ABDUL CADER v. ASIATIC STEAM NAVIGATION CO.

ABDUL CADER v. ASIATIC STEAM NAVIGATION CO.

C. R., Colombo, 10,847.

Shipping-Bill of lading-Contract contained in-Action for non-delivery of goods-Over carriage and transhipment-Loss of goods from decay- Liability of shipowner.

Perishable goods shipped by a steamer at Bombay to be conveyed to Colombo were over carried to Galle, brought back by another steamer and tendered to plaintiff, when the goods were found to have decayed. The bill of lading contained a clause as follows: " In case the whole or part " of the goods cannot from any cause be found for delivery or be delivered " during the vessel's ordinary stay at the port of destination, the company " is only bound to forward the goods to that port from any subsequent port of any other steamer to be at the risk of the owner of the goods."

In an action brought for the non-delivery of the goods, held, that the shipowner could not claim the benefit of the clause without proof on their part that the goods could not be found for delivery or be delivered.

THIS was an action for the recovery of Rs. 300, being the value of 146 bags of onions lost to the plaintiff by the conduct of the defendant company, who were the owners of the ship in which the goods were shipped.

The Commissioner found as follows: -

" The plaintiff had 200 bags of onions, among other things, shipped at Bombay on board the steamship Nawab, of which defendants are owners, to be conveyed to Colombo. The ship arrived in Colombo harbour on the 30th March, 1899, but only 54 bags were delivered to plaintiff. The remaining 146 were over-carried to Galle, landed there, and brought back by another steamer. They were tendered to plaintiff about the 10th April, that is, some eleven days after the arrival of the Nawab in the Colombo harbour. Plaintiff swears that the onions were then damaged, meaning apparently that they had decayed; this is not contradicted by the other side.

" Plaintiff's cause of action is not that the onions were damaged by any negligent act on the part of defendants, but that the 146 bags were not delivered to him."

And the Commissioner held that no delivery took place within a reasonable time after the steamship Nawab arrived in Colombo. and on the law of the case he held that, whether the onions were not tendered to plaintiff in proper time or tendered in a decayed condition, the plaintiff was entitled to succeed. Judgment was entered for plaintiff for Rs. 300,

Defendant company appealed.

Maartensz, for appellant;-The appellants have discharged the onus on them, when it was proved that the defendants had tendered the bags of onions to the plaintiff. The bill of lading protected the appellants from all liability, and even in the case of their failure to deliver goods on the arrival of the steamer in Colombo, for the bill runs as follows: -

" The company is not liable for any loss, damage, or detention caused directly or indirectly by any of the following causes  (the causes are enumerated), whether any of the perils, causes, or things above-mentioned, or the loss, injury, or detention there from, be occasioned by the wrongful act, default, negligence, or error in judgment of the owners, pilot, master," &c,

" In case the whole or part of the goods cannot from any cause " be found for delivery, or be delivered, during the vessel's " ordinary stay at the port of destination, the company is only " bound to forward the goods to that port from any subsequent port of any other steamer to be at the risk of the owners of the goods."

De Saram, for respondent.-The tender was made after the steamer had left the port of Colombo. The onions had been subsequently sent back to Colombo and the tender was then made, which was no tender under the bill of lading. Besides, if the defendants desired to protect themselves under the bill of lading, it was for them to show that some cause had arisen which would entitle them to such protection.

Click Here to Read the rest of this document