Wylie (Borneo) CJ (delivering oral judgment):

This is an appeal against the decision of the Honourable Mr. Justice Simpson given at Sandakan on 17 September 1964. The original claim was for damages for breach of contract or alternatively damages for negligence. Judgment was given against the first defendant solely on the claim for breach of contract and the claim against the second defendant, which was based on negligence, was dismissed.

The claim arises from a contract to tow 303 logs from Kampong Abai on the Kinabatangan river to Sandakan. The respondent had purchased the logs at a nearby kampong and had contracted with the appellant to tow these logs by sea to Sandakan. When the launch and logs arrived at Sandakan there were only 50 logs. The other 253 logs were never found despite a two-day search. The claim is for the value of these 253 logs for breach of this contract to deliver the logs to Sandakan. Judgment was based on non-delivery. From that judgment the appellant has appealed on several grounds.

The only defence to the whole claim put forward in the Court below was that these logs were lost in a storm so violent as to amount to "an act of God", and thus the appellant asked to be excused from all liability for damages. It must be conceded that that would have been an adequate defence to this claim. I refer to Halsbury, 3rd Edn., Vol. 8, p. 183 for a concise definition of what constitute "an act of God":

An act of God, in the legal sense of the term, may be defined as an extraordinary occurrence or, circumstance which could not have been foreseen and which could not have been guarded against; or, more accurately, as an accident due to natural causes, directly and exclusively without human

intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it.....

A feature of both those definitions is that the event must be one which could not have been foreseen and which could not have been guarded against. It is obvious that in a towage contract of this nature a storm must be expected and would have to be guarded against, especially in the open sea. The appellant would therefore be bound as part of his contract to take all precautions necessary against storms that might reasonably be foreseen. For a storm at sea to be regarded as an act of God it would have to be a storm that could not have been reasonably foreseen in the circumstance. The evidence as to the storm is really confined to the evidence of the people on the launch. Despite that evidence, as was pointed out by Counsel for the respondent, the launch came through safely with 50 logs. There was no evidence that the launch was shipping water. In fact there was evidence to the contrary. There was no evidence about having to pump out water or about any other consequences to be expected if the storm was as violent as was alleged. There is the further aspect of engine speed. Obviously the Judge was not impressed by the evidence concerning change of speed and there was apparently no need to reduce speed to any extent.

For these reasons I cannot see any justification for interfering with the finding of the trial Judge based on all the evidence given in this case. His finding was that while there was a storm, it was not a storm violent enough to be regarded as an act of God. The defence therefore failed. The contract involved delivery of 303 logs to Sandakan, 253 logs were not delivered and therefore the appeal against liability for this loss must also fail.

As to the question of amount of damages, the first point raised involves the question of usage. The other point raised is what measure should be applied in the absence of any usage. As to usage, the evidence was not strong. It was certainly not consistent. One firm paid $10 under special circumstances. Other people did not know of any usage at all,