ASANA MARIKAR v. LIVERA.

ASANA MARIKAR v. LIVERA.

D. C., Colombo, 13,923.

Shipping and landing agent-Contract with steamer agents to bring cargo ashore and deliver into Government warehouse under control of Collector of Customs-Loss of package after delivery into Government warehouse -Action by owner of package against landing agent for value of package- Responsibility of bailee-Ordinance No. 17 of 1869, s. 83.

    Where A imported a package of goods by a steamship, the owners of which had entered into a general contract with B that he should receive all its cargo into his boats and bring them ashore and deliver them into the Government warehouse provided by Ordinance No. 17 of 1869-

    Held, that A could not maintain an action against B for the value of his package found missing in the Government warehouse, as he was not bailee of it after it had been warehoused there, and the mere fact of his having received payment of the landing charges of the defendant did not imply a contract that he was to do anything more than land and warehouse the package with the Customs authorities.

THE plaintiff in this case imported a package of umbrellas by the steamship Clan Chisholm, and the defendant, who was carrying on business as a shipping and landing agent under the style of the Cargo Boat Despatch Company, landed that package into one of the Government warehouses on the 5th April, 1900. When the plaintiff went to the Customs to pay the dues and clear the package, he found it missing. The plaintiff instituted the present action to recover from the defendant Rs. 550 as the value of the package of umbrellas, alleging that the defendant cleared the said package from the steamship, and 'in consideration therefor received from the plaintiff certain charges, but failed and neglected to deliver the said package to the plaintiff, and thereby the same was wholly lost to the plaintiff.

    The defendant denied his liability on the ground that he did not contract with the plaintiff to clear goods for him, and that by virtue of an agreement with the agents in Colombo for the Clair Line of Steamers it was his duty to receive all their cargo into his boats and bring them ashore and deliver them into the Government warehouse assigned to those ships by the Collector of Customs; that among the goods so cleared and delivered was a case of umbrellas, in respect of which the plaintiff paid to him certain charges, and that if the plaintiff was the consignee of the said case it was his duty to clear it from the Queen's Warehouse; and that after the defendant's delivery of it into that warehouse his liability ceased under the provisions of section 83 of the Ordinance No. 17 of 1869.

    The issues framed were as follows: (1) Was there any contract between the plaintiff and defendant, either express or implied, by which the defendant was bound to land the case in question and deliver it to the plaintiff ? (2) If there was, did the defendant in breach of such contract fail to deliver the case to the plaintiff ? (3) If so, what damage has plaintiff sustained ?

    The Additional District Judge, Mr. Felix Dias, found that though the Crown was the owner of the warehouses in the Customs and the Collector kept their keys when they were locked at night, and a Customs officer was posted at each warehouse to see that no goods left the premises without payment of the Government dues, yet neither the Collector nor any of his officers assumed any responsibility for the custody of the goods unless the owner of the goods proved, under section 83 of the Ordinance No. 17 of 1869, the loss to have been due to the wilful misconduct of a Customs officer. If the defendant was a mere carrier between ship and shore, one would naturally expect him not to have meddled with goods after he had put them in the warehouse and got his boat-note initialled or signed by the proper authority, but his duties went very much further ac

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