ESUF ALI MAHAMMEDBHOY ALLIBHOY Vs. AKTHAHA UMMAL

JUDGEMENT

(1.) This is a suit for damages to plaintiffs goods, consigned on defendants Schooner, Sahul Hameed. The Schooner left Colombo on 25 August 1917 and arrived at Tuticorin on 28th August, with 250 cases of Safety Matches, entrusted by plaintiff to the mastef. On a certificate of survey (Ex. C), by the Secretary of the Local Chamber of Commerce the goods were sold by auction, on 30 October 1917 (Ex. C) and realized Rs. 3142 (Ex. D). The market value is alleged to be Rs. 31,750. The suit is for the difference.

(2.) Ex II is the bill of lading issued by the defendants agent. It contains the usual exemption clause: The act of God, King's enemies, Fire and all and every other dangers accidents of the Seas, Rivers and navigation of whatever nature or kind whatsoever excepted.

(3.) Though there has been considerable argument, on the question of burden of proof and several cases have been cited before us, the matter seems to be clearly settled, in. the present state of authorities. It is for the defendant to plead and prove perils of the sea. If he makes out a prima facie case, the plaintiff can rebut it, by proving defendants negligence (see the judgment of the Court of Appeal in The Glendanoch [1894] P. 226; Esher M.R., explains certain expression of Lord Herschell, in The Kantho 12 A.C. 508. See also The Norway 3 Moore P.C. (n.s.) 245, Scrutton on Charter Parties (10 Edition) Art. 79, Note 1 and Art. 83, Note at page 298, and Carver on Carriage by Sea, Section 87). We have therefore to see what the facts alleged and proved are. The defendants claim that the damage to the goods was on account of a peril of sea, i.e., that there was a strong wind on the night of the 29 and the Ship was driven away, from the place where she anchored at first towards the south. The wind then changed its direction, with the result, that the Schooner swung round and set on her anchor, causing a hole on her portside. The vessel stranded and at 6 a.m., there was 5 feet of water in the hold. The cases of safety matches were damaged by the sea water. The plaintiff denies any change in the position of the ship and alleges negligence on the part of the master in anchoring in shallow water.