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Judgment
Srinivasa Aiyangar, J.—This is a somewhat difficult case raising a somewhat interesting question of maritime law. The plaintiff, Who is the
appellant before me, instituted the suit against the British India Steam Navigation Co., Ltd., and the Madura Co., Ltd., making both of them
defendants and claiming the value of 109 bags of rice alleged by him not to have been duly delivered according to the terms of the bill of lading in
respect of a consignment of a very large quantity of bags of rice and broken rice consigned to him from Rangoon. The total quantity of the bags
short-delivered to him was 335. Out of these it is found that in respect of 102 bags and another lot of 15 he got paid by the Insurance Company
and in respect of another quantity of 108 bags the defendant companies or company admitted liability and paid the value. Out of the remaining 110
bags the plaintiff admitted that one bag out of the total 222 which were found to have been damaged by sea water bore his marks and therefore in
respect of that one bag the plaintiff has made no claim against the defendants. That was how the claim came to be limited and to be for 109 bags.
The trial court granted a decree in favour of the plaintiff. The defence of the defendants was that 222 bags having been found to be sea-damaged
and unfit for consumption and so dealt with by the Port authorities and thrown into the sea, the marks on these 222 bags were unidentifiable and
therefore these 222 bags must be presumed to have belonged rateably to the various consignors according to the number of bags consigned by
each. Apparently, though it does not seem to appear on the evidence, the payment made by the defendant companies was on working out on that
basis. They seemed to have taken the 222 bags sea-damaged and, arriving at the proportion allottable to the plaintiff and finding the same to be
110, appear to have admitted liability in respect of the balance of 108 and paid up the same. In the Court of First Instance the District Munsif
found as a fact that the case set up by the defendants was not established, namely, that the marks were unidentifiable and held for the contention of
the plaintiff that they were identifiable and that none of the bags except the one which was given up bore the marks of the plaintiff. On that ground
he came to the conclusion that the only ground of exemption pleaded by the defendants, namely, that the 109 were included in the 222, not having
been made out, the defence failed, and he gave judgment accordingly for the plaintiff. The learned Subordinate Judge in the lower Appellate Court
however found the issue whether the marks on the 222 bags were or were not identifiable in favour of the defendants and according to their
contention and holding that they were, as contended for, unidentifiable, held that on a principle of equity the defendants were entitled to apportion
the 222 bags according to the total number of bags constituting each consignment and on that basis plead exemption so far as the plaintiff was
concerned in respect of the 109 bags. This second appeal has been filed against that judgment of the Subordinate Judge.
The learned vakil for the appellants who argued the case carefully and clearly has drawn my attention to the case of Frank Stewart Sandeman &
Sons v. Tyzack & Brom foot Steamship Co., Ltd. LR (1913) AC 680. It is clear on a perusal of the judgment of the Law Lords in that case that
the case of Spence v. The Union Marine Insurance Company (1868) LR 3 Com. Pleas 427 was the leading decision in which the theory of
tenancy in common in respect of the entire lot of unidentifiable goods was first postulated and made the ground of decision. But it is necessary to
observe in connection with that case that there was no doubt whatever that the entire quantity of undelivered goods in respect of the consignment
by the particular ship was there and, as all the goods were there but only the marks were obliterated, the shipowners by the conditions of the bill of
lading were not bound to deliver according to marks and, as it is perfectly clear that all the goods remaining to be delivered must be comprised in
this entire lot of unidentifiable goods and so they were entitled to apportion them proportionately amongst the various consignees according to the
total quantity of their consignments. Though the principle of that case was not questioned in the case before the House of Lords, their Lordships in
the House of Lords differentiated that case from the one before them by pointing out that, in the case they were considering, it was clear that there
were other missing bales and it could not possibly be postulated that the bales omitted to be delivered to the claimant in that case had not been
among the bales that were missing, apart from the quantity which remained there unidentifiable. In other words, the principle of the decision of their
Lordships appears to be this : Reliance upon any clause exempting shipowners from liability may be made good if it can be shown that the whole
quantity failed or omitted to be delivered was so failed or omitted to be delivered because of some reason which gave exemption in respect of
which the shipowners were exempted from liability. This, however, the shipowners have got to prove. Such a thing cannot be held to be proved,
their Lordships said, if, apart altogether from the quantity of unidentifiable goods which were landed, there were other goods which are admittedly
missing and one cannot be certain whether the goods failed and omitted to be delivered to the claimant could not have been among the goods
which became missing in that manner. To put the same matter in another way, the burden is on the shipowners to establish by clear and cogent
evidence that their inability to deliver was entirely due to causes or reasons in respect of which they had an exemption under the clauses of the bills
of lading. Now then, if that is the true principle, as I take it to be, the question is, what is the result we arrive at on the application of those
principles to the present case? At first I was inclined to agree with the contention on behalf of the appellants that, on the authority of Sandeman''s
case, Frank, Stewart Sandeman & sons v. Tyzack & Bromfoot Steamship Co., Ltd. LR 1913 AC 680, there was no room in this case for the
application of the doctrine of tenancy in common in respect of unidendtifiable goods, because it is clear on the facts of this case that, apart
altogether from the goods in respect of which the plaintiff was able to obtain damages from the Insurance Company and apart from the 222 bags
of unidentifiable goods, there were other goods which were missing or which were lost. If there had been no such loss, it is difficult to conceive
how the defendants could have agreed to be liable for 108 bags which they did. If, therefore, there were other bags also that were lost in the
course of the voyage, then one cannot be certain whether the total of 109 bags in respect of which the plaintiff makes the claim were not included
or comprised in the quantity lost during the voyage in respect of which the defendants admitted liability. If therefore on the facts of the present case
we could not be certain that in the 222 bags of unidentifiable goods there were any belonging to the plaintiff, it is impossible to hold that the
defendants have made out the ground of exemption from liability. But Mr. Nambiar, the learned Counsel for the defendants, has drawn my
attention to Exhibit V-a in this case. It is a statement of outturn of cargo by the steamer in question. There under the heading of ""Manifested
quantity"" it is noted that the total number of bags was 84,182. Under the second column ""Boat note quantity"" is shown as 84,016 and under the
third column the ""Actual landing quantity"" is also shown as 84,016. Thus it would be seen that the difference between the manifested quantity and
the boat note quantity is only 166 bags; that is to say, the total number of bags that were omitted to be delivered to the various consignees apart
from the unidentifiable goods and also the goods in respect of which insurance claims have been made and admitted was 166. Out of this 166, the
defendants have already paid for 108 bags. The receipt of the value of those 108 bags is admitted. The balance of the quantity lost or unaccounted
for by the defendants is only 58. Applying the principle of the two decisions referred to above, what we find is that it is possible that all these 58
bags also were bags belonging to the plaintiff and therefore bags in respect of which the defendants were liable under the bill of lading and could
claim no exemption. But that is taking it against the defendants at the very highest, though I have no doubt it is most unlikely. However, when it is a
question of the application of such general principles and burden of proof, I think the proper method is to take it against the party at the very
highest and compute on that basis. So, taking and assuming that all the other 58 bags which were also lost belonged to the plaintiff, we find that the
remaining 51 bags must have been included in the 222 of unidentifiable goods. This is a result arrived at by mathematical calculation in respect of
which it seems to me there cannot possibly be any doubt. I may however advert in this connection to an argument attempted to be put forward by
the learned vakil for the appellants with regard to Ex. V-(a). He tried to argue that that statement cannot be relied on for the purpose of showing
how many bags were lost otherwise. But it is a statement made in the usual course of business by respectable companies and I for my part refuse
to accept the suggestion made on behalf of the appellants that the figures therein shown are not correct. It would lead to very serious consequences
if responsible companies concerned with such a lot of shipping can be regarded as capable of entering incorrect figures in the statements prepared
in the regular course of business. I therefore reject this suggestion on behalf of the appellants altogether. Then the result is that, so far as 51 bags
out of the quantity claimed by the plaintiff are concerned, the defendants have mathematically demonstrated that at least that number must have
been included in the 222. So in respect of that number of bags they are exempt from liability because they have been declared by the Port
authorities to be unfit for human consumption and dealt with on that basis. Under the bill of lading they are not liable for the obliteration of marks
and if, as a matter of fact, there were 51 bags belonging to the plaintiff in that quantity, they are not liable for non-delivery of the same. As regards
the 58 bags, however, I must find that, on the application of the very principles contended for, it has not been shown, or, established that those
were or must have been included in the quantity of unidentifiablt goods. In the absence of any such evidence, the conclusion is clear that the
defendants have not made out the ground of their exemption. I have therefore come to the conclusion in this case that the decree of the lower
Appellate Court must be set aside and that, instead, there must be a decree for the plaintiff for 58/109 of the amount decreed in favour of the
plaintiff by the Court of First Instance and, taking that the superior and the inferior bags were really proportionate, the amount would be Rs. 770-
8-0. This figure on calculation is admitted to be correct on both sides. Mr. Nambiar for the respondents took up another point with regard to the
joinder of defendants. He argued that the 2nd defendant, the Madura Company, Ltd., was admittedly styled by the plaintiff himself as the agent of
the 1st defendant company and there was therefore no reason for joining the 2nd defendant company. But it must be observed that both the
defendants have acted together in all these proceedings, signed the same written statement, took the same pleas and acted in all proceedings
conjointly. No doubt, if the question had been pressed, the plaintiff would have been bound to elect to have the decree against only one of the
parties and I have no doubt on the allegations it must be against the first defendant company alone. But 1 find that, though there was a decree
passed against both the defendants in the Court of First Instance, there was no ground of appeal taken in the Memorandum of Appeal to the
Lower Appellate Court. I must therefore assume that the objection on the ground of misjoinder of defendants was deliberately abandoned and, I
have no doubt, for excellent reasons, because it is notorious that, though they are different companies, they have no different interests so far as the
subject-matter of this litigation is concerned and, in these circumstances, I do not think any useful purpose is likely to be served by pursuing the
matter further.
There must therefore be a decree for Rs. 770-8-0 in favour of the plaintiff with interest thereon from this date till the date of payment. The
parties will pay and receive proportionate costs throughout.