SUPAN RAILWAYS, Appellant-Defendant v. MOHAMMED AHMED. EL BEREIR & BROS
Contract-Carnage of goods-Owners risk clause-Lou of ~n Of the gootla
shipped
• Court: Wasey Sterry L.S. Fleming and Osbbrne JJ.
Respondent consigned 120 large sacks of ground nuts by river steamer
from Renk to Khartoum. The contract of carriage, which was embodied in
the consignment note, was at owner's risk, and' therefore the Steamers
Department was not liable for loss or damage unless occasional by the
wilful misconduct of an employee of the Department in the performance
of his duty. After the '120 sacks had been accepted, the consignment tn
the Steamer. Engineer, owing to' shortage of accommodation for all the'
cargo tendered. By a misunderstanding, the Commissary made out the
consignment note for 120 sacks. Only 100 sacks having been delivered
. at Khartoum, respondent sued in the High Court and recovered £E.47, the
value of the 20 sacks. The appellant appealed against this decision.
Held: Since the goods at Renk were in the charge of the respondents'
servant or agent, there was no sufficient evidence of miscond~ct by em-
ployee of the appellant.
Appeal
The facts of this case as they appear from .the case record are
shortly the following:
Mohammed Ahmed El Bereir & Bros., the plaintiffs and respon-
dents; through their local reprensentative at Renk, tendered to the
appellant a large number of large sacks. of ful sudani for transport
by steamer to the Moghren (Khartoum). Other goods 'were tendered
by other merchants, and the total quantity was more than the steamer
and . barges could carry; the Engineer in command, following the
usual practice, went through the list of goods tendered, and instructed
the Commissary to cut them down proportionately. The Commissary
accordingly reduced the respondents' consignment to 120 large sacks.
Subsequently, however, the Engineer, upon complaints from other
merchants, reduced the respondents' consignment by a further 20
sacks to 100 sacks, but did not inform the Commissary, who was
drawing up the invoices, and the Rais, assuming that the Commissary
knew of the Engineer's order, told him that the number was correct.
r The Commissary, therefore, wrote an invoice for 120 . sacks, although
only 100 were in fact transported, and the remainder were -Ieft at
Renk./ At the trial it was not in issue whether the 20 sacks were lost.
/'Advocate: Mr. Nigel Davidson .......................... .'for the appellant.
Mr. Davidson: Both under the Regulations (of which the
/ plaintiffs, had notice) and by an express term of the, con!ract of car-
riage, the defendant was not to be liable in respect of goods carried
for loss or damage unless such loss or damage was proved to have
been occasioned by the wilful misconduct of an employee of the
defendant in the performance of his duty. Both the Regulation and
the, express condition were reasonable ~nd common stipulations in,
contracts for the carriage of goods by water.
No act of wilful misconduct by a Steamer's employee was Iound..
The order given by the Engineer was a proper order within the scope
of his duties. Alternatively, the order did not amount to wilful mis-
conduct, but was given in the honest belief that it was a proper order
and within the scope of the Engineer's duties.
There, was no express finding that the order in question caused
the loss of the 20 sacks, for the only evidence of loss tendered was
that, of the 120 sacks shown on the invoice, only 100 were delivered
at the Moghren; the discrepancy .was accounted for by the evidence
'that 20 sacks were left behind at Renk.
April 17, 1920. Wasey Sterry L. S.: In my-opinion this appeal
must be allowed. .
The only point that has really been argued in this case is as
to whether the loss of the plaintiff's goods was due to wilful miscon-
duct on the part of the Sudan Government Railway's employees. As
to this I do not see that there is any proof of such misconduct that
the court can, accept.
I do not Believe that the 20 sacks were even put on board the
barge; I see no evidence that the 20 sacks were ever removed from
the separate pile of goods which we know each merchant had. We
have evidence that other goods were left behind, and that the goods
of the respondent remained on the shore till the steamer sailed, and
further that the goods were put on board by the merchant's, not the
Steamer's porters, and that a ghaffir of the merchant was in charge.
In these circumstances I cannot inter any wilful misconduct on the'
part of the Engineer or other employee.
As to the question of whether the contract, is a, just and reason-
able one, in view of there being no alternative rate, 'the case has not
been argued by the plaintiffs and though we assume for the purposes
of this case that it is just and reasonable, we must not be taken to
preclude ourselves from deciding otherwise in, another case after
full argument.
Fleming J.: I concur.
Osborne J.: I concur.
Appeal allowed