Alibhoy V. Ceylon Wharfage Co., Ltd.

1954 Present: Gratiaen J. and Fernando A. J.

H. ALIBHOY, Appellant, and CEYLON WHARFAGE Co., LTD.,
Respondent

S.C. 51-D. C. Colombo, 22,279

Carrier by trade-Action for failure to deliver goods-Quantum of proof necessary--Vis major-" Boat note "-Customs Ordinance, s. 40.

Plaintiff sued defendant, a Company carrying on the business of landing and shipping of goods in the Port of Colombo, for their failure to deliver to the plaintiff a consignment of 436 bags of beans-each bag bearing the identifying mark " I.O.T.C. "-alleged to have been consigned to the plaintiff on the s. s. " June Crest " which arrived at the Port of Colombo.

Held, that before the plaintiff could claim damages from the defendant for loss or non-delivery of goods, he had to prove that 436 bags bearing the identifying mark "I.O.T.C." were actually delivered out to the defendant at the ship's-side.

Held further, that in the absence of proof of negligence, the defendant, as carrier, was not liable to deliver the goods in good condition. In order to establish that the goods had deteriorated through negligence on the part of the defendant, the plaintiff should have tendered evidence of the sound condition, of the goods at the time of the consignment and of the improbability of deterioration during transit.

A carrier's obligations towards a consignee discussed.

APPEAL from a judgment of the District Court, Colombo.

V. A. Kandiah, with G. F. Sethukavalar, for the plaintiff appellant.

S. J. V. Chelvanayakam, Q.C., with P. Navaratnarajah, and V. Ratnasabapathy, for the defendant respondent.

Cur. adv. vult.

June 30, 1954. FERNANDO A.J.-

The plaintiff in this action sued the defendant-a. Company carrying on the business of the landing and shipping of goods in the Port of Colombo-for their failure to deliver to the plaintiff a consignment of 436 bags of beans alleged to have been consigned to the plaintiff on the S.S. " June Crest " which arrived at the Port of Colombo on January 13, 1947.

I shall assume (the learned District Judge has also done so) that the obligation owed by the defendant Company to the plaintiff is the same as that which was held in Bagsoobhoy v. Ceylon Wharfage Co., Ltd [1 {1948) 49 N. L. R. 145.] to be owed by the same Company to a consignee of goods. Basnayake J. (at p.152) there defined the obligation in the following terms : " Upon proof of receipt of the goods by the carrier and their loss or non-delivery to

the consignee, the carrier is liable, unless he can bring himself within the exceptions (of vis major or damnun fatale), the onus of proof being on him. The exceptions are not a valid defence when they have been brought about by the carrier's negligence ".

The principal question which accordingly arose for determination is whether the plaintiff has proved that the consignment of 436 bags bearing the plaintiff's mark " I.O.T.C. " was actually delivered to the defendant at the ship's side. The plaintiff has produced a certified copy of the ship's manifest and two bills of lading P1 and P2 which would clearly establish, as against the owners or charterers of the vessel, that 436 bags of beans marked I.O.T.C. consigned to him had been taken on board the " June Crest" at Mombasa. He has also proved that the entire cargo taken on board at Mombasa was consigned to Colombo, which was the first port of call, and that the defendant Company, upon directions from the Port Controller, did receive and land the entire ship's cargo.

On these facts it is argued for the plaintiff that he has proved that 436 bags of beans bearing the mark I.O.T.C. were received by the defendant and that an obligation of the nature defined therefore arose. The case for the defendant Company is that the evidence was insufficient to establish, as against the Company, that such bags were actually received, and their case is supported by the following circumstances. The shipper o

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