1. This is an appeal by the defendant, the State of Madras, against the judgment of Mack J., in C. S. No. 156 of 1947 filed by the respondents against them, and the complaint of the appellant is direct- ed against the disallowance of a portion of the counter claim which had been raised by them in the suit. The plaintiffs have filed a memorandum of cross-objections objecting to the decree in respect of a portion of the counter claim in favour of the State.
2. The plaintiffs are a registered firm carrying on business 'inter alia' as country craft-carriers for a long time and they were employed in such capacity by the Government of Madras for transporting rice from the west coast to Tuticorin during the years 1945-46. The terms and conditions upon which the plaintiffs were to render this service were reduced to writing and embodied in a contract dated 24-11-1945 between the Governor of Madras represented by the Commissioner of Civil Supplies on the one part and the plaintiffs on the other. This sets out the conditions under which, and the remuneration payable for the transport of rice in country crafts between Trivandrum port and Tuti-corin port. A supplemental contract was entered into on 4-12-1945 relating to the loading of the bags of rice from the pier-head at Trivandrum into the country crafts.
The plaintiffs deposited with the defendant Rs. 5,000 and Rs. 1,000 as security under the two contracts above-mentioned. For arrears in the remuneration payable to them for the services rendered by them under these two contracts, the plaintiffs brought the suit, C. S. No. 156 of 1947, on the original side of this Court for the recovery of Rs. 59,116-10-0 made up of the charges payable to them on several items as under the agreement. The Government of Madras admitted that a sum of Rs. 56,494-10-9 was due to the plaintiffs as remuneration but counter claimed in respect of damages sustained by them in matters to be men- tioned immediately. The learned Judge has granted to the plaintiffs a decree for this sum of Rs. 56,464 and there is now no dispute as regards this portion of the decree, the only items in controversy being those comprehended in the counter claim by the defendant.
3. This comprises two distinct heads. The first Is as regards the claim to compensation for the loss of 3005 bags of rice entrusted to the plaintiffs for carriage from Trivandrum to Tuticorin, but which was never delivered at destination, and which wore stated by the plaintiffs to have been lost by "an act of God". The value of the goods thus lost is stated to be Rs. 85,069-8-8. The entire amount of this counter claim has been negatived by the learned Judge. The second head relates to the shortfall between the weight of the goods as handed over to the plaintiffs at Trivandrum compared with the weight as delivered by them at Tuticorin. The contract dated 24-11-1945 contains a tolerance clause permitting 2 lbs. per bag of 164/4/7 lbs. After making this agreed allowance, there was an excess shortage of 3,52,230 lbs. and the defendant counter claimed for the value of this quantity which came to Rs. 61,317-15-1. The learned Judge decreed to the defendant 2/3 of tho excess, viz., Rs. 40,878 and disallowed the rest. The amount disallowed by the learned Judge is the subject-matter of the second item of the appellant's claim. The plaintiffs have filed a memo of cross-objections against this decree for Rs. 40,878.
4. The first question to be considered is regarding the liability of the plaintiffs for the loss of the 3005 bags entrusted to them. The plaintiffs anticipated the counter claim in this regard and pleaded in paragraph 11 as follows:
"The plaintiffs state that a consignment of 3005 bags of Tanjore boiled rice weighing about 220 3/4 tons was sent by the defendant through the plaintiffs in December 1945. The bags were loaded at Trivandrum on plaintiffs' country craft on 29-12-1945. When the country craft reached the south limit of Port of Tuticorin it struck a submerged rock on account of adverse weather due to an act of God and sprang a leak and the goods were lost. The plaintiffs state that the defendant is wrongfully claiming from the plaintiffs a sum of Rs. 82,261-14-0 being the value of 3005 bags of rice so lost on the ground that the plaintiffs shall make good the loss.
The defendant's version in regard to this is to be found in paragraph 8 of their written statement which runs as :
"In respect of the transport of rice done by the plaintiffs under the contract, dated 24th November 1945 above adverted to 488,517 lbs. of 3,005 bags of Tanjore boiled rice were sent by the defendant through the plaintiffs in December 1945 as alleged in paragraph 11 of the plaint. The bags were loaded at Trivandrum on the 29th December 1945. The defendant slates that in and by virtue of the provisions of Clause 3 of the aforesaid agreement of the 24th November 1945 the plaintiffs are responsible for the safe transport of the said rice to the Tuticorin port. The defendant denies the allegations in paragraph 11 of the plaint that the goods were lost on account of an act of God but states that the same were lost by the negligence of the plaintiff and his servants or agents or other people who were in charge of the boat in which the rice was loaded. Tho defendant therefore claims that the plaintiff is liable to reimburse the defendant the Value of the said quantity of rice. The defendant claims the value of same at the rate of Rs. 14-5-3 per maund being the costs of the rice to the defen- dant at Tuticorin Port. The defendant states that the total amount due by the plaintiff to the defendant under this head is Rs. 85,069-8-8."
Before dealing with the evidence relating to the sinking of the ship to ascertain whether this could be attributed to an act of God, we might refer to the reasoning by which the learned trial Judge has rejected the claim by the State. He dealt with the evidence as regards the circumstances in which the ship was sunk, and reached the conclusion that the ship sank in what was really fine weather by striking against a coral reef and that this was not due to an act of God. On this finding, if the rights and obligations of the parties were to be based wholly upon the agreement dated 24-11-1945 marked as Ex. P.1 which exempted the carrier from liability for loss to the cargo while in transit by sea only if caused, by enemy action or an act of God, the counter claim would have to be allowed.
But the learned Judge negatived this counter claim by holding that despite the contract, Ex. P.1, the plaintiffs as carriers were protected by Article IV para 2 of the Indian Carriage of Goods by Sea Act, 26 of 1925, which provides that
"Neither the carrier nor the ship shall be responsible for loss or damages arising from the (a) act, neglect or default of the master, mariner, pilot or servant of the carrier in navigation or in the management of the ship."
The reasoning of the learned Judge might as welt be set out in his own words :
"this Act embodied the unanimous recommendations made at the International Conference on Maritime Law held at Brussels in October 1922. Every boat load of rice was accompanied by a satmi letter, described as a bill of lading by Government in their correspondence, showing the shipment made by the Government of Madras, Civil Supplies, giving the weight, freight and other details. The evidence shows that this letter was made out by the contractor's representative at Trivandrum ana handed over to the tindal, and that on arrival at Tuticorin after paying harbour dues was handed over to the Reception Tahsildar at Tuticorin for taking delivery at the customs shed. All these letters show on their face that they were issued 'subject to rules in force as laid down by the Government of India for Transport and Delivery'.
Mr. Radhakrishnayya for plaintiffs contends that the rules contemplated there were the Articles of Act 26 of 1925. The learned Advocate General contends that this Act has no application to the suit contract at all, as under Section 2 it only applies to the carriage of goods by sea in ships carrying goods from any port in British India to any other port whether in or outside British India. He argued that as Trivandrum was not then in British India the Act is not applicable. Presumably this Act was adopted by the then Travancore Government for regulating the carriage of goods by sea from its ports... However this may be, plaintiffs were residents of Tuticorin, a port in British India. The other contracting party was the Madras Government. I am unable to see much force in the learned Advocate General's argument that these satmi letters were not bills of lading.
The simple point I have to determine is whether in this very hurried contract, Ex. P.1, entered into to provide for a pressing emergency the contracting parties at all contemplated the Indian Carriage of Goods by Sea Act and contracted themselves out of its scope. It would be manifestly inequitable to deprive a carrier by sea of the protection afforded to him under Act 26 of 1925 in respect of accidents by sea which are not acts of God, but which arise from errors of judgment in the navigation and management of the ship by the master, mariner or the pilot. . . I find that the obligation under Ex. P.1 must be read subject to the protection afforded to the carrier and the ship under Act 26 of 1925 by which the contracting parties are not only bound, but also specifically agreed to be bound by the acceptance of these bills of lading subject to rules in force which certainly must include the articles appended to Act 26 of 1925.
I find in the result that the Pathimar Salim, Boat No. 217, was sunk by the neglect of Bosiah Rodrigo, P. W. 3, who was in charge of the navi gation of this ship in seeking to anchor it in un suitable place. Under Article 4 of Act 26 of 1925 plaintiffs cannot be held responsible for any damage resulting therefrom. This part of the counter-claim therefore fails."
We are of the opinion, that the entire reasoning of the learned Judge proceeds upon a misapprehension, and that the Carriage of Goods by Sea Act, 26 of 1925 is inapplicable to govern the rights of the plaintiffs while carrying the goods now in dispute under Ex. P.1. In the first place, by reason of Section 2 of the Act
"the rules set out in the schedule have effect only in connection with the carriage of goods by sea in ships carrying goods 'from any port in British India' to any other port whether in or outside British India."
Unless, therefore, the starting point or the port of Loading is a port in British India, the Act is obviously inapplicable. The learned Judge has assumed without any warrant that there must have been some legislation in Travancore on the same lines as Act 26 of 1925. It is clear that there was no such legislation in force in that State and the learned Judge erred in making a presumption the other way.
It was only after Travancore acceded to the Indian Union that by reason of Central Act 18 of 1945 could the Carriage of Goods by Sea Act be made applicable to Travancore-Cochin along with other acceding States if a notification were issued therefor by the Central Government and it does not even appear that any such notification was issued. Subsequently of course by the Adaptation of Laws Order, 1950, Section 2 of Act 26 of 1925 was amended so as to cover ships carrying goods from any port in India to any other port in or outside India, so that it was only after 1950 that the Carriage of Goods by Sea Act became applicable to vessels starting their voyage from the Port of Trivandrum.
5. Further, under Section 4 of the Carriage of Goods by Sea Act,
"every bill of lading, or similar document of title issued in British India which contains or is evidence of any contract to which the rules apply, shall contain an express statement that it is to nave effect subject to the provisions of the said rules as applied by this Act"
and it is only when a bill of lading is issued and this document contains an express provision that it is subject to the terms of the rules under the Act that the rights and obligations of the parties are governed by the stipulations set out in Articles II to IV including the exemptions in favour of the carrier. Thus two conditions have to be satisfied before the exemption could be invoked by a carrier (1) he must have issued a bill of lading and (2) this should contain a clause stating that it was subject to the provisions of the Act.
6. Thus in -- 'Vita Food Products Incorporated v. Unus Shipping Co., Ltd.', 1939 AC 277 at p. 288 (A), Lord Wright laid down that the Act and the schedules were attracted only where a bill of lading was issued and that there was no provision in the Act making it imperative for the Carrier to issue a bill of lading, save on demand of the shipper (Vide Article III paragraph 8 of the schedule). In the case before the Privy Council, a bill of lading was issued, but it did not contain a statement as required by the Section corresponding to Section 4 in the Indian enactment, viz., that it is to have effect subject to the provisions of the said rules as applied by this Act. The question was whether the bill of lading was invalid on this account or whether it was this document alone which governed the relationship between the parties as distinct from the exemptions and immunities granted by the statute. The Privy Council held that the disobedience of the terms of a section corresponding to Section 4 of the Indian Act, did not render the bill ot lading illegal, but that this instrument alone governed their relationship and not the provisions of the Statute.
A similar view was expressed in a later decision in -- 'Canada and Dominion Sugar Co., Ltd. v. Canadian National (West Indies) Steamships Ltd.', AIR 1947 PC 40 (B), by the Privy Council, this judgment also being by Lord Wright. pealing with the provisions of the Carriage of Goods by Sea Act, the learned Lord said,
"Rule 3 expressly applies only if the shipper demands a bill of lading showing the apparent order and condition of the goods. There is no evidence that the shipper here made such demand; indeed, no demand of this nature is alleged. The condition of the rule is thus not fulfilled. In 1939 AC 277 (A), this Board held that the rules under an Act in similar terms in force in New Foundland did not make it imperative for the carrier to issue a bill of lading save on demand of the shipper. There is indeed no law which prevents goods being carried at sea without any bill of lading at all or makes any particular form of bill of lading obligatory."
7. It is, therefore, clear that the provisions of the rules embodied in the schedule do not apply 'proprio vigore' to all contracts of carriage by sea, but only in cases where a bill of lading has been issued incorporating the provisions of the Act.
8. It is now necessary to deal with the observation by the learned trial Judge that the satmi letters issued in respect, of each loading is tantamount to a bill of lading and the further point that the reference to the rules in the form renders the statute applicable to the carriage of goods in the present case. We have examined the terms of the satmi letters and we are satisfied that it is not a bill of lading at all. It was not issried to the shipper by the Master of the vessel, but is really in the nature of a manifest enabling the Master or Tindal of the vessel to receive payment of freight after delivery of these goods. Further the printed clause at the top "issued subject to rules in force as laid down by Government for transport and delivery" ha? nothing to do with the Carriage of Goods by Sea Act, but evidently refers to the rules and regulations made under the Defence of India Act in relation to shipping and transport of goods by sea. The grounds upon which the learned Judge has disallowed the counter-claim have, therefore, to be ignored, and" indeed tho learned counsel for the plaintiffs-respondents did not seek to support the judgment of the learned Judge on the basis upon which it was rested.
9. The rights and liabilities of the parties have, therefore, to be judged with reference to the terms of the agreement, Ex. P.1, in which the only exception or exemption in favour of the carrier was in the event of loss of the cargo being caused by enemy action or an act of God (vide Clause 11). As there is no question of enemy action in the present case, the plaintiffs would be liable for the loss, unless they were able to prove that the boat with the cargo sank by reason of an "act of God". As stated before, the learned trial Judge has negatived the plaintiffs' plea in this regard.
10. The learned counsel for the plaintiffs-respondents, however, challenged the finding of the learned Judge that the loss of the vessel was not due to an 'act of God" and it will now be convenient to deal with the evidence in relation to it.
11. The 3,005 bags of rice were loaded at Tri-vandrum on board a Kothia vessel on 28-12-19-15 by name "Pathimar Salim" No. 217. The normal duration of the journey from Trivandrum to Tuti-corin is about 4 days. The vessel which carried the goods was of 190 tons. She left Trivandrum on the morning of 28th December and was sank near Tuticorin on the evening of 13-1-1946. The distance between Trivandrum and Tuticorin is about 130 miles, Cape Camorin being situated almost midway between these two Ports. The vessel when it left Trivandrum was in charge of a tinlal by name Ibrahim Kutti who has been examined as P. W. 1. The story of the plaintiff in relation to the ill-fated voyage is shortly this. The vessel reached Cape Camorin at about 7 a.m. on 29-12-1945. On arrival there the tindal experienced strong winds. He had with him one John who was really not a pilot, but who was supposed to know the route. These two decided that it was not safe to proceed further to Tuticorin and therefore, sailed backwards to an intermediate port by name Colachel which they reached at about 4 p.m. on the same date.
P. W. 1 then wired to Trivandrum asking for a pilot to be. sent and he also wont himself by bus to Trivandrum and met the agent of the plaintiffs P. W. 5 and requested him to spare a pilot, In response, one Rosiah Radrigo who is P. W. 3 and who had experience of this route, was sent and Ibrahim and Rosiah joined the boat at about 3 p.m. on 3-1-1946. They set sail that day, and reached Camorin on 7-1-1946. From there they started on their voyage to Tuticorin and stopped at Panjal, Pattua, Manapad and Alathurai on their way to Tuticorin, though they had admittedly no business at these places. Leaving Alathurai at 5 a.m. on 13-1-1946 they reached the outskirts of Tuticorin at 4 p.m. on the same day.
The wind is said to have increased in violence towards the evening and considering that it was not safe to proceed into Tuticorin, they dropped anchors at a place called Perimundal 6 or 7 miles from Tuticorin. Owing to the violence of the winds, the anchor dragged and the boat struck a submerged rock and sprang a leak and was sunk. All the crew on board, however, escaped and reached Tulicorin where P. W. 1 the tindal made a report to the Port Officer, Mr. Smye the next morning, i.e., on the 14th. The tabsildar went with a staff to the place where the boat sank to find out if there was any possibility of salvage, but what they saw consisted merely of the mast of the ship and there was no trace of the 3005 bags which were stated to have gone down into the sea in the holds of the ship. This in brief outline is the story as spoken to by the plaintiffs' witnesses.
12. Before dealing with the evidence relating to the sinking of the ship, it is necessary to refer to one point merely to put it aside. This relates to a case which was sought to be developed by Government during the course of the evidence suggesting that the rice bags must have been taken out of the boat before it was sunk and that the rice must have been disposed of in black market. The fact that the boat after coming up to Camorin went back to Colachel and on its subsequent journeys from there to Tuticorin halted in so many places without any apparent necessity to do so, coupled with the fact that there were no trace at all of any rice bags on the morning of the 14th when the site of the sinking was inspected by the Tabsildar, and others, viewed in the light of the disparity between the controlled and the black market price of the commodity undoubtedly create an amount of suspicion whether the rice bags were on board the vessel at the time of the sinking. But a fraud of this type has to be pleaded with particularity and cannot be rested on mere suspicion. It was on this ground that the learned trial Judge rejected the Government's case in relation to this allegation, and we do not see any reason to differ from him.
13. We have, therefore, to proceed upon the footing that the 3005 bags of rice were on boat at the time when it sank on the evening of 13-1-1946. The question to be considered is, how did this loss occur. Was it really caused by negligence on the part of the owners or the crew in charge of the vessel at the relevant date? Or, was it duo to an act of God? We shall first deal with the question whether there was negligence on the part of the ship owner or of the crew which was really the effective cause of the loss of the boat. The point may be considered under two heads (1) Was there a competent crew on board to navigate this boat? (2) did the crew on board navigate the vessel properly?
14. These questions have to be considered in the light of the undoubted delay that occurred in the vessel reaching Tuticorin from Trivandrum. We have already referred to the fact that though the normal duration of the journey between the two ports is only about 3 to 4 days at the most, the time taken in the present case was from tho 28th December to the evening of the 13th of January. Further, we have also this fact that though the vessel started from Camorin on the 7th of January, it has taken over 6 days to reach the environs of Tuticorin, a distance of about 60 to 70 miles. This delay is wholly unexplained, and though in the evidence it was stated that the boat called at the intermediate stations, the explanation is most unsatisfactory. The theory that this delay was due to heavy winds cannot be accepted, in view of the fact that other boats belonging to the same carriers had done the journey during this identical period taking the normal time.
For instance, boat No. 56 left Trivandrum on the 25th December and reached Tulicorin on the 30th. Boat No. 51 left Trivandrum on the 31st December and reached its destination on the 3rd January. Another boat No. 45 left Trivandrum on the 31st December and was able to arrive at Tuticorin on the 4th January. In fact except this one boat, during the entire period from the 28th of December till 13-1-1946 all the boats which had reached TuUcorin had taken not more than 5 or 8 days at the most to make the journey and some of them have done it in 3 or 4 days. If, therefore, the weather were left out of account, the unfamiliarity of the crew who were put in charge of the vessel to pilot it, is a possible explanation for this delay. It is in this context that it becomes necessary to examine whether the story of there having been a competent pilot on board the "Pathimar Salim" is made out or not.
The case of the plaintiffs in explanation of the delay was shortly this: The vessel started from Trivandrum on the 28th December with one Ibrahim Kutti, P. W. 1, as the tindal in charge of the vessel. It was stated that he was not acquainted with the route, Trivandrum to Tuticorin. There was a pilot by name John whose knowledge was no better. That was why after reaching Camorin on the 29th, Ibrahim Kutti decided to go back in order to get a proper pilot to man the vessel. The case of the plaintiffs as spoken to by this witness is that after having reached Kolachel at about 4 p.m. on the 29th of December he sent a telegram to his master and also went himself to Trivandrum to get a good pilot into the boat. He says he went by bus to Trivandrum met the plaintiffs' agent one John examined as P. W. 5 and with his assistance secured the services of one Rosiah Rodrigo.
It is stated that this Rosiah Rodrigo joined the boat at Kolachel at 3 p.m. on 3-1-1946. It was stated in evidence that this Rosiah was an experienced pilot who had navigated on this route continuously for several years and he was in charge of this vessel from Kolachel to the environs of Tuticorin where the boat was lost. The boat after stopping at the places mentioned earlier reached a point about 7 or 8 miles from Tuticorin called Perimundal on the 13th. The case was that they found the winds heavy and decided to anchor in the open sea, not being able to sail to their destination. They sounded the depth and found it to be about 15 feet. They dragged the two anchors that were on the boat, but the anchors drifted and the vessel dashed against a submerged rock and sank. They tried to bale out the water for about 1 1/2 hours, hut did not succeed. They had a life boat in the vessel and life belts and with the aid of these all the crew of 16 on board reached the coast.
On the 14th they returned with the Tahsildar in a steam launch, hut not a single bag of rice was to be found in the place where the ship was supposed to have been sunk, From this evidence, it is clear that P. W. 1 was incompetent to man the boat, not having done the trip before and that it would he an act of gross negligence on the part of the carrier to have put this vessel in charge of this tindal, particularly in monsoon time when knowledge of expert navigation was essential. But the case, however, put forward by this witness was that Rosiah was really in charge of the vessel from Kolachel onwards and that he was an expert. In the cross-examination of the several witnesses called on behalf of the plaintiffs, the defendant suggested that the story of Rosiah being on hoard the boat was untrue. Though the learned trial Judge has not given any finding upon the point, a critical examination of the evidence had led us to the conclusion that Rosiah was not really on the vessel.
15. Before considering the evidence of Rosiah who has been examined as P. W. 3, it is necessary to mention a few preliminary facts. It is admitted that this individual was in charge of boat No. 3 belonging to the same owner. He says .he was contacted by P. W. 1 and P. W. 5 on 2-1-1946 and that he reached Kolachel by the evening of 3-1-1916 when he took charge of the "Pathimar Salim" as a pilot. It is also admitted that boat No. 3 of which this Rosiah was in charge left Trivandrum on the 25th and reached Tuticorin on the 27th (Vide Ex. D, 8x, which is a register giving particulars of the transport of rice on Government account by the plaintiffs). The version of the witness Rosiah is that after unloading the goods at Tuticorin he reached Trivandrum in time to he there on the 2nd and that Ibrahim Kutti met and took him to Kolachel, leaving Trivandrum on the 2nd. But it is found from D.8 that boat No. 3 left Trivandrum on 4-1-1946 reaching Tuticorin on the 7th and after having returned to Trivandrum started another journey, Trivandrum to Tuticorin on 12-1-1946 reaching the latter on 15-1-1946. The log book of boat No. 3 which would-show the persons who were in charge of it in its trips dated 4-1-1946 and 12-1-1946 has not been produced.
16. Next, we have this very important circumstance that the fact of Rosiah being on board the "Pathimar Salim" is not to be found in any document till a very late stage and its significance cannot be missed. The first report of the accident is the entry of protest with the Port Officer by the tinda! which is dated 15-1-1946. The version set out in this document is that Ibrahim Kutti, Master and Commander of the Cotia called the "Pathimar Salim" and a crew of 14 set sail from Trivandrum to Tuticorin on the 29th of December, that they proceeded on their voyage encountering ordinary and moderate wind and weather and that nothing of any particular importance occurred until they reached Devil's point (Perimundal). On 13-1-1946 at about 4-30 p.m. the wind prevailing there was strong and the sea rough and the boat rolled heavily and shipped water fore and aft.
"As the wind was adverse to continue my voyage, I dropped my two anchors but due to nature of bottom which in many places is coral the boat dragged the anchors and dashed against a rock and sprung a leak. I with the assistance of my crew baled out the water but all was in vain and in order to save the boat and the lives of the crew I have jettisoned some of the cargo and yet it was unable to pump out the water entering into the boat. Then myself and the eight crew on 14-1-1946 early morning came in my life boat to the shore near Devil's point and from there to Tnticorin came by walk. . . Again on 14-1-1946 at 4 p.m. I went to the spot with three lighters from shore to remove the cargo. . . I noticed my boat sunk."
It will be seen that there is absolutely no reference to Rosiah being the pilot of the vessel, a circumstance which would loom large in view of what happened during the journey and which necessitated the return to Kolachel.
In addition to this protest, the Port Officer Mr. Smye conducted an examination of Ibrahim Kutti under Section 246 (3) of the Indian Merchant Shipping Act, 1923. In the description of the crew, the name of no pilot is mentioned, and there is only a statement that the crew consisted of the Master Ibrahim Kutti and 14 others. At about the same time Mr. Smye, the Port Officer of Tuticorin before whom Ibrahim Kutti appeared on the 14th and made the statement and protest, submitted a confidential report to the Government of India regarding the loss of this vessel and its contents are very significant. In this report, Ex. D.3, he said,
"The vessel whilst on a voyage from Trivandrum to Tuticorin experienced adverse weather when nearing Tuticorin and the tinda! apparently decided to anchor. ...
It would appear the tindal was endeavouring to anchor under the lee of Hare Island inside the bay known as Devil's point, but on lowering the sails and letting go two of his anchors the vessel dragged and before further action was taken she struck a submerged rock and was holed . . .
This was the tindal's first voyage to Tuticorin and he was not familiar with the coastline and local conditions'.....
The 'tindal' having decided to anchor near Devil's point and acted accordingly it is doubtful if the accident could have been avoided after lowering sail and letting go the anchors as the nature of the sea bed there is sand and coral and very poor holding ground but had he tackled seawards or returned to Pinnakayal he could have safely anchored and avoided the risk he took which resulted in the loss of both ship and cargo."
According to Rosiah as P. W. 3 he was also present, when the tindal made the report and the protest, and it is surprising that if this were so, he omitted to mention the name Rosiah as the pilot in charge of the vessel at the relevant time.
Mr. Smye was examined as a witness on commission, and no attempt was made to elicit from him that Rosiah met him on the 14th. Indeed if Rosiah was really on board and was in charge of the vessel at the time of the accident, one would have expected him to make a statement to the Port Officer and there would be some evidence of his having done so. The earliest occasion when it is definitely stated that it was the pilot Rosiah who was in charge of the vessel "Pathimar Salim" is only in March 1940. It is also not without significance that in a letter written by P. W. 1 to the owners' of the vessel from Kolachel, P. W. 1 admits that he did not say any tiling about getting a good pilot from Trivandrum, but only that they were waiting for a favourable wind. The story, therefore, of P. W. 1, having gone over to Trivandrum to get a pilot and his getting Rosiah as a result of such endeavours must, therefore, be rejected as wholly improbable and inconsistent with the evidence.
17. If we proceed upon the footing that Ibra-him Kutti was in charge of this boat at the relevant time, a case of negligence on the part of the owners of the vessel is clearly established, for, it is admitted that P. W. 1 had no knowledge or the route and was most inexperienced for the job and if owing to his mismanagement the vessel was lost, the loss is attributable really to the negligence of the carrier in the employment of his staff.
18. Apart from this, even on the assumption that Rosiah was on board, the evidence in our opinion clearly establishes that there has been a negligence in the navigation of the vessel, in that the boat was anchored at a point where there were submerged rocks to the knowledge of Rosiah. Without going so far as to say that a case of barratry has been proved, one cannot characterise the action of the Master and the pilot in anchoring at Devil's point as one of near suicide. In Ex. D.3, Mr. Smye said,
"The tindal having decided to anchor near Devil's point and acted accordingly it is doubtful if the accjdent could have been avoided after lowering sail and letting go the anchors as the nature of the sea bed there is sand and coral and very, poor holding ground, but had he tackled seawards or returned to Pinnakayal he could have safely anchored and avoided the risk he took which resulted in the loss of both ship and cargo."
The evidence of Rosiah himself as to the circum-stances which led him to anchor just at Devil's point seems to us clearly a piece of negligent navigation, particularly when coupled with his admission that he knew the nature of the sea bed at that point. We are, therefore, of the opinion that even if Rosiah was on board he too was negligent in the management of the boat and in anchoring it at such an unsafe point.
19. On this finding, the plaintiffs would be clearly liable for the loss of these nee bags, and if the loss is proximately due to negligent navigation even if there was a heavy storm amounting to an act of God, the plaintiffs would not be protected, But even apart from any negligence, in our judgment the plaintiffs have not been able to establish that the loss was due to an act of God. The plea in regard to this is that there was a heavy wind of Force 5 blowing at the time. Force No. 5 is characterised in Ex- P.4 the hand book of Cyclonic Storms in the Ray of Bengal, as a Fresh breeze blowing at 28 miles per hour. The log of the Tuti-corin port shows that within the Port limits or in the harbour the force of the wind that day was only No. 3 which is described "as a gentle breeze blowing at 18 miles per hour". Wind blowing at 40 miles an hour is termed "a moderate gale", while it has to be at 56 miles per hour to be described as "a strong gale" and whereas to be called "a storm", the velocity of the wind has to be 75 miles per hour.
The definition of the expression "act of God" by Cockburn C. J. in -- 'Nugent v. Smith', (1876) 1 CPD 423 at pp, 434, 444 (C), has been followed in all subsequent cases and might now be taken as established law. The learned Chief Justice said,
"The definition which is given by Mr. Justice Brett, of what is termed in our law the 'act of God' is, that it must be such a direct and violent and sudden, and irresistible act of Nature as could not by any amount of ability have been foreseen or if foreseen, could not by any amount or human care and skill have been resisted. The judgment then proceeds: "We cannot say, notwithstanding the inability of the jury to agree to an answer to the fifth question left to them, that the defendant has in this case satisfied the burden of proof cast upon him so as to bring himself clearly within the definition. It seems to me impossible to say that no human ability could foresee the reasonable probability of the happening of rough weather on the voyage, and that a horse at sea might be frightened by it, or that no human ability could prevent injury to a frightened horse in such weather as occurred."
"The exposition here given appears to me too wide as regards the degree of care required of the shipowner, and as exacting more than, can properly be expected of him.
"It is somewhat remarkable that previously to the present case no judicial exposition has occurred of the meaning of the term "act of God" as regards the degree of care to be applied by the carrier in order to entitle himself to the benefit of its protection. We must endeavour to lay down an intelligible rule.
"That a storm at sea is included in the term "act of God" can admit of no doubt whatever. Storm and tempest have always been mentioned in dealing with this subject as among the instances of 'vis major' coming under the denomination of "act of God." But it is equally true, as has already been pointed out, that it is not under all circumstances that inevitable accident arising from the so-called 'act of God' will, any more than inevitable accident in general by the Roman and continental law, afford immunity to the carrier. This must depend on his ability to avert the effects of the 'vis major', and the degree of diligence which he is bound to apply to that end . . . .
"It must be admitted that it is not because an accident is occasioned by the agency of nature, and therefore by what may be termed the "act of God", that it necessarily follows that the carrier is entitled to immunity. The rain which fertilises the earth and the wind which enables the ship to navigate the ocean are as much within the term "act of God" as the rainfall which causes a river to burst its banks and carry destruction over a whole district, or the cyclone that drives a ship against a rock or sends it to the bottom.
"Yet the carrier who by the rule is entitled to protection in the latter case, would clearly not he able to claim it in case of damage occurring in the former. For here another principle comes into play. The carrier is bound to do his utmost to protect goods committed to his charge from loss or damage, and if he fails herein he becomes liable from the nature of his contract. In the one case he can protect the goods by proper care, in the other it is beyond his power to do so. It by his default in omitting to take the necessary care loss or damage ensues, he remains responsible, though the so-called 'act of God' may have heen the immediate cause of the mischief. If the ship is un-seaworthy, and hence perishes from the storm which it otherwise would have weathered; if the carrier by undue deviation or delay exposes himself to the danger which he otherwise would have avoided; or it by his rashness he unnecessarily encounters it, as by putting to sea in a raging storm, the loss cannot be said to be due to the 'act of God' alone, and the carrier cannot have the benefit of the exception."
James L. J. observed in the same case, at p. 708 of LJ QB
"The expression 'act of God' is a mere short way of expressing this proposition. A common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him."
20. Coleridge C. J. expressed himself in similar terms in the -- 'Queen v. Commissioners of Sewers of Essex', (1885) 14 QBD 561 at p. 574 (D) and stated "this of the expression "act of God.''
"The expression itself, being confined to events which cannot be foreseen, or which if they can be foreseen cannot be guarded against, points to events which are prima facie likely to be of very unusual occurrence."
Reference may also be made to Paton on Bailment, page 423, where -- 'Oakley v. Portsmouth and Ryde Steam Packet Co.', (1856) 11 Ex 618 at p. 623 (E), is cited. In that case a towed boat was driven by the force of the waves against the rudder of a steamboat which was towing it and then forced to stop in order to get beside a pier. There was no negligence. Barons Aldcrson, Martin and Platt held that this was not "an act of God". "The act of God" means something overwhelming, and not merely an accidental circumstance." The learned author also refers to the fact that in recent cases a stricter view has been adopted, and attention is invited to the statement of Lord Shaw accepting Lord Westbury's definition of the term as "circumstances which no human foresight can provide against and of which human prudence is not hound to recognise the possibility."
To a similar effect is a passage in Charlesworth on Negligence, at page
244. He defines "an act of God" as equivalent to 'damnum fatale' in Scottish Law which was defined by Lort Westbury in --'Tennent v. Earl of Glasgow', (1864) 2 Macph. (ct. of Sess.) (HL) 22 (F) in the passage already extracted and concludes that, to be an "act of God" the occurrence in question must be due to natural causes exclusively, of an extraordinary nature, and such that it could not be anticipated or provided against. Dealing with high winds, he refers to --'Cushing v. Peter Walker and Son, (Warrington and Burton) Ltd.', 1941-2 All ER 693 at p. 695 (G), and says,
"Before wind can amount to an act of God .... the wind must not merely be exceptionally strong, but must be of such exceptional strength that no one could be reasonably expected to anticipate or provide against it."
If, therefore, the occurrence was nothing extraordinary and was one that could have been anticipated, the loss caused by it would not be attri- butable to an "act of God". In the present case, there is clear evidence that during the monsoon, winds are fairly high and this was no extraordinary wind at all. The day was clear and there was no storm. The wind was moderate and was one that ought to have been anticipated and provided against by those undertaking navigation on this coast. The exemption based upon, the loss being attributable to an act of God, must therefore be rejected. In addition we have the circumstance that on that very day 13-1-19-16 other boats_ numbered 36, 35 and 75 have reached Tuticorin and boat No. 78 reached Tuticorin on 14-1-1946. In our judgment, the defendants are entitled to the value of 3005 bags which was lost on hoard the "Pathimar Salim". The
plaintiffs-respondents do not dispute the quantum of the amount claimed by the Government as the value of these 3005 bags, which they put at Rs. 85,069-8-8.
21. The next head of claim by the Government is in relation to shortage in weight. Clauses 2, 3, 4 and 5 and 12 of Ex. P. 1 the agreement dated 24-11-1945 and Clauses 2, 4 and 5 of Ex. P. 2 the supplemental contract entered into to cover the transport from the pier head at Trivandrum to the craft, are relevant to the present question and are set out below:
Ex. P. 1. dated 24-11-1945:
2. The Special Tahsildar will intimate the contractor in advance the dates on which the consignments will he ready, and on such intimation the contractor will check the quantity at the time of loading by employing his own agent. The Special Tahsildar will also be present at the time of loading to satisfy himself about the quality and weight; the certificate of the said Special Tahsildar shall he the conclusive proof between the parties to this agreement regarding the quality and also the fit condition of the rice, i.e., not being damp.
3. After the contractor takes delivery of the rice from the Special Tahsildar ex-craft he shall hold himself responsible for the safe transport of rice down to the Tuticorin port.
4. For every bag of 164 4/7 lbs. (excluding the weight of gunny), a maximum shortage upto 2 lbs. shall he allowed: any loss not exceeding this limit shall be ignored and any loss in excess of it shall be made good by the contractor.
5. The contractor shall engage an agent or agents at Tuticorin who shall satisfy the Reception Tahsildar Tuticorin, regarding the correctness of the weight and the condition of the consignments.
12. The contractor shall he responsible for all losses exceeding 2 lbs. per bag of 164 4/7 lbs. (excluding the weight of gunny).
Ex. P. 2. dated 4-12-1945:
2. The contractor will guarantee the weight of each bag recorded by the staff of the Additional Deputy Commissioner of Civil Supplies in the presence of the contractor's representative in the go-down, at the time when the contractor delivers the bags at Tuticorin port, subject to the limit of percentage for wastage and dryage allowed in the agreement executed by him before the Commissioner of Civil Supplies, Madras, on the 24th November 1945.
4. The entire liability for damages, pilferages, etc., subject to the limit of percentage specified in the agreement executed before the Commissioner of Civil Supplies, Madras, from the time the contractor takes delivery of the stocks at the pier head at Trivandrum till they are delivered at Tuticorin port is undertaken by the contractor.
5. If any gunny is found unfit, it is to be replaced by a durable gunny before stocks are hand- ed over to the contractor at the pier head. If any sunny happens to develop holes after delivery to the contractor the stitching and other repairs will be undertaken by him at his own cost."
22. But it is, however, admitted that no certificates as provided for by Clause 2 of Ex. P. 1 were issued ana no weight certificate was required from the Special Tahsildar. The case of the plaintiffs in respect of this matter and their defence to the claim of Government was based upon (1) that all the bags were not weighed, but only certain sample bags, that having regard to the number of bags that have to be transported, the weighment of individual bags was practically impossible. and that on this ground, there is no certainty in the weight of the rice handed over to them for transport; (2) that the rice were put into gunny bags which were old and which consequently burst, that notwithstanding several complaints, the old gunnies were not replaced by fresh ones and that the condition of the bags led to their bursting when the bags were stored ceiling high one over the other -- the gunnies lower down being unable to bear the weight bursting and thus causing wastage.
In proof of this, reliance was placed upon the fact that 377 bags of sweepings were delivered at Tuticorin which would show that their case about the bursting of the bags had a substantial foundation; (3) that there was no evidence of pilferage or loss in any other manner attributable to the negligence or misconduct of the servants of the carrier. Though under the contract a tolerance of 2 lbs. per bag only was provided for it is clear that in the circumstances disclosed by the evidence, this was wholly insufficient, and that the entirety of the excess over 2 lbs. could not justly be claimed by the Government. We have been taken through the evidence relating to the procedure adopted for delivery of these goods to the carrier in the Government godown at Trivandrurn and the checking at Tuticorin. But we are not satisfied that the learned Judge has erred in his appreciation of the testimony of the witnesses or the documents produced.
The learned Judge has allowed to the Government damages for two-thirds of the deficiency and has disallowed one-third. We agree that this is merely a rough and ready method of calculating the loss, properly attributable to the carriers. But in the absence of any better evidence, we do not think that the claim of the Government for the balance is made out. Nor are we satisfied that the conclusion of the learned Judge awarding two-thirds of the excess deficiency is unfair to the carrier, particularly in view of the terms of the contract. In the view we take of this matter and our agreement with the learned Judge in his. conclusion on this part of the case, we do not find it necessary to traverse through the entire evidence, which the learned Judge has fully discussed, except to say that having considered the matter ourselves, we endorse all that has been said by him in relation to this portion of the counter claim.
23. The result is that the appeal succeeds to the extent of Rs. 85,069-8-8, being the value of 3005 bags lost in transit while on board the "Pathi-mar Salim" but is dismissed in respect of the claim regarding shortage in weight. The parties will pay and receive proportionate costs in the appeal and in the trial court.
24. The memorandum of cross-objections by the carriers-plaintiffs is dismissed with costs.