Common Carrier-Damage to goods-Owner's risk clause on bill of lading
Contract-Carriage of goods-~Owners risk clause-Damage" to goods-Clause
on bill of lading exempting carrier from liability

Reception-Common carrier-Owners risk clause in bill of lading-Egyptian· and
English law

The respondent had certain goods whi~h he wanted' the appellants to
transport from Shellal to HaIfa. The goods were received at Shellal by
the appellants from the Egyptian State Railways and delivered to the
respondent at HaIfa. No insurance was taken out in respect of the goods.
The bill of lading stated that' the goods were received by the appellants
"in apparent good order and condition." It also contained a clause reading:
"the company takes no responsibility for damage if the goods are not
'insured through its agency, nor for delays during the voyage." When the
respondent received the goods he found that the contents .of one package
were damaged by oil and brought an action against the appellants for
damages.

Held: Under both Egyptian and English law a common carrier may
contract out of his liability for loss or damage of goods carried, and the
clause contained on the bill of lading was therefore a good defence to

                  respondent's action.          

Egyptian Mixed Tribunals Commercial Code, s. 102.
Egyptian Native Commercial Code, s. 97.

·Court: R. H. Dun C.J., M. Fleming J. ,'.
1 The .text of the judgement of the Province Judge could not be traced.dn

         the case file.'                                                                                       

Appeal

The facts of the' case have already been given in the head note
and also appear from the judgement of Dun, C.J.

Advocate: Mr. Drawer . . . for appellants.

The respondents did not appear and were not rep-
resented.

March 11, 1919, Dun, C.J.: The Legal Secretary bas seen the
judgement I am about to deliver and authorises me to say that he
agrees with it.

This is an appeal from the judgement of the province judge of
Halfa' awarding damages to the respondent for damage to goods'
carried in the appellants' steamer from Shellal to Haifa. The bill of
lading, which appears to me to be rather a badly drawn document, .
begins by stating that the goods have been received by the appellants
"in apparent good order and condition." The bill contains certain
clauses about insurance which I need. not read as on the body of the
bill are written the words "no insurance." It contains also the
following clause: "The company takes no responsibility for damages
if the goods are not insured through its agency, nor for any delays

        during 'the voyage'."                                                

The goods were recieved at Shellal by the· appellants from the
Egyptian State Railways and delivered to the respondents at Haifa
and on delivery it was found that the contents of one package were'

        damaged by oil.                                                                                          .

There was a dispute in the Pr~ince Court whether the package,
was received by the appellants frot\'t . the railways in that state or
not, but in my opinion it is not nectssary to decide either the question
of fact or the question of law as to the effect of the words "received
in apparent good order and condition," as I consider that clause
repudiating responsibility for damages protects the appellants from

It seems to me that the case falls to be determined by one of
two laws-English or Egyptian-I deal with the latter first: section 97
of the Egyptian Native Commercial Code provides as follows:

"The carrier is . held to warranty against the 10Js and dam-
aJe of the goods carried, unless the loss. or daI)1age proceed
)tom defects inherent in the thing, from vis maio1/, or from the
fault or negligence of the consignor."

Section 102 of the Commercial Code of the' Egyptian Mixed Section 103 of the Commercial Code of the Egyptian Mixed
Tribunals is not in identical terms, but is to the same· effect. Both
are based on the French Commercial Code, sections 103. and 104,
which are to the same effect. Now the French legislature in 1905
enacted a law that any stipulation contrary to the provisions of the
Code were void. There is no such enactment in Egypt and it is there-'
fore a legitimate assumption that a carrier in Egypt may limit Pis
responsibilities under the Code by contract, and I find that one of
the principal carriers in Egypt, namely the Egyptian State Railways,
has done so in a very marked degree. I therefore conclude that

. according to Egyptian law it is lawful to contract out of the above

          quoted provisions-of the Commercial Code.                                  .

As regards English law it is clear that a carrier can contract out
of his common law liability as a common carrier: railways and
canals, are subject to certain restrictions in this respect imposed on
them by the legislature, but. that is a price whiCh they pay for the
compulsory expropriation of land and the grant of what is often a

. complete and always a partial monopoly.

It remains to be decided whether the clause by which the
appellants purport to repudiate responsibility has the effect of protect-
ing them from this claim. The rule that words are. to be . construed
most strongly against him who uses them applies only when there is
doubt as to the meaning, and the rule has been carried very far in
some of the English cases on contracts of carriage by land and water,
but I do not think it has been carried so far as to lead this court' to
say that if it follows the English doctrine and practice of interpretation
it must hold that this clause does not protect the appellants from
damage to goods even though caused by the negligence of their
servants in 'carrying out the contract recorded in' the bill of lading ..
I think that reading the whole bill of lading together, and reading
also that particular clause of it, there is no reasonable doubt that the
words mean that the appellants are not to be responsible for (amongst
other things) damage to the goods entrusted to them: whether Caused
by .the negligence of their servants or not.

Therefore I think this appeal should be allowed and the decree
of the Province Court reversed and the claim of the respondent dis-
missed. The court has not the assistance of any argument on behalf
of the respondent and possibly in a future case on a similar document -
the court after hearing arguments on both sides may eome t6 a
different conclusion.