The defendant must plead and prove 'perils of the sea,' and if a prima facie case is made out, the plaintiff can rebut it by proving defendant's negligence.

Ramesam, J.

1. This. is a suit for damages to plaintiffs goods consigned on defendants schooner Sahul Hameed. The schooner left Colombo on 25th August 1917 and arrived at Tuticorin on 28th August with 250 cases of safety matches entrusted by plaintiff to the master. The goods were landed on the 30th in a damaged condition. On a certificate of survey (Exhibit C) by Secretary of the Local Chamber of Commerce, the goods were sold by auction on 30th October 1917 (Exhibit G) and realized Rs. 3,142 (Exhibit D). The market value is alleged to be Rs. 31,750. The suit is for the difference.

2. Exhibit II is the bill of lading issued by the defendants agent. It contains the usual exemption clause:

The act of God, Kings enemies, fire and all and every other dangers, accidents of the seas, rivers and navigation of whatever nature or kind so ever 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 Court of Appeal in The Glendarroch [1894] Prob., 226. Esher, M.R., at page 232, explains certain expressions of Lord Herschell in Wilson Sons & Co. v. Owners of cargo per the Xantho (1887) 12 App. Cas. 503. See also Norway (Owners of the) v. Ashburner (1865) 3 Moore N.S. 245 16 E.R. 92. Scrutton on Charter Parties (10th Edition), Article 79, note 1 and Article 83, note at page 298, Carver on Carriage by Sea, Section 87.)

4. 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 the sea, i.e., that there was a strong wind on the night of the 29th 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 sat 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.

5. Before discussing the evidence on these allegations, I may observe that the Subordinate Judge found on the second issue that the liability of the defendants as carriers continued till the 30th and on the ninth issue he found against their allegation that the Master was ready and anxious to deliver the goods on the 29th. It is on this footing that the appeal has been argued before us.

6. I will now discuss the evidence as to what happened on the 28th and 29th.

7. First.--The weather on the 29th. P.W. 1 says that no signal of high and violent wind was given on that day. But this evidence is useless as it is proved by D.W. 1, the Port Officer, that no observation was taken during night. The extract from the log book (Exhibit K) also shows that no entries were made for the night. D.W. 1 says that he recollects that the weather on the 29th was unsettled. We see no reason to reject this evidence. D.W. 8, the owner of another schooner M.S. Hydrose which was also anchored in the harbour that night--(See Exhibit IX. This is also admitted by P.W. 2)--says that there was high wind. D.W. 4 who was tandal of that schooner says there were violent winds from 2 a.m. up to 3 or 3-30 a.m. But D.W. 5 says that there was not strong wind but only average wind. On the whole, it seems to me that there was some rough weather in the night though it is possible D.W. 4 was exaggerating. It might not have amounted to a storm a cyclone.

8. The next question is where did the schooner first anchor and did it move to another place further south on account of the wind. The coast here runs from north to south. A little to th