1. The plaintiffs are merchants carrying on business at Calcutta and Serajgunge, the defendants are common carriers. Early in November 1893 the plaintiffs delivered to the defendants 432 drums of jute for carriage to Calcutta The frieght was duly paid and the goods were delivered on board the flat Khyber, which arrived in Calcutta about the 17th November 1893. The goods were carried Tinker the terms of an agreement contained in a forwarding note, dated the 14th October 1893. On the 7th December about midnight a fire broke out on the flat, which was then moored in the stream, about 40 feet from the shore, and connected with the shore by a staging which had been erected by the servants of the defendant Company and used for the purpose of discharging the cargo. The construction of the flat is accurately described by the learned Judge in his judgment in the Court below. I need not repeat what be says.
2. The plaintiffs' jute was destroyed by the fire, and the question arises upon whom the loss is to fall.
3. Upon this, two questions arise---First, whether, under the terms of the forwarding note, the defendants are exempted from liability, save for negligence or the criminal acts of themselves or their servants; and, secondly, assuming that point in the defendants' favour, whether they have shown that there was no negligence on their part. The first question depends upon the construction of the forwarding note. The plaintiffs contend that it does not relieve the defendants from their ordinary liability as common carriers, that is, the liability of insurers, whilst the defendants, on the other hand, say that the forwarding note limits their liability in the manner provided by the Indian Carriers Act of 1865, and exempts them from all liability except such as under that Act they are prevented from contracting themselves out of. It is conceded by the defendants that the only clause in the document which can relieve them from their liability as insurers is clause 7.
4. In the view which I take of the second question in this case, it is unnecessary to decide the first, though I feel constrained to add that, having regard to the nature of the contract, one in which the carrier seeks to limit his common law liablity, and to the clear and definite language used, I entertain a serious doubt whether the view of Mr. Justice Sale on the point be correct.
5. I merely confine myself to saying that that construction cannot be arrived at without doing violence to the language used-language which, read in its ordinary meaning and signification, appears to me to be clear and precise, and used in a clause which is quite consistent with the other clauses of the document, and that the effect of that construction is to import into the contract words which are not there, and to place a forced and unnatural construction upon the words which are there.
6. Assuming, then, in the defendants' favour that the true construction of the forwarding note is such as they contend for, the remaining question is whether the defendants have discharged the onus which is undoubtedly and admittedly cast upon them of showing that there was no negligence on their part.
7. Negligence has been defined by Mr. Baron Alderson in Blyth v. Birmingham Water Works Company 11 Exch. 781(784) in the following terms: 'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do;' and this definition has been subsequently adopted by other Judges.
8. In the present case, no evidence has been adduced except by the defendants; the plaintiffs apparently could adduce none.
9. In applying to this case the principle laid down by Baron ALDERSON, it becomes necessary to ascertain, if possible, how the fire originated, and what precaution the defendants had taken to provide against fire and for extinguishing it. The theory, as to the origin of the fire, put forward by the Captain of the flat and his serang, is that the fire was caused by a spark from the fire in the small native boats which were close to the flat and between it and the shore, from which direction the wind was blowing. This view, however, is not accepted by the respondent's Counsel at the Bar. Looking to the hour at which the fire occurred, to the time when, according to the serang's evidence (between whose evidence and the Captain's there is some discrepancy on this point, the Captain saying that when he turned in at 9 P.M. the fires in the native boats were still burning, and the serang saying that they were all then out), the fires in the native boats were out, to the fact of the purdahs on the flat being made of thick canvas, and to the month of the year, when there would likely be a heavy dew on the purdahs, I think it is extremely improbable that the fire so originated. If this view be correct, and it not being suggested that the fire arose from the intervention of any natural agency, for example lightning, the inference is irresistible that it arose within, and was caused from within, the flat itself. If that be so, the question arises whether the mere occurrence of the fire, arising as I think it must be taken to have arisen, from some cause within the flat', which was under the management and control of the defendants or their servants, is, in the absence of explanation by the defendants, per se evidence of negligence. So far as the cases cited before us show, there is no very express authority upon the point; though in the case of Scott v. The London and St. Katherines Dock Company 3 H. & C 596 (601) Chief Justice Erle says: 'When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' No doubt, those words were used with reference to an accident different and arising under circumstances different from the present case. If there be no evidence as to the origin of the fire, and no explanation afforded by the defendants, can they be said to have discharged the onus which is admittedly cast upon them of disproving negligence? The defendants contend that if they lay all the evidence they can before the Court, it is for the Court to say whether they had discharged the onus, and reliance was placed on the case of the Central Cachar Tea Company v. The Rivers Steam Navigation Company ante p. 787 note which was decided by this Court on the 4th March 1896, but is not reported. That case, however, decides no question of law applicable to the present: it only decided, first, that there was a special contract, as to which there could have been no reasonable doubt; and, secondly, upon the facts, that negligence was disproved.
10. The plaintiffs say that not only have the defendants not disproved negligence, but upon their own showing they have been guilty of it. They say that the Captain did not, under the circumstances, take those precautions which a reasonable man, in the position in which he was, would take and ought to have taken. They contend that the appliances for extinguishing fire were' absolutely ineffective, and that the watch was insufficient, and that the watchman, an old lascar, upon his own showing, was not doing his duty.
11. In all cases the amount of care to be taken must be proportionate to the degree of risk likely to be run. Applying that principle to the present case, we find that the cargo was admittedly of a very inflammable nature; and, in my opinion, having regard to the nature of the cargo, the defendants ought to have had at hand at all times proper and effective appliances for extinguishing the fire, should one accidentally arise.
12. I now come to a consideration of the evidence. There is a discrepancy of some importance in what the Captain stated in his protest and in his subsequent evidence: in the formerly says nothing about going on deck at 9 P.M. and seeing the fire in the native boats, some five or ten of which were between the flat and the shore. It is certainly matter for comment that he should have said nothing about this in his protest But I will take his evidence. He says that he went round the flat at 5-30 P.M. to see if everything was right, and to rig the two pumps, one aft and one forward, which he says he did. One pump is forward of the forward bulkhead and the after pump is abaft the after bulkhead. He says he locked the sliding doors of the bulkheads, that all the fires on the flat were out at 7 P.M., and that everything was then all right. He came up again at 9 o'clock, and he says that all the cargo boats had their fires, and that when he went to bed at 9 o'clock they all had fires. This is not consistent with what the serang tells us. He speaks as if there were then but one fire, which, upon his remonstrance, was put out. The Captain was evidently anxious about the proximity of the fires in the native cargo boats. This is clear from the serang's evidence at pages 64 and 65 of the Paper Book. He says: 'It was because the fire on the dinghy was dangerous to the flat that the Captain sent for me. Yes, the Captain did speak tome about the danger. At first when I went up to the Captain, the Captain said to me I was not taking proper care. He abused me and said,' There is fire in the dinghy close by. Go and tell the people to put the fire out. Our flat may catch fire.'
13. The Captain thought there was danger from these fires; his attention was directly called to the risk. Under these circumstances, I think, a prudent man would have made a point of seeing that the pumps on his flat were in a really workable condition. The Captain, however, did nothing, but went to bed.
14. The fire broke out about 12-30. An old lascar, named Tamizuddin, was the watchman on the starboard side and he came on watch at 12. One Omed Ali was on the watch on the port side, but owing to ill-health he could not be called. His absence from the witness box is, to say the least, unfortunate. According to Tamizuddin's statement all was well when he came on watch: he came on watch as he tells us, amongst other duties, to guard against fire. He went forward and was looking at the anchor to which some jungle had stuck for some 7 or 8 minutes and then he saw the glare of the fire. He tells us that if he had noticed the fire in tune he could have put it out, and the Captain also tells us that when he first saw it, it was not very big. If Tamizuddin had been moving backwards and forwards along the covering board, instead of standing and looking for 7 or 8 minutes at the anchor, for which there could apparently be no necessity, he would, according to his own showing, have seen the fire as soon as it originated when, as he says, he could have put it out. This, I think, is what he means by his evidence that if he had seen it at first he could have put it out. It is not very easy to determine from this witness's evidence whether, at this hour, there were fires in the native cargo boats. He speaks of lights and fires rather indiscriminately: but, as the result of his evidence, I think he means there were lights and not fires.
15. When he saw the fire he shouted out to Omed Ali and to the Captain, and then went along the covering board on the port side to the stern, and poured water on the burning jute from buckets, and then he makes the significant statement that they tried to put the fire out with the pumps, but the hose did not reach the place where the fire was. In other words the hose was too short. The vessel was about 270 feet long and the place between the bulkheads was about 225 feet. The pumps being behind the bulkheads, each pump ought, in order to command the whole of the cargo space in the event of fire, to have had about 110 feet of hose. There is no evidence what the length of hose was, but it was admittedly not long enough. This is what the Captain says about the pumps at p. 49: 'I could not do anything with the pumps single-handed. The pumps were all ready to work in a moment. The pumps would have been of use at the commencement of the fire, that is when the fire was first seen. If both pumps had been in the same place and well worked, they may have put the fire out when I first saw it. But as placed where they were, I don't think they would have been sufficient from where they were. They required 100 feet of hose to each pump.' And at p. 56 he says: No attempt was made by the crew to use the pumps. The pumps would have been of use when the fire was first seen. It had been burning not very long, 2 or 3 minutes.'
16. It appears from this that the pump at the fore part of the flat was useless as there were no men there to work it, and the Captain could not work it single-handed; that in the Captain's view the pumps ought to have been together, and, if so, and properly worked, they probably would have put the fire out, and that the hose was too short. A prudent man, in my opinion, especially when his attention had been so markedly drawn to the danger of fire only a few hours before, would not have left the pumps in practically a useless condition.
17. The serang's evidence is important. He says at p. 62: 'We began to pour in water with the buckets. We did nothing else. Yes, there was a pump on board. There were two pumps, one on the fore part of the vessel and the other on the after part. There was no room for working the pump,'---this, I think, must mean the pump in the after part of the flat---'because the coolies had taken up cargo from the holds and the deck was jammed with the cargo. The throwing of water with the buckets did no good. We did nothing else 'At page 63 he says:' The cargo inside was right up to these bulkhead doors. Yes, the doorway was completely blocked up in front of the door from the doorway to the roof. At page 65 he says: 'The aft pump which we could not work was situate aft of the aft bulkhead. The whole of the deck was covered with cargo. We have not 100 feet of hose attached to that pump. There were no goods about the pump, but there was the bulkhead against the pump and jute against the bulkhead, so we could not carry in water through the bulkhead and the cargo. The pumps are fixed pumps. They could be removed; they were not permanently fixed. The fire was spreading inside where the cargo was, and it was not possible to pump in water by carrying the hose along the covering board. We tried to work the pump, but we found the hose could not carry the water to where the fire was. We could not remove our boat because there was this staging right over our boat.'
18. That, virtually, is the whole story, and it comes to this: that the pumps were absolutely useless. The aft pump could not be worked through the aft bulkhead doors, because the door was jammed up by the jute which was piled up on the deck; the pump in the fore part could not be worked because the Captain was single-handed and the hose was too short; neither pump could be worked along the covering board because the hose was too short, and it could not be worked from the small boat because the staging was over it, and the boat could not be made available.
19. Consequently, the appliances for putting out fire were obviously insufficient and ineffective. The Captain must have known this, or any way ought to have known it. It appears to me that any reasonable man, with the danger of fire brought so immediately to his attention as it had been on the night in question and having regard to the combustible nature of the cargo, would have taken every precaution to see that the pumps were in effective working order. Had they been in proper working order, it is a fair inference to be drawn from the evidence put in by the defendants that the fire in all reasonable probability would have been put out when the Captain first saw it, in which case the loss probably would not have occurred. In my opinion the mere occurrence of the fire, under circumstances such as the present, is evidence of negligence; the flat being under the management of the defendants' servants, and there being no evidence adduced by them to show how the fire originated, and no explanation afforded,---I say no explanation afforded because the suggestion that the fire originated from a spark outside has been abandoned at the bar. Furthermore, the ineffective condition of the appliances on board the fiat for extinguishing fire satisfies me that those precautions which an ordinarily prudent man would adopt were not taken by the defendants' servants, and this neglect appears to me to amount to negligence.
20. The defendants, therefore, have not discharged the onus cast upon them by law of showing that there was no negligence; and that being so, the plaintiff is entitled to recover, with costs here and in the Court below. The appeal must be allowed.
21. If it was necessary to decide whether there was a special contract limiting the liability of the respondent, I should not be disposed to dissent from the construction which Mr. Justice Sale has put upon the 7th clause of the forwarding note. That clause, which must have been intended by the parties to have some meaning, purports to exonerate the Company from any liability with an exception which is broadly but vaguely stated. The intention to be gathered from it is, I think, the intention to limit the Company's liability to the extent allowed by the law then in force, viz., the Carriers Act, although this Act is not specially mentioned.
22. It may be true that that Act did not subject common carriers to any new liability, although the preamble purports to declare their liability for loss occasioned by the negligence or criminal acts of themselves, their servants or agents. But the Act, while enabling them to limit their liability by special contract, declared that notwithstanding such contract they should still be liable when the loss arose from the negligence or criminal acts of themselves, their servants or agents.
23. The excepted liability in the 7th clause may, I think, fairly be taken to be the liability there referred to, viz., the liability for negligence, etc.; otherwise the clause has, as Mr. Justice Sale points out, no meaning at all.
24. It is said that the clause was not explained to the appellant who did not understand it in that sense. No such question was raised before Mr. Justice Sale, and cannot for the first time be raised here. The only question raised was as to the construction of the clause.
25. But whether there was or was not a special contract, the respondents have, I consider, failed to clear themselves of negligence. The effect of the 9th section of the Carriers Act is to make the loss of the goods evidence of negligence which the carrier must displace. The plaintiff is not required to give any evidence of negligence, and the carrier must account for the loss in such a way as to get rid of the presumption of negligence arising from it.
26. The respondents account for the loss of the goods by shewing that they were destroyed by fire, but they do not, in any way, account for the fire. They in effect say: 'We cannot account for the fire, but as we took and have shown that we took all proper precautions to prevent such an occurrence, it cannot be attributed to any negligence on our part.' The answer, I think, is that the fire occurred at a time and under circumstances which, in the absence of any explanation as to its origin, negative the existence of proper precautions^ and that it is therefore in itself evidence of negligence of which the respondents must clear themselves. The facts as disclosed are that the flat, which was in the course of being unloaded, was exclusively in charge of the respondents' servants; and the unloaded portion of the cargo, consisting of drums of jute, was for the most part stowed on deck. Soon after midnight, hours after work had ceased, either the jute on the starboard side of the deck about amidships, or the outside canvas purdah in the immediate vicinity of that jute, it is not clear which, took fire, with the result that the cargo was destroyed.
27. The Captain of the flat suggested that the fire came from outside, and that a spark from a boat near at hand ignited the canvas purdah. This suggestion is not adopted by respondents' Counsel in this Court, and there is no real foundation for it. I do not believe that the fire was so caused, or that the canvas purdah took fire in the first instance. If it was so caused, I should be disposed on the evidence to hold that there was negligence, and that with a proper look-out it might and should have been extinguished. The mere fact that there was a fire near at hand from which sparks might come made it necessary to take extra precautions and use extra vigilance, and the Captain was fully aware of this.
28. The only other alternative is that the fire originated on the flat; and it is, I think, for the respondents to account for it. They are the only persons who can do so. It is their case that there were not and had not been for hours previously any fires or lights on board the flat from which the jute or purdah could have become ignited; that the part of the deck where the fire occurred was completely shut off from the rest of the deck; and that no one, whether belonging to the crew or from outside, had access to it.
29. The evidence on the latter point is certainly not exhaustive, and I am not satisfied that no one had access there. The only watchman who has been examined is the man who went on watch on the starboard side shortly before the fire broke out, and we know little of what happened on the port side or in the previous watches. If all the precautions said to have been taken had been taken, it is almost impossible that this fire could have occurred, and that there should have been no explanation of it.
30. This is not a case in which the Court can point to some particular act or omission in connection with the fire, and say that it amounts' to negligence,---and for this reason, that the facts are not fully before the Court, the cause of the fire being unexplained. Great stress has been placed upon the statement of the late Chief Justice in the case of the Central Cachar Tea Company v. The Rivers Steam Navigation Company ante p. 787 note that 'when the parties have placed all the evidence on which they rely before the Court, it is for the Court to say upon that evidence whether or not the loss was caused by the negligence of the carriers or their servants.' That was a case of a very different kind. There all the facts were fully before the Court, and the Court, was in a position to say upon those facts that there was no negligence. What the Chief Justice said had reference, I think, only to the particular circumstances of the case before him.
31. Treating the fire as evidence of negligence, that evidence has not in my opinion been displaced.
32. I also agree with the learned Chief Justice for the reasons which he has given that the appliances for extinguishing a fire were ineffectual and insufficient. The appeal must, therefore, succeed.
33. The two questions in this case are, first, what is the meaning (if any) of the 7th clause of the forwarding note? and, second, if the construction put upon that paragraph is correct, are the defendants under the circumstances of this case liable for the loss of the jute? As to the first question I am not prepared to differ from the views expressed by Mr. Justice Sale in this case and by Mr. Justice Hill in the case of the Central Cachar Tea Company v. The Rivers Steam Navigation Company (unreported).
34. The construction which they have adopted seems to me to be the only one which can give any effect to the paragraph in question.
35. The construction suggested by the appellant is one which renders the paragraph completely nugatory. It can never have been intended by this elaborate paragraph to inform the consignor that the Company's liability was co-extensive with that of other carriers who did not make special contracts. By this paragraph the Company must have intended to guard itself from any liability out of which the law permitted it to contract itself.
36. It may be, as Mr. Bonnerjee says, that it would be exceedingly difficult (sic)
37. Section 9 of the Carriers Act provides 'that in any suit brought against a common carrier for the loss, damage, or non-delivery of goods entrusted to him for carriage, it shall not be necessary for the plaintiff to prove that such loss, damage, or non-delivery was owing to the negligence or criminal act of the carrier, his servants or agents.' In other words, the loss of the goods is prima facie evidence of the negligence or criminal act of the carrier, his servants (sic) or agents, and, therefore, if the carrier seeks to exempt himself from liability, fee must negative such prima facie evidence, that is to say, he must prove that the loss was or must have been occasioned otherwise than by the negligence or criminal act of himself, his servants or agents. It is contended that the late Chief Justice's judgment in the Central Cachar Tea Company v. The Rivers Steam Navigation Company ante p. 787 note has placed a different interpretation upon the law. I am not prepared to say it has. In that case all the facts were apparent; the loss of the ship was caused by an impediment to the navigation, and the only question was whether the Captain was negligent in nod avoiding that impediment. Of course, if all the facts are before the Court, and there is nothing to discover or disclose, then the Court has on those facts to say whether there is negligence. But here there is really nothing to show what the cause of the fire was; we can only guess at it.
38. It remains to be seen whether in this case the defendant Company has disproved negligence, or has placed before the Court a state facts which is inconsistent with negligence or a criminal act.
39. They have not really attempted to show how the fire arose, There is no doubt that in the Court below the defendants put forward the theory that the cargo must have been ignited by a spark coming from the neighbouring boats. This theory has been repudiated by the learned Counsel who represented the Company before us. There is no doubt that it is one which will not bear investigation.
40. According to the story for the defence there was a thick curtain completely protecting the cargo on the east side of the fiat. A spark from one of the fires in the boats, even if there was any fire alight at that time of night, could not have ignited the purdah or the cargo. If it did so, the look-out man, if he was on the watch, must have seen it happening. The defendants' evidence, if it is to be believed, makes it quite clear that the fire could not have originated from outside, at any rate from the shore side. The precautions which are said to have been taken would have been sufficient to ward off the catastrophe.
41. It being clear from the defendants' own case that the fire could not have originated from the cargo boats or the shore, the only alternative is that the fire owed its origin to the act or negligence of some one on board either the flat itself or the Hafjan. It cannot have arisen from any fire on board (sic) the Hafjan as the wind was blowing off the shore and the fire broke out shore side of the Khyber. Even if the fire did break out in (sic)cor 351; something done by some one on board the Hafjan, the deie(sic) responsible. To my mind the evidence shows that (sic) started by the design of, or by an accident (sic) 355; (1907) 7 C.L.J., board the Khyber. On the evidence I can concerned 355; (1904); 9 C.W.N.,
42. The only persons on the Khyber were (sic) defendant Company. The Company is res(sic), the gift takes effect without Having regard to the fact that (sic) Khyber, and that the Khyber was in, 33 Cal. 947 at 965: 10 C.W.N 695; I am prepared to so far as (sic) Company to prove how it broke out. I do not, for a moment, believe that every man who was then on board that flat is ignorant as to the cause of the fire. Learned Counsel for the appellants suggests that the fire came from outside, i.e., from the adjoining cargo boats. If he is right as to this the defence cannot be accepted.
43. If these fires on the boats were a source of danger, additional precautions should have been taken, and the watch should have been strengthened. Learned Counsel for the respondents also asserts that the fire came from outside, but he is unable to show us how it so came.
44. To my mind the defendant Company has omitted to prove any facts which can throw any light whatever upon the origin of this fire.
45. It seems to me that evidence as to precautions against fire is worth very little, unless it be combined with evidence to show that the fire in question was of a kind which one might reasonably have expected to be avoided by the particular precautions. Lastly I think that the evidence shews that the means provided on this flat for extinguishing fire were wholly inadequate to the occasions which might be expected to arise. As far as I cam make out from the evidence, a fire in the Captain's cabin or in the quarters occupied by the crew might have been extinguished by the means available if discovered in time. But very little else could have been done. The actual length of the hose has not been proved, but it was obviously of little practical use to put out a fire in the centre of the ship. I quite realise that elaborate contrivances for the extinction of the fire might, to some extent, impede the operations of loading and discharging cargo; but if a carrier, in order to facilitate his business, omits to provide sufficient apparatus to extinguish fire in all parts of his ship, it can scarcely be said that he has taken reasonable precautions against fire.
46. I would allow the appeal, order an enquiry as to the damages, and give the plaintiffs their costs in both Courts.