National Bank Of India, Ltd. V. Essack

1950  Present  : Jayetileke C. J. and Gunasekara J.

NATIONAL BANK OF INDIA, LTD., Appellants, and ESSACK, Respondent

S. C. 29-D. C. Colombo, 18,398

Contract-Bill of lading-Negligence in taking up a bill of lading contrary to instructions-Damages-Evidentiary value of statements contained in a bill of lading - Civil Law Ordinance (Cap. 66)-Bills of Lading Act, 1855-Carriage of Goods by Sea Ordinance (Cap. 71), Schedule, Article III, Rule 4.

Plaintiff sued the defendants for recovery of damages for negligence in taking up a bill of lading which did not comply with his instructions to them. His complaint was that though he instructed the defendants to honour from one M in Iraq drafts covering a shipment of 52 tons of dates, the defendants' agent in Iraq paid upon a bill of lading covering a shipment of 47 tons only. He claimed from the defendants the value of the unshipped quantity of dates as damages for negligence.

In regard to the actual weight of the consignment of dates received by him, plaintiff relied solely on the statement in the bill of lading that only 47 tons were shipped.

Held, that there was negligence on the part of the agent of the defendants in honouring M's draft when the bill of lading accompanying it did not show that 52 tons of dates had been shipped.

Held further, that the action was not one by or against the signer of the bill of lading or the owner of the ship, and the statement in the bill that 47 tons were shipped could not be regarded as evidence against the defendants. In the circumstances, the plaintiff was entitled only to nominal damages.

APPEAL from a judgment of the District Court, Colombo. H. W. Jayewardene, for the defendant-appellants.

J. R. V. Ferdinands, with G. F. Sethukavaler, for the plaintiff respondent.

Cur. adv. vult.

August 4, 1950. JAYETILEKE C. J.-

The plaintiff sued the defendants in this action for the recovery of a sum of Rs. 1,525 as damages for negligence in taking up a bill of lading which did not comply with his instructions to them.

The plaintiff entered into a contract for the purchase of 52 tons of dates from one Mehta of Basrah. The contract was not proved at the trial but the letter of credit shows that it was a cost, insurance and freight contract. After entering into the contract the plaintiff by his letter P3 dated January 15, 1947, requested the defendants to negotiate drafts drawn on him by Mehta to the extent of Rs. 15,860 provided Mehta surrendered to them shipping documents consisting of an on board bill of lading, an invoice, and a policy of insurance representing a shipment of about 1,000 bundles of dates weighing 52 tons c.i.f. Colombo to be shipped per ss. Minot Victory, and promised to honour such drafts at maturity. The defendants agreed to do so and made the following endorsement on P3-

"This credit is confirmed by the National Bank of India, Ltd.

E. MACONOCHIE,
Manager".

Thereafter the defendants arranged with the Ottoman Bank of Basrah to honour Mehta's drafts. The Ottoman Bank honoured Mehta's draft P 5 and paid him Rs. 15,860 as against the invoice P 6, the bill of lading P 7 and a policy of insurance which was not produced at the trial. P 7 states as follows: -
 

 

Quantity or number of pieces or packages ... Description of goods. Baskets dates.
(bundles) kilos	... 47,000
Nine hundred and forty baskets only. Freight kilos 47,000 at 1 D.4.125 per 1,000 kilos. Pounds .	.. ... ... 193.875".

According to the evidence 47,000 kilos are equal to 47 tons. P 6 states as follows: -
 

"No. of packages
Particulars.	Dates each bundle to weigh about 124 kilos. Total 1,040 cwt, at Rs. 15.4.0, c.i.f. Rs. 15,860 ".

It must be noted that the invoice does not agree with the bill of lading and that there is a difference of five tons in the weights given in them. The goods are described in the plaintiff's inst

Click Here to Read the rest of this document