Basil Scott, C.J.
1. This is an appeal from the judgment of Mr. Justice Beaman in a suit in which the plaintiffs are the charterers and the defendants are the owners of the steamer Abydos, which was chartered to carry a cargo of rice from Burma to Bombay. In the main there are two questions which have to be decided. The first is the question of dunnage and the alleged damage caused by insufficient or improper laying of dunnage, and the other is the question of shortage and sweepings.
2. Dealing, first, with the question of dunnage, the charter party provides : nothing herein contained shall exempt the shipowners from liability to pay for damage to cargo occasioned by bad stowage, by improper or insufficient dunnage or certain other specific causes,' and at the end of the charter party it is expressly provided that the charterers' stevedores at the loading port are to be employed at current market rates but not exceeding the owners' contract rate, and all mats and requisite dunnage to be provided by the steamer.
3. The question is, in the first place, as a matter of law, who is to be responsible for improper or insufficient dunnage for the protection of the cargo upon the voyage. Apart from the concluding clauses of the charter party to which I have just referred, there can be little doubt that the shipowners would be liable to pay for the damage to cargo occasioned by bad stowage or improper or insufficient dunnage, and the question is whether their prima facie liability has been modified by the clause as to the charterers' stevedores at the loading port who are to be employed at rates not exceeding the owners' contract rate.
4. The learned Judge upon the authority of Harris v. Best-Ryley & Co. (1892) 63 L.T. 16 : 4 R. 222 : 7 Asp. M.C. 272 has come to the conclusion that upon the terms of the charter party stevedores chosen by the charterers were to be the agents and paid servants of the shipowners for the purpose of discharging the duty of the shipowners in loading the cargo, and in this conclusion we agree.
5. The question of fact remains whether the damage was or was not caused by improper laying of dunnage as found by the learned Judge. Now upon that question there is a conflicting evidence of two marine surveyors, and we also have the evidence of the Parsi purser of the ship who only speaks as to the cargo stowed under his personal supervision. The learned Judge has come to the conclusion that damage to a certain specified extent was caused by the improper laying of the dunnage at the port of loading, and after considering the evidence and the arguments of the learned Counsel for the appellants, we have come to the conclusion that the learned Judge is right. Therefore, with regard to the dunnage the appeal fails.
6. The remaining question regarding shortage and sweepings is not so simple. The facts are that rice was shipped at the port of loading not only by the charterers, but by other shippers to whom the charterers in pursuance of the terms of the charter party to that effect leased out a portion of the cargo space. The rice shipped was mostly Nakranji rice shipped F.O.B. at the rate of Rs. 7-15-6 per bag, while a certain portion of the rice shipped was Larool rice shipped F.O.B. at the rate of Rs. 6-15-0 per bag. The bags of rice shipped by the charterers, as the bills of lading state, were in apparently good order and condition and were to be delivered, subject to the exceptions and conditions specified, in the like good order and condition from the ship's tackles, showed upon discharge at the port of destination a shortage amounting to between 383 cwts. and 400 cwts. The sweepings of rice lying loose in the ship after discharge amounted to about 575 cwts., and it is, therefore, obvious that a certain portion of the sweepings cannot have escaped from the bags shipped by the charterers and must be attributable to other bags shipped by persons to whom the charterers had let cargo space. The bills of lading contain two provisions which are material. The first is the general exception which includes, among other conditions, insufficiency of wrappers and package and all injury to the same and all damage arising from other goods by stowage. There is also a special condition that the ship is not responsible for loss or damage caused by insufficient packing, torn, mended, charfed, weak or fragile bags and bagging wrappers nor for usual and reasonable wear and tear of packages.
7. If, therefore, the bills of lading were the only test of the liability of the shipowners, it can hardly be doubted that on proved facts the shipowners would not be liable to any shippers in respect of shortage occasioned by an escape from the bags. But the prevailing contract, where there is a conflict of provisions as between the shipowner and the charterer, is, it is conceded by Counsel for the appellants, the charter party.
8. The charter party has two provisions which are relevant to the question. It provides that the steamer is to be responsible for any proved shortage. We take the proved shortage to be 383 to 400 cwts., and apparently at the trial it was stated that it might be taken to be 400 cwts. The charter party also provides that all sweepings are to be delivered to the charterers at the port of discharge and, therefore, although the shipowners might, as against the shippers who could only rely on the bills of lading, appeal to exception 28 to absolve themselves from liability for shortage, they could not successfully plead it as against the charterers in respect of the goods shipped by them, for by the charter party they are to be responsible for any proved shortage.
9. It is contended that if both the provisions of the charter party are applied in favour of the charterers as was done in the lower Court, the result is that charterers in effect are paid twice over. First of all, they get the value of all the sweepings in the steamer, and, secondly, they get the value of the goods found short. The argument was that the shipowners ought to be allowed to collect the sweepings and when it is found that certain bags do not contain the quantity shipped, they should be allowed to allocate to the bags which contain a short quantity a proportionate part of the sweepings collected and in this way justice would be done. Manifestly, however, such a procedure would give rise to great difficulties in any case where sweepings were not of one quality of rice and where they were not, as in almost every case they could not be, uncontaminated or undeteriorated by lying on the deck during the voyage. Therefore, a rough and ready arrangement appears to have been made in the charter party that all sweepings are to be delivered to the charterers at the port of discharge. That is the agreement and if the argument on behalf of the appellants were correct, the shipowners would be allowed to say: We will not deliver all the sweepings as we have agreed to deliver them but we will only deliver a proportionate part of the sweepings, namely, 400 cwts., and the other sweepings we will appropriate for compensation to the other shipowners, and we will not be responsible to you as we have agreed' in the charter party for any proved shortage because we will have made up the shortage by sweepings.' The answer is that that is not the contract.
10. It appears to us for that reason that the learned Judge is right and that the judgment of the Court below must be affirmed and the appeal dismissed with costs.