THE CEYLON STEAMSHIP Co. v. DE JOHN & SONS.

THE CEYLON STEAMSHIP Co. v. DE JOHN & SONS.

D. C, Colombo, 21,612.

Shipping dangerous goods-Damage-Absence of declaration-Rule for assessing damages-General average-Expenses of adjustment.

Where a person ships on board goods of a dangerous character, without making any declaration as to such goods, he commits a breach of the Common Law; and he is liable in all damages which are the natural consequences of bis wrong-doing, whether of a general average character or not; he is also liable both for contribution allocated to the ship and for the expenses incidental to its adjustment.

APPEAL by the defendants.

The facts are fully set out in the judgment of Wood Renton, J.

Domhorst, K.C. (Sampayo, K.C., with him), for defendants, appellants.

H. J. C. Pereira, for plaintiffs, respondents.

Cur. adv. vult.

19th January, 1906. WOOD RENTON, J.-

In this case the material facts are not in dispute, and the only question that we have to decide is a question of damages. The appellants, who carry on business as chemists in Pettah in Colombo under the style of Messrs. Philip T. de John & Sons, shipped on board the respondent company's steamer " Lady Gordon, " for transmission to Jaffna, a case containing two jars of nitric acid. No declaration was made by the appellants as to the contents of the case. The " Lady Gordon " had a quantity of other cargo on board. Some of the nitric acid escaped from the appellants' jars, and while the steamship was still lying in Colombo harbour a fire broke out in the hold. Water was pumped into the hold in order to extinguish the fire and save the cargo and the ship, and damage was done to the cargo in the process. The appellants admit that the fire was due to the escape of the nitric acid. They admit also, what is abundantly clear on the authorities (see Williams v. East India Company (1802) 3 East, 192 and Brass v. Maitland (1856) 6 E. & B. 470), that in failing to notify to the respondent company the dangerous character of the goods which they sent on board the " Lady Gordon " for conveyance to Jaffna they committed a breach of a duty incumbent upon them at Common Law. They concede further what I think is incontestable-that they are responsible to the company for all the damage naturally flowing from their wrongful act.

The question that we have have now to determine is, what is the proper measure of damages to be applied? Two alternative answers to this. question have been put before for acceptance. On the one hand, the respondent company maintain-and the learned District Judge has given effect to the contention-that the default of the appellants necessitated an adjustment of general average, and that the appellants are liable to them for the contribution allocated thereby to the ship and for all expenses incidental to such adjustment, as well as for any additional expenditure, whether of a general average character or not, which they were compelled under the circumstances to incur. The Steamship Company have, in fact, acted throughout on this view of the law. As soon as the damage was done, marine surveyors were called in to advise. The cargo was dealt with in accordance with their recommendations. The general average contribution was adjusted. Of the various heads of the total expenditure I shall speak presently. In the meanwhile I am considering only the question of principle involved. On the other hand, the appellants contend that in a case where a sacrifice or expenditure, which might otherwise be a general average act, has been rendered necessary by the misfeasance or non-feasance of an ascertained wrong-doer, and particularly of a wrong-doer who admits his liability-there is no need, and consequently no justification, for an apportionment of general average contribution, and that they are responsible for the actual damage resulting from their default and for that alone.

In my opinion the decis

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