HC-CS-1256-1907

Common Carrier-Carrirge at goods-Fraud-Misstatement at contents by
Consignor-Liability for loss

Contract-Carriat;e at goods-Fraud-Misstatement at contents by consignor-
Liability for loss

Negligence-Res ipsa loquitur-Carriage at goods by common carrier

I, If the consignor of a parcel fraudulently omits to state fully the
contents of the parcel he is debarred from claiming compensation for the
loss of that parcel; and if the omission is of a fact material to the

• Court: Nigel G. Davidson, J.

Ontract. that is, r material _ to the price cbarged for carriage. it. woalcl,
at any rate, prevent the consignor from reoovedng the value o(

                  that, part of the goods lost.                                                       

- 2. When a common carrier receives a parcel for deliv~, an4,-1he
,,;"-- paicel is. lost, ~. no expIanation for the loss is given, DA~gell98' may
be presumed on the principle, of rea ip8tJ Wquihlr •

. Action:

The facts and summary of the argumentS in this' case as the)'
appear from the case record are shortly the following:

The plaintiff took a parcel to the office of the defendant com-
pany to have: it sent· by .them, On a form ,supplied to him for the
purpose of furnishing information about the contents of the parcel,
the plaintiff described the contents as ''manufactured goods." In
addition to ordinary manufactured goods, however, the parcel con-
tained ope or more silver ernaments to the value -of Pf', 235. The
consignment note was signed by the company's agents and the
plaintiff was issued with a receipt after having paid the rate specified
for carriage of manufactured goods in the company's published lists.

The parcel was lost and the plaintiff claimed the sum of Pr.,
-1476 as its value from the company on the ground that the company
was negligent.

The company did not deny negligence, but denied liability on
the ground that the plaintiff had lost his right to compensation by
not having declared the contents of .the parcel properly. Failing that,

. they argued that there should-be a limitation of liability in proportion.
to the amount charged.

_ - Advocate: _ Mr. Drower . . . for defendants.

January 28, 1908. Nigel G. Davidson, J.: In this case it is
admitted that the parcel w~ lost after the company had given a
proper receipf to the consignor, and Mr. Drower very properly does
not raise the defence that there must be definite evidence of negli-

. -genee before the . plaintiff can recover. When a parcel is duly received

and signed for by the company, and is lost, and the company are
--unable to give._any explanation, I think the court might assume some
negligen,ce on the principle of "res ipsa loquitur." In this. case the
matter is carried even further by the fact that the note which ought
to be signed- by the consignee is not so signed, but has an entry in

. blue pencil that the parcel was delivered.

Mr. Drower's defence, is that the plaintiff has lost his right of
compensation by not 'having declared the contents of the parcel
properly. I agree that if the omission to state fully the contents were
[muduleru it would debar the plaintiff from compensation; or if the
. omission were' the omission of a fact material to the contract, that
is, material to the price charged for carriage, it would, at any rate,
prevent the plaintiff from recovering the value of that part of the
goods lost .

. In this case the parcel contained manufactured good and one
or more silver ornaments of the value of PT. 235. The plaintiff
declared "it as manufactured goods' and it was weighed and paid for
and received - on that basis. Payment is made.in accordance with a
list of rates published in the Sudan Times, and as the planitiff was a
constant consignor, he may be taken to have notice of this list of
rates. If this list of rates contained a special rate for manufactured
silver, the omission to declare the silver would be clearly material to
the contract, and would go far to prove that the omission was
fraudulent. But there is no special rate advertised for silver, nor any
heading under which it would fall more appropriately than the one
under which it was in fact charged. No doubt Europeans are well
aware that It is usual to charge a higher. rate for such things, but I
do not think we can assume such knowledge in a Sudanese. As I
have said there was nothing in the advertisement or' anything else Ito
show the plaintiff either that he would get the silver carried more
cheaply by not disclosing it or that his general description of the
parcel as "manufactured goods" was inaccurate in a material par-
ticular. Nor indeed is there anything to prove to me that he would
in fact Haye, been charged more if he had stated the silver as part

of the contents.

For these reasons I come to the conclusion that plaintiffs
omission to' disclose the silver was neither fraudulent nor material.
There is no- de(ence to his claim.

.Mr.v Drower raised a further point, that there' should be a
limitation of liability in proportion to the amount charged. . I do
not see how such limitation of liability can be laid down without
le~slation. Further, I consider that carriers are amply protected by
the' law as it now stands, seeing that they are not liable as insurers
but only for loss caused by negligence, and further that it is always
open to them to charge rates in proportion to the value of the goods
carried.