Lord Salmon J: (delivering the judgment of the Board)

A consignment of 93 cases of pharmaceutical goods was shipped, under two bills of lading dated 28 March 1970, on board the vessel "Sansei Maru" for carriage from Hong Kong to Port Kelang (Port Swettenham) in Malaysia. The bills of lading nominated the plaintiffs (respondents in this appeal) as consignees. The "Sansei Maru" arrived at Port Swettenham on 5 April 1970. The learned trial Judge found as a fact

(1) that on that day, all the 93 cases were unloaded on to the wharf and passed into the custody of the Port Authority (the defendants) who transferred them into Shed No. 8, and

(2) that on 8 April the Chief Forwarding Clerk of the plaintiffs' forwarding agents and a Customs' Officer inspected and accounted all of the 93 cases in Shed No. 8, and

(3) that the inward cargo charges and Customs duty were paid in respect of each of the 93 cases on the following day.

By 15 April 1970 only 29 of 93 cases could be found. The balance of 64 cases weighing about 5.65 tons had disappeared. The defendants at first contended that the 64 cases had been short-landed and therefore had never been in their custody. Their Counsel, however, abandoned this contention at the trial after having heard the evidence adduced on behalf of the plaintiffs.

No 8 Shed was about 400 ft long and 100 ft wide. It had eight doors in front and eight doors behind. It was in the charge of a Chief Clerk who had a number of other clerks to assist him in looking after the contents of the shed. They worked in three shifts around the clock. None of them was called as a witness at the trial. The doors in front of the shed faced the ship, and cargo was taken by the defendants' servants from the ship's side and transported by forklift and pallets to the shed - a distance of about 40 ft. It was admitted on behalf of the defendants that they had no system for counting any of the cases brought into the shed. At no time did the defendants have any idea of how many cases the shed should have contained. Cargo was usually kept in the shed for up to three days and then if not delivered to the consignee within that period transferred into the warehouse. Whilst the goods were kept in the shed, no extra fees were charged for this was all part of the service offered by the defendants and covered by the inward cargo charges. If and when the cargo was transferred to the warehouse, then extra dues were charged as long as the cargo remained there.

The learned trial Judge found that the onus lay upon the defendants to prove that the goods had not been lost because of their negligence or misconduct or that of their servants: and that they had failed to discharge that onus. Accordingly he gave judgment for the plaintiffs for $21,236.84 being the undisputed value of the missing 64 cases.

The defendants' appeal from that judgment to the Federal Court of Malaysia was dismissed, and they now appeal to this Board from the decision of the Federal Court.

105. The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or d