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 ap