OLATUNJI OMOTAYO V. ARBUCKLE SMITH & CO. LTD.

Foster-Sutton, P. In this case the plaintiff claimed the sum of £962 special damages and £1,000 general damages, for the loss of fifty-two tons of obeche logs which he alleged was due to breach of duty and negligence on the part of the defendants' servants.

The plaintiff's case was that some time in August, 1951, he applied to the defendants for space for the shipment of a quantity of obeche logs from Lagos to Hamburg, and that by letter dated the 30th August, 1951, exhibit “C”, the defendants allocated space for shipment of the logs on board the 5.5. Maria Laurentana and requested the plaintiff to have the logs ready under the Carter Bridge, Lagos, on the 1st September, 1951; that in accordance with their instructions he supplied specifications required by them and had the logs ready, in the form of a raft, under the Carter Bridge 20th September when they were taken over by the defendants, at about 8 a.m. on that day, and towed by them to the ship for shipment.

It was common ground that the logs were taken alongside the ship by the defendants' tug, accompanied by a “water-boy” employed by the plaintiff, that they were not loaded, and that during the night of the 20th September the bulk of them were washed out to sea.

The plaintiff maintained that the defendants had contracted to take over the logs at the Carter Bridge, tow them to the ship and put them on board, and that it was their duty to return the logs to the base, Carter Bridge, if loading was not effected, and that it was due to the defendants leaving the log raft alongside the ship where it was subjected, during the night, to a strong tide, that the logs were lost.

In their statement of defence the defendants alleged that the plaintiff hired their tug for the purpose of towing his logs alongside the ship in question, but averred that it was not their duty to load the logs on board, that the plaintiff did not request them to do so, and that they did not undertake to load the plaintiff's logs on board the S.S. Maria Laurentana or on any other ship.

The defendants' manager gave evidence to the effect that no contract had been entered into by them to tow the logs to the ship and load them on board; he alleged that the plaintiff had hired the tug to tow his logs alongside for the purpose of loading, and that it was the plaintiff's duty to see that the logs were put on board. In one part of his evidence he stated that the plaintiff had “tried to ship the logs without my sanction”, and he alleged that the first intimation he had of the shipment was on the 21st September when he heard that the logs had been lost. He went on to say that when he heard of the loss ..I went on board the ship to find out why the logs were not loaded ", and that the captain of the ship informed him that they had not been loaded because there were no specifications and no customs entry.

The learned trial Judge found that the defendants had contracted to tow the plaintiff's logs to the Maria Laurentana and to see them loaded on board, and that the captain's refusal to allow the logs to be loaded was due to a dispute he was having with the defendants who had chartered the ship, not to any failure on the plaintiff's part to supply the necessary documents, and he found as a fact that the requisite documents had been supplied by the plaintiff. There can, in my view, be no doubt that these findings of fact are fully justified on the evidence. Having reached these conclusions the learned trial Judge expressed the view that had the defendants known that the logs were not going to be loaded there would have been a clear case of negligence against them, but that there was no evidence upon which he could find that they did know or “ must have known “, and that as they” did not know that the logs would not be loaded, they cannot be said to have been negligent for not taking the logs back to their base “. In this connection it was common ground that if shipment of the logs was refused they ought to have been taken back to their base at Carter Bridge.

Finally the trial Judge held that the loss of the logs was due to a defect in the wire ropes unknown to both parties, and that since the defendants were not responsible for the rafting and the wire ropes were not broken through their agency or want of care, and they were not responsible “ for the strong tide, an act of nature, which carried the logs away”, they could not be held liable for the loss, and he accordingly dismissed the plaintiff's claim and entered judgment for the defendants.

The plaintiff's witness Moses Ayodele, who at the time of the loss was employed by the defendants and was responsible for their shipping arrangements,and who the learned trial Judge found was a witness of truth, testified that “instructions were given to the tug to tow plaintiff's logs and the logs were towed to the ship. The logs were not loaded because the captain refused to load them and we could not load them ourselves. There was dispute between the captain and the defendants. We left the logs alongside ship thinking that the captain would load them”.

Another witness called by the plaintiff, Alabi Boyle, who at the time of the loss was also employed by the defendants, and whose evidence appears to have been accepted by the learned trial Judge, stated that he informed the chief mate of the ship that the logs were alongside and that the chief mate said he would see the defendants' manager, and that he then left the logs alongside the ship and went away. He went on to say, “If I had been told the logs would not be shipped, I would have had to return them to base.”

Neither of these men reported the position to the defendants’ manager, but the latter admitted that the captain came to the office, although he went on to say that he could not remember if it was on the 20th September.

I agree with the learned trial Judge that in the circumstances here the defendants stood in the situation of an insurer of the property entrusted to them, and are answerable for any loss or damage happening to it while in their custody, unless the loss was occasioned by act of God, the Queen's enemies, or by a defect in the property itself.

I also agree with the proposition that if a loss is occasioned partly by an act an of nature, although one not by itself irresistible, and partly by a defect in the thing itself although that defect is not the sole cause of the loss and the carrier has no means of preventing the combined effect of the two causes, he ought to be protected, but I am unable to agree that those are the circumstances here.

The logs were assembled, at the storage place, Carter Bridge, on the 1st September, 1951, and at the request of the defendants they were handed over to their tug at 8 a.m. on the 20th September for towing and loading; at that point subject to the exceptions I have already mentioned, they assumed responsibility for them. The logs had then passed out of the control of the plaintiff into that of the defendants.

The logs were not loaded because the captain refused to take them on board, d in the result such refusal proved to be final because the defendants' manager admitted that the ship took on no cargo after the 19th September. If the defendants' servants had reported the refusal, as they clearly ought to have done, it is reasonable to assume that the logs would then have been returned to their base. As it was they were left alongside the ship overnight where they were subjected to the ebb and flow of a strong tide.

It seems to me that after the captain's refusal to take the logs on board the defendants' servants must be held to have taken a chance by leaving them alongside. Respondents' counsel urged that there was no undertaking as to when the it logs were to be loaded, but I am not impressed with the argument. I think we are entitled to infer from the evidence that the defendants took over the logs early on the morning of 20th September for the purpose of loading them on board that day.

The onus of proving that no reasonable precaution on the part of the defendants could have prevented the loss was upon them. The plaintiff's water-boy testified that the logs were properly rafted, and the ebb and flow of the tide is in the ordinary course of nature, something which the defendants must be deemed to have been aware of. Although the tide is in the ordinary course of nature, and in that sense an “act. of God “, I. think when considering the legal implications in a case such as this it is misleading to classify it as such, which the trial Judge in effect did. As Cockburn, C.J. said in Nugent v. Smith (1): “The rain which fertilises the earth, and the wind which enables the ship to navigate the ocean are as much within the term act of God as the rainfall which causes a river to burst its banks and carry destruction over a whole district, or the cyclone that drives a ship against a rock or sends it to the bottom. Yet the carrier, who by the rule is entitled to protection in the latter case, would clearly not be able to claim it in the former.”

It is true, as the learned trial Judge said, that the defendants were not responsible for the strong tide, but they, through their servants and agents, were responsible for leaving the logs alongside the ship where they were subjected to the tide, and in the absence of any evidence from them negativing negligence on their part, that is to say that no reasonable precaution which might have been taken by them could have avoided the loss of the logs, I am of the opinion that they must be held liable.

The learned trial Judge also held that the plaintiff was negligent in that he failed to have the number of men on the raft required by Regulation 20 (1) (c) ii of the Navigation of Inland Waters Regulations, which requires a crew of one man for every twenty logs floated. It may well be that the plaintiff is liable to a penalty for failure to observe the regulation, but I cannot see how the defendants 1 can invoke this in order to avoid liability since they were in charge of, and responsible for, the raft at the time of the loss, and nowhere was it suggested that their servants queried the position or took any steps to remedy it when they took raft over.

It follows that I would allow this appeal, set aside the judgment of the Court below, and since counsel for both sides have agreed that we should fix the amount on damages on the material before us I would allow the plaintiff's claim in respect ; of thirty-nine obeche logs at £1810s. 0d. a ton instead of forty-five logs as claimed. The plaintiff's attorney admitted that he recovered six of the logs which were placed by him in charge of the water-boy and afterwards stolen, and I do not think the defendants can be held liable for their loss. The forty-five logs weighed fifty-two tons, and I am of the opinion that a fair figure for the thirty-nine logs would be £793 13s. 0d.

The plaintiff also claimed damages for loss of future profits, on the footing that if the logs had not been lost he would have been paid for them and able to use the money for further similar transactions, thereby repeating the profit, which he alleged he would have made on the lost consignment. I regard a claim on that footing as being too remote, but would allow him the sum of £102 8s. 0d. by way of compensation for loss of interest on his money.

I would, therefore, enter judgment for the plaintiff in the Court below for the sum of £896 1s. 0d. with costs to be taxed and he must have his costs on this appeal which I would fix at £42 2s. 0d.

Coussey, J.A. I concur. Abbott, J. I concur.

Appeal allowed.