I. MAHMUD, J.-This is a Letters Patent Appeal from the judgment and decree dated 5-10-1967 in Suit No, 177/1961 passed by a learned Single Judge of the High Court on the Original Side, dismissing the suit of the appellants Nos, 1 and 2 for recovery of a sum of Rs, 58,488.53 as damages for loss and damage to cargo.
2. The suit was filed in the joint names of the appellant No,
1. Messrs Amin Jute Mills Ltd. (hereinafter referred to as the consignees) and appellant No, 2, Messrs Queensland Insurance Company Ltd., the insurers, who after paying the claim of the consignees became subrogated to their rights. The consignees shipped quantity of bales of jute twine and hessian cloth from Karachi to Chittagong per s. s. "Iqbal Baksh" belonging to the respondent No, 1, Messrs United Oriental Steamship Company (now taken over by the Pakistan Shipping Corporation) (hereinafter referred to as "the carrier") under marks "AJM Chittagong" under Bill of Lading No, I. B /267 dated 10th July 1960.
However, out of this consignment, 317 bales of jute twined and 28 bales of hessian cloth were transhipped on their other vessel s. s. "Anwar Baksh". The respondent No, 2 Messrs United Asiatic Trading Company were the agents of the carrier at Chittagong. The ship arrived at the outer anchorage of Chittagong Port on the midnight of 7/8th October 196". In order to lighten the vessel and reduce her draft, the ship discharged some 2000 tons of cargo into lighters on 8th and 9th October 1960. The ship then arrived at the port jetty in the afternoon of 9th October. There was a cyclone on the 10th October which the carrier claimed to be of such a severe intensity and wind velocity that the goods of various consignees were damaged by sea water or otherwise lost. Notes of Protest were lodged before a Notary Public on 11th October, 1960 by the carrier's agent, as well as by the master of the ship, later, on 22nd October, 1960. The ship completed discharge of all cargo on the jetty on the 22nd October and left the port on 24th October. The goods in the lighters were discharged on the jetty between 25th October and 12th November, 1960.
3. Out of the total consignment, 174 bales of jute twine and 24 bales of hessian cloth were found to be damaged by sea-water and 7 bales of jute twine were short-landed. A joint survey of the goods was held by Messrs Lloyds on behalf of the consignees and Messrs Hupping & Co. On behalf of the carrier, who after carrying out experiments reported that the goods were stained with saline water and that 174 bales of jute twine were unfit for use and 24 bales of hessian cloth were damaged to the extent of 50%. The consignees, accordingly preferred a claim for the loss and damage amounting to Rs, 58,488,53. The carrier however claimed immunity from liability under Article IV, para. 2 of the Schedule to the Carriage of Goods by Sea Act, 1925, which exempts a carrier from liability for damage arising from perils of the sea and act of God. The plea of the carrier was that damage to the goods was caused by salt water on account of the cyclone of 10-10-1960 and as such the loss and damage was due to excepted causes.
4. The learned Single Judge observed that the only point which arose for determination was whether the carrier was responsible for the damage or or whether it was entitled to the immunity claimed. He found it established on the evidence that a cyclone of severe intensity had occurred on 10th October, 1960 and that the goods which were discharged in the lighters at the outer anchorage, as well as the goods which were lying in the holds of the ship, which was then at the jetty, were damaged by sea-water on account of the cyclonic weather, i,e, high waves, tidal bore and strong winds at the outer anchorage and in the harbour, which could not be foreseen or guarded against even after necessary precautions were taken, and that as the consignees had failed to establish negligence on the part of the carrier, he came to the conclusion that the carrier was not responsible for the damage to the goods in dispute and dismissed the suit.
5. The law with regard to the burden of proof in a case where the carrier is claiming immunity from liability under Article IV, para. 2 of the Carriage of Goods by Sea Act, 1925, for damage to cargo account of perils of the Sea and act of God, is well-settled and it is, therefore, not necessary to review the case law on the point. The burden of proving that a loss which has occurred has been due to an excepted cause falls on the ship owner. If a prima fade case of loss falling within the exception is made out, the burden then shifts to the consignee of showing that the shipowner is not entitled to the benefit of the exception on the ground of negligence: Carver's Carriage by Sea, Vol. I, 12th Edn. (1971), Art. 154: Scrutton: On Charter parties and Bills of Lading, 17th Edn. 1964, p.
225. The initial burden therefore' is on the carrier to establish that the disputed bales at the time they were in its possession, had been damaged by sea-water on account of the cyclone and that such damage was unavoidable despite all precautions which were taken to safeguard and avoid such damage. The burden then shifts to the consignee to show that the carrier was not entitled to the benefit of the exceptions by reason of negligence on the part of the master or the crew.
6. The contention of Mr. Imtiaz Lari, learned counsel for the consignee, is that the learned Judge erred in holding that the carrier had discharged the initial burden. It was contended that the carrier had withheld primary documentary evidence in its possession, such as boat notes and the list of boats which were allegedly sunk or damaged carrying some of disputed bales. The admitted position, according to Mr. Lari, is that the ship discharged some 2000 tons of cargo into lighters at the outer anchorage on 8/9th October before proceeding to the jetty on the afternoon of 9th October for discharging the remainder of the cargo which was in the holds. The Master of the ship, Captain Abdul Jabbar, admitted that at the outer anchorage there were about 40 lighters into which they had discharged about 2000 tons of cargo in order to lighten the vessel. Boat notes are prepared when cargo is discharged into lighters, which are got signed by the lighterage contractol' which contain description of marking and quantity of cargo discharged into the lighters and the time when they were so discharged. As these boat notes were not produced, it was contended that it was not possible to say whether any of the disputed bales were in fact discharged into the lighters and, therefore, the plea of the carrier that these bales were damaged by sea-water cannot be accepted. It was further contended by Mr. Lari that the carrier had also failed to produce the list of the 26 boats alleged to have encountered the cyclone at the outer anchorage on 10th October, some of which were alleged to have sunk while, the others containing the disputed goods damaged, but which were ultimately taken to the jetty with cargo stained with salt-water. This list was annexed to the Note of Protest (Exh. 22) lodged by Dana Meah, an employee of the Lighterage contractor of the carrier on 11th October 1960, the day following the cyclone.
7. An explanation, however has been given for the non-production of the boat notes as well as the list of the lost and damaged boats mentioned in the Note of Protest. Captain Abdul Jabbar says that the boat notes are not usually kept and it is not disputed, as submitted by Mr. Iqbal Siddiqui, learned counsel for the carrier, that unlike the landing tally receipts issued by the jetty superintendent of the Chittagong Port authority, they have no statutory force. The explanation for the non-production of the list of the boats was said to be that it was produced before the Notary Public as an annexure to the Note of Protest, but somehow or other, it appears to have been misplaced from the record.
8. Be that as it may, there is other convincing evidence on record comprising of the landing tally receipts issued by the jetty superintendent of the Chittagong Port authority, Exhs. D-I to D-3, D-15-1, D-16, D-17 and D-18, which were produced by Muhammad Siraj Mian, the Jetty Superintendent.
These show that the disputed bales with marks "A J M Chittagong" along with cargo of other consignees, were landed from the boats on the jetty into the custody of the Port authority between 25th October and 12th November, 1960. The remaining tally receipts were also produced as Exhs. D- 14 to D-15 and D-19 which show that the remaining disputed bales (along with the cargo of other consignees) were landed direct from the ship on to the jetty between 11th October to 22nd October, 1960 when discharge of all cargo was completed.
8-A. With regard to these official landing tally receipts Mr. Lari submitted that the number of the disputed bales with marks "A J M Chittagong" landed as per these receipts were only about 40 or so, as against a total number of 174 bales damaged by sea water but his submission loses force as Mr. Siddiqui was able to satisfy us that a large number of the bales were shown as torn and damaged and under nil marks. It was also contended by Mr. Lari that there is nothing to show that these were the boats into which some of the disputed bales were discharged at the outer anchorage. It is difficult to accept this submission. It will be recalled that the ship completed discharge on 22nd October, 1960 and left the port on 24th, whereas these boats discharged the bales on the jetty on and from 25th October, after the ship had left the port. There seems to be no plausible reason why the ship, which was alongside jetty, should find it necessary or convenient to discharge part of the bales into the lighters at the jetty before it left the port. The reasonable inference, therefore, is that these boats were the very lighters into which the disputed bales were discharged at the outer anchorage before the cyclone occurred, which were fortunate to have escaped total loss and which may have then drifted away towards different places because of the velocity of the wind and heavy rains and later brought to the jetty.
9. As far as the remaining disputed bales which were in the holds of the ship are concerned, there is the evidence of Captain Abdul Jabbar, the Master of the ship. He stated that the ship arrived at the jetty at 2-00 p.m. On 9th October. He was in the port when cyclone came on the evening of 9th and continued upto the evening of 10th. It was a cyclone of severe intensity and the wind force was about 50 knots i,e, 60.70 miles per hour accompanied by heavy rains. That he was in port and even there, waves 6.7 feet high and the tidal bore was about 10 feet and at the mouth of the river it was much more. The waves were high and were passing over the deck of the ship. The crew had closed the hatches, which fact is also corroborated by entry in the Log Book (Exh. 28), but the sea water must have seeped into the cargo through the sides of the hatches and damaged it. The discharge of the cargo on the jetty was completed on 22nd October and this is fully supported by the landing tally receipts (Exhs. D-4 to D-13 and D-19) issued by the jetty Superintendent.
10. It has been established by the joint survey report (Exh. 17) which has been proved by D. W.
Charles Mondes that the bales were damaged by saline water, that is sea-water and not by rain water. The intensty of the cyclone has also been proved by meteorological report (Exh. 26) which showed that on 10-10-1969. The highest speed of the wind was 59 m. p. h. And the maximum rain fall was 7.6". It is therefore, a reasonable inference to draw that the damage to the bales in the lighters as well as in the hold of the ship, was caused by the sea water on account of the cyclone.
No other explanation has been suggested on behalf of the consignee. The fortuitous incursion of salt water into the lighters as well as into the holds of the ship, in the circumstances, was clearly a peril of the sea, as has been held in several cases discussed by the learned Single Judge and was directly caused by the cyclone which is an act of God. The carrier having established the exceptions, the burden shifted on to the consignee to prove negligence which as rightly observed by the learned Single Judge, it had failed to discharge.
11. We are, therefore, in full agreement with the conclusion reached by the learned Single Judge and see no reason to disagree.
12. The appeal is without merit and is dismissed, but in view of the loss unfortunately suffered by the consignee, we would leave the parties to bear their own costs.