P.B. Mukharji, J.
1. In this appeal, the claim is large, the witnesses are numerous and the documents are voluminous. But the essential controversy between the parties lies within a very small compass.
2. Two plaintiffs brought this suit for the recovery of a sum of Rs. 3,40,243/6/3 pies as damages for non-delivery of 1472 bags of Indian biri tobacco entrusted to the defendant shipping company for carriage by sea from Bombay to Calcutta, under eight Dills of lading between the dates 20th November 1948 and 27-11-1948, by the defendant's steamer, S.S. Pasha. The Pasha left Bombay on or about the 4th December and arrived at Calcutta on the 24th December 1948 after stopping en route at Tuticorin and Madras. The defendant failed to deliver the said cargo of 1472 bags to the plaintiffs in Calcutta. On 16-3-1949, the defendant called upon the first plaintiff to clear 212 bags alleged to be part of the consignment of 1472 bags and also, made an offer of 1260 bags which were no part of the consignment but were offered in satisfaction of the same under certain terms of the bill of lading. The plaintiffs refused to take delivery of 212 bags on the ground that they were damaged and were useless and unmerchantable goods of no value and also refused to accept the offer of 1260 bags on the ground that the goods were not of the like Kind and quality as the goods of the plaintiffs. As between the two plaintiffs, it is pleaded that the first plaintiff is the owner of those 1472 bags of cargo and that in any event the property in those goods passed to the first plaintiff by the endorsement of the relative bills of lading by the second plaintiff in favour of the first plaintiff. The contract of carriage as contained in the bills of lading was between the second plaintiff and the defendant. The cargo of tobacco appeared in the port of Calcutta as a charred mass and, in fact, steaming,
3. The plaintiffs' claim for Rs. 3,40,243/6/3 consists of Rs. 225902/-/9 pies as the value of 1472 bags of Indian Bin tobacco and Rs. 1,02,331/- as excise duty paid or payable thereupon and Rupees 12010/5/6 as loss of profit or damage on the basis of the contract rate or the market rate on or about the 2nd January 1949 in respect of those 1472 bags.
4. The defendant denied liability in the written statement. In particular, the defendant company relies on two Clauses 5 and 8 of Part IV of the bills of lading. The shipping company also takes the plea that it properly stowed these goods and the damage arose from the acts of the plaintiffs in shipping the said bags or their contents while wet. The defendant shipping company also takes the defence of inherent defect or vice of those goods and pleads that the goods suffered from latent defects not discoverable by due diligence of the carriers. The defendant also pleads that they have no fault or neglect on their part.
5. The main issue in this case is whether the goods were properly or negligently stowed. If the damage to or loss of goods was caused by the negligence of the carriers in stowing and stacking the goods during voyage while the goods were in their charge or custody, then they are liable. Before the main issue is discussed, it will be desirable to dispose of the technical defences taken on the two clauses of the bill of lading which I have mentioned above.
6. In my opinion the defence under Clause 5 of Part IV of the bill of lading is not open to the carrier on the facts of this case. The exact words of Clause 5 are as follows:
'If any consignee has a shortage in the marks and numbers called for by this bill of lading unclaimed goods of like kind and quality shall at the carrier's option be deemed to constitute a part of the goods and be accepted by the consignee as good delivery under this bill of lading.'
I shall briefly state the reasons why this clause in the bill of lading is of no assistance to the carrier in this case. In the first place, there is no evidence that the goods that were offered were 'unclaimed goods' within the meaning of Clause 5. Secondly, there is no evidence that the goods offered in this case were 'of like kind and quality,' within the meaning of that clause. Thirdly, I am of the view on the construction of this clause that it operates in the case of a 'shortage in the marks and numbers' and not to a case like this where the goods themselves are a total loss or irretrievably damaged. The words 'shortage in marks and numbers' 'unclaimed goods' and 'of like kind and quality' provide an inescapable context which clearly points out that the goods remain in fact but due to shortage in marks and numbers, the goods cannot be identified and therefore cannot be specifically claimed by any one although the goods themselves are of like kind and quality. In such a situation it is a sensible provision that this clause makes by giving the option to the carrier as contemplated by that clause. But its scope obviously therefore cannot be extended to cover where the goods themselves are a total loss or have suffered total damage. For these reasons, I hold that Clause 5 of Part IV of the bill of lading is no defence to the carrier in the present case.
7. Carrier's defence under Clause 8 of Part IV of the bill of lading must also in my opinion fail in this case. Clause 8 reads as follows:
'At all ports in which by law or the custom of the port, there shall exist a Port or Harbour Authority empowered or authorised to receive import cargo, delivery of the goods into the custody of such Port or Harbour Authority shall be a good and effectual discharge and delivery of the goods and shall be treated as a removal of the goods into the custody of the person entitled to the delivery thereof under the contract of carriage for all purposes of the Indian Carriage of Goods by Sea Act, 1925.'
Here again, I shall state my reasons very briefly why I think Clause 8 of the bill of lading cannot protect the carrier. In the first place, this clause, in my opinion, does not at all refer to the condition of the goods but is concerned only with the person or authority taking delivery of the goods so that delivery to that person or authority could be treated as delivery to the consignee. It is a clause to facilitate delivery and not to exonerate liability for damage to goods. Secondly, this construction is enforced by the words, 'the goods,' appearing in that clause. In other words, before the effectual discharge could be claimed under this clause, 'the goods' or the same goods must be delivered although the person or authority taking delivery is the Port or Harbour authority and is different from the consignee. The words, 'the goods' do not in my view, mean 'different goods' or 'damaged goods' or 'substituted goods' within the meaning of this clause. Thirdly, on the facts in this case, Clause 8 cannot be applied at all because there was, in fact, no landing receipt granted by the Port of Calcutta. In fact, the outturn receipt and the landing certificate show that these goods were not lauded as indeed they could not be because what was landed was a 'charred mass.'
8. Quite apart from this interpretation of these two Clauses 5 and 8 of the bill of lading, I think it Ss not permissible to the carriers under the Carriage of Goods by Sea Act to claim immunity from the consequences of their own negligence by stipulating that the ship will not be responsible for shortage or loss for that clause would clearly be ultra vires the statute and, therefore, bad and void. Rule 8 of Article 3 of the Schedule to the Carriage of Goods by Sea Act, 1925, makes it expressly clear that:
'Any clause, covenant or agreement in the contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods arising from the neglect, fault or failure in the duties and obligation provided in this Article or lessening such liability otherwise than as provided in these rules, shall be null and void and of no effect.'
Therefore if the loss or damage arises from the neglect, fault or failure in the duties and obligations as provided in the Statutory Articles or Rules as I hold here on the facts, then a clause in the bill of lading exempting the carrier from liability for such loss and damage would be null and void and of no effect.
9. For these reasons, I overrule the carrier's defence based on these two clauses of the bill of lading.
10. The defence of the carriers on the merits is that the goods were lost not due to any negligent stowing on their part but due to inherent defect of wet tobacco. The carrier's case in this appeal is that this whole consignment of tobacco was reduced to a 'charred mass' by spontaneous combustion, caused by the presence of water and moisture in the tobacco. The question is what is the effective and proximate cause of this damage. If it be the grossly careless and negligent stowing by the carrier, then the carrier is liable for the loss. If the effective and proximate cause for the spontaneous combustion is the wetness of the tobacco, then the shipper and not the carrier will have to bear the loss.
11. It is necessary at the outset to find the number of bags said to be wet by rain. The bills of lading are good prima facie evidence on this point. Now, bill of lading No. 18 containing 200 bags does not indicate that any bag there was wet by rain. Bill of lading No. 29 states that 3 out of 58 bags were wet by rain. Bill of lading No. 21 shows that 23 bags out of 200 bags were wet by rain. Bill of lading No. 25 shows about 47 bags being wet by rain out of 227 bags. Bill of lading No. 28 shows 12 bags wet by rain out of 160 bags. Bill of lading No. 33 shows 23 bags wet by rain out of 227 bags. Bill of lading No. 34 shows 22 bags wet by rain. Bill of lading No. 45 does not indicate that any bags were wet by rain. From an analysis of the bills of lading, it appears that out of these 1472 bags covered by the eight bills of lading, 25 and 105 or rather 130 bags altogether could be said to be wet. The evidence shows that some of these wet bags were dried in the sun before shipment.
12. A good part of the evidence in the trial court was taken up in proving rain in the Bombay port on the 20th and 21st November 1948 and cyclone with rain on 22-11-1948. To my mind, much of this evidence becomes irrelevant and unnecessary when it is remembered that the bills of lading in this case were issued after examination of the bags and they sufficiently indicate how many bags in what bills of lading were wet by rain. I have already shown by an analysis of these various bills of lading how many wet bags were there in the shipment. Five out of the eight bills of lading were issued by the carriers after the rains on the 22nd and they were all dated 24-11-1948 and 27-11-1948. Only three bills of lading, Nos. 34, 21 and 33 are dated 20-11-1948 and 21-11-1948 but even they do not indicate which bags were wet by rain and which bags were not. I, therefore, consider it useless enquiry to study the report of the Colaba Observatory as to how much rain fell and when and whether the bags used to lie under the shed or lathe open or near the jetty, waiting for shipment.
13. Thomas, who is an authority on stowage, in the book, 'Stowage of the Properties and Stowage of Cargoes' by Capt. Thomas (Revised and Enlarged Edition--4th Edition--1957) (the previous re-print of 1952 of this book in fact, was exhibited at the trial) at pages 370 to 372 says:
'Leaf tobacco is liable to heat and sweat and become mouldy.
Tobacco both in the leaf and manufactured form is readily damaged by moisture or strong odours so that it is necessary to stow the same well clear of wet or moist goods, oils, strong smelling commodities and those that are liable to heat and sweat. Good ventilation also is essential to avoid mildew forming which, if present on discharge results in claims.'
14. The oral testimony and other evidence in this case of Morris, Paterson, the Chemists Messrs. R.V. Briggs and Company and others are all agreed that tobacco is liable to suffer from spontaneous combustion and that moisture in tobacco increases the risk of spontaneous combustion. From their point of view, water in the tobacco adds to or helps the heat. Tobacco leaf normally contains a certain amount of moisture. All these are either common knowledge or supported by books of authority and are agreed so far as evidence in this appeal is concerned. But the point is that ordinarily moisture by itself will not make the tobacco burn or become a charred mass. As pointed out by Thomas, if there is good and proper ventilation, if there is no negligent stowing, then it would not burn. It requires no evidence to say that if a few tobacco leaves are kept in a bowl of water in the open they do not burn and become a charred mass. The evidence, therefore, in this case is not concerned so much with what the chemists or botanists say about the quality of spontaneous combustion of tobacco or manufactured biri tobacco or whether in this particular case the water was fresh water of the rain or saline water of the seas which appeared to be the main raging controversy between experts at the stage of the trial and at the stage where R. V. Briggs and Co. were making conflicting and contradictory reports whether the tobacco contained fresh water or salt water. Mere presence of water will not prove the inherent vice in the tobacco or its latent defect so as to exonerate the carrier if it is found that the actual burning was due to bad and negligent stowing of the cargo. In this case, Morris knew that tobacco was liable to spontaneous combustion. In fact, the evidence shows that he read Thomas's book on 'Stowage' which he considered to be an authority. The carrier, therefore, knew as the bills of lading show that some bags were wet. They were described in the bills of lading as in apparent good order and condition, notwithstanding the fact that some bags were wet.
15. On a survey of the evidence I am of the opinion that the conclusion is unavoidable that the damage in this case was caused wholly and entirely by the grossly careless and negligent stowage of mis consignment of tobacco by the carrier. The different and many acts of commission and omission showing the most careless and negligent stowing responsible for the damage to the goods in this case may be summarised under these following heads:
(1) Deep stowage.
(2) Placing the Bags against the engine room and the bulk-head.
(3) Improper and faulty Dunnaging.
(4) Keeping the bags near the tunnel.
(5) Keeping the dry and wet bags together.
(6) Sundries in the same hold were not shown in the evidence to prove what exactly they were and whether they contained matters deleterious to tobacco.
(7) Complete lack of supervision of this tobacco during the entire voyage and no attention was paid to this stack of tobacco throughout the journey.
(8) Cowls were covered with canvas on the 21st and 22nd night in November, 1948, but the log books do not show that they were opened again so that ventilation must have been completely closed or at any rate greatly impeded.
(9) The general ventilation was entirely inadequate.
(10) In spite of rolling and pitching during the journey, no attention was paid to this consignment of tobacco.
(11) The consignment came steaming at the Calcutta port when it was on the point of delivery. It appears that when the door was opened, the carrier's own men thought that the hold was on fire, showing thereby the negligence and lack of attention and due care by its officers.
(12) Bleeding of bags.
16. I shall now indicate briefly the evidence on these different heads of negligent and careless stowage.
17. Donald Macgregor Morris says in his evidence that these goods were stowed in No. 4 lower hold fore-part. There were 3,535 bags of tobacco stacked there, (q. 592). He admits that they were laid in large numbers of layers and that there were about as many as 12 to 14 layers. In fact, his evidence is that hold No. 4 was packed in full, although he said that it was not crammed. But he had to admit that there was no more space left in that hold for stacking any more goods (Questions 508-512). On these facts I hold there was deep stowage. In explaining this aspect of deep stowage, this witness says in his evidence that there were beams and there were small spaces of only a few inches in between (Q. 1376). In fact, when he was asked whether there was anything in between this cargo of tobacco and other goods, his answer was that usually he left only a small space of about 6 inches between different walls of cargo and even then some mats or bamboos were dropped in between them (Q. 1385-1386). If more than 3,500 tobacco bags are stacked in one place going right upto the ceiling of the hold with a slight gap and if they are kept stacked in 12 or 14 layers deep, I consider and hold that to be deep stowage. In fact, James Patterson, the senior partner of the Surveyors, Norman Stewart and Co., who came to give evidence on behalf of the carriers, admits that deep stowage' means 'lower hold stowage, one on top of the other', going from the bottom to the ceiling (Q. 179-180). Learned counsel for the plaintiffs very clearly put to him a passage from Thomas's book on 'Stowage' where it was said that
'pressure being an important factor in the generation of heat, deep stowage of commodities of this class in bags more particularly was to be avoided and therefore, 'tween deck' stowage gives much better result than lower hold stowage', and Patterson had to admit that that was so. (Q. 181). No attempt was made by the carrier in this case for stowing this consignment of tobacco in the 'tween deck', and it is admitted that the stowage here was 'lower hold stowage'. On this evidence, I am, therefore, satisfied that there was deep stowage in this present case and pressure of such deep stowage naturally acted as the most important factor ingenerating heat and ultimately reducing the tobacco to ashes.
18. The next act of negligence was the carrier's placing these bags next to the engine room and the bulk-head. Morris admits that this hold where the tobacco was stowed was next to the engine (Q. 674). He tried thereafter to say that the proximity to the engine room did not make the hold very hot although he had a difficult time during cross-examination to establish his thesis why the room next to the engine would not be hot. He tried to get out of this quandary by saying that the difference in temperature would be within one degree. Nobody, of course, on behalf of the carrier has given evidence to say what the temperature was. This part of his evidence would be found in answer to questions 675 to 678. He also had to admit that the only separation between this hold and the engine room was a bulkhead which is only a water-tight partition but not an air tight one so that the heat of the engine room certainly could travel by radiation. No evidence by the carrier has been led to show what the partition was composed of and if it was of a substance which is a conductor of heat then the heat of the engine would also travel by conduction. This evidence would be found in Morris' answer to questions 702 to 705. Finally, Patterson had to admit under pressure of cross-examination that if he had the choice of stacking the tobacco either in a hold next to the engine room bulkhead or elsewhere away from it, he would prefer one which was away from the engine room Q. 276-277), and commonsense dictates that it cannot be otherwise. But this was not done in the present case I, therefore, hold that the placing of the bags of tobacco next to the engine room and the bulkhead was a gross act of negligence of the carrier. Thomas at page 15 of the book is definite in his opinion where he says :
'Stow such goods (including tobacco) away from the engine and the boiler room bulkheads and casings and from tunnel sides and apart from wet goods to avoid increasing evaporation of the liquid contents of the latter'.
Each one of these useful injunctions has been violated by the carriers in this case.
19. Careful dunnaging is one of the most important duties of the ship's officers. That is how Thomas describes the responsibilities at page 47. The dunnaging in this case was extremely careless and negligent.
20. The carrier has tried to improve the case of dunnaging apparently because there was' a realisation that dunnaging had been faulty. The earliest letter shows that the only dunnaging was by mats. The Master says in his letter dated 30-12-1948, written to Messrs. Turner Morrison and Co. Ltd. this: 'The mats were laid to separate the above wet and stained bags from the dry bags.'
21. When the case came on to trial, the defendant's witnesses however considerably improved or attempted to improve the case by saying that the dunnage was not merely of mat separation but very much more. Morris in answer to question No. 145 says in his evidence that he made a separation which consisted of bamboos, flat dunnage and mats and he laid these along the top of the good bags to give an air space and also to prevent any water dripping on to the other bags. What was 'mats' before, became now in the evidence of Morris, 'bamboos, flat dunnage and mats'. In explaining his evidence further in answer to question No. 599, Morris says that he put 'flat dunnage crossed with mats and bamboos, a layer of double mats right round the whole of the wet bags, the bags that had been wet and dried'. Flat dunnage, he explains in question 602 as timber of various lengths, widths and thickness. Nevertheless, he had to admit that through the ends which were described as 'holes between the planks', water could drip, if there was any (Q. 605). This case of separation by wooden planks and bamboos is again contradicted by the document described as a 'statement of Shipment of Tobacco from Calcutta' where the only separation mentioned was one of mats and nothing else. It is admitted there were holes and separation between wooden planks through which water could drip. The surrounding mats round the bags of tobacco made the situation worse because they would not allow water to disperse but collect and percolate, even on the assumption that Morris' evidence of dunnaging by surrounding mats is true. I find it difficult, however, to believe Morris' improvement over the Master's case. What was originally a mat separation has not, in my view, been successfully established to be mats, bamboos and wooden planks. But even assuming Morris' scheme of dunnaging, it seems to me to be the worst possible thing to enclose wet bags with dry bags and surround them by mats and by wooden planks in such a way that through their separation water could collect and drip. There was no evidence to show that there was any dunnaging on the floor of the hold. I can well imagine that in such a situation the whole stack of tobacco will be completely water-logged resting on a pool of water. I have little hesitation in holding that far from this being a right type of dunnaging it was most careless and injurious when the carriers knew that they were carrying wet and dry bags together.
22. It is inconceivable to me why dry bags and wet bags were kept together in the same stack at all by the carrier in this case. Thomas is emphatic in the passage I have already quoted that wet goods should be stowed away. No evidence has been given on behalf of the carriers why they did not separate the wet bags completely from the dry bags and why they did not keep the wet bags in a separate place in a separate hold or even in the same hold in an entirely different and separate stack away from the stack of dry bags. To kept wet bags on top of the dry bags, seems again to me to be the height of negligence and carelessness. In question No. 598 Morris admits that the wet bags were kept on top of about two thousand bags in hold No. 4. I do not think, negligent and careless stacking could go further.
23. Next, I find that these bags and stack of tobacco were near the tunnel, a place which common sense as well as authority like Thomas dictate, should be avoided. I shall only state here the position in evidence about the proximity of tunnel in this case and the bags. Morris' evidence on this point is that this tobacco was stacked near the tunnel. The ship's plan shows that the thrust recess is at the bottom right-hand corner of the plan. That is the place where the thrust is taken. In explaining the thrust, Morris says that the 'ship is a heavy thing and when it is moving, the action of the propeller turning has a very heavy jerk on the engine and so between the engine and the shaft we have what is known as a 'thrust block' which consists of pads of oil which takes the initial thrust of the propeller when the ship starts.' His evidence is that this thrust block is encased in a steel structure of its own which is slightly bigger than the tunnel which carries the shaft. The plan then shows the ballast tanks and a tunnel over them. At one end of the tunnel is the thrust recess and at the other end of the tunnel is the tunnel recess. I, therefore, hold it to be a further act of negligent stowing on the part of the carrier to keep the bags and the stack of tobacco near the tunnel. This evidence of Morris will be found in answer to questions Nos. 1331 to 1337.
24. The evidence as well as the ship's plan show that certain 'sundries' were kept in this hold but the carrier has not shown by any evidence what these sundries were. Morris had a difficult time In the box with sundries. At first, he described the other goods in question No. 596 as cases of sundries, cases of engineering goods, belts, piece goods. Thereafter, in answer to question No. 607 he described sundries as cases of machinery and stuff like that. What 'stuff like that' was, was not explained by Morris. It is the duty of the carrier to explain and prove what these sundries were which they could have easily done by producing the relative bills of lading, in order to show that there was nothing in the sundries which were deleterious to the tobacco that was in the hold and that such sundries did not contain any material which could either add to or accelerate this spontaneous combustion of tobacco. But that evidence has not been given in this case.
25. No attention or care was bestowed on this stack of tobacco in Hold No. 4 throughout the journey from Bombay to Calcutta. There was no supervision whatever of this stack of tobacco during the entire voyage. No better proof of this negligence or lack of care can be furnished than by the circumstance that when these goods arrived in the port of Calcutta, it was only then that they were found to be steaming which excited one of the ship's men to explain to one of the ship's officers that it was 'fire'. This 'fire' or combustion must have been going on for days with none in the ship to see or attend to. Here again the evidence of this complete lack of supervision is quite conclusive on the point. Morris himself in answer to question No. 1452 says that hold No. 4 was not disturbed at all.
26. I come now to the question how the carrier hag used the cowls which are the very sources of ventilation in the hold. Now, in the night during 21st and 22nd November, 1948, Morris admits in answer to question No. 1403 that he ordered the ventilators to be closed and in order to prevent rain getting through the cowls leading into the hold, he put covers on the ventilators. He refers to his log book which shows that all the hatches and ventilators were secured by putting a canvas cover on them. (Q. 1416 to 1418). But there is no log book entry to show that during the voyage this canvas was thereafter at all removed or that the cowls were opened to let in air to ventilate this overcrowded and full hold. He admits that there was no such record (Q. 1472). An attempt was made to suggest that file cowls might have been uncovered thereafter but in the absence of any log book entry to that effect, it is difficult to believe that case. If the log book entry shows when the canvas was put on the cowls, then the log book must also show when the canvas was taken off. The log books do not show that the canvas was thereafter at all taken out. Thomas speaking on ventilation of the holds, says at page 37 of the book ;
'A record of attention given to the ventilation of holds should always appear in the mate's log, special mention to be made of the opening of hatches, the necessity for unshipping cowls and plugging ventilators, etc. It is of utmost importance that attention to the ventilation of cargo be clearly and regularly recorded in the Mate's log, special mention to be made of the opening of hatches, the necessity for unshipping cowls and plugging ventilators, etc. The absence of such records has on many occasions involved the owners in heavy claims for alleged neglect.'
As indeed it has done in this case. The carriers are themselves responsible for this state of affairs.
27. This is a very sensible and salutary practice. In fact Patterson was forced to admit that the log book should record the attention paid to the ventilators, in his answer to questions Nos. 208 and 209. I see no reason why I should infer that the cowls were unshipped or the canvas was taken off the cowls in this case when I find that they do not appear to have been done from any of the log books exhibited in this case I must infer and rightly that absence of log book entry to show that these cowls were unshipped or that the canvas was taken off them, proves that they were not taken off in fact. I, therefore, hold this to be also a very serious act of carelessness and negligence in stowing the cargo. The closing of the cowls with canvas throughout the journey from 21st November until 24th of December, would be a serious impediment to ventilation in an overcrowded hold already suffering from deep stowage and stacking.
28. It is necessary to say further that the ventilation in the hold was also otherwise inadequate. Before discussing the problem of ventilation, it is proper to say at the outset that normally I shall assume, as I do in this case, that the ship had such ventilators in this case as were necessary ordinarily to make it seaworthy and cargo-worthy and I shall assume, as the learned trial Judge has also found, that in the structure there was nothing defective but the problem of ventilation is a relative problem. Ventilation depends on a number of facts. It depends first on the manner and method of stowing, how deep, bow compact the stowing is and the fact whether the hold is full or not, on the fact, whether the ventilators are properly opened or not and also on the fact that different kinds of cargo require different types of ventilation. Now, the carrier in this case has not given any evidence stating what exactly was the dimension of the particular hold in which this tobacco was carried and what was the volume or cubic space of the stack of tobacco inside that hold. In fact, Morris was asked about the dimension of hold No. 4 but he could not say what the dimension was (Q. 1349). The stacking was deep stacking. It is also in evidence that the hold was full to such an extent that, even without quarrelling over the question whether such fullness was cramming or not, it is admitted that no other goods could be put into that hold. It is also in evidence that the canvas on the cowls was not taken out. It is also in evidence that wet bags were kept along with the dry bags in a manner that by reason of the very faulty dunnaging and improper stacking the normal ventilation which the ordinary ventilators of the ship could have saved was certainly wholly inadequate in the facts of this case. I hold accordingly that the carrier was negligent in attending to the ventilation of the hold where this tobacco was being carried.
29. Now it is in evidence that there were both heavy rolling and pitching during this voyage. In fact, the log book entries of the 12th, 13th and 19th December 1948 prove that there were heavy pitching and rolling. In fact, some of the pitching was so heavy, as on the 13th December 1948, that the shipping water came over the deck 'fore and aft'. Even then the evidence does not show that, although the carrier knew that there were wet tobacco bags in the hold, stacked 12 or 14 layers deep which had not been disturbed, any officer or men of the carrier attended to this stack of tobacco. Heavy rolling and pitching would certainly create friction and if Morris is to be believed, wooden planks as part of the dunnage would increase the pressure and thus create havoc with this consignment of tobacco. The subsequent events of steaming bags and charred mass proved what havoc was done. I hold this as inescapable negligence on the part of the carrier. It may just as well be appropriate here to state exactly what the evidence is when the consignment arrived in the port of Calcutta. Morris had a difficult time on this point in cross-examination. His evidence is that it was reported to him in Calcutta that the cargo was steaming. In fact, in answer to question No. 788, he says :
'A man came up and told me that there was steam issuing from different places and naturally from the way he spoke and my limited knowledge of the language, I thought that the ship was on fire and so I went down and I saw that it was steaming at different places.'
30. How all these bags could be found steaming all on a sudden in Calcutta is incomprehensible unless one finds, as one must, that there has been gross negligence in not attending to this stack at any time during the whole voyage. This, I consider to be an act of negligence and breach of the carriers' duty in carrying goods safely while they are in their custody.
31. Charles Neil Rodewald, Manager of the Asiatic Shipping Department of Messrs. Turner Morrison and Co., Ltd., says in answer to question No. 7 that
'it arrived in bags and it was discharged as much as they could in the original bags in rope slings and the cargo which had disintegrated were put into new bags.'
He says he could not 'remember whether new or second-hand bags were put into the hold to collect all the stuff and sweepings and they were discharged on the quay'. 'Disintegration of cargo', and the 'stuff and sweepings', mean that there must have been what is called in technical language, 'bleeding of the bags'. The survey report of the 6/12th January 1949 establishes that 640 were rebagged and damaged bags and it says : 'A number of the bags were in such a bad condition that the gunny cloth was eaten into.' Thomas in his book has been very clear in his warning on this point. At page (28 of the book he says:
'The Courts of different countries have held ships to have been unseaworthy because the ventilation of cargo had been impeded or made defective by reason of bags having 'bled', the contents of which found their way into the frame spaces and sealed the air courses between the bags.'
Now, here the evidence and the survey report both show that the bags had given way and the stuff and sweepings had come out and that must have considerably impeded even the very faulty ventilation that may have been left. This situation was highly accentuated by the complete lack of attention by the carrier to the stack of tobacco throughout the journey. Again at page 89 of the book, Thomas says that bleeding of bags should never be permitted, for to do so is to run a serious risk of complications and resulting claims which he explains by saying that the ventilation is interfered with. If there was any periodic inspection of this stack of tobacco in this hold the ship's officers could have easily detected this bleeding of the bags and prevented in time the charring of the whole mass of tobacco.
32. For these reasons I hold that this consignment of bags of tobacco was lost and damaged entirely by the acts of omission and commission amounting to negligence and carelessness an the part of the defendant carrier while these goods were in their custody. There is no material on which we can hold that there was any other cause which could be responsible for this loss and damage without these negligent and careless acts of omission and commission on the part of the carrier.
33. In this view of the matter, it is, to my mind, unnecessary and irrelevant to discuss any other evidence of witnesses separately. I should however make one exception in this respect so far as the evidence of Dharshi on behalf of the plaintiffs is concerned. He was a witness on behalf of the plaintiffs and was their clearing and shipping agent at Bombay. I shall illustrate from this evidence only to show how much of the trial was taken up by irrelevant details. His evidence has been criticised by the learned Trial Judge on inter alia the grounds (1) whether he employed labour to shift the goods from the jetty to the shed and (2) whether tarpaulins were used or not. Elaborate examination and cross-examination on these points took the time of the trial court. The learned Judge seems not to accept his evidence because he could not satisfactorily show from his books of accounts the employment of labour and the purchase of tarpaulins. Now ft is common case that the goods must have been shifted and moved by porters and it is common case that tarpaulins were used. The defendant does not dispute it. Even the defendant's witnesses admit that. That being so, the two grounds for not accepting Dharshi's evidence do not appear to me to be fair to that witness. This is only to illustrate the irrelevant details which put the main controversy between the parties here out of focus at the trial.
34. It now remains to consider on the facts the question of a portion of these bags. The learned trial Judge holds that 616 bags had suffered some kind of water damage but the rest were in good condition. It is, therefore, necessary to separately deal with these 616 bags of tobacco. The Bills of lading when analysed show that these 616 bags of tobacco suffered some damage more or less. Bills of lading Nos. 21 and 45 show that all the bags were stained and other bills of lading except Bill of lading No. 18 indicate that the number of bags mentioned therein suffered water damage. The learned trial Judge also notices the admission in the written statement that the goods covered by Bill of lading No. 18 arrived at the dock for shipment on 23-11-1948. In respect of these 616 bags, the learned trial Judge does not, therefore, make the defendant carrier wholly liable, but has reduced the burden of the loss upon the defendant by one-half so that out of a total damage in respect of 616 bags of tobacco the plaintiffs have been decreed one half. The reason which the learned Judge has given appears to be that he has not been sure how much damage in respect of these 616 bags was due to improper stowage and how much to the inherent vice or infirmity of the affected goods. He, therefore, appears to nave applied what I call the 'sporting rule' of damage and granted the first plaintiff half the market value of these 616 bags which amounts to Rs. 63,297/8/-. The learned Counsel on behalf of the respondent has urged that his client, the plaintiffs, should have been given the full amount of the damage. There is considerable force in his argument which is enhanced by our finding of fact generally that the whole cause of the loss or damage to these goods was the negligent acts of omission and commission on the part of the carrier in carrying and stowing the goods during the voyage.
35. But the difficulty on the respondents' side on this point is that there is no cross appeal or objection on this point by the plaintiffs. There is no reason also why there was no such cross appeal or objection. The learned Counsel for the respondents has argued that failure to file cross-objection should not prevent this court from exercising its powers under O. 41, R. 33 of the Civil Procedure Code. It was contended on the language of Order 41, Rule 33 of the Code find on the authorities of Harisankar v. Anath Nath, reported in ; Radhika Mohan v. Sudhir Chandra, reported in : AIR1937Cal10 ; and B. Iswarayya v. Swarnam Iswarayya , that the Court ought to grant the plaintiff respondent in this case relief even in respect of these 616 bags although there is no cross-objection or no cross-appeal. The powers under Order 41, Rule 33 are discretionary and it is unnecessary in. this appeal to go into the legal subtleties of this, procedure for the simple reason that no ground whatever had been furnished by the plaintiffs-respondents to explain why no appeal was filed by them in this case on this point. The absence of such explanation distinguishes the present case, therefore, from the cases relied upon by the respondents, each one of which gave cogent reasons for non-filing of cross-objection. We, therefore, do not choose to interfere with that finding of the learned trial Judge in respect of 616 bags.
36. Nor do I find that such a procedure, of applying the sporting rule of damage by halving it, is unknown in practice. Barnes J., who had considerable experience in Shipping and Admiralty Law, in 'The Pearlmoor,' reported in (1904) P. 286 at p. 293, gives expression to this practice in the following terms:
'I do not attribute the whole of the heating to this cause. I think the probability is that a portion of the heating was due to the tender state of such a cargo, and to its being confined in the hold of the ship--that is to say, I think that both causes contributed to the heating, and that I must make a rough estimate in endeavouring to find to what extent this cargo has been affected by improper treatment on board the ship. It appears to me that the proper and only conclusion I can come to is to put down half of the heating to that cause.'
37. We, therefore, do not disturb the Award of the Learned Trial Judge of half damage in respect of 616 bags.
38. Having regard to the view of the facts that we have taken, it is again unnecessary to refer in detail to the cases. Not one of the cases cited at the Bar supports the proposition that if the carrier by his grossly negligent acts of omission and commission in stowing and carrying the goods during the voyage becomes responsible for making ash of tobacco, then the carrier can escape from liability either by the law of onus or by any law of exception recognised in the Carriage of Goods by Sea Act or by the terms of the Bills of Lading or under the Bills of Lading Act. The correct view on the law of onus relating to carriage of goods by sea appears in my judgment to be this. If the shipper proves that the goods have not been delivered or damaged after shipment during the voyage and while the goods were in charge and custody of the carrier, the onus shifts on to the carrier to bring the cause of damage within the exceptions provided in Article IV of the Indian Carriage of Goods by Sea Act 1925 specially Rule 2 thereof. If the shipper then wants to defeat the carrier's defence of excepted risks under Article IV by showing & proving negligence, then the onus shifts on to the shipper to prove such negligence. I am satisfied on facts of this case and I hold that the shipper has proved and established by overwhelming evidence the negligence of the carrier in stowing and carrying these goods while in carrier's custody and has fully discharged the onus of proving carrier's negligence, This is my reading of the relevant Indian law and the Indian Statutes on the point. The English law on the point does not appear to be different Sea Carver's Carriage of Goods by Sea Act, 10th Edn. p. 186, Gosse Millard v. Canadian Govt. Merchant Marine, 1929 AC 223, Silver v. Ocean Steamship Co., 1930-1 KB 416.
39. Out of deference to the Bar, I should first mention the case which was continually being quoted by the learned counsel for the appellant during the course of his argument. This is the case o Bradley and Sons Ltd. v. Federal Steam Navigation Co. Ltd. reported in (1927) 137 LT 266. This related to a consignment of apples which were affected with the species of internal browning. The plaintiffs' case there was based on breach of the contract to deliver safely evidenced by the Bills of Lading and upon negligence and unseaworthiness in connection with ventilation of the holds and the withdrawing of gases from the same. The Carrier's case there was that the ship was seaworthy and that there was no negligence in or about the carriage and that the damage was due to. inherent quality of the apples shipped. It was found there as a fact that the damage was caused to the apples not because of the ship or of the sea but because they were apples which were not fit to make their voyage in the ordinary way. The fact was clearly established there that all possible steps were taken by the carriers and every possible attention was given by the carriers to the apples in Bradley's case. It is necessary to quote Lord Sumner's crucial observations at p. 271 of that report to distinguish completely that case from the present appeal before us:
'It appears to raise the old controversies about causa causans and causa sine qua non and to force into undue prominence the words 'resulting from.' I think it may be answered in either of two ways. Branson, J. argued thus : The evidence has eliminated the operation of an excessive concentration of carbon dioxide, to which the disease of 'Brown Heart' was ascribed. If the apples did not die a: a natural death, some other failing must have caused it, and as they are not said to have been otherwise ill-treated on board the ship, that failing must have been at least latent before shipment. The negation of the one establishes the other. It appears to me that this was a legitimate train of reasoning and your Lordships are not called upon to dissent from it.'
Now before the carrier can avail of latent defect as an inference, he has got to eliminate all charges of ill-treatment of the goods on board in his custody and that is why, 'the negation of the one establishes the other,' is a principle which is inapplicable in the present case. When all other causes during the voyage have been eliminated, so far as the acts of the carrier are concerned, it is then and then alone that an inference of inherent vice can be attributed to the goods in case of doubt but that course of reasoning is obviously not open on the facts of this case. Here I have no hesitation or doubt that there was no other cause responsible for the loss or damage to these goods than the carriers' own negligent acts of omission and commission in stowing and carrying the goods in their custody.
40. Similarly, The Ida, (1875) 32 LT 541, is of little help to the appellant having regard to the view of the facts that we have taken in this appeal. I need only add that the learned editor of Carver on Carriage of Goods by Sea, 10th Edition, at page 186, criticises the Privy Council decision of 'the Ida.' It is usually quoted as an authority for the proposition that the shipper must prove that the goods were (i) in good condition on loading and delivered damaged; or (ii) damaged by causes for which the carrier is responsible. If that is correct and the shipper cannot prove (i), the burden must be on him to prove that damage was not caused by an expected peril as inherent vice. Carver points this out and says it is unintelligible why it should not be enough for the shipper to prove that the goods were damaged when on board. 'The Ida' (1875) 32 LT 541 is also irreconcilable with the later authorities like 'The Peter der Crosse', 1876-1 PD 414, 'The Tromp,' (1921) P. 337, 'The Skarp' (1935) P. 134.
41. Reliance was also placed on 'The Europa' (1908) P. 84 which is distinguishable from this appeal both on the ground (1) that it was a case of unseaworthiness and (2) that there was competition of rival causes between unseaworthiness on the one hand and perils of the sea on the other.
42. Next comes the question of damage. It is necessary to mention here that the parties in this appeal agreed that the evidence adduced by the respective parties in Suit No. 1435 of 1949 (Chaturbhai Patel and Co. and another v. Asiatic Steam Navigation Co. Ltd.) would be treated as evidence in this case. Much of the evidence was given in that suit which is treated as evidence here. The evidence establishes without any controversy that the goods came as a 'charred mass* in Calcutta. It had no value in the market. There is no question that such goods were unmerchantable and had no value. Although some witnesses have said that the charred mass could still be used as hooka tobacco with at mixure of chua yet that evidence again is pure hearsay and inadmissible and has no weight in any event. The consignment consisted of tobacco of the second grade quality. It is found in the evidence that the market price of such tobacco varied from Rupees 225/- per maund to Rs. 180/- per maund. The learned Judge's finding is based on the evidence of Narainji Velji, Magan Bhai Phul Bhai Patel, Basudev Pandia and Kantilal Talati. I think that finding is basically unexceptionable. No consent or compelling reason has been advanced before us to reject that finding of fact.
43. The only point that was seriously argued on this branch of the case was that the inclusion of excise duty not paid but payable in claiming damages was unjustified. It seems to me that the argument for the appellant on this point proceed on a very wrong conception of the basis of damage in this case. The observations on cases dealing with damage in Scrutton on Charterparties, relate only to freight insurance and other charges but they do not relate to excise duty and therefore are not helpful. The damage here was calculated on the basis of the actual market value of these goods. No further question of excluding the amount of duty payable upon such goods from such market value can arise because the market value reflects the actual damage suffered by the person who puts this merchandise on the market and that market value itself proceeds ex hypothesi on the basis that the goods had gone through all necessary legal incidents including payment of duty before they entered the market and acquired a market value. Undutied tobacco cannot be sold in the market and therefore cannot have an open and honest market value. Secondly, the evidence here establishes that a sum of Rs. 14,000/- and odd had already been paid on account of excise duty although the balance of excise duty had not been paid; hut the first plaintiff as purchaser had incurred the liability or obligation to pay the excise duty to the vendor at least even if it be not to the Government under the Excise rules. The learned trial Judge, therefore, in our view, rightly relied on Lord Atkinson's observation in Wertheim v. Chicoutimi Pulp Co., 1911 AC .301 and held that as the ultimate liability to pay excise duty was on the first plaintiff, the amount of excise duty which had not been actually paid as yet could not be deducted from the market value of the goods.
44. Lastly, it was contended on behalf of the defendant-appellant that the plaintiffs had no right to maintain a suit on the contract of carriage as contained in the bills of lading and the suit should have been dismissed on that ground by the learned trial Judge.
45. It is necessary on this point to refer to the pleadings. Jethalal Dharamshi and Co., a registered firm, is the first plaintiff in the suit who claims to be the owner of these 1472 bags of tobacco. The pleading of this first plaintiff is that the defendant as such carrier received these consignments of tobacco from Bombay from the second plaintiff Chunilal Ambalal, also a registered firm, as agent of the first plaintiff. The defendant admits in the written statement that the plaintiffs or each of them, became bound to accept delivery of the goods under the terms of the bills of lading. This admission is expressly made in paragraph 8 of the written statement. In fact the defendant carrier pleads the very conditions of these bills of lading as a defence to the action and unless they bound the plaintiffs they could not provide the defence sought by the carrier. It is also the pleading of the plaintiffs that all these eight bills of lading in the suit were endorsed by the second plaintiff to the first plaintiff and, therefore, in any event, property in the said goods passed to the first plaintiff. This passing of the property by the endorsement of the bills of lading is also admitted in paragraph 2 of the defendant's written statement. This was not only admitted but the defendant acted on such admission by making the offer of bags as alleged in paragraph 9 of the plaint under the contract of carriage as contained in the bills of lading. On these clear and unequivocal admissions it is no longer in my judgment open to the appellant to contend that the suit is not maintainable on the contract of carriage as in the bills of lading.
46. It is clear from the evidence that the first plaintiff had purchased from various parties the goods in suit through the agency of one Nathabhai who acted merely as commission agent. The actual ownership of the goods passed to the first plaintiff by such purchases and the first plaintiff accepted liability for payment of the price of the goods as a result of such purchases. What is then argued is that if the purchase was made long before the bills of lading in respect of these goods, then the first plaintiff did not acquire any title by reason of the endorsement of the bills of fading. I am unable to accept the appellant's argument that this fact, in any way, put the plaintiffs or any of them out of court
47. This argument is built on Section 1 of the Bill of Lading Act, (1846) which provides as follows:
'Every consignee of goods named in a bill o lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement shall nave transferred to and vested in him all rights of suit and be subject to the same liability in respect of such goods as if the contract contained in the bill of lading had been made with himself.'
The argument is that the rights under the bills of lading can vest in the endorsee 'only' when the property in the goods 'shall pass, upon or by reason of such endorsement.' The section does not say so. It does not use the word 'only'. A bill of lading is a document of title. It is a well known mercantile document of title which, is transferred in the business world by endorsement, passing to the endorsee good title to the goods covered by such bill of lading. Being itself a document of title, endorsement of the bill of lading necessarily means, something to do with title, either actually transferring the title or completing the acquisition of title or perfecting it or putting a conclusive seal by providing the document of title or facilitating or protecting possession or possessory title. Endorsement of a bill of lading can never be an act which has nothing to do with title and I shall apply Section 1 of the Bill of Lading Act in this case by holding as I must that the property in the goods had passed upon or by reason of such endorsement because even though some title or the real title may have passed to the purchaser before the actual purchase, the endorsement of the bills of lading completed and perfected his title by putting the purchaser in possession of the indicia of title which he would require in respect of exercising his ownership, or title to the goods. Therefore, the fact that the first plaintiff had the real title before the actual endorsement of the bill of lading is no ground for disentitling him from claiming on the bills of lading in the suit after the endorsement. To hold otherwise will be to seriously cripple the mercantile utility of bills of lading and the value of negotiability of such bills of lading by endorsement.
48. The very terms of the bill of lading also show here that the second plaintiff as well as the first plaintiff have the right to maintain the action on this contract of carriage as contained therein. The carriers in this case by the very terms in the bills of lading entered into a contract of carriage expressly with Chunilal Ambalal and Co. the second plaintiff, and agreed to deliver the goods mentioned in the bill of lading 'unto order or assigns.' The first plaintiff comes within the expression 'order or assigns.' Again Clause 11 of the bill of lading provides:
'The word 'shipper' and/or 'owner of the goods'wherever used in this bill of lading include theshipper consignee and/or endorsee of the bill oflading, owner of the goods, receiver of the goodsand/or holder of the bill of lading, whether by wayof security or as agent or otherwise.'
It is, therefore, clear that both the plaintiffs have a right to maintain this action on the contract of carriage as contained in the bill of lading
49. It is then argued that both the principal and the agent could not sue under the Indian Contract Act. To allow the carrier to escape liability on the bill of lading on the ground that he is an agent, is to defeat the bill of lading and therefore to defeat the Carriage of Goods by Sea Act and its express prohibitions and therefore can not be permitted. Apart from that, the question of applicability of Section 230 of the Indian Contract Act as such does not arise in this case because of the express provisions of Clause 12 of the bill of lading which provides that all claims arising under the Bill of Lading should be determined according to the English law subject of course to the exception provided by Clause 1 that any conflict between the Indian Carriage of Goods by Sea Act, 1925, and the clauses in the bill of lading must be resolved in favour of the Indian Carriage of Goods by Sea Act. Therefore it makes no exception in favour of the Indian Contract Act. The only exception is in favour of the Indian Carriage of Goods by Sea Act. Thirdly, even if Section 230 of the Indian Contract Act either as such or on its principles, which are also to be found in the English law, were applicable, the position of the appellant does not improve. Section 230 of the Indian Contract Act or the principles on which it is based show that an agent cannot inter alia personally enforce a contract when there is a contract to the contrary and when the principal's name is disclosed by the agent. The very terms of the bill of lading in this case show the contract to the contrary and also the non-disclosure of the name of the principal. Therefore, the appellant's contention on this point must fail in any event.
50. Before I conclude, some reference is necessary to the complaint made by the appellant against the respondent for the non-production of the plaintiffs' Surveyor's report. Non-production of the document or withholding the same without any explanation entitles this court to make the presumption that, if produced, it would not have supported the case of the party withholding it. Making all the presumption against the respondents on this point on that ground, it can at best mean that if the report was produced, it would not have supported the plaintiffs' case. Assuming, however, that it supported the defendant's case, even then the carrier does not stand exonerated. It is necessary to set out briefly the fact about the non-production of this document.
51. One Kothari was employed by the plaintiffs to make a survey report. The allegation is that the report was made but was not disclosed. Pandia's evidence admits that such a report was made by Kothari and was handed over to the plaintiffs' solicitors in April 1953 (Pandia Qs. 797-800 and Q. 1085). If the report was handed over in April 1953, then it could not have been disclosed in the plaintiffs' affidavit of documents which was made as early as August 1949. Now, this Kothari actually made his survey on or about 12-3-1949. (Pandia Q. 407). It, therefore, appears that although Kothari made the survey on 12-3-1949, it was only after four years in April 1953 that he actually made a report. What remains of the value of a survey report when the survey was made more than three months after the arrival of the goods and the report was made more than four years after the survey? It also appears that this report was not called for by or on behalf of the appellant. It, therefore, on the facts, does not bear out the charge that there was any attempt by the plaintiff to withhold the document. They first had not the document when the affidavit of documents was made and secondly, the survey was made months after the arrival of the goods and the report was made years after the survey, and thirdly, even when it came out at the trial that such a report was in existence, the defendant appellant never called for its production. I shall add one more cogent reason. The plaintiffs' evidence shows that Kothari was not available. His whereabouts could not be traced so that he could not be produced as a witness to prove the report. In fact, it appeared in cross-examination of Patterson who gave evidence on behalf of the defendant that this Kothari had been to Paterson's house. Kothari's association with Patterson might not also have made Kothari, even if he were available, not a very reliable or dependable witness. After all, the presumption that the court is expected, to make under Section 114 of the Evidence Act is a permissive presumption in the sense that the court may in a proper case presume and normally it will do so if it is established that there is a relevant document and that it has been actually withheld without any reason. None of these conditions has been satisfied in this case. Besides, there is good reason not to make any presumption. I do not propose to leave this question even there. At best, if produced, it could have been an expert's opinion. It would have been evidence of opinion, not of fact. The report could at best have shown that the damage could be caused or occasioned by the presence of water, saline or fresh, but then by no process of imaginary reconstruction, call it expert opinion or not, could Kothari have been able to say what negligence acts, on the part of the carriers in improperly stowing and carrying the goods, produced that result of ashes.
52. There is always a touch of irony when the pot calls the kettle black. As against this particular report of Kothari which the respondents are not supposed to have produced, there is a whole host of important and relevant documents which the appellants carriers have withheld such as the Tally Book, the Gangway Book, Bound log Book, Original Cargo Plan, Landing Receipt, Manifest, Hatch Discharge, Memorandum Discharge, Tally Book. The appellant also failed to call material witnesses like the Tally Clerk, the Foremen, the Duty Officers who actually supervised the leading in the hold and the sorter responsible for sorting them, Mr. Stamp, the Second Officer, who signed the Hatch Receipt, Mr. Holmes, the Third Officer and Hilly the Purser, who prepared the Mate's receipt. They were documents, and witnesses of facts extremely relevant on the question of the main issue of negligent stowing and careless stacking. If this court were to draw the presumption on this ground, then the already overwhelming evidence on negligent stowing and careless stacking will be greatly enforced and would make theoretical arguments on onus and inherent vice appear wholly out of place.
53. For these reasons, I uphold the decree in favour of the plaintiffs respondents for the sum of Rs. 2,40,811/8/- with interest and costs. as allowed by the learned trial Judge and dismiss this appeal with costs.
54. Certified for two counsel.
55. I agree.