Authored By : Francis Maclean, Macpherson, Trevelyan

Francis Maclean, C.J.

1. The plaintiffs are merchants carrying on business at Calcuttaand Serajgunge, the defendants are common carriers. Early in November 1893 theplaintiffs delivered to the defendants 432 drums of jute for carriage toCalcutta The freight was duly paid and the goods were delivered on board theflat Khyber, which arrived in Calcutta about the 17th November 1893. The goodswere carried Tinker the terms of an agreement contained in a forwarding note,dated the 14th October 1893. On the 7th December about midnight a fire brokeout on the flat, which was then moored in the stream, about 40 feet from theshore, and connected with the shore by a staging which had been erected by theservants of the defendant Company and used for the purpose of discharging thecargo. The construction of the flat is accurately described by the learnedJudge in his judgment in the Court below. I need not repeat what be says.

2. The plaintiffs jute was destroyed by the fire, and thequestion arises upon whom the loss is to fall.

3. Upon this, two questions arise---First, whether, underthe terms of the forwarding note, the defendants are exempted from liability,save for negligence or the criminal acts of themselves or their servants; and,secondly, assuming that point in the defendants favour, whether they haveshown that there was no negligence on their part. The first question dependsupon the construction of the forwarding note. The plaintiffs contend that itdoes not relieve the defendants from their ordinary liability as commoncarriers, that is, the liability of insurers, whilst the defendants, on theother hand, say that the forwarding note limits their liability in the mannerprovided by the Indian Carriers Act of 1865, and exempts them from allliability except such as under that Act they are prevented from contractingthemselves out of. It is conceded by the defendants that the only clause in thedocument which can relieve them from their liability as insurers is clause 7.

4. In the view which I take of the second question in thiscase, it is unnecessary to decide the first, though I feel constrained to addthat, having regard to the nature of the contract, one in which the carrierseeks to limit his common law liability , and to the clear and definitelanguage used, I entertain a serious doubt whether the view of Mr. Justice Saleon the point be correct.

5. I merely confine myself to saying that that constructioncannot be arrived at without doing violence to the language used-languagewhich, read in its ordinary meaning and signification, appears to me to beclear and precise, and used in a clause which is quite consistent with theother clauses of the document, and that the effect of that construction is toimport into the contract words which are not there, and to place a forced andunnatural construction upon the words which are there.

6. Assuming, then, in the defendants favour that the trueconstruction of the forwarding note is such as they contend for, the remainingquestion is whether the defendants have discharged the onus which isundoubtedly and admittedly cast upon them of showing that there was nonegligence on their part.

7. Negligence has been defined by Mr. Baron Alderson inBlyth v. Birmingham Water Works Company 11 Exch. 781 in the following terms:"Negligence is the omission to do something which a reasonable man, guidedupon those considerations which ordinarily regulate the conduct of humanaffairs would do, or doing something which a prudent and reasonable man wouldnot do;" and this definition has been subsequently adopted by otherJudges.

8. In the present case, no evidence has been adduced exceptby the defendants; the plaintiffs apparently could adduce none.

9. In applying to this case the principle laid down by BaronALDERSON, it becomes necessary to ascertain, if possible, how the fireoriginated, and what precaution the defendants had taken to provide againstfire and for extinguishing it. The theory, as to the origin of the fire, putforward by the Captain of the flat and his serang, is that the fire was causedby a spark from the fire in the small native boats which were close to the flatand between it and the shore, from which direction the wind was blowing. Thisview, however, is not accepted by the respondents Counsel at the Bar. Lookingto the hour at which the fire occurred, to the time when, according to theserangs evidence (between whose evidence and the Captains there is somediscrepancy on this point, the Captain saying that when he turned in at 9 P.M.the fires in the native boats were still burning, and the serang saying thatthey were all then out), the fires in the native boats were out, to the fact ofthe purdahs on the flat being made of thick canvas, and to the month of theyear, when there would likely be a heavy dew on the purdahs, I think it isextremely improbable that the fire so originated. If this view be correct, andit not being suggested that the fire arose from the intervention of any naturalagency, for example lightning, the inference is irresistible that it arosewithin, and was caused from within, the flat itself. If that be so, thequestion arises whether the mere occurrence of the fire, arising as I think itmust be taken to have arisen, from some cause within the flat", which wasunder the management and control of the defendants or their servants, is, inthe absence of explanation by the defendants, per se evidence of negligence. Sofar as the cases cited before us show, there is no very express authority uponthe point; though in the case of Scott v. The London and St. Katherines DockCompany 3 H. & C 596 (601) Chief Justice Erle says: "When the thing isshown to be under the management of the defendant or his servants, and theaccident is such as in the ordinary course of things does not happen if thosewho have the management use proper care, it affords reasonable evidence, in theabsence of explanation by the defendants, that the accident arose from want ofcare." No doubt, those words were used with reference to an accidentdifferent and arising under circumstances different from the present case. Ifthere be no evidence as to the origin of the fire, and no explanation affordedby the defendants, can they be said to have discharged the onus which isadmittedly cast upon them of disproving negligence The defendants contend thatif they lay all the evidence they can before the Court, it is for the Court tosay whether they had discharged the onus, and reliance was placed on the caseof the Central Cachar Tea Company v. The Rivers Steam Navigation Company antep. 787 note which was decided by this Court on the 4th March 1896, but is notreported. That case, however, decides no question of law applicable to thepresent: it only decided, first, that there was a special contract, as to whichthere could have been no reasonable doubt; and, secondly, upon the facts, that negligencewas disproved.

10. The plaintiffs say that not only have the defendants notdisproved negligence, but upon their own showing they have been guilty of it.They say that the Captain did not, under the circumstances, take thoseprecautions which a reasonable man, in the position in which he was, would takeand ought to have taken. They contend that the appliances for extinguishingfire were absolutely ineffective, and that the watch was insufficient, andthat the watchman, an old lascar, upon his own showing, was not doing his duty.

11. In all cases the amount of care to be taken must beproportionate to the degree of risk likely to be run. Applying that principleto the present case, we find that the cargo was admittedly of a veryinflammable nature; and, in my opinion, having regard to the nature of thecargo, the defendants ought to have had at hand at all times proper andeffective appliances for extinguishing the fire, should one accidentally arise.

12. I now come to a consideration of the evidence. There isa discrepancy of some importance in what the Captain stated in his protest andin his subsequent evidence: in the formerly says nothing about going on deck at9 P.M. and seeing the fire in the native boats, some five or ten of which werebetween the flat and the shore. It is certainly matter for comment that heshould have said nothing about this in his protest But I will take hisevidence. He says that he went round the flat at 5-30 P.M. to see if everythingwas right, and to rig the two pumps, one aft and one forward, which he says hedid. One pump is forward of the forward bulkhead and the after pump is abaftthe after bulkhead. He says he locked the sliding doors of the bulkheads, thatall the fires on the flat were out at 7 P.M., and that everything was then allright. He came up again at 9 oclock, and he says that all the cargo boats hadtheir fires, and that when he went to bed at 9 oclock they all had fires. Thisis not consistent with what the serang tells us. He speaks as if there werethen but one fire, which, upon his remonstrance, was put out. The Captain wasevidently anxious about the proximity of the fires in the native cargo boats.This is clear from the serangs evidence at pages 64 and 65 of the Paper Book.He says: "It was because the fire on the dinghy was dangerous to the flatthat the Captain sent for me. Yes, the Captain did speak tome about the danger.At first when I went up to the Captain, the Captain said to me I was not takingproper care. He abused me and said," There is fire in the dinghy close by.Go and tell the people to put the fire out. Our flat may catch fire."

13. The Captain thought there was danger from these fires;his attention was directly called to the risk. Under these circumstances, Ithink, a prudent man would have made a point of seeing that the pumps on hisflat were in a really workable condition. The Captain, however, did nothing,but went to bed.

14. The fire broke out about 12-30. An old lascar, namedTamizuddin, was the watchman on the starboard side and he came on watch at 12.One Omed Ali was on the watch on the port side, but owing to ill-health hecould not be called. His absence from the witness box is, to say the least,unfortunate. According to Tamizuddins statement all was well when he came onwatch: he came on watch as he tells us, amongst other duties, to guard againstfire. He went forward and was looking at the anchor to which some jungle hadstuck for some 7 or 8 minutes and then he saw the glare of the fire. He tellsus that if he had noticed the fire in tune he could have put it out, and theCaptain also tells us that when he first saw it, it was not very big. IfTamizuddin had been moving backwards and forwards along the covering board,instead of standing and looking for 7 or 8 minutes at the anchor, for whichthere could apparently be no necessity, he would, according to his own showing,have seen the fire as soon as it originated when, as he says, he could have putit out. This, I think, is what he means by his evidence that if he had seen itat first he could have put it out. It is not very easy to determine from thiswitnesss evidence whether, at this hour, there were fires in the native cargoboats. He speaks of lights and fires rather indiscriminately: but, as the resultof his evidence, I think he means there were lights and not fires.

15. When he saw the fire he shouted out to Omed Ali and tothe Captain, and then went along the covering board on the port side to thestern, and poured water on the burning jute from buckets, and then he makes thesignificant statement that they tried to put the fire out with the pumps, butthe hose did not reach the place where the fire was. In other words the hosewas too short. The vessel was about 270 feet long and the place between thebulkheads was about 225 feet. The pumps being behind the bulkheads, each pumpought, in order to command the whole of the cargo space in the event of fire,to have had about 110 feet of hose. There is no evidence what the length ofhose was, but it was admittedly not long enough. This is what the Captain saysabout the pumps at p. 49: "I could not do anything with the pumpssingle-handed. The pumps were all ready to work in a moment. The pumps wouldhave been of use at the commencement of the fire, that is when the fire wasfirst seen. If both pumps had been in the same place and well worked, they mayhave put the fire out when I first saw it. But as placed where they were, Idont think they would have been sufficient from where they were. They required100 feet of hose to each pump." And at p. 56 he says: No attempt was madeby the crew to use the pumps. The pumps would have been of use when the firewas first seen. It had been burning not very long, 2 or 3 minutes."

16. It appears from this that the pump at the fore part ofthe flat was useless as there were no men there to work it, and the Captaincould not work it single-handed; that in the Captains view the pumps ought tohave been together, and, if so, and properly worked, they probably would haveput the fire out, and that the hose was too short. A prudent man, in myopinion, especially when his attention had been so markedly drawn to the dangerof fire only a few hours before, would not have left the pumps in practically auseless condition.

17. The serangs evidence is important. He says at p. 62:"We began to pour in water with the buckets. We did nothing else. Yes,there was a pump on board. There were two pumps, one on the fore part of thevessel and the other on the after part. There was no room for working thepump,"---this, I think, must mean the pump in the after part of theflat---"because the coolies had taken up cargo from the holds and the deckwas jammed with the cargo. The throwing of water with the buckets did no good.We did nothing else "At page 63 he says:" The cargo inside was rightup to these bulkhead doors. Yes, the doorway was completely blocked up in frontof the door from the doorway to the roof. At page 65 he says: "The aftpump which we could not work was situate aft of the aft bulkhead. The whole ofthe deck was covered with cargo. We have not 100 feet of hose attached to thatpump. There were no goods about the pump, but there was the bulkhead againstthe pump and jute against the bulkhead, so we could not carry in water throughthe bulkhead and the cargo. The pumps are fixed pumps. They could be removed;they were not permanently fixed. The fire was spreading inside where the cargowas, and it was not possible to pump in water by carrying the hose along thecovering board. We tried to work the pump, but we found the hose could notcarry the water to where the fire was. We could not remove our boat becausethere was this staging right over our boat."

18. That, virtually, is the whole story, and it comes tothis: that the pumps were absolutely useless. The aft pump could not be workedthrough the aft bulkhead doors, because the door was jammed up by the jutewhich was piled up on the deck; the pump in the fore part could not be workedbecause the Captain was single-handed and the hose was too short; neither pumpcould be worked along the covering board because the hose was too short, and itcould not be worked from the small boat because the staging was over it, andthe boat could not be made available.

19. Consequently, the appliances for putting out fire wereobviously insufficient and ineffective. The Captain must have known this, orany way ought to have known it. It appears to me that any reasonable man, withthe danger of fire brought so immediately to his attention as it had been onthe night in question and having regard to the combustible nature of the cargo,would have taken every precaution to see that the pumps were in effectiveworking order. Had they been in proper working order, it is a fair inference tobe drawn from the evidence put in by the defendants that the fire in allreasonable probability would have been put out when the Captain first saw it,in which case the loss probably would not have occurred. In my opinion the mereoccurrence of the fire, under circumstances such as the present, is evidence ofnegligence; the flat being under the management of the defendants servants,and there being no evidence adduced by them to show how the fire originated,and no explanation afforded,---I say no explanation afforded because thesuggestion that the fire originated from a spark outside has been abandoned atthe bar. Furthermore, the ineffective condition of the appliances on board thefiat for extinguishing fire satisfies me that those precautions which an ordinarilyprudent man would adopt were not taken by the defendants servants, and thisneglect appears to me to amount to negligence.

20. The defendants, therefore, have not discharged the onuscast upon them by law of showing that there was no negligence; and that beingso, the plaintiff is entitled to recover, with costs here and in the Courtbelow. The appeal must be allowed.

Macpherson, J.

21. If it was necessary to decide whether there was aspecial contract limiting the liability of the respondent, I should not bedisposed to dissent from the construction which Mr. Justice Sale has put uponthe 7th clause of the forwarding note. That clause, which must have beenintended by the parties to have some meaning, purports to exonerate the Companyfrom any liability with an exception which is broadly but vaguely stated. Theintention to be gathered from it is, I think, the intention to limit theCompanys liability to the extent allowed by the law then in force, viz., theCarriers Act, although this Act is not specially mentioned.

22. It may be true that that Act did not subject commoncarriers to any new liability, although the preamble purports to declare theirliability for loss occasioned by the negligence or criminal acts of themselves,their servants or agents. But the Act, while enabling them to limit theirliability by special contract, declared that notwithstanding such contract theyshould still be liable when the loss arose from the negligence or criminal actsof themselves, their servants or agents.

23. The excepted liability in the 7th clause may, I think,fairly be taken to be the liability there referred to, viz., the liability fornegligence, etc.; otherwise the clause has, as Mr. Justice Sale points out, nomeaning at all.

24. It is said that the clause was not explained to theappellant who did not understand it in that sense. No such question was raisedbefore Mr. Justice Sale, and cannot for the first time be raised here. The onlyquestion raised was as to the construction of the clause.

25. But whether there was or was not a special contract, therespondents have, I consider, failed to clear themselves of negligence. Theeffect of the 9th section of the Carriers Act is to make the loss of the goodsevidence of negligence which the carrier must displace. The plaintiff is notrequired to give any evidence of negligence, and the carrier must account forthe loss in such a way as to get rid of the presumption of negligence arisingfrom it.

26. The respondents account for the loss of the goods byshowing that they were destroyed by fire, but they do not, in any way, accountfor the fire. They in effect say: "We cannot account for the fire, but aswe took and have shown that we took all proper precautions to prevent such anoccurrence, it cannot be attributed to any negligence on our part." Theanswer, I think, is that the fire occurred at a time and under circumstanceswhich, in the absence of any explanation as to its origin, negative theexistence of proper precautions^ and that it is therefore in itself evidence ofnegligence of which the respondents must clear themselves. The facts asdisclosed are that the flat, which was in the course of being unloaded, wasexclusively in charge of the respondents servants; and the unloaded portion ofthe cargo, consisting of drums of jute, was for the most part stowed on deck.Soon after midnight, hours after work had ceased, either the jute on thestarboard side of the deck about amidships, or the outside canvas purdah in theimmediate vicinity of that jute, it is not clear which, took fire, with theresult that the cargo was destroyed.

27. The Captain of the flat suggested that the fire camefrom outside, and that a spark from a boat near at hand ignited the canvaspurdah. This suggestion is not adopted by respondents Counsel in this Court,and there is no real foundation for it. I do not believe that the fire was socaused, or that the canvas purdah took fire in the first instance. If it was socaused, I should be disposed on the evidence to hold that there was negligence,and that with a proper look-out it might and should have been extinguished. Themere fact that there was a fire near at hand from which sparks might come madeit necessary to take extra precautions and use extra vigilance, and the Captainwas fully aware of this.

28. The only other alternative is that the fire originatedon the flat; and it is, I think, for the respondents to account for it. Theyare the only persons who can do so. It is their case that there were not andhad not been for hours previously any fires or lights on board the flat fromwhich the jute or purdah could have become ignited; that the part of the deckwhere the fire occurred was completely shut off from the rest of the deck; andthat no one, whether belonging to the crew or from outside, had access to it.

29. The evidence on the latter point is certainly notexhaustive, and I am not satisfied that no one had access there. The onlywatchman who has been examined is the man who went on watch on the starboardside shortly before the fire broke out, and we know little of what happened onthe port side or in the previous watches. If all the precautions said to havebeen taken had been taken, it is almost impossible that this fire could haveoccurred, and that there should have been no explanation of it.

30. This is not a case in which the Court can point to someparticular act or omission in connection with the fire, and say that itamounts to negligence,---and for this reason, that the facts are not fullybefore the Court, the cause of the fire being unexplained. Great stress hasbeen placed upon the statement of the late Chief Justice in the case of theCentral Cachar Tea Company v. The Rivers Steam Navigation Company ante p. 787note that "when the parties have placed all the evidence on which theyrely before the Court, it is for the Court to say upon that evidence whether ornot the loss was caused by the negligence of the carriers or theirservants." That was a case of a very different kind. There all the factswere fully before the Court, and the Court, was in a position to say upon thosefacts that there was no negligence. What the Chief Justice said had reference,I think, only to the particular circumstances of the case before him.

31. Treating the fire as evidence of negligence, thatevidence has not in my opinion been displaced.

32. I also agree with the learned Chief Justice for thereasons which he has given that the appliances for extinguishing a fire wereineffectual and insufficient. The appeal must, therefore, succeed.

Trevelyan, J.

33. The two questions in this case are, first, what is themeaning (if any) of the 7th clause of the forwarding note and, second, if theconstruction put upon that paragraph is correct, are the defendants under thecircumstances of this case liable for the loss of the jute As to the firstquestion I am not prepared to differ from the views expressed by Mr. JusticeSale in this case and by Mr. Justice Hill in the case of the Central Cachar TeaCompany v. The Rivers Steam Navigation Company (unreported).

34. The construction which they have adopted seems to me tobe the only one which can give any effect to the paragraph in question.

35. The construction suggested by the appellant is one whichrenders the paragraph completely nugatory. It can never have been intended bythis elaborate paragraph to inform the consignor that the Companys liabilitywas co-extensive with that of other carriers who did not make specialcontracts. By this paragraph the Company must have intended to guard itselffrom any liability out of which the law permitted it to contract itself.

36. It may be, as Mr. Bonnerjee says, that it would beexceedingly difficult (sic)

37. Section 9 of the Carriers Act provides "that in anysuit brought against a common carrier for the loss, damage, or non-delivery ofgoods entrusted to him for carriage, it shall not be necessary for theplaintiff to prove that such loss, damage, or non-delivery was owing to thenegligence or criminal act of the carrier, his servants or agents." Inother words, the loss of the goods is prima facie evidence of the negligence orcriminal act of the carrier, his servants (sic) or agents, and, therefore, ifthe carrier seeks to exempt himself from liability, fee must negative such primafacie evidence, that is to say, he must prove that the loss was or must havebeen occasioned otherwise than by the negligence or criminal act of himself,his servants or agents. It is contended that the late Chief Justices judgmentin the Central Cachar Tea Company v. The Rivers Steam Navigation Company antep. 787 note has placed a different interpretation upon the law. I am notprepared to say it has. In that case all the facts were apparent; the loss ofthe ship was caused by an impediment to the navigation, and the only questionwas whether the Captain was negligent in nod avoiding that impediment. Ofcourse, if all the facts are before the Court, and there is nothing to discoveror disclose, then the Court has on those facts to say whether there is negligence.But here there is really nothing to show what the cause of the fire was; we canonly guess at it.

38. It remains to be seen whether in this case the defendantCompany has disproved negligence, or has placed before the Court a state factswhich is inconsistent with negligence or a criminal act.

39. They have not really attempted to show how the firearose, There is no doubt that in the Court below the defendants put forward thetheory that the cargo must have been ignited by a spark coming from the neighbouringboats. This theory has been repudiated by the learned Counsel who representedthe Company before us. There is no doubt that it is one which will not bearinvestigation.

40. According to the story for the defence there was a thickcurtain completely protecting the cargo on the east side of the fiat. A sparkfrom one of the fires in the boats, even if there was any fire alight at thattime of night, could not have ignited the purdah or the cargo. If it did so,the look-out man, if he was on the watch, must have seen it happening. Thedefendants evidence, if it is to be believed, makes it quite clear that thefire could not have originated from outside, at any rate from the shore side.The precautions which are said to have been taken would have been sufficient toward off the catastrophe.

41. It being clear from the defendants own case that thefire could not have originated from the cargo boats or the shore, the onlyalternative is that the fire owed its origin to the act or negligence of someone on board either the flat itself or the Hafjan. It cannot have arisen fromany fire on board (sic) the Hafjan as the wind was blowing off the shore andthe fire broke out shore side of the Khyber. Even if the fire did break out in(sic)cor 351; something done by some one on board the Hafjan, the deie(sic)responsible. To my mind the evidence shows that (sic) started by the design of,or by an accident (sic) 355; (1907) 7 C.L.J., board the Khyber. On the evidenceI can concerned 355; (1904); 9 C.W.N.,

42. The only persons on the Khyber were (sic) defendantCompany. The Company is res(sic), the gift takes effect without Having regardto the fact that (sic) Khyber, and that the Khyber was in 33 Cal. 947 at 965:10 C.W.N 695; I am prepared to so far as (sic) Company to prove how it brokeout. I do not, for a moment, believe that every man who was then on board thatflat is ignorant as to the cause of the fire. Learned Counsel for theappellants suggests that the fire came from outside, i.e., from the adjoiningcargo boats. If he is right as to this the defence cannot be accepted.

43. If these fires on the boats were a source of danger,additional precautions should have been taken, and the watch should have beenstrengthened. Learned Counsel for the respondents also asserts that the firecame from outside, but he is unable to show us how it so came.

44. To my mind the defendant Company has omitted to proveany facts which can throw any light whatever upon the origin of this fire.

45. It seems to me that evidence as to precautions againstfire is worth very little, unless it be combined with evidence to show that thefire in question was of a kind which one might reasonably have expected to beavoided by the particular precautions. Lastly I think that the evidence showsthat the means provided on this flat for extinguishing fire were whollyinadequate to the occasions which might be expected to arise. As far as I cammake out from the evidence, a fire in the Captains cabin or in the quartersoccupied by the crew might have been extinguished by the means available ifdiscovered in time. But very little else could have been done. The actuallength of the hose has not been proved, but it was obviously of littlepractical use to put out a fire in the centre of the ship. I quite realise thatelaborate contrivances for the extinction of the fire might, to some extent,impede the operations of loading and discharging cargo; but if a carrier, inorder to facilitate his business, omits to provide sufficient apparatus toextinguish fire in all parts of his ship, it can scarcely be said that he hastaken reasonable precautions against fire.

46. I would allow the appeal, order an enquiry as to thedamages, and give the plaintiffs their costs in both Courts.

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Choutmull Doogur and Ors.vs. The Rivers Steam Navigation Company(29.01.1897 - CALHC)