M GOVINDA PILLAI Vs. BEST AND COMPANY LTD

JUDGEMENT

(1.) THIS is an appeal from a judgment of Kumaraswami Sastri, J., dismissing the plaintiff s suit for breach of contract. The contract was embodied in what is known in modern business as a Cargo Engagement Form, under which the defendants bound themselves to ship the plaintiff s cargo at Cuddalore during the months of July-August, by Sections City of Madras or other steamers. It is well settled, as observed by the late Mr. Cawn in his work on Carriage by Sea, Section 51, that engagements to ship goods and to keep space for goods must be punctually performed, and it is quite clear that the defendants could perform their contract by shipping the goods at Cnddalore at any time during the months of July and August, and that the plaintiff was bound to have his cargo ready to ship when the ships called. The City of Madras after loading manganese at Vizagapatam and Co- canada arrived in Madras harbour on August 7th, 1914, en route for Cuddalore, which is only eight hours distant for an ordinary cargo steamer from Madras. War had been declared on the 4th August, and had made it very difficult for shippers to arrange shipments. On the 12th defendant s branch at Pondicherry reported in Exhibit V that neither the plaintiff nor their other shippers were yet in a position to say whether or not they would be able to tender any cargo for shipment, as they had not yet been able to insure against war risks. Even if that difficulty were surmounted the shippers would have to ascertain whether their buyers in Marseilles were still carrying on business. The plaintiff s ground-nuts had been pledged to the Banque de la Indo Chine at Pondicherry and were stored in defendants godowns at Cuddalore on behalf of the Bank. It is perfectly clear on the evidence that the Bank would not part with the goods, oh which it had made advances, for shipment or allow shippers to draw on their Marseilles buyers against shipments in the usual way unless the war risk was covered. Exhibit VI, a letter of the following day, shows that the shippers had cabled in vain to their Marseilles buyers and were not yet in a position to ship. As regards the plaintiff, we have the evidence of Mr. Thomson that he saw the plaintiff on the 12th with reference to his ability to furnish cargo. He told him the ship was ready in Madras and asked whether his goods were ready and he could ship. The plaintiff said he was not then in a position to ship. "He said he mast first consult the representatives of his buyers and would let me know. I put it to him several times whether he would let me know and he said he would. As a matter of fact he did not let me know." Mr. Thomson also deposed that he saw Mr. Gannay, the Manager of the Bank, who told him that he could not release the goods unless the shippers had communicated with their buyers to find out whether the buyers were there and whether insurance of the war risk had been effected. THIS evidence is confirmed by the letters written at the time, Exhibits V, VI, and we see no reason for not accepting it. Mr. Thomson s evidence shows what is abundantly clear from the rest of the evidence, including the evidence of the plaintiff s own witnesses, that neither the plaintiff nor the other shippers were in a position to ship any cargo at Cuddalore or Pondicherry during the month of August. The plaintiff, as already said, was under a duty to have his cargo ready when called for on the 12th August, and if he had been ready, there can be no doubt the defendants would have sent the ship on to Cuddalore and completed their part of the contract. As appears from the rest of the evidence, they kept the City of Madras in Madras harbour for several days waiting for the plaintiff and the other shippers, and it was not until the 21st that the owners decided to send the ship to Calcutta for other cargo.

(2.) MR. Devadoss s main point is that the plaintiff never came under any obligation to ship as the City of Madras never put into Cuddalore, but the effect of the evidence is that this was dispensed with by the plaintiff as pleaded in paragraph 10 of the written statement. There was no use in sending the City of Madras from Madras to Cuddalore unless there was cargo to load there, and it is clear upon the evidence that the plaintiff did not want her to come there unless he had cargo to ship, and after informing MR. Thomson on the 12th that he was not then in a position to ship any cargo, he promised to let him know after consulting his buyers if he was in a position to ship. This clearly meant that he would let the defendants know if he wanted the ship to come to Cuddalore from Madras. He did not do so, and after the ship had been at his disposition at any rate from the 12th, the owners on the 21st decided to send her elsewhere. In our opinion they had abundantly performed the contract and did far more than was required of them in keeping the ship at the disposition of the shippers at great expense for so many days, and the plaintiff and other shippers have no ground of complaint because the owners eventually decided that they had done enough and would send the ship elsewhere. MR. Devadoss referred us to Avery v. Bowden 5 El. & Bl. 714 : 119 E.R. 647 : 25 L.J.Q.B. 49 : 1 Jar. (N.S.) 1167 : 4 W.R. 93 : 27 L.T. (o.s.) 119 : 103 R.R. 695, a decision of the Court of Queen s Bench, which was affirmed by the Court of Exchequer Chamber. That was an action by the charterers against the shipowner for failure to load a cargo at Odessa on the eve of the Crimean war. Under the charter the ship was bound to remain for forty-five days at Odessa to allow of loading, and as the charterers agent was not in a position to load any cargo the ship left before the completion of the laying days. It was admitted that if the charterers agent had dispensed with the ship s remaining for the whole of the laying days no action would have lain, but it was held by the Exchequer Chamber affirming the judgment of the Court of Queen s Bench that there was no evidence to support the finding of the Jury that there had been a dispensation in that case. There is in this case sufficient evidence that the plaintiff did not insist and dispensed with the ship s coming from Madras to Cuddalore, and it is clear in other respects the defendants performed the contract and the plaintiff broke it. The judgment of the learned Judge was clearly right and the appeal is dismissed with costs.