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India General Navigation and Railway Co. Ltd. Vs. the Eastern Assam Company Ltd. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1921Cal315,61Ind.Cas.14
AppellantIndia General Navigation and Railway Co. Ltd.
RespondentThe Eastern Assam Company Ltd.
Cases ReferredRome v. Midland Railway
carriers act (iii of 1865), section 9 - suit for damage's--negligence--burden of proof--non-delivery--damages, measure of. - .....side. at this point, the width of the river is about one and-a-half miles and the distance from light to light is not more than two miles. the object of the pilot lights is obviously to indicate the course to be followed by the steamer who grossing from one bank to the other, and the evidence shows that a deep channel goes almost straight across from light to light. before 'madaya' had reached the light on the right bank, there were evident signs of an immediate storm, and when the steamer reached the spot, the light on the opposite bank was invisible. notwithstanding this the steamer began to cross the river. for half-a-mile, she proceeded under steam, at first at full speed and then at half speed. the storm, which had begun a little when the vessel commenced to cross, speedily grew.....

Asutosh Mookerjee, J.

1. This is an appeal by the defendants, India General Navigation and Railway Co. in a suit instituted against them by the plaintiffs-respondents, Eastern Assam Company, for recovery of damages to goods made over to them for transport by their steamer from Dibrugarh to Calcutta. The defendants are common carriers, and the goods, which consisted of 250 chests of tea, were plead on board S.S, 'Madaya.' On or about the 21st April 1917, after 10 o'clock in the evening, the vessel grounded on a sand-bank at a peace below Hazirhat on the Brahmaputra river. The vessel could not be reflected till five days later when she was pulled off the sand-bank by another steamer Section 'Cambay' belonging to the Company, after she had been lightened by the transference of part of her cargo to a flat 'Bandi,' As soon as the vessel had been reflected, it was discovered that she had sprung a leak, and water had come into the port hold; before the water was completely pumped out the tea in the chest was damaged. The plaintiffs claimed damages on the allegation that the goods were injured through the negligence and unskilful handling of the steamer by the servants and agents of the Company. The defendant Company repudiated this allegation and pleaded that, while the goods were in course of transit, the steamer was caught in a violent storm, was driven into shallow water by its force, and was grounded notwithstanding all reasonable case, skill and diligence on the part of their officers, as no safe anchorage could be found. The defendants added that, in the course of operations to refloat the vessel, she passed over some hard submerged substance, notwithstanding reasonable care, skill and diligence on the part of their servants and sprung a leak. Their contention, substance, was that the direct; immediate and proximate cause of the damage to the goods was the violent storm mentioned, am that they were, consequently, not liable for the loss sustained by the plaintiffs. Mr Justice Rankin has found against the defend ants upon the question of negligence and has made a decree for damages against them, On the present appeal, the defend ants have impugned the correctness of the conclusion. The plaintiffs, on the other hand have preferred cross objections on the ground that the damages have been erroneously assessed.

2. The evidence which has been discuss at considerable length before us, leaves no room for doubt as to the actual events The 'Madaya' left Dibrugarh at 4-15 P.M. on the 16th April. At that time of the year, heavy rain and severe storms are by no means infrequent and often make the pilot-marks or lights entirely invisible, The 'Madaya' had, for this reason, to anchor about midnight of the 13th April on her way to Dibrugarh She had to do so repeatedly after she had left Dibrugarh, namely, on the night of the 16th, on the night of the 20th and on the morning of 21st. In addition to this, it is important to state that she grounded on the 18th, this, as stated in the log, was due to the misguidance of the pilot owing to the shallowness of 'water'. This is not a matter for surprise. The river Brahmaputra is very difficult for navigation; channels constantly vary in depth and position; sand-banks form rapidly in unsuspected places, and pilot lights of a primitive type (large hurricane lamps burning kerosine oil) are quickly obscured by rain and sandstorm. Under such circumstances, at about 10 o'clock, on the night of the 21st April, 'Madaya' name to a place below Hazirhat. Here the steamer has to cross from the right bank to the left; in her downward journey, she has to make first for the light on the right bank, to pass close to it, and then take her departure for the light on the other side. At this point, the width of the river is about one and-a-half miles and the distance from light to light is not more than two miles. The object of the pilot lights is obviously to indicate the course to be followed by the steamer who Grossing from one bank to the other, and the evidence shows that a deep channel goes almost straight across from light to light. Before 'Madaya' had reached the light on the right bank, there were evident signs of an immediate storm, and when the steamer reached the spot, the light on the opposite bank was invisible. Notwithstanding this the steamer began to cross the river. For half-a-mile, she proceeded under steam, at first at full speed and then at half speed. The storm, which had begun a little when the vessel commenced to cross, speedily grew severe, and, at the end of half-a mile the engines were stopped, so that the steamer drifted with a neutral helm until she struck upon a sand-bank. The evidence makes the true position of things abundantly clear. The night was pitch dark--the night of the new-moon. The pilot light on the opposite bank was invisible; yet the steamer began to cross. A severe storm came from the south while the warrant ran strong from north to south. While crossing under these condition?, the steamer soon lost her bearings, in the sense that no body could tell where the regular course lay; she quickly loft the proper channel and grounded on the sand bank. In these. circumstances, Mr. Justice Rankin has held that it was an Act of negligence on the part of the servants of the Company to attempt to take the vessel across, when the light on the opposite bank was invisible and there were evident signs of an approaching storm. In our opinion there is no escape from this conclusion. The appellants have, however, argued' that the only course open to the steamer was to cross the river, even though the light on the opposite bank was invisible inasmuch as it was dangerous if not impracticable to anchor near the light on the right bank. In support of this position, reference has been made to the evidence of Captain Kearns, who expressed the opinion that the steamer could not have been moored to the right bank nor could she have anchored on that side with safety, as there was a deep and strong current. Captain Morgan however, strongly expressed the contrary view and maintained that the proper thing to do was to run to and take soundings and drop anchor. We are not at all satisfied, in this certificate of evidence, that the only possible course for the steamer was to cross the river in the dark, in the face of a storm which had already commenced. It is important to bear in mind that, under Section 9 of the Indian Carriers Act, 1865, in a suit brought against a common carrier for the loss, damage or non-delivery of goods entrusted to him for carriage, it is not necessary for the plaintiff to prove that sash loss, damage or non-delivery was owing to the negligence or criminal Act of the carrier, his servants or agents. The burden of proof of absence of negligence is thus thrown upon the common carrier, on the theory that the loss or damage to the goods is prima facie proof of negligence This principle was recognised and applied in the cases of Central Cachar Tea Co. v. Rivers Steam Navigation Co. 24 C. 787n : 12 Ind. Dec. (N.S.) 1193 , Choutmull Doogur v. Ricert Steim Navigation Company 24 C. 786 : 1 C.W.N. 201 : 12 Ind. Dec. (N.S.) 1193, affirmed on appeal by the Judicial Committee in Rivers Steam Navigation Co. v. Choutmul Doogar 26 C. 398 : 26 I.A. 1 : 3 c.W.N. 145 : 13 Ind. Dec. (N.S.) 857 : Fesham Patter v. L.S. Moss 26 C. 398 : 26 I.A. 1 : 3 c.W.N. 145 : 13 Ind. Dec. (N.S.) 857, India General Sieim Navigation Co. v. Bhagwan Chandra Pal 19 Ind. Cas. 245 : 40 C. 716 : 17 C.W.N. 633 : 17 C.L.J. 639 and Akhil Chandra Shaha v. India General Navigation and Railway Co. Ltd. 29 Ind. Cas. 260 : 21 C.L.J. 565. But, as was pointed out in the case of Central Cachar Tea Co. v. Rittrs Steam Navigation Co. 24 C. 787n : 12 Ind. Dec. (N.S.) 1193, where evidence has been given on both sides of the circumstances under which the loss took place and the Court has arrived at a finding upon the whole of such evidence, the question of burden of proof ceases to have any practical importance. In such circumstances, the rule applicable is that enunciated by Lord Cairns in Mdropolitan Railway Co. v. Jackson (1877) 3 A.C. 193 at pp. 200. 210 : 47 L.J.C. 803 : P. 37 L.T. 679 : 36 W.R. 175 'it is indeed impossible to lay down any rule except that which at the outset I referred to, namely, that from any given state of fast, the Judge must say whether negligence can legitimately be inferred, and the Jury whether it ought to be inferred.' There can be no doubt, in our opinion, that, in the present case, not only is there evidence of negligence but evidence amply sufficient to justify the inference of negligence. This is not a case of inevitable accident, for, as Dr. Lushington observed in The Virgil (1877) 3 A.C. 193 at pp. 200. 210 : 47 L.J.C. 803 : P. 37 L.T. 679 : 36 W.R. 175, and re-stated in The Uhla (1867) 19 L.J. 89 : 37 L.J.A. Adm. 16n. : 2 A. and E. 29n. : 3 Mar. L.C. 148 : 'inevitable accident is that which a party charged with an offence could not possibly prevent by the exercise of ordinary care, caution and maritime skill. It is not enough to show that the accident could not be prevented by the party at the very moment it occurred, but the question is, what previous measures have been adopted to render the occurrence of it less probable'. Assume here that everything that was possible was done when the steamer was ia mid-stream, aught in the storm; the fact remains that she had been brought into that position by the negligent act of the servants of the company who attempted to take her across the river in a dark night, when the pilot light was invisible and there were abundant indications of approaching storm.

3. The question next arises, whether the damage actually suffered by the plaintiffs is attributable to the negligent act of the servants of the defendants. The appellants have contended that such negligence was not the proximate cause of the damage which was really due, first, to the intervention of the storm, and, secondly, to the unsuspected presence of a 'snag', or hard foreign substance in the sand-bank. It is well settled that negligence is the effective cause of an injury when it has in fact brought about that injury as a direot and natural consequence; when negligence has been established, liability follows for all the consequences which are in fact the direct and natural outcome of it, whether the injury is a consequence that was foreseen or not. In the words of Lord Selborne, in Spaight v. Tedoastle (1881) 6 A.C. 217 : 44 L.T. 589 : 29 W.R. 761 : 4 Asp. M.C. 406, the act complained of must have some proper connection as a cause with the damage which followed as its effect. But it is important to observe that a negligent act may be the effective cause of an injury, though it may rot be proximate in time, if it is the particular incident in a chain of events, which has in fact led to the injury, that, is, if it is the real cause of a subsequent accident. These principles may be regarded as the mentally, but the application of the doctrine, that to determine responsibility the law will consider the proximate and not the remote cause of an injury, to the facts of a particular case may present difficulties and lead to divergence of opinion. In one sense, the gum of all the anteaedents of any event. Constitutes its cause, but RS Lord Baoon Maid in his Maxims is were infinite for the law to consider the onuses of causes and their impulsions one of another; therefore, it contented itself with the immediate cause and judge of that by that, without looking for any further degree' Lord Blackburn in Metropolitan Railway Co. v. Jackson (1877) 3 A.C. 193 at pp. 200. 210 : 47 L.J.C. 803 : P. 37 L.T. 679 : 36 W.R. 175. If this principle were not adopted, the doctrine of the schoolmen that, the cause of the thing causing is the cause of the thing caused' would lead into a labyrinth of refined and bewildering speculation whither the law cannot attempt to follow. No general formula, however, it be framed for the solution of all conceivable case;' each must be decided largely upon the special facts belonging to it and often upon the very nixes discrimination. It has as accordingly been said, in systems where trial by Jury prevails, that the true rule it, that what is the proximate cause of the injury is ordinarily a question for the Jury; it is not a question of science or of legal knowledge; it is to be determined a fait in view of the circumstances of fact attending it Tuff v. Warman . (1857) 2 C.B. (N.S.) 740 : 140 E.R. 607 : 109 R.R. 865 : 26 L.J.C.P. 263 : 5 W.R. 685 : 29 L.T. (O.S.) 199 on Appeal (1858) 5 C.R. (N.S.) 573 : 1 : 6 R.R. 774 : 27 L.J.C.P. 322 : 5 Jur. (N.S.) 222 : 6 W.R. 693 : 411 E.R. 231. Ravan in his work on Negligence adopts the following' statement by Strong, J., in Milwzukee Railway Co. v. Kellogg (1876) 4 Cott (94 U.S.) 469 at P. 474 : 24 Law. Ed. 256:

The question always is, was there an unbroken connection between the wrongful act and the injury--a continuous operation did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful Act, and that it ought to have been foreseen in the light of the attending circumstances.

4. Two tests are here laid down, first, whether there was a continuous succession of events, and, second, whether the injury was the natural and probable consequence which should have been foreseen. The first test is liable to criticism on the ground that the nature of the intervening cause is not defined. The second test is open to the serious objection that the precise form of injury cannot generally be foreseen. The second test has, consequently, been explained to signify, not that the particular result should have been foreseen, but that the wrong doer might, by the exercise of ordinary sere, have foreseen that soma injury might result from his negligence: Smith v. London South-Western Railway Co. (1871) 6 C.P. 14 : 40 L.J.C.P. 21 : 23 L.T. 678 : 19 W.R. 230, explaining a dictum of Bramwell, B., in Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781 at P. 785 : 25 L.J. Ex. 212 : 2 Jur. (N.S.) 383 : 105 R.R. 791 : 156 E.R. 1047, O. Gorman v.O. Gorman (1903) 2 Ir. 573 : 36 I.R. L.T.R. 273 : 7 Ir.L.R. 521. The point of vital importance that neither lapse of time nor distance in space is the essentially controlling or decisive element in the solution of the question, whether a certain cause is or is not the proximate cause. Reference may, in this connection, be made to the case of Romney Marsh v. Trinity Houts Corporation (1870) 5 Ex. 204 on Appeal (1872) 7 Ex. 247 : 4 L.J. Ex. 106 : 20 W.R. 952, where the defendants' vessel struck upon a shoal through the negligence of the Captain and crew. It was blowing hard at the time; all control over the ship was lost, and through the action of the wind and tide, she was carried against and injured the plaintiffs sea-wall. It was held that the proximate cause of the injury was the negligent grounding; neither wind nor tide could be considered to be intervening factors which would isolate the defendants negligence. The principle is here recognised that the sequence of events is not broken by the intervention of an Act of Nature occurring while the resulting operation of the wrongful Act or neglect is effective. Another illustration is afforded by the case of Siordet v. Hall (1828) 4 Birig. 607 : 29 R.R. 651 : 1 M. & P. 561 : 6 L.J. (O.S.) C.P. 137 : 130 K.R. 902 where a ship Captain negligently caused water to be pumped into a boiler in mid winter. The water froze, cracked a pipe and escaped, damaging the cargo; it was ruled that not the frost but the Act of the Captain was the proximate cause of the loss. Agair, in Davis v. Garrett (1830) 6 Bing. 716 : 31 B.R. 524 : 4 M.& P. 540 : 8 L.J. (O.S.) C.P. 253 : 130 E.B. 1456, the master of a barge, which carried the defendant's lime, unnecessarily deviated from the usual course. During the deviation, the barge was run ashore by a tempest; the rain wetted the lime, the barge took fire thereby and the cargo was lost. It was held that the deviation was the true cause of loss and was sufficiently proximate to entitle the plaintiff to recover damages. It was argued that there was no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself, for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course.' Lord Tindal, C.J, overruled this contention and added, as an illustration, that liability for damage would remain, 'if the ship struck against a rock or perished by storm in the one course (that is, the course into which she had deviated), although' no one could possibly predicate that she might not equally have struck upon another rook or met with the same or another storm if pursuing bright and ordinary voyage.' See also The Gertor (1894) 7 Asp. M.C. 472 : 70 L.T. 703. We need not eleborate the matter further; this is clearly a case where, in the words of Lord Sumner in Becker, Gray of Co. v. London Assurance Corporation (1918) A.C. 101 at p. 113 : 87 L.J.K.B. 69 : 117 L.T. 609 : 23 Com. Cas. 205 : 14 Asp. M.C. 56 : 62 Section J. 36 : 34 T.L.K. 36, the carriers are liable because what has happened, has happened owing to their breach of obligation. As Mr. Justice Rankin points out, although steamers are often stranded in the river Brahmaputra and are re-floated without disaster, it is incontestable that all grounding is serious and the greatest care f should be taken, always and consistently, to as avoid it. If a, vessel is allowed to drift on a sand-bank, she may be conceivably damaged 7 in one or more of innumerable ways, and when she is dragged off--however cautious, I skilful and seaman-like the operations may be--there is no certainty that she will not be damaged in the process by some hard substance imbedded in the sand-bank, this is precisely what happened in the case before us; and what happened was a natural and probable consequence of the grounding of the steamer on a sand-bank: Central Gachar Tea Co. v. Biters Steam Navigation Co. 24 C. 787n : 12 Ind. Dec. (N.S.) 1193. There is thus no escape from the conclusion that the negligence of the defendants was the effective cause of the damage, and the decree in favour of the plaintiffs cannot be successfully impeached.

5. We have next to consider the cross objections taken by the plaintiffs, who have argued that the damages have been assessed on a wrong basis. The plaintiffs contend that, as the tea was intended by them to be sold in London, the damages should be assessed with reference to the price obtainable in the London market. The udefendants contend, on the other hand, that, so far as they are concerned, the immediate destination of the tea was Calcutta and that, consequently, the plaintiffs cannot recover from them anything more than the value of the goods at Calcutta. Mr. Justice Rankin has upheld, and, in our opinion, rightly upheld, the contention of the defendants. It is well-settled that, as a general rule, where goods entrusted to a oarrier are not delivered according to the contract, the measure of damages is the value of the goods at the place of destination, in the condition in which the carrier undertook to deliver them, at the time when they should have been delivered, less the proper charges of transportation and delivery, if these have not been paid by the consignor. Parke, J., said in Brandt v. Bowlby (1831) 2 B. & Ad. 932 : 1 L.J.K.B. 14 : 109 E.R. 1389 : 36 R.R. 796 that 'as between the parties to this cause, the plaintiffs are entitled to be put in the same situation as they would have been if the cargo had bean a delivered at the time due, and the sum it is would have fetched at the time is the amount of the loss sustained by non-performance of the t defendants contract Rice v. Baxedale (1831) 7 H. & N. 93 : 33 L.J. Ex. 371 : 153 E.R. 407 : 128 R.R. 318, Sanquer v. The London and South Western Railway Co. (1853) 16 C.B. 163 : 3 C.L.R. 811 : 133 E.R. 718 : 100 R.R. 677 and Rodoconachi v. Milium Brothers (1831) 2 B. & Ad. 932 : 1 L.J.K.B. 14 : 109 E.R. 1389 : 36 R.R. 796. On this principle, it has been held that if the goods are shipped to one who has procured them for re sale, he is not entitled to the proSt of re-sale, or, in other word, to the retail price. Consequently, the circumstance that the defendants intended to sell the golds in the London market does not by itself entitle them to damages on that basis, The fundamental principle that the party wronged by the breach of obligation should be awarded compensation for the losses which he has sustained in consequence and (should be placed in the same position paauniarily as if the contract had been performed, is subject to important limitations, and compensation is not in fact recoverable for every 1908 or detriment which may be traceable as a consequence, however remote, of the breach of obligation: Wertheim v. Chicoutimi Pulp Co. (1911) A.C. 301 : 80 L.J.P.C. 91 : 101 L.T. 226 : 15 Com. Cas. 297, Erie County Natural Gas and Fuel Co. v. Carroll (1911) A.C. 115 : 80 L.J.P.C. 59 : 103 L.T. 678, British Westlnjhouse Electric Sr Manufacturing Co. v. Underground Electric Railways (1912) A.C. 673 : 81 L.J.K.B. 1132 : 107 L.T. 325 : 57 Section J. 731. The natural and probable consequence of the failure, of the carrier to deliver the goods at the time and place they should have been delivered, is prima facie a 1033 to the owner amounting to the value of the goods at that point. But this ordinary and definite effect of the failure of the carrier may be aggravated in a particular case by special circumstances, such as, the intention of the consignee to sell the goods in the moat profitable market in the world. The question is, how far are the aggravations of the normal consequences to be taken into amount in the assessment of damages. The general answer 3, that they are not to be taken into account, except so far as the circumstances to which hey are due were the ordinary probable circumstances which might beforehand be expected to attend or follow upon the breach if obligation. This is subject to the exception that, if the party who has broken the contract, entered into it, in contemplation of special circumstances which would affect the consequences of a breach and excepted those circumstances as condition under which the contract was to be performed, he is liable for any special loss which may hays resulted: Hadley v. Baxsandale (1854) 9 Ex. 341 : 2 C.L.R. 517 : 23 L.J. Ex. 179 : 18 Jur. 358 : 2 W.R. 302 : 156 E.R. 145 : 23 L.T. (O.S.) 69 : 96 R.B. 742. In the present case, the plaintiffs endeavoured to bring their claim within the exception by proof that the defendants had notice that the goods were intended for sale in London. This attempt has failed, and Mr. Justice Rankin has rightly held that there was not sufficient notice. As Willes, J., said in British Columbia, and Vancouver's Island Spar, Lumbar and Saw-Mill Co. Limited v. Nettleship (1868) 3 C.P. 499 at p. 509 : 37 L.J.C.P. 235 : 18 L.T. 291 : 16 W.R. 1046, the knowledge mast be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it. To the same effect is the observation of Blaokbum, J., in Rome v. Midland Railway (1868) 3 C.P. 499 at p. 509 : 37 L.J.C.P. 235 : 18 L.T. 291 : 16 W.R. 1046, that 'in order that the notice may have any effect, it must be given under such circumstances, as that an actual contract arises on the part of the defendant to bear the exceptional loss.' The case before us clearly does not fall within this rule. There if, however, another circumstance which completely negatives the demand of the plaintiffs for damages at the rate of the London market. Mr. Justice Rankin has found that this very kind of tea could, with reasonable diligence, have been purchased at the Calcutta price and substituted for the tea which had been consigned from Assam to Calcutta with a view to ultimate shipment to London, The plaintiff cannot consequently be allowed compensation for losses which might have beer reasonably avoided: The Blenheim (1885) 10 P.D. 167 : 5 Asp. M.C. 522 : 54 L.J. Adm. 81 : 53 L.T. 916 : 34 W.R. 154. The position might have been different, if goods of the same description had not been obtainable: Grebert borrgnis v. Nugent (1885) 15 Q.B.D. 85 : 54 L.J.Q.B. 511. From every possible point of view, it is the plain that there is EO vestige of a claim for higher damages by the plaintiffs.

6. The result it, that the decree made by Mr. Justice Rankin is confirmed and the appeal as also the cross-objection are dismissed with costs.

Fletcher, J.

7. I agree.

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