K V S SHEIK MAHAMAD RAVUTHER Vs. BISNCO

JUDGEMENT

(1.) This is an appeal under Art. 15 of the Letters Patent, the learned Judges before whom the case came on second appeal having differed in opinion. The plaintiffs claim damages for the loss of 246 bags of rice out of a consignment of 4,000 bags carried by the defendants under a bill of lading from Rangoon to Tuticorin. These 246 bags with others were destroyed by the Municipal authorities after they had been landed, on account of their damaged condition. The plaintiffs alleged the damage was occasioned by the negligence of the defendants or their agents.

(2.) The two main questions for consideration are: (1) On the facts were the defendants negligent? (2) If they were, are they protected by the terms of the bill of lading? The Court of first instance and the lower appellate Court held that there had been no negligence on the part of the defendants. The two learned Judges of this Court who heard the case on second appeal were both of opinion that the defendants had been negligent, but they differed on the question whether they were protected by the terms of their bill of lading against liability for negligence.

(3.) The damage to the goods was caused by rain. The bags were landed in boats, and the District Judge finds there was no 3e evidence that the cargo was put out of the ship during the rain, but that it began to rain while the boats were between the ship and the shore. The District Judge finds, and we must accept the finding as binding on us, as a finding of fact, that the wetting received by the bags of rice between the ship and the shore would have caused no damage if the consignees had taken delivery at once. He also finds that " the damage (by rain) was caused on the foreshore, and the fact that the bags had to stay there a longtime was entirely due to the negligence of the consignees, for defendants did all they could to clear the cargo quickly." I think we are bound by the finding that the defendants did all they could to clear the cargo quickly, and I deal with this question of negligence on the footing that the delay in the clearance of the goods after they had been placed on the foreshore was due to circumstances beyond the control of the defendants. The finding of the District Judge that the fact that the goods had to stay a long time on the foreshore was entirely due to the negligence of the consignees, is a finding that the delay was caused by the negligence of consignees generally, and it seems clear from the earliest finding of the Judge, " it is impossible to say the plaintiffs were negligent," that this was not intended by the District Judge to be a finding of negligence on the part of the plaintiffs. In the second place the Judge appears to arrive at this finding as a necessary inference from the fact that the defendants did all they could to clear the cargo quickly. This seems to me to be a non sequitur. It does not follow that because the defendants did all they could to clear the cargo quickly, the delay in clearance was caused by the negligence of the consignees generally. Still less does it follow it was caused by the negligence of the plaintiffs. Both carriers and consignees may have done all they could in the circumstances to clear the cargo quickly. It is not suggested that the placing of the goods on the foreshore constituted delivery to the plaintiffs or that apart from the special terms of the bill of lading the defendants liability came to an end when they deposited the goods on the foreshore. The question, therefore, is, having regard to the local conditions in connection with the landing of goods at Tuticorin and the custody of goods by carriers during the interval between the placing of the goods on the foreshore, and the delivery to the consignees, and the season of the year (it is not denied that, at this time of the year the " monsoon " may set in any day), the defendants were guilty of negligence in not taking precautions to protect the goods from being damaged by rain notwithstanding the fact (as found) that they did all they could to clear them quickly.