Decided on January 16,1968

Rivers Steam Navigation Co. Ltd Appellant
Shri Ram Krishna Bastralaya Respondents


C. Sanjeeva Row Nayudu, J. - (1.)THESE appeals arise out of Money Suits Nos. 2, 10 and 17 of 1960 and 6 and 8 of 1961. These suits were disposed of by a common judgment by the Subordinate judge, Cachar at Silchar. The suits were brought by the consignees of goods consigned together from Nimtellaghat for carriage to Silchar the destination. These were booked on e 19th August, 1959. Different sets of issues ere framed in each suit, except in Money Suit No. 8 of 1961. But the main point for consideration common to all of them was whether e two Defendants, namely, (1) R.S.N. Co. Ltd. and (2) I.G.N. and Railway Co. Ltd., the Appellants before us ware liable to make good the damage caused to the consignment in question during the period the Defendants were carrying them from the starting point to the destination.
(2.)THE respective Plaintiffs (Respondents herein) in the above -mentioned suits, had consigned certain goods, to wit, bales of cloth to, the Defendants for conveyance as aforesaid. It is claimed by the Defendants that the goods were being carried in one of their steamers when there was a tidal bore, which resulted in the oil tins placed on the fleck bursting and as a result of their falling on the deck, the mustard oil contents thereof trickled into the hold, where the bales of cloth were stored and damaged the cloths. The Defendants contended that as -this tidal bore amounted to an act of God, any consequential damage should be attributed to an act of God and, therefore they claimed exemption or mitigation in respect of the liability to pay damages.
The learned Subordinate Judge, who tried the suits, held that there was negligence on the part of the Defendants in taking care of the oil tins and the bales of cloth, that although the tidal bore could be regarded as an act of God, there was absence of care by the Defendants and that they had sufficient warning of the onset of the tidal bore and thus they can not take the benefit of this defence. The learned Subordinate Judge himself was not very certain that the goods were loaded in the manner stated by the Defendants and held -that as the delivery of the consignments was made as 'assessment delivery', although without 'prejudice, the Plaintiffs -Respondents were entitled to claim at least the amount determined by the Defendants as representing the damage caused to the goods.

(3.)WE have no doubt whatsoever that the tidal bore, which sweeps a ship in mid -water, is an act of God, and such being the case, any damage which is the direct result of the tidal bore, might assist the Defendants in claiming, exemption or mitigation in respect of the' liability. But it is not the case of the Defendants that the water raised by the tidal bore swept into the ship, entered the hold and damaged the goods stocked therein. The damage admittedly resulted by reason of the fact that a number of oil tins placed on the deck had been thrown down and all the oil entered the hold and damaged the goods. It is thus clear that the damage would not have resulted had not the oil tins been stacked and had they not been allowed to fall down and empty their contents into the hold. These are not all acts of God, and the law is clear that even where the defence of act of God is available to a carrier, the carrier must show by clear evidence that the carrier had taken all reasonable steps and precautions to prevent the damage resulting from, this, act of God. In the instant case, apart from the circumstances that the Defendants had advance notice of the onset of the tidal bore, they do not appear to have taken any steps to prevent any remote or consequential damage to the goods stored in the hold. If the tins were not placed on the deck and if they had not leaked, the damage would not have occurred. This certainly could have been prevented by the Defendants and the act of God did not prevent them from taking these precautions. Hence, we are clearly of the opinion that in the instant case the defence of an act of God is not available to the Defendants to avoid the liability in respect of the damage sustained by the Plaintiff -Respondents in these cases. We are fully in agreement with the learned Subordinate Judge when he held that there was clear negligence on the part of the Defendants' employees, who were manning the ship, in which goods were stored and, but for this negligence, the damage might not have resulted.

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