THE ATTORNEY-GENERAL, Appellant, and THE SCINDIA STEAM NAVIGATION CO. LTD., INDI

079-NLR-NLR-V-63-THE-ATTORNEY-GENERAL-Appellant-and-THE-SCINDIA-STEAM-NAVIGATION-CO.-LTD.-INDI.pdf


The Attorney-General t>. The Scindia Steam Navigation Co. Ltd., India
386
pjsr the Privy Council]
Present: Lord Cohen, Lord Denning, Lord Morris of Borth-y-Gest,Lord Guest, and Mr. L. M. D. de SilvaTHE ATTORNEY-GENERAL, Appellant, and THE SCINDIASTEAM NAVIGATION CO. LTD., INDIA, RespondentPrivy Council Appeal No. 57 of 1960
8. C. 21—D. C. Colombo, 330281M
Shipping—Contract for carriage of goods by sea—Bills of lading —Evidential value ofstatements made therein—Short delivery of a number of bags—Burden of proof—Evidence as to their weight, contents and value—Customs Ordinance (Cap. 185),ss. 30, 31, 40—Boat notes—Evidential value thereof—Indian Carriage ofGoods by Sea Act, 1925, Schedule, Article III, Rules 3 and 4.
Three bills of lading, which were all in similar terms and subject to the terms,provisions and conditions of the Indian Carriage of Goods by Sea Act of 1925and the Schedule thereto, contained respectively the acknowledgments that2,187 bags, 47,992 bags and 50,473 bags “ being marked and numbered as permargin ” were shipped from Rangoon to Colombo on the defendant Company’svessel s.s. “ Jalaveera ”. The total gross and nett weights of the goods wererecorded in the margin. There was a condition in the terms :—“ Weight, contentsand value when shipped unknown
In an action instituted by the consignee against the shipowners for therecovery of damages for failure to deliver 235 out of the total 100,652 bagsand their contents of rice—
Held, (i) that, though the plaintiff called no evidence from Rangoon, thestatements in the bills of lading as to the number of bags shipped formedstrong prima facie evidence that the stated number of bags were shipped.Unless the shipowners showed that only some lesser number of bags thanthat acknowledged in the bills of lading was shipped they would be underobligation to deliver the full number of bags. (For the purpose of proving theshort delivery of 235 bags, some 144 boat notes, issued in compliance with theprovisions of section 40 of the Customs Ordinance, were produced by theplaintiff, and evidence was given of the tally carried out when the bags wereloaded into lighters ex-sbip and the further tally by Customs Officers before thebags were put into the warehouse.)
.(ii) that, in view of the condition “ Weight, contents and value when shippedunknown ”, the bills of lading were not even prima facie evidence of the weightor contents or value of the bags. It was for the plaintiff to prove the contentsof the bags and the weight of the bags and it was for him to prove his loss byproving what it was that the bags contained and by proving what was thevalue of what the bags contained.
that if a certain number of bags has been lost, it could almost necessarilybo inferred that the lost bags were bags containing similar goods to thosewhich were not lost.
that the question of short delivery should be decided not by referenceto the times when there were cartages away from the Customs warehouse butby reference to the times of delivery from the ship.
17—T/g-rrr2—J. N. S, 1266—2,033 (2/62).
386
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd., India
.AuPPEAL from a judgment of the Supreme Court reported in{1958) 61 N. L. R. 409.
F. N. Ghratiaen, Q.G., with Walter Jayawardena and A. C. de Zoysa,for the plaintiff-appellant.
Michael Kerr, Q.G., for the defendant-respondent.
Cur. adv. miU.
Ootober 3, 1961. {Delivered by Loud Morris of Boeth-y-Gest]—
The issue which arises in this appeal is whether the appellant (who sueson behalf of the Government of Ceylon) is entitled to recover damages fromthe respondent Company on the basis that there was a short delivery ofcertain bags of rice which were alleged to have been shipped on therespondent’s vessel s. s. “ Jalaveera The Government of Ceylon importrice from Burma and in connection with the carriage of such rice the FoodCommissioner of Ceylon entered into an agreement (dated the 22nd April,1953) with a number of shipping lines, collectively called the ConferenceLines, of which the respondent Company was one. Pursuant to that agree-ment the Conference Lines agreed (subject to certain terms as to quantity)to ship the rice which the Government of Ceylon purchased in Burma.The freight to be charged was not to exceed the rate of Rs. 33 per ton of20 cwt. nett for carriage from any one port of Burma to the port of Galleor Colombo in Ceylon. By clause 6 (1) of the agreement it was providedthat “the transport and carriage of each separate cargo of rice shall begoverned by the terms and conditions of the bill of lading which theOwners or Agents of the Owners of the carrying vessels shall and arehereby required to issue to the shippers or consignees which shall bedeemed to be the contract of carriage in respect of that cargo between theshipper and/or consignee on the one hand and the Owners of the carryingvessels on the other ; provided, however, that the rate or rates of freightcharged and entered in the bill of lading shall not be in excess of the rateslaid down in Clause 3
Between about the 14th and 17th September, 1953 a number of bagswere shipped on the s.s. “ Jalaveera ” at Rangoon by the State Agri-cultural Marketing Board of the Union of Burma for carriage to Colomboand delivery to the Director of Food Supplies, Colombo. The Directorwas an officer of the Government of Ceylon. It was not disputed beforetheir Lordships that the appellant was entitled to sue on behalf of theGovernment. The goods were shipped under three bills of lading datedrespectively the 14th, 16th and 17th September, 1953. The claim whichthe appellant presented in the action was that 100,652 bags had been takenon board, that the bags contained rice and that there was a failure to
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The Scindia Steam Navigation Co. Ltd., India
deliver235 of them. In respect of such failure he claimed damages. Theclaim succeeded in the District Court of Colombo but the judgment anddecree of that Court dated the 6th December, 1956 was set aside by theSupreme Court of Ceylon on the 28th October, 1958. By leave of theSupreme Court this appeal is now brought.
The three bills of lading were all in similar terms. There was a para-mount clause the opening words of which were :—“ All the terms, provi-sions and conditions of the Indian Carriage of Goods by Sea Aot, 1925,and the Schedule thereto are to apply to the contract contained in thisbill of lading …The bills of lading recited that there were
shipped in apparent good order and condition certain numbers of packages“ being marked and numbered as per margin In the first bill oflading the number of packages was given as 2,187 bags, in the second47,992 bags and in the third 50,473 bags. The total was therefore
bags. In the margin there were “ Particulars declared byShipper **. There were columns headed “ Leading Marks ”, “ Numberof Packages or pieces ”, “ Description ” and “ Said to weigh Oneach bill of lading particulars were given. The descriptions which weregiven recorded that the stated numbers of bags contained “ Pull BoiledBice 1953 Crop ”. The nett weights of the contents of each group ofbags were given. Thus in the first bill of lading the total nett weight ofthe 2,187 bags was given and the nett Weight of each of the 2,187 bagswas stated to be 159 74821 lbs. The average nett weight per bag asstated in the three bills was approximately 160 lbs. (The average nettweight per bag on the basis of the average weights stated in the bills oflading was said to be 159 84 lbs.) Each one of the bills of lading recordedin the margin the total gross and nett weights of the goods in respect ofwhich it was issued. Each of the bills of lading further provided :—
“ This Bill of Lading is issued subject to the following furtherconditions :—
NUMBER AND CONTENTS
Weight, contents, and value when shipped unknown. TheCompany is not to be responsible for any loss, damage or delay what-soever, directly or indirectly resulting from insufficiency of the address,or packing, internal or external; nor for condition of contents ofre-shipped or re-exported Goods. ”
There was also the following stamped endorsement on each one of thebills of lading :—
" SHIP NOT RESPONSIBLE FOR
DAMAGE FROM HEATING AND/OR CAKING OF NEW RICEGRAIN OR BRAN : OBLITERATION OF MARKS, DETERIORA-TION OF CONTENTS OR STAINING OF BAGS CAUSED BY
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LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd., India
THE NATURE OF CONTENTS AND/OR SHORTAGE OF WEIGHTCAUSED BY THE EVAPORATION OF CONTENTS : BURSTINGOF BAGS AND LOSS OF CONTENTS.
SHIP NOT RESPONSIBLE FOR WEIGHT OF BAGS ONOUTTURN. ”
After the s.s. “ Jalaveera” had loaded her cargo at Rangoon sheproceeded direct to Colombo. She did not touch at any intermediateport. There was no other cargo than the bags which were shipped by theState Agricultural Marketing Board of Burma. At Colombo the cargowas discharged into lighters and then carried in the lighters to a landingjetty and thence into Customs warehouse. The evidence establishedthat in the transhipment of rice it was a usual occurrence that by thetime the cargo arrived in Colombo many of the bags were tom. Thebags are stacked in the ship and the pressure of the top ones upon thelower ones causes rice to leak out of the lower ones. As would be expectedsome of the contents of the bags spilled out into the holds of the ship.The spillages consisted of rice from the bags. The tom bags were re-paired before being off-loaded. Other bags (empty ones) were senton board into which the sweepings were placed which resulted from thespillages. Those bags were specially marked to indicate that they weresweepings bags.
A tally of the numbers of bags was carried out as the cargo was loadedinto lighters. Certain “ Boat Notes ” were prepared showing thenumbers of bags that were carried in each lighter. The “ Boat Notes ”were initialled by someone on behalf of the ship.
It is provided by section 30 of the Customs Ordinance (Volume IV—Legislative Enactments of Ceylon—cap. 185) that the master of everyship arriving in the Island must make a report in accordance with theterms of the section to the Custom House which report must include themarks, numbers and contents of every package or parcel of goods onboard and by section 31 the master must at the time of making such reportdeliver to the Collector of Customs the manifest of tbe cargo of such shipwhen a manifest is required and if so required by the Collector the mastermust produce to him any bills of lading. By section 40 of the Ordinanceit is provided that with all goods unladen from any ship there is to besent with each boat load a boat note specifying the numbers of packagesand the marks and numbers or other description thereof and that suchboat note is to be furnished and signed by an officer of the ship and, ifthere is a customhouse officer on board, the boat note is to be signed bysuch officer also. The tindal and owner of the boat into which thegoods are laden is held responsible for the due landing and delivery at theoustom house of all the goods so laden and specified in the boat note.
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LORD MORRIS OF BORTH-Y-GEST<—The Attorney-General v.
The ScindiarSteam Navigation Co. Ltd., India
The bags that were tom and had been repaired were individuallyweighed before they were loaded into lighters. In similar manner thebags of sweepings were individually weighed before they were loaded intolighters.
In addition to the tally carried out when the bags were loaded intolighters there was a further tally by Customs officers before the bagswere put into the Customs warehouse.
There were produced at the trial some 144 boat notes. They showedthat unloading proceeded between the 24th September and the 2ndOctober, 1953. These boat notes in the aggregate recorded that 100,402bags had been taken off the ship. They were “ said to be ” bags of rice.In all but two instances the tally as to the numbers of bags taken off theship into lighter agreed with the second tally which recorded the numbersof bags landed from the lighters. The boat notes in the aggregate recordedthat 100,417 bags had been loaded into warehouse from the lighters.(Boat note No. 138 showed that the tally of the number of bags landedfrom lighter was 574 as compared with the tally of 563 of the numberrecorded as having been put on lighter : boat note No. 144 showed thatthe tally of the number of bags landed was 82 as compared with the tallyof 78 of the bags put on lighter.) Taking the corrected figure of 100,417the result was that 235 fewer bags were landed into warehouse at Colombothan the number of 100,652 which the three bills of lading recorded ashaving been loaded into the ship at Rangoon. After being landed thebags were fumigated before being put into the Customs warehouse.
The numbers of bags which were landed (100,417) included a total of541 bags which had been tom and repaired : the total weight of these 541bags was 500 cwt. 1 qr. 6 lbs. In addition to the 100,417 bags therewere also landed into warehouse 287 bags of sweepings. These sweepingsin total weighed 263 cwt. 0 qr. 13 lbs.
On the basis of those figures the Director of Food Supplies asserted, byletter dated the 29th October, 1953, that had the 541 bags not been tomthey would have contained 772 cwt. 0 qr. 09 lbs. instead of the 500 cwt.
1 qr. 6 lbs. which they actually contained and that there was still a shortageof over 8 cwt. even after taking into account the 263 cwt. 0 qr. 13 lbs.which were contained in the 287 bags of sweepings. By a previousletter dated the 3rd October, 1953 be had stated that a claim for a shortdischarge of 250 bags of rice would be made.
The evidence established that if a bag which the ship had taken onboard was found to have become completely emptied of its contents theempty bag would according to general practice be delivered to theconsignee. There would be entries on the boat notes relating to suchempty bags. In fact there was no mention of any original bag havingbeen delivered empty to the landing company. If any empty bags
2*J. W. B 1250 (2/62).
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LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd., India
which, were sent on to the ship at Colombo in order that they might beused to contain sweepings were not in fact used the practice was to returnthem and to make entry in respect of them on the boat notes. The lastboat note (No. 144) did in fact record the number of empty “ sweepings ”bags which were returned to the shore.
• After the bags were landed into the Customs warehouse they werelater delivered into the lorries of the Director of Food Supplies for trans-port to the Government granaries. These deliveries took place betweenthe 25th September and the 27th October, 1953. At the time of delivery.ex-warehouse a tally was made in the presence of a Customs officer.Considerable further spillage took place before the bags left the Customswarehouse. This resulted partly from the fact that more bags becamedamaged and tom, and partly from the fact that the process of unloadingthe bags from the ship involved the Use of hooks. These hooks causedholes to be made in the bags through which rice leaked out.
The deliveries from the Customs warehouse showed that the number ofbags which were delivered was 100,417 and of these the number which(inclusive of the 541 tom and repaired bags taken from the ship) were tomor stitched or had mouths burst was 4,367 : the gross weight of these4,367 bags was 4,072 cwt. 2 qr. 20 lbs. The deliveries from the Customswarehouse of bags of sweepings reached a total number of 1,804 (being1,517 more than the 287 bags of sweepings off-loaded from the ship) :the gross weight of these 1,804 bags of sweepings was 2,569 cwt. 0 qr. 6 lbs.
It will be seen that the total gross weight of the 4,367 bags and the1,804 bags was 6,641 cwt. 2 qr. 6 lbs. After the Director of Food Supplieshad asserted his claims against the ship-owners in October, 1953 the agentsfor the ship-owners stated that that the entire cargo loaded at the port ofshipment had been discharged and delivered at Colombo. They furthersaid (by letter dated the 20th November, 1953) :— cc We understandthat a quantity of as much as cwts. 403—0—18 lbs. was delivered to you asexcess sweepings after setting off against shortage in tom and mouthburst bags ex wharf. It will be noted, therefore, that this excess quantitymore than covers the weight of the bags alleged to have been short-delivered. ” The quantity of 403 cwt. 0 qr. 18 lbs. was calculated asfollows. If the 4,367 bags had had a “sound weight” of 160 lbs. perbag the total would have been 6,238 cwt. 2 qr. 8 lbs. The total weightsof the 4,367 bags together with the 1,804 bags of sweepings as deliveredex warehouse was 6,641 cwt. 2 qr. 26 lbs. The difference between the6,641 cwt. 2 qr. 26 lbs. and 6,238 cwt. 2 qr. 8 lbs. was 403 cwt. 0 qr. 18 lbs.and the contention was that such quantity more than accounted, for thecontents of the 235 bags which were said to have been missing.
On the basis of the facts referred to above the appellant, as plaintiff,commenced proceedings in the District Court of Colombo. By hisplaint dated the 31st August, 1954 he claimed that there had been a short
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.301
The Scindia Steam Navigation Co. Ltd., India
delivery of235 bags of rice from the ship. The claim was for Rs. 14,279'19as the full value of the 235 bags of rice and of the freight charges, Customsduty, warehouse rent, harbour dues and insurance. In the answer ofthe respondent the provisions of the bill of lading were referred to and inaddition to pleading certain defences which are not now material it wassaid that the ship had voyaged from Rangoon to Colombo direct andwithout touohing at any intermediate port and that the entire quantityof goods or cargo on board the ship was discharged at Colombo and thatthereupon “ in terms of the said Bills of Lading and in law the liabilityof the Defendant absolutely ceased The learned Judge in the DistrictCourt held that 100,652 bags of rice had been shipped on board at Rangoonand that delivery was made at Colombo of only 100,417 bags. He heldthat the bills of lading afforded prima facie evidence (which was subjectto being rebutted) of the number of bags of rice that were taken on boardthe ship. He gave judgment for the amount claimed less a small amountreferable to insurance. The plaintiff appellant did not appeal againstthe deduction when the case went to the Supreme Court and their Lord-ships have not been concerned with such deduction.
On appeal to the Supreme Court the Order of the learned District Judgewas set aside and the action was dismissed. The Supreme Court held thatthe plaintiff had not established by evidence that the total quantity of ricehanded over by the shipper at Rangoon had not been discharged by thecarrier at Colombo. The provisions of the bill of lading were referred toand it was held that the plaintiff had to prove by evidence that the shipperhad handed to the defendant’s ship 100,652 bags of rice each weighing 160lbs. The judgment proceeded :—“ This he cannot do except by calling awitness or witnesses able to speak to that fact. He has failed to do so.
In view of the conditions in the bills of lading quoted above he is notentitled to rely on the weight, number and quantity given in them asestablishing his claim.” The case of the New Chinese Antimony Com-pany Ltd. v. Ocean Steamship Company Ltd. 1 was referred to and in thejudgment it was further said :—“ The burden is on the plaintiff toestablish the facts on which he relies to succeed in his case. Apart fromthe conditions above mentioned there is in the instant case in thedefendant’s favour the added circumstance that the ship was loadedonly with rice consigned to the Director of Food Supplies, Colombo,and that she did not call at any intermediate port before reachingColombo.” It was also pointed out that it had not been contendedthat any rice was retained in the ship after the unloading at Colombo.
The first question which arises is whether the plaintiff established that
bags were shipped at Rangoon for delivery to the Director of FoodSupplies at Colombo. The onus of proving that fact undoubtedly restedupon the plaintiff. It was forcibly pointed out by the respondent that theplaintiff had chosen to rely for proof solely upon producing the hills of
1 (1917) 2 K. B. 664.
392
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd.., India
lading and that the plaintiff had not traced the bills of lading to theirsource or supported them by producing and proving mate’s receipts andtallymen’s books. The respondent further submitted that the bills oflading did not yield prima facie evidence of the number of bags that hadbeen shipped.
As has been mentioned above the bills of lading applied the terms,provisions and conditions of the Indian Carriage of Goods by Sea Act,1925 and the Schedule thereto. Rules 3 and 4 of Article TTT of theSchedule to that Act are in the following terms :—
“ 3. After receiving the goods into his charge, the carrier or themaster or agent of the carrier, shall, on demand of the shipper,issue to the shipper a bill of lading showing among other things—
{a) The leading marks necessary for identification of the goods asthe same are furnished in writing by the shipper before theloading of such goods start, provided such marks are stampedor otherwise shown clearly upon the goods if uncovered, or onthe cases or coverings in which such goods are contained insuch a manner as should ordinarily remain legible until theend of the voyage ;
(6) Either the number of packages or pieces, or the quantity, orweight, as the case may be, as furnished in writing by theshipper ;
(c) The apparent order and condition of the goods :
Provided that no carrier, master or agent of the carrier, shall bebound to state or show in the bill of lading any marks, number,quantity, or weight which he-has reasonably ground for suspectingnot accurately to represent the goods actually received, or whichhe has had no reasonable means of checking.
4. Such a bill of lading shall be prima facie evidence of the receiptby the carrier of the goods as therein described in accordance withparagraph 3 (a), (6) and (c).”
The respondent submitted, in reliance upon Canada and Dominion SugarCompany Ltd. v. Canadian National (West Indies) Steamships Ltd. 1, thatthere was no evidence that the shipper had made any demand of thenature referred to in Rule 3. While it is to be observed that pursuant toclause 6 (1) of the Conference Lines Agreement, as referred to above, theowners of the carrying vessels were required to issue bills of lading inrespect of the separate cargoes of rice the fact in any event is that in thepresent case three bills of lading were actually issued. They containedrespectively the admissions or acknowledgments that 2,187 bags and47,992 bags and 50,473 bags “ being marked and numbered as per margin ”
1 {1947) A. C. 46.
LORD MORRIS OP BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam navigation Co. Ltd., India
393
were shipped. Their Lordships consider that though these statementsin the bids of lading as to the number of bags shipped do not constituteconclusive evidence as against the shipowner they form strong primafacie evidence that the stated numbers of bags were shipped unless it bethat there is some provision in the bills of lading which precludes thisresult. Was there then any such provision in the present case ? Therewas a condition in the terms :—“ Weight, contents and value whenshipped unknown ”. That meant that in signing a bill of lading acknow-ledging the receipt of a number of bags there was a disclaimer of knowledgein regard to the weight or contents or value of such bags. There washowever no disclaimer as to the numbers of bags. Their Lordshipscannot agree with the view expressed in the judgment of the SupremeCourt that the conditions in the bills of lading disentitled the plaintifffrom relying upon the admissions that bags to the numbers stated in thebills of lading were taken on board.
The present case differs from New Chinese Antimony Company Ltd. v.Ocean Steamship Company Ltd. (supra). In that case a bill of lading forantimony oxide ore stated that 937 tons had been shipped on board : inthe margin was a typewritten clause :—“A quantity said to be 937 tons ”and in the body of the bill of lading (printed in ordinary type) was aclause :—“ weight, measurement contents and value (except for thepurpose of estimating freight) unknown * It was held that the billof lading was not even prima facie evidence of the quantity of ore shippedand that in an action against the ship owners for short delivery theonus was upon the plaintiffs of proving that 937 tons had in fact beenshipped. (See also Carig Line Steamship Co. v. North British Storage <SeTransit Co.1) In Hogarth Shipping Co. Ltd. v. Blyth, Greene, Jourdain& Co. Ltd.2 a captain signed a bill of lading for a specified number of bagsof sugar : one of the exceptions and conditions of the bill of lading read“ weight, measure, quality, contents and value unknown It was heldby Lush J. that the bill of lading was conclusive only as to the numberof bags in the sense of skins or receptacles and not as to their contents.
Even though the plaintiff called no evidence from Rangoon and took thepossibly unusual course of depending in the main upon the production ofthe bills of lading tbeir Lordships conclude that the bills of lading did formstrong prima facie evidence that the s.s. “Jalaveera” had received thestated numbers of bags for shipment to Colombo and delivery to theDirector of Food Supplies. (See Smith dk Co. v. Bedouin Steam NavigationCompany Ltd. 3) The shipowners would however be entitled to displace theprima facie evidence of the bills of lading by showing that the goods orsome of them were never actually put on board : to do that wouldrequire very satisfactory evidence on their part. In his speech in thecase last cited Lord Halsbury said (at page 76) " To my mind, thecardinal fact is that the person properly appointed for the purpose of
1 (1921) S. O. 114.• (1917) 2 K. B. 535.
* (1896) A. C. 70.
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LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd., India
checking the receipt of the goods has given a receipt in which he hasacknowledged, on behalf of the person by whom he was employed, thatthose goods were received. If that fact is once established, it becomesthe duty of those who attempt to get rid of the effect of that fact to givesome evidence from which your Lordships should infer that the goodsnever were on board at all Unless the shipowners showed that onlysome lesser number of bags than that acknowledged in the bills of ladingwas shipped then the shipowners would be under obligation to deliverthe full number of bags. (See Harrowing v. Katz & Co.*-, Hain SteamshipCo. Ltd. v. Herdman dk McDougal2 and Loyal Commission on WheatSupplies v. Ocean Steam Ship Company9.)
Though by relying upon the bills of lading the plaintiff presented primafacie evidence that 100,652 bags (marked and numbered as in the marginsof the bills) were shipped, the bills of lading were not even prima facieevidence of the weight or contents or value of such bags. This was theresult of the incorporation in the bills of lading of the provision abovereferred to. (See New Chinese Antimony Company Ltd. v. Ocean Steam-ship Company Ltd. supra.) It was for the plaintiff to prove the contentsof the bags and the weight of the bags and it was for him to prove hisloss by proving what it was that the bags contained and by provingwhat was the value of what the bags contained. The respondent Com-pany submitted that such proof was lacking. The respondent Companyfarther submitted (a) that there was evidence which displaced the primafacie evidence of the shipment of 100,652 bags and which lead to theconclusion that there never were 235 missing bags and (6) that if alter-natively 100,652 bags were in fact shipped the evidence showed that allthe contents of such bags were discharged at Colombo—with the resultthat the liability of the respondent Company would be limited to the valueof 235 emtpy bags.
In support of the respondent Company’s submission under (a) above itwas urged that it was improbable that 235 bags had been put on board atRangoon and had then been in some manner removed. It was furtherurged that inasmuch as the ship sailed directly from Rangoon to Colomboand carried no other cargo than was shipped by the State AgriculturalMarketing Board Union of Burma and that it was not suggested that anyrice was retained in the ship’s hold after discharge at Colombo the proba-bilities were that the number of bags shipped was not 100,652 but 100,417.Their Lordships cannot accept the view that these circumstances are ofsufficient weight to displace the prima facie evidence of the shipment of
bags. Nor do their Lordships consider that any useful purposewould be served by speculating as to possible explanations as to whatmight have happened. It was for the shipowners to explain away theiracknowledgment of the number of bags that they had received.
119 T. L. B. 400.2 11 Lloyds List 58.
s 11 Lloyds List 123.
LORD MORRIS OF BORTH-Y-GE8T—The Attorney.General v.395
The Scindia Steam Navigation Co. Ltd., India
On the basis that 100,652 bags were shipped the evidence dearly estab-lished a short-delivery of 235 bags. The result of the double tally at thetime of discharge was that it was satisfactorily proved that only100,417 bags were discharged. It was not contended by Mr. MichaelKerr, appearing for the respondent Company, that the 235 originalbags were in fact discharged and were missed in the two tallies atColombo.
It remains to be considered whether the plaintiff proved the loss that healleged : linked with the points raised in that issue are those which areinonlv^ in the submission of the respondent Company referred to under(6) above.
It was for the plaintiff to prove what was in the missing bags. Theirlordships consider that there was abundant evidence that the missingbags contained rice. Before the time of discharge from the ship therehad been some escape of contents from many bags. The number wasnot negligible. It was rice that had come out of the bags. There weresweepings put into 287 bags and all the sweepings consisted of rice. Afterthe cargo was put into the Customs warehouse there was considerablefurther escape of contents from the bags. In the result there were1,517 additional bags of sweepings. All the sweepings consisted of rice.Their Lordships conclude that from these circumstances it was areasonable and proper inference that the bags that were shipped werebags which contained rice.
On the assumption that the bags contained rice the next question iswhether there was evidence as to their weight. The provision of thebill of lading which has been quoted above expressly precludes anydependence upon the particulars as to weight which were declared bythe shipper. Oral evidence was given at the hearing by a wharf assistantin the Pood Commissioner’s Department. He had taken test weights of100 bags. He had taken 100 bags “ from here and there as they wereunloading the bags into the warehouse ”. His tests gave him an averageweight of 159'84 lbs. Their Lordships consider that it was a reasonableand proper inference that that was the weight of the bags of rice whichwere shipped and Mr. Michael Kerr accepted that the bags if full wouldcontain approximately 160 lbs. It may here be noted that the bills oflading acknowledged that the bags were shipped “ in apparent goodorder and condition ”.
In this connection reference may again be made to the decision ofLush J. in Hogarth Shipping Company Ltd. v. Blyth, Greene, Jourdain<Sj Co. Ltd. (supra). In his judgment (see page 542) Lush J. pointedout that if a certain number of bags had been lost and if one had toascertain what was in the bags that were lost, then as a matter ofevidence one would-, almost necessarily infer that the lost bags were
396
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Seindia Steam Navigation Co. Ltd,., India
bags containing similar goods to those which were not lost. Thedecision of HiU J..in R. <Se W. Paul Ltd. v. Pauline1 is also of relevance.There the plaintiffs’ case was that by a bill of lading the defendantshad represented and stated that they had received on board the Pauline37,047 sacks of barley said to weigh a stated amount to be deliveredat a safe port in England. The plaintiffs claimed that that quantitywas shipped but that in breach of the bill of lading the defendants short*delivered at Ipswich 1,106 sacks. The plaintiffs claimed damages asindorsees of the bill of lading to whom the property in the goods hadpassed. The defendants asserted that they had never represented orstated as alleged, that the bill of lading contained the words “ weightand contents unknown ”, and that all the cargo was delivered whichwas in fact shipped. It does not appear to have been in contest thatthe sacks did contain barley. In dealing with the claim Kill J. said :—** It seems to me that the Bill of Lading coupled with the receiptsaffords prima facie evidence and that it rests upon the defendants toget rid of that prima facie evidence. In my view they have failed todo so. It is said that to prove the loss of 1,106 bags of barley does notcarry the plaintiffs any way unless they can go on and prove the weightthat was shipped. I am not at all sure that that is so. Supposingthe plaintiffs prove the loss of 1,106 sacks of barley, but are unable toprove the precise weights of the sacks which were lost, because thesacks which were shipped varied in weight, I do not think that thatprevents them recovering damages. It only makes it more difficultto compute what damages they have suffered. If that is the true viewof the matter, the way I should do it is to take the weight of the sacksBhown to have been delivered and upon that make a computation ofwhat weight 1,106 sacks represents … there is evidence of 1,106
sacks of barley missing, but I do not know what their weights are, and,therefore, I can only make a rough estimate of the weights and theirvalue. I do not think it right to conclude that because I cannotascertain the weight I must treat it as negligible and give nothing byway of damages. As a rough and ready way of estimating it I shalltake the average weight of the sacks of barley delivered and from thatcalculate the approximate weight of 1,106 sacks of barley ”.
In the present case their Lordships consider that it was shown thatthere was a short delivery of 235 bags and that such bags had beenshipped with rice in them and that each had weighed approximately160 lbs. Subject to a consideration of the submission of the respondentreferred to as (b) above it would follow that the plaintiff wasentitled to the amount awarded to him in the District Court. Itwas however strongly contended by Mr. Michael Kerr that the evidenceestablished that all the contents of the 100,652 bags were in factdelivered and were received by the Director of Food Supplies. On
1 4 Lloyds List Law Reports 221.
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam Navigation Co. Ltd., India
ZVJ
-this submission it was said that what must have happened was thatthe missing 235 bags became completely denuded of their contents butthat such contents were in fact delivered and received. If this sub-mission were correct it was said that the damages would only amountto approximately £11, as representing the value of 235 empty bags.The evidence established that if a bag became completely empty thegeneral and normal practice was to deliver that empty bag to theconsignee. Any empty bags should have been delivered into the lighters-and note should have been made in the boat note in regard to them.It was not disputed that this practice ought to have been followed.No empty bags were in fact delivered and no boat note recorded thereceipt of any empty bags. The last of the boat notes did make mentionof missing bags by the words “ and (250) Bags more in dispute ifconsidered to be delivered
This submission now being examined is presented on the basis of thefigures concerning the deliveries from the Customs warehouse. It willhave been observed that in regard to the discharges from the ship theDirector of Food Supplies had pointed out on the 29th October, 1953that had the 541 torn and repaired bags contained their normal quantitythe weight would have been 772 cwt. 0 qr. 09 lbs. whereas the weightactually was 500 .cwt. I qr. 6 lbs. and that the total quantity (263 cwt.
qr. 13 lbs.) in the 287 bags of sweepings fell short of the quantity whichwould be required to supply the deficiency. The argument advancedon behalf of the respondent relates to the deliveries ex warehouse.The number of tom and repaired bags had by the end of the time of suchdeliveries reached the total of 4,367 : the number of the bags of sweep-ings had increased from 287 to 1,804. The argument proceededas follows :—the contents of the 4,367 bags had they been full (i.e.containing 160 lbs.) together with the contents of .235 bags (containing160 lbs.) would in total have been 6,574 cwt. 1 qr. 4 lbs. : the actualcontents of the 4,367 bags and of the 1,804 bags of sweepings were intotal 6,641 cwt. 2 qr. 14 lbs. : therefore it was said that the contents ofthe 235 bags were in fact all accounted for. The excess of some67 cwt. (the difference between the 6,641 cwt. and the 6,574 cwt.could it was said be explained as being approximately the gross weightof 4,602 empty bags (i.e. 4,367 + 235). Therefore it was said that thedamages should be limited to a sum representing the value of 235 emptybags.
This attractively developed argument depended however for its validityupon the assumption that no rice escaped at all while in warehousefrom the 96,050 bags which constituted over and above the 4,367 bagsthe remainder of the 100,417 bags. Their Lordships cannot think thatthia assumption is a valid one. The evidence showed that in tbe processof unloading (as well as of loading) the bags were removed by fixingiron hooks to them : holes were as a result made in the bags through
398
LORD MORRIS OF BORTH-Y-GEST—The Attorney-General v.
The Scindia Steam "Navigation Go. Ltd,., India
which rice could escape. The loss of rice would however not necessarilyoccur immediately. When stacked in the Customs warehouse a greatnumber of the bags would be under the pressure of the weight of otherbags upon them and rice would be lost from the bags. Furthermorethe evidence showed that small quantities of rice may leak out of bagswhich nevertheless have all the appearances of sound bags.
Quite apart however from these considerations the question of shortdelivery falls to be decided not by reference to the times when therewere cartages away from the Customs warehouse but by reference tothe times of delivery from the ship. If, as their lordships conclude,the plaintiff sufficiently proved that 100,652 bags were shipped on boardthe “ Jalaveera ” and that the bags contained rice and that they weighedapproximately 160 lbs. each, the evidence shows that only 100,417 bagswere delivered. If it had happened, as might seem surprising, that235 bags had become completely denuded of their contents it wouldbe singular and would also be quite contrary to practice if none of theempty bags were delivered. Out of the 100,417 bags which were deliveredex ship some 541 of them had lost some of their contents : those bagshad been tom and repaired. The contents of the 287 bags of sweepingswere not however in the aggregate sufficient to account for the deficien-cies of the 541 bags. The contents of 235 bags were not accountedfor.
The theory that the contents of 100,652 bags were received fromthe Customs warehouse seems to their Lordships to be impossible ofreconciliation with the ascertained facts (i) that 100,417 bags and nomore were discharged from the ship (ii) that the 541 torn and repairedbags contained 500 cwt. 1 qr. 6 lbs. and (iii) that the total sweepings(in the 287 bags) were only 263 cwt. 0 qr. 13 lbs.
Their Lordships would add that the Ships Import Manifest was putin evidence and was part of the material before the Courts below (seesection 31 of the Customs Ordinance {supra) ). Their Lordships havearrived at their conclusions without having regard to the contentsof the Manifest : it is abundantly plain however that nothing in theManifest conflicts with their Lordships’ conclusions but rather supportsthem.
For the reasons which have been given their Lordships will humblyadvise Her Majesty that the appeal should be allowed and that thejudgment of the District Court should be restored. The respondentCompany must pay the costs in the Supreme Court and before theirLordships’ Board.
Appeal aUotved.