Skip to content


Esufali Mahammedbhoy Allibhoy and ors. Vs. A.K. Thaha Ummal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1924)47MLJ150
AppellantEsufali Mahammedbhoy Allibhoy and ors.
RespondentA.K. Thaha Ummal and ors.
Cases ReferredLtd. v. Asiatic Petroleum Co.
Excerpt:
- - ' though there has been considerable argument on the question of burden of proof and several cases have been cited before us, the matter seems to be clearly settled in the present state of authorities. , that there was a strong wind on the night of the 29th and the ship was driven away from the place where she anchored at first towards the south. n). the crew had put out more chain to prevent the dragging but without success (ex......at night was proved and then it was for the defendant to show that the loss was not caused by the negligence. negligence was also proved in price and co. v. union lighterage co. (1903) 1 kb 750. on appeal (1904) 1 kb 413]) and in in re polemisand furness, withy and co. (1921) 3kb 560. steiurnan and co. v. angier line (1891) 1 qb 619 was a case of theft by the men in the ship's service. the cases of city of peking 14 ac 40 and the president lincoln (1911) p 248 are cases of collusion and negligence where negligence was held to be the initial cause. in leonards carrying co., ltd. v. asiatic petroleum co., ltd. (1915) ac 785 the vessel was unseaworthy and the owners did not discharge the onus that lay on them.8. we think the defendants have not been guilty of negligence and have proved a.....
Judgment:

Ramesam, J.

1. This is a suit for damages to plaintiffs' goods consigned on defendants' schooner, Sahul Hameed. The schooner left Colombo on 25th August, 1917 and arrived at Tuticorin on 28th August with 250 cases of safety matches entrusted by plaintiff to the Master. The goods were landed on the 30th in a damaged condition. On a certificate of survey (Ex. C) by the Secretary of the Local Chamber of Commerce, the goods were sold by auction on 30-10-17 (Ex. G)and realized Rs. 3,142 (Ex. D). The market value is alleged to be Rs. 31,750. The suit is for the difference.

2. Ex. II is the bill of lading issued by the defendant's agent. It contains the usual exemption clause--'The act of God, King's enemies, fire and all and every other dangers, accidents of the seas, rivers and navigation of whatever nature or kind soever excepted.' Though there has been considerable argument on the question of burden of proof and several cases have been cited before us, the matter seems to be clearly settled in the present state of authorities. It is for the defendant to plead and prove ' perils of the sea. ' If he makes out a prima facie case, the plaintiff can rebut it by proving defendant's negligence (see the Judgment of the Court of Appeal in the Glendanoch, 1894, p. 226). Esher, M. R., at p. 232, explains certain expressions of Lord Herschell in The Xantho (12 AC 508). See also The Norway 3 Moo PC N S 245 : 16 E R 92, Scrutton on Charter Parties (10th Edition), Article 79, Note 1 and Article 83, Note at page 298, Carver on Carriage by Sea, Section 87.

3. We have therefore to see what the facts alleged and proved are. The defendants claim that the damage to the goods was on account of peril of sea, i.e., that there was a strong wind on the night of the 29th and the ship was driven away from the place where she anchored at first towards the south. The wind then changed its direction with the result that the schooner swung round and sat on her anchor causing a hole on her part side. The vessel stranded and at 6 A. M. there was 5 feet of water in the hold. The cases of safety-matches were damaged by the sea water. The plaintiff denies any change in the position of the ship and alleges negligence on the part of the Master in anchoring in shallow water.

4. The learned Judge then discusses the evidence in the case.

5. The next question is whether the facts so proved amount to a peril of the sea. If the vessel had anchored from the beginning in 7 feet of water one may say it was sheer carelessness but on the facts proved it cannot be described as negligence. It may be that if the vessel had anchored in deeper water, further off towards the east, it would not have stranded even if it drifted towards the south on account of the wind. The mere fact that the accident might have been avoided by greater foresight does not make it negligence. The difference between ordinary perils and extraordinary perils suggested in Story on Bailments (Section 512) has not been accepted by the authorities (Carver, Section 87). The loss need not be extraordinary in the sense that the cause must be uncommon. It is true that negligence does not save the defendants' liability [Willis, J., in Grildv. General Iron Screw Collier Co. LR 1 CP 612]. But if reasonable care is taken, the perils of the sea while not including the effects of mere ordinary wear and tear, will include the consequences of any kind of accident,ending in damage by sea water [Abbot on Merchant Shipping, p. 612, citing Fletcher v. Inglis 2 B & Aid 315, Scrutton, Article 83, Corcoran-Gurney (1 E & B 456), Laurie v. Douglas (15 M & W 746), The Thrunscoe (1897) P 301, The Catharine Chalmers 32 LT 847, Bishop v. Pentland 7 B & C 219, where a rope broke, Merchants Trading Co. v. Universal Marine Co. (us LJ 9 QB 581].

6. In Amies v. Stevens (1 Strange 127) a sudden gust of wind was held to make all the difference. On the question of what is a proximate cause, the latest decision in Loyland Shipping Co. v. Norwich Union Fire Insurance Society (1918) AC 350, especially the judgment of Lord Shaw of Dunfermline may be referred.

7. The appellants pointed out that while the other schooner had 3 or 4 anchors (P. W. 3), it does not appear that the suit schooner had more than one. I do not think this matters. She had 15 fathoms of cable (Ex. N). The crew had put out more chain to prevent the dragging but without success (Ex. X). Some of the cases relied on by the learned vakil for the appellants [Davis v. Garrett 6 Bing 716 and James Morrison and Co. v. Shaw Savil and Albion Co., Ltd. (1916) 2 KB 783] are cases of deviation. In Joseph Travers and Sons, Limited v. Cooper (1915) 1 KB 73 clear negligence in leaving the barge unattended at night was proved and then it was for the defendant to show that the loss was not caused by the negligence. Negligence was also proved in Price and Co. v. Union Lighterage Co. (1903) 1 KB 750. On appeal (1904) 1 KB 413]) and in In re Polemisand Furness, Withy and Co. (1921) 3KB 560. Steiurnan and Co. v. Angier Line (1891) 1 QB 619 was a case of theft by the men in the ship's service. The cases of City of Peking 14 AC 40 and The President Lincoln (1911) P 248 are cases of collusion and negligence where negligence was held to be the initial cause. In Leonards Carrying Co., Ltd. v. Asiatic Petroleum Co., Ltd. (1915) AC 785 the vessel was unseaworthy and the owners did not discharge the onus that lay on them.

8. We think the defendants have not been guilty of negligence and have proved a peril of the sea. In view of this finding we have not heard arguments on the question of damages.

9. The appeal must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //