SUDAN RAILWAYS, Appellants-Defendants v. mRAHIM ABDEL MAKSOUD, Respondent-Plaintiff
Common Carrier-Loss of goods-Owner's risk clause-Burden of proof of mis-
conduct on part of railway employee
Contract-Carriage of goods-Owners risk clause-Extent of protection affOrded by
Respondent sent from Berber to Khartoum by Sudan Railways three
sacks of wheat. The sacks were sent at owner's risk and were lost. Three
empty sacks similar to the sacks in question were identified at Khartoum
North station. Peacock J. held that this was some evidence of wilfull .
misconduct by an employee and therefore the exemption afforded by • the
owner's risk note to the Railway was removed. On appeal
Held: That since the goods were sent at owner's risk the railway
would only be liable on proof of wilful misconduct by an employee, and
no such misconduct had been proven.
··Court: Wasey Sterry L.S. and Fleming J.
Appeal
April 10, 1920. Wasey Sterry L. S.: This is an appeal from the
decree dated February 2, 1920, of the High Court whereby the
respondent, Ibrahim Abdel Maksoud, was awarded damages of·
LE.9.500m/ms against the appellant, the Sudan Government Railways
and Steamers. The finding in the High Court was ~at the plaintiff
consigned three sacks of wheat from Berber to Khartoum. These
sacks were not delivered. Three empty sacks, identified as the
sacks in question, were found in Khartoum North. It was decided
that this was some evidence that the sacks were stolen from the train
when at Khartoum North and of wilful misconduct of an employee
of the Railways.
. In my opinion this appeal must succeed. If the owner's risk
note says that the Railways are not liable except on proof of wilful
misconduct on the part of an employee of the Railways in the per-
formance of his duty, they cannot in my opinion be made liable by
been misconduct on the part of the employee: nor can any such
suspicion throw upon the Railways the onus of proof that there was
no misconduct on the part bf the Railway employees.
Fleming J. : I agree. Plaintiffs must either prove some act
amounting to wilful misconduct, or they must .. show that the goqds
could not have been lost without wilful misconduct. They do not
even allege any act of misconduct, and so long as the Railways can
in these circumstances put forward any reasonable theory as to how
the goods could have been removed without wilful misconduct, they
cannot be held liable.
Appeal allowed