges. Plaintiffs sued to recover these charges amounting to Rs. 2,470 with interest from defendants company.

(2.) Both the lower courts have agreed in dismissing plaintiffs suit : and I think they are clearly right.

(3.) It is settled law that where freight in advance is paid to the shipowner, it is his absolutely and is irrecoverable under any circumstances by the shipper of the goods : Vide Allison v. Bristol Marine Insurance Co. (1876) 1 App. cas. 209. This is not disputed by the learned vakil for appellants. Appellants could not recover any portion of the freight already paid, if delivery of the goods were prevented by the total loss of the ship at sea. The requisitioning of the "Clan Mackellar " by Government at Bombay took her out of defendant s control and put an end to the voyage just as effectively, as if she had been torpedoed and sunk before reaching that port : and in the one case no more than in the other could the refund have been claimed. This would be so even apart from any special terms of the bills of lading : but I agree with the Subordinate Judge, that the requisitioning the ship is an "Act of Rulers" which is specially provided for in Clause 3 of the bill of lading and for which defendants are specifically exempted from liability.