(Ante vol. xxxii. p. 262, and
Subject_Ship — Bill of lading — Short Delivery — Evidence — Onus.
In an action by a shipowner against consignees to recover the balance of freight of a parcel of jute carried from Calcutta to Dundee, the latter claimed that they were entitled to deduct from the freight the amount sued for, being the value of twelve bales of jute acknowledged in the bill of lading to have been shipped on their account at Calcutta, but which were not delivered at Dundee.
The evidence in the case, apart from the bill of lading and the tallies and other documents upon which it was founded, was to the effect that all the jute, including the defenders' consignment, actually shipped at Calcutta, had been delivered at Dundee, but there was no evidence led by the pursuers to account for the manner in which the alleged difference between the cargo acknowledged to have been received in the bill of lading and that actually received had arisen.
Held ( reversing the judgment of the Second Division) that the pursuers had failed to prove a short shipment, and were liable to the defenders for the value of the hales not delivered.
The case is reported ante, vol. xxxii. 262, and 22 R. 350.
Smith & Company appealed.
The appellants relied on the case of Harrowing v. Katz & Company, 10 Times' Law Reports, in which an appeal was also pending.
At delivering judgment—
The conclusion which we ought to arrive at is one that arises from the facts in proof in this case, and I myself rather protest, when one is dealing with questions of fact, against laying down any rules that are not applicable to the particular case.
Each case in its turn differs in its circumstances, and there is no doubt that from time to time in the course of a case the burthen of proof may shift from one side to the other many times.
In this case undoubtedly there was evidence that these goods which are now in dispute had been shipped on board this vessel. When I say there was evidence, I am not certain that one gets to any more definite idea of what the position is by calling it prima facie evidence, or by calling it by any other name which appears to diminish the value and the cogency of the evidence itself. Prima facie evidence, in the ordinary sense of the words, may be very weak, or may be very strong. I think it is a proposition which is attributed to Lord Wensleydale, although I have not been able to verify it, that a man's cutting a tree in a field was prima facie evidence that he was seized in fee-simple of the land.
In the extreme case that Lord Wensleydale gave I suppose it would be very easy to displace that prima facie evidence, if it is prima facie evidence, by other circumstances showing that it was not in the exercise of his own right that he was cutting down the tree but in the exercise of somebody else's right. In the particular case with which your Lordships have to deal there is a receipt. I am using now popular words, because I do not think the particular form in which this question arises ought to weigh much upon one's attention; it is a receipt for goods—that is what it amounts to—given by the person who was authorised to give the receipt for the goods, for the express purpose of establishing evidence against the person who received them. Whether it is a receipt for goods, or whether it is a receipt for money, or whether it is a receipt for anything else, I suppose no one can doubt that without explanation, and without showing that there was some mistake made in the receipt, or that the receipt was given under a mistake, or that it was induced by fraud, the conclusion to which any tribunal having that question before it must necessarily come is, that unless displaced by such evidence, the ordinary result follows, that the thing which was done as an acknowledgment of the receipt must have its due effect given to it. In truth, if that were not so, it would be impossible to conduct business
Now, my Lords, it appears to me that this being the merest question of fact, there is no evidence to displace the evidence of the document to which I have referred—the bill of lading. In speaking of the document, I have used, as I said, popular terms, because I quite agree that one must trace up the bill of lading to its source, the mate's receipt and the tallyman's books, but all these things ultimately concur in producing the document which is the subject-matter of the controversy. It appears to me beyond all reasonable doubt that there is evidence of a cogent character not displaced by any other evidence, nor shaken in its effect or value by what has taken place before the Courts below.
Under these circumstances it seems to me that the only logical course which your Lordships can pursue is to give the true effect to the evidence that has been given, and refuse to act on mere conjecture or guesswork as to how these goods may have been lost, if in truth they got on board. To my mind the cardinal fact is that the person properly appointed for the purpose of checking the receipt of the goods has given a receipt in which he has acknowledged, on behalf of the person by whom he was employed, that these goods were received. If that fact is once established, it becomes the duty of those who attempt to get rid of the effect of that fact to give some evidence from which your Lordships should infer that the goods never were on board at all. Under those circumstances, no such evidence having been given, I move your Lordships that this judgment be reversed, and the judgment of the Lord Ordinary be restored.
The facts of the present case which are not in controversy are that the master of the steamship “Emir,” owned by the respondents, received in the river Hooghly, for conveyance to the port of Dundee, two parcels of jute, and signed two bills of lading, each for 500 bales, which were purchased by the appellants. The bales in each parcel were marked in the same way. The respondents have made delivery of 988 bales, and they allege and have led evidence with the view of proving that the remaining twelve bales were not shipped. The Lord Ordinary (Lord Kyllachy) found that they had failed to substantiate their allegation, but his decision was reversed by the learned Judges of the Second Division, who held it to be established that the twelve bales in question had not been put on board the “Emir.” In these circumstances, although the issue raised is purely one of fact, your Lordships must determine which of these conflicting decisions ought to be sustained.
When evidence has been adduced for the purpose of instructing short shipment, I do not think it is of any advantage to examine critically the principle upon which his master's acknowledgment is held to bind the shipowner when it is not contradicted by proof. Whether, when it is uncontradicted, the acknowledgment ought to be regarded as affording prima facie evidence, or as giving rise to a presumption that the goods were actually shipped, or in any other light, is not to my mind of materiality in the circumstances of this case. After inquiry, such acknowledgment simply becomes part of the proof, its value must be tested with reference to the rest of the evidence, and the fact of shipment or non-shipment must be determined according to the import of the evidence taken as a whole. The importance of the bill of lading as an adminicle of proof is generally due to the fact that the statement of quantity which it contains, although not within the personal knowledge of the master, is made by him on the faith of information derived from his mate and from servants of the ship, who are employed for the express purpose of noting and checking the amount of cargo actually put on board. If there be no direct proof that, on the occasion when the disputed cargo was noted by the tallymen as having been shipped, there was a departure from or violation of the usual system of check followed by the ship, that circumstance is calculated to enhance the weight of the master's acknowledgment, because it tends to the reasonable inference (not necessarily conclusive) that the information conveyed to the master was correct.
I have fully considered the whole evidence in this case, both oral and documentary, with the result that I prefer the conclusion
Tried by this standard, I am of opinion with your Lordships that the judgment of the Lord Ordinary was right and ought not to have been disturbed. It is said that there is a body of proof, not as to fraud or error to the extent of twelve bales in regard to the particular quantities shipped and checked in detail, but generally that the whole quantities of jute (whatever these were) shipped on board at Calcutta were carried to Dundee and delivered there. For my part, I cannot at all place such reliance on general evidence of this class as on proof of detailed and careful checking of goods as they came on hoard, followed by the mate's receipts and the bills of lading. To do so would very much destroy the value of bills of lading, even where, as here, these are supported by proof that the materials on which the bills of lading proceeded were obtained after much care and pains taken to ensure correctness of quantities, whereas if the shipowner be held to be bound or affected by the acts of his own servants, this will only tend to make them all the more careful in the discharge of their duties, and especially careful to avoid giving bills of lading for goods not actually delivered into their custody.
It may be quite true that the fair inference from the whole evidence here is that there was no opportunity for the abstraction of bales at the ports at which the vessel called on her homeward voyage or on her arrival at Dundee, and that such cargo as was once put into the hold remained there till the end of the voyage. But proof of all this is not sufficient for the shipowner's case. The evidence does not make it quite clear that bales to the number of twelve may not have been removed from the ship's deck after being placed there, and taken away by the lighters, particularly during work carried on in the evenings after dark. The use of the steam-winch and tackle would not have been necessary for this purpose. It is said this suggestion is a speculative one only, and if the onus lay on the shippers the observation would be a very weighty one. No one can say that there is proof that such abstraction did take place, but it is for the shipowner to displace the shippers' evidence furnished by the acts of their own servants.
It appears to me they do not do so by proof which does not exclude the possibility that the bales in question might have been abstracted from the ship's deck, or which does not make this so highly improbable that such a suggestion must be entirely thrown aside, for if this might have taken place they have failed to discharge the onus which lies on them of adducing such evidence as is sufficient to satisfy the Court that there was actual short shipment.
On these grounds I concur in thinking that the judgment complained of should be reversed, and the judgment of the Lord Ordinary restored.
The House reversed the judgment appealed from, and restored the judgment of the Lord Ordinary, with costs against the respondents both in the House and in the Court below.
Counsel for the Appellants— Cohen, Q.C.— Aitken— Alexander Robertson. Agents— Downing, Holman, & Co., for Boyd, Jameson, & Kelly, W.S.
Counsel for the Respondents— Bingham, Q.C.— Boyd. Agents— W. A. Crump & Son, for Lindsay & Wallace, W.S.