FREEMAN Vs. PAND OSNCO LTD

JUDGEMENT

(1.) This is a suit brought by the plaintiff against the P. & O.S.N. Co. to recover a sum of Rs. 2,242 as damages for the loss to him of articles of wearing apparel contained in a case delivered to one Nigel W. Freeman. The claim for Rs. 142 part of the above sum on account of the plaintiff s expenses between Nagpur and Calcutta and his evidence here is clearly unsustainable. The plaintiff values the entire contents of the case at Rs. 3,000, and those articles of clothing which were returned to him by Nigel W. Freeman at Rs. 900. The balance claimed is thus Rs. 2,100. The facts of the case are not in dispute. In January, 1911, the plaintiff, Noel William Freeman, who is a barrister-at-law, intended to come out to Nagpur in the Central Provinces. He was then coming to India for the first time and proposed to travel by America and Japan, arriving at Calcutta from the East about the end of April. He purchased an outfit, packed and locked the box now in question, and left England in January, 1911. Before leaving he requested his mother to send on his things to Calcutta. There were two packages, the case in question containing clothes, a medicine chest, and a revolver, and a crate containing a gun and golf-sticks. The packages were sent by Mrs. Freeman by the defendant company s s.s. "Namur" under a bill of lading dated 3rd February, 1911. She signed a declaration of value in which the contents of the case were valued at ?15 and of the crate at ? 7. The plaintiff had given his mother no directions on this point. The consignee in the bill of lading was N.W. Freeman, Calcutta. The plaintiff did nothing with regard to taking delivery of the cases on arrival, either by notifying the defendant company or by instructing an agent to clear the goods on his behalf. The packages arrived on 10th March, 1911. and were in the ordinary coarse landed by the defendant company and made over to the Port Commissioners. The responsibility of the defendant company thereby ceased under Section 91 of the Calcutta Port Act, 1890. As no one appeared to take delivery, the defendant company on 30th March, 1911, sent a notice of arrival addressed, as was the bill of lading, to "N.W. Freeman Esq., Calcutta". This was delivered by the post office to one Nigel W. Freeman, an employee in the paper mill at Kankinarah. That person requested a Mr. W.H. Powell to take delivery of the packages on his behalf. Mr. Powell accordingly attended at the defendant company s office; produced the notice of arrival; executed in the defendant company s favour an indemnity bond, and thereupon received a delivery order dated 18th April 1911. Armed with this he accompanied Miss Adelaide Freeman, a sister of Nigel W. Freeman, to the Customs House where the packages were lying, as they contained arms. The packages were opened at the Customs House, as of course Mr. Powell had not the keys, and the contents were there appraised at Rs. 491. The duty was paid by Miss Freeman or Mr. Powell and the packages were delivered to them. It is difficult to understand how these persons can have taken delivery without some enquiry, as the box bore the name "Noel Freeman" clearly painted in large white letters. It is still more difficult to understand how Nigel Freeman could have retained the goods, knowing, as he must have known, that they were not his. He did however retain them. He did more. He wore many of the clothes, and used and broke the gun.

(2.) On 4th April, 1911, Mr. Max Freeman, a brother of the plaintiff, wrote to the defendant company in Calcutta stating that the bill of lading had been sent to catch Mr. N.W. Freeman on his way to India from Japan, and asking them to store the baggage until Mr. N.W. Freeman could get the bill of lading and communicate with them as to what he wished to do. This letter must have reached the Calcutta office of the defendant company on 24th April, and was answered on the 25th. Mr. M. Freeman was informed that the delivery order had been granted to Mr. Powell on a letter of guarantee, as he had applied personally for delivery of the packages on instructions from Mr. N.W. Freeman.

(3.) The plaintiff had changed his intention of arriving in Calcutta in April. He turned aside in America, and went as far north as Alaska, from which country he wrote to the defendant company on 26th August 1911, that he had just received the bill of lading and should probably claim the packages in person very shortly. As a fact he first called at the defendant company s office in person with the bill of lading on 13th November, 1911, when he found that the goods had been delivered to the other Mr. N.W. Freeman. Mr. Nigel Freeman was then addressed both by the defendant company and the plaintiff. Eventually in December, 1911, he returned to the plaintiff the gun and revolver, for which no claim is now made, and some of the articles of wearing apparel. For the non-production of the remainder he gave no satisfactory account. No criminal proceedings were instituted against him, and I am told that he has now gone to Australia. Such being the facts of the case, the sole question for my determination at present is whether the defendant company are liable to the plaintiff. The question of the extent of such liability, if any, has been allowed to stand over until the other point has been decided.