Capper & Sons V. The Cargo Boat Despatch Co.

Feb.24,1911   Present: Van Langenberg A.J.

CAPPER & SONS v. THE CARGO BOAT DESPATCH CO.

478-C. R. Colombo, 20,144.

Common carrier-Cargo consigned to plaintiffs landed by defendant-No contract between defendant and plaintiffs-Defendant liable to plaintiffs for damage done to cargo-Shipping.

Cargo consigned to the plaintiffs per ss. " Pagenturu " was landed by the defendant Company, who were common carriers.

Held, that the defendant Company was liable to the plaintiffs for damage caused to the cargo, though there was no contract between plaintiffs and the defendant Company.

THE facts are set out in the following judgment of the Com- missioner of Requests (M. S. Pinto, Esq.): -

Five bales of paper consigned to the plaintiffs were landed by the defendant from ss. " Pagenturu " of the Hansa line of steamers. One of the packages reached the warehouse in a damaged condition. The boards were off. The paper was quite unfit for printing purposes, for which it was indented. It was bent, put up, and split; some of the reams were loose and mixed up.

The plaintiffs claim as damages the value of the paper. The defendant denies his liability, on the grounds that he was under no obligation to the plaintiffs with regard to the paper under a contract or otherwise, and that on the receipt he gave to the ship he made the remark that one band of this bale was loose.

Assana Marikar v. Livera1 was relied on by the defendant. But that case is clearly distinguishable from this. There was proof of a special contract between the carrier and the shipping agents; there was no proof that the earner was a common carrier; the claim was in respect of a package which was lost after it reached the warehouse, and when it was no longer in the custody of carrier.

As remarked by Layard C.J. in the course of the argument in the case cited, the carrier is certainly responsible between the ship and the shore. The question is, to whom ? Surely not to the shipping agents, who have by clause 8 of the bill of lading divested themselves of all responsibility in respect of the goods after they have left the ship. No express contract with the shipping agents whereby the defendant bound himself to them for the safe delivery of the goods has been proved. It was hinted that there was a written agreement, but that agreement has not been produced; nor has it been proved otherwise that there is any binding agreement with the agents. I am of the opinion that there is no valid agreement with the agents, whereby the earner could be made responsible to them for the goods. There is no proof that any freight was due to the agents on this bale, or that the agents were in any way interested in its reaching the shore in good condition.

1 (1903) 7 N. L. R 158.

The defendant looked for payment to the Wharfage Company, who it has been proved, acted as the agents of the plaintiffs. He exercises, with the permission of the Collector of Customs, a lien over the goods conveyed by him on account of the charges payable to him. In view of these circumstances, and in the absence of contract, express or implied, with the shipping agents, I think that a contract with the plaintiffs can be implied. Even if a contract cannot be implied, the defendant, who, it has been proved, is a common carrier, is liable apart from contract (Beven on Negligence, vol. II., p. 875).

Moreover, as there is no proof that the shipping agents were in any way interested in this bale of paper after the defendant took charge of it, the defendant may be regarded as a carrier to whom the vendor's agent delivered the paper to be forwarded to the vendee. From this point of view the plaintiffs are the right persons to sue the defendant for the damage done to the paper (Chitty on Contracts, 15th ed., p. 461).

The defendant being a common carrier is an insurer of the goods he conveys, and is bound to deliver them in the same condition in which he recei

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