Brown J:

The facts and arguments sufficiently appear from the judgment.

The plaintiffs' claim is for damages for breach of contract of bailment.They say that they were the consignees of a cargo of 3960 loose rubber tyres which arrived in Singapore on the SS "Samokla" on 4 July 1946 from Bombay.They allege that the defendants received the full number of tyres into their godown No. 1, but delivered to the plaintiffs 17 tyres short.The defendants deny that they received the 17 missing tyres; and they say, alternatively, that if they did receive them they were lost as a result of theft from the godown despite reasonable precautions being taken against theft.

The defendants' Deputy Traffic Manager in his evidence gave three reasons for saying that the defendants did not receive the 17 missing tyres.His first reason was that they are not shewn in the defendants' records as having been received.His second reason was that thefts of cargo from ships before discharge were not unknown at that time.His third reason was that he knew of cases where cargo was stolen after landing on the wharf and before reaching the godown.With regard to his third reason, the defendants' pleading does not suggest that if the tyres were stolen they were stolen from any place other than the godown.And, according to the evidence, no witness saw any pilfering or looting of the cargo while it was being taken from the wharf to the godown.Seah Quee Bak was the tally clerk employed by the shipping agents.Standing on the wharf and tallying the cargo as it came from the sling, he was only 60 feet away from the godown or about the length of this Court.And the plaintiffs' representative, Mr. Dack, was present all the time.With regard to the suggestion that the tyres were stolen on the ship, the tally sheets (Ex C) entered by Seah Quee Bak shew that there was no short-landing from the ship.And as for the point that the defendants' records do not shew that the 17 missing tyres were received, I do not think that much reliance can be placed on this because their tally sheets shew only 3923 tyres as having been received, although 3943 were in fact delivered to the plaintiffs.The fact is that the defendants' tally clerks were working under conditions of considerable difficulty at that time.Not all the godowns were in use, some having been damaged by enemy bombing.Those that were in use were congested.Labour was undisciplined, and it was not uncommon for the labourers to enter the godown through the wrong door and dump cargo in the wrong place, despite all the instructions, entreaties and efforts of the defendants' tally clerks.Compared with the difficulties under which the defendants' tally clerks were working at the door of the godown, the task of Seah Quee Bak on the wharf was simple.All he had to do was to count the tyres as they were taken from the sling and put on the hand-trucks, identifying the plaintiffs' mark in the case of each tyre.And when he says that his tally sheets (Ex C) are correct, I believe him, especially as Mr. Dack, the plaintiffs' representative, was also present. I find as a fact that the 17 tyres, which are the subject of this claim, were received by the defendants in their godown.But before leaving this part of the case a fact must be mentioned which will be of importance when I return to the evidence later in order to consider the question of negligence.In the cargo which was being discharged from the "Samokla", there was a large consignment of tyres for the military which was being discharged at the same time as the plaintiffs' consignment, and from the same hatch.

The first question of law which must be considered is whether there was a contract between the plaintiffs and the defendants.On behalf of the defendants a point was taken that owing to the form of endorsement on the back of the Bill of Lading (Ex B) the plaintiffs had not proved that they were the consignees of the cargo.But I do not think it was disputed that the evidence shews