Somasunderam V. Silvanayagam

Present : Bertram C.J. and De Sampayo J.

SOMASUNDERAM v. SILVANAYAGAM et al.

310-D. C, Jaffna, 15,326

Charier party-Agreement to hire ship for taking paddy from Akyab to Jaffna. If no license was given, agreement to ship paddy from Akyab to Paumban-Advance given-Action to recover advance when ship was not hired.

Respondents speed to charter to plaintiff a sailing vessel for shipping paddy from Akyab to Jaffna at a specified rote per bag; and plaintiff advanced Rs. 1,700, which sum was to be deducted from the freight. If the Government of India did not grant license to export paddy to Jaffna, it was agreed that paddy should be shipped to Paumban. The export of paddy to Jaffna was prohibited by Government, and plaintiff alleged that he was unable to get permission to export paddy to Paumban. He sued for the recovery of the money advanced. The defendant claimed in reconvention damages for breach of contract.

Held, that plaintiff was not entitled to recover the advance, and that defendant was not entitled to recover anything in respect of the breach.

THE facts of this case are as follows:-

It was agreed between the parties that the respondents should charter to the plaintiff-appellant a sailing vessel called " Meera Mohiedeen Sammadhany Hydroos," in order that the charterer, the appellant, might ship paddy from Akyab to the ports in Jaffna.

It was further agreed by the charter party that of this sum of Rs. 1,700, Rs. 800 should be credited to the first trip and Rs. 900 for the second trip. It was also agreed that 2,800 bags should be transported in the first trip and 2,700 bags in the second trip, and that the freight chargeable was Be. 1 13/17 per bag.

The charter party further stipulated that if providentially the Government did not grant license to load and remove paddy from India to Jaffna, then, that both parties should arrive at a settlement regarding the transport of cargo from Akyab to Paumban.

In January, 1920, during the season when paddy is shipped from Akyab to Ceylon, the system of paddy control by the Government of India came into operation, and Licenses to ship paddy by private sailing vessels were refused.

Plaintiff alleged that certain Chetty firms on behalf of the general trading community of Chetties inquired from the Director of Civil Supplies of Madras, whether paddy could be transported by sailing vessels from Akyab to the South Indian ports, viz., Paumban and other adjoining ports, mi the replies were; received that licenses were not given.

Under these circumstances the plaintiff-appellant was unable to ship paddy from Akyab, and, therefore, claimed from the defendants respondents the sum of Rs. 1,700 which had been advanced to them, and on the respondents refusing to return the said sum of money, the appellant sued them for the recovery of the sum. The defendants-respondents pleaded by their answer that they were not liable to refund the said sum of money, and claimed in reconvention a sum of Rs. 1,275, which they said was the difference between the freight which the respondents expected to earn from the appellant and the freight which they earned from the Indian Government by transporting paddy from them about that period.

The case proceeded to trail on the following issues: -

(1) Of the advance of Rs. 1,700, was Rs. 800 to be appropriated to the first trip and Rs. 000 for the second trip?

(2) Was the charter party to take effect at Akyab, if not, where?

(3) Were plaintiffs unable for causes beyond their control to ship paddy as agreed?

(4) When the charter party was entered, was it in the contemplation. of parties that licenses to ship might be refused?

(5) Was license available to ship paddy to South Indian ports?

(6) Even if license was available, does the charter party have a final agreement regarding transporting paddy to South Indian ports, or has it a final agreement regarding Jaffna ports only?

(7) Are the d

Click Here to Read the rest of this document