JUDGMENT
Srinivasa Aiyangar, J.
1. This is a somewhat difficult case raising a somewhat interesting question of maritime law. The plaintiff, Who is the appellant before me, instituted the suit against the British India Steam Navigation Co., Ltd., and the Madura Co., Ltd., making both of them defendants and claiming the value of 109 bags of rice alleged by him not to have been duly delivered according to the terms of the bill of lading in respect of a consignment of a very large quantity of bags of rice and broken rice consigned to him from Rangoon. The total quantity of the bags short-delivered to him was 335. Out of these it is found that in respect of 102 bags and another lot of 15 he got paid by the Insurance Company and in respect of another quantity of 108 bags the defendant companies or company admitted liability and paid the value. Out of the remaining 110 bags the plaintiff admitted that one bag out of the total 222 which were found to have been damaged by sea water bore his marks and therefore in respect of that one bag the plaintiff has made no claim against the defendants. That was how the claim came to be limited and to be for 109 bags. The trial court granted a decree in favour of the plaintiff. The defence of the defendants was that 222 bags having been found to be sea-damaged and unfit for consumption and so dealt with by the Port authorities and thrown into the sea, the marks on these 222 bags were unidentifiable and therefore these 222 bags must be presumed to have belonged rateably to the various consignors according to the number of bags consigned by each. Apparently, though it does not seem to appear on the evidence, the payment made by the defendant companies was on working out on that basis. They seemed to have taken the 222 bags sea-damaged and, arriving at the proportion allottable to the plaintiff and finding the same to be 110, appear to have admitted liability in respect of the balance of 108 and paid up the same. In the Court of First Instance the District Munsif found as a fact that the case set up by the defendants was not established, namely, that the marks were unidentifiable and held for the contention of the plaintiff that they were identifiable and that none of the bags except the one which was given up bore the marks of the plaintiff. On that ground he came to the conclusion that the only ground of exemption pleaded by the defendants, namely, that the 109 were included in the 222, not having been made out, the defence failed, and he gave judgment accordingly for the plaintiff. The learned Subordinate Judge in the lower Appellate Court however found the issue whether the marks on the 222 bags were or were not identifiable in favour of the defendants and according to their contention and holding that they were, as contended for, unidentifiable, held that on a principle of equity the defendants were entitled to apportion the 222 bags according to the total number of bags constituting each consignment and on that basis plead exemption so far as the plaintiff was concerned in respect of the 109 bags. This second appeal has been filed against that judgment of the Subordinate Judge.
2. The learned vakil for the appellants who argued the case carefully and clearly has drawn my attention to the case of Frank Stewart Sandeman & Sons v. Tyzack & Brom foot Steamship Co., Ltd. LR (1913) AC 680. It is clear on a perusal of the judgment of the Law Lords in that case that the case of Spence v. The Union Marine Insurance Company (1868) LR 3 Com. Pleas 427 was the leading decision in which the theory of tenancy in common in respect of the entire lot of unidentifiable goods was first postulated and made the ground of decision. But it is necessary to observe in connection with that case that there was no doubt whatever that the entire quantity of undelivered goods in respect of the consignment by the particular ship was there and, as all the goods were there but only the marks were obliterated, the shipowners by the conditions of the bill of lading were not bound to deliver according to marks and, as it is perfectly clear that all the goods remaining to be delivered must be comprised in this entire lot of unidentifiable goods and so they were entitled to apportion them proportionately amongst the various consignees according to the total quantity of their consignments. Though the principle of that case was not questioned in the case before the House of Lords, their Lordships in the House of Lords differentiated that case from the one before them by pointing out that, in the case they were considering, it was clear that there were other missing bales and it could not possibly be postulated that the bales omitted to be delivered to the claimant in that case had not been among the bales that were missing, apart from the quantity which remained there unidentifiable. In other words, the principle of the decision of their Lordships appears to be this : Reliance upon any clause exempting shipowners from liability may be made good if it can be shown that the whole quantity failed or omitted to be delivered was so failed or omitted to be delivered because of some reason which gave exemption in respect of which the shipowners were exempted from liability. This, however, the shipowners have got to prove. Such a thing cannot be held to be proved, their Lordships said, if, apart altogether from the quantity of unidentifiable goods which were landed, there were other goods which are admittedly missing and one cannot be certain whether the goods failed and omitted to be delivered to the claimant could not have been among the goods which became missing in that manner. To put the same matter in another way, the burden is on the shipowners to establish by clear and cogent evidence that their inability to deliver was entirely due to causes or reasons in respect of which they had an exemption under the clauses of the bills of lading. Now then, if that is the true principle, as I take it to be, the question is, what is the result we arrive at on the application of those principles to the present case? At first I was inclined to agree with the contention on behalf of the appellants that, on the authority of Sandeman’s case, Frank, Stewart Sandeman & sons v. Tyzack & Bromfoot Steamship Co., Ltd. LR 1913 AC 680, there was no room in this case for the application of the doctrine of tenancy in common in respect of unidendtifiable goods, because it is clear on the facts of this case that, apart altogether from the goods in respect of which the plaintiff was able to obtain damages from the Insurance Company and apart from the 222 bags of unidentifiable goods, there were other goods which were missing or which were lost. If there had been no such loss, it is difficult to conceive how the defendants could have agreed to be liable for 108 bags which they did. If, therefore, there were other bags also that were lost in the course of the voyage, then one cannot be certain whether the total of 109 bags in respect of which the plaintiff makes the claim were not included or comprised in the quantity lost during the voyage in respect of which the defendants admitted liability. If therefore on the facts of the present case we could not be certain that in the 222 bags of unidentifiable goods there were any belonging to the plaintiff, it is impossible to hold that the defendants have made out the ground of exemption from liability. But Mr. Nambiar, the learned Counsel for the defendants, has drawn my attention to Exhibit V-a in this case. It is a statement of outturn of cargo by the steamer in question. There under the heading of “Manifested quantity” it is noted that the total number of bags was 84,182. Under the second column “Boat note quantity” is shown as 84,016 and under the third column the “Actual landing quantity” is also shown as 84,016. Thus it would be seen that the difference between the manifested quantity and the boat note quantity is only 166 bags; that is to say, the total number of bags that were omitted to be delivered to the various consignees apart from the unidentifiable goods and also the goods in respect of which insurance claims have been made and admitted was 166. Out of this 166, the defendants have already paid for 108 bags. The receipt of the value of those 108 bags is admitted. The balance of the quantity lost or unaccounted for by the defendants is only 58. Applying the principle of the two decisions referred to above, what we find is that it is possible that all these 58 bags also were bags belonging to the plaintiff and therefore bags in respect of which the defendants were liable under the bill of lading and could claim no exemption. But that is taking it against the defendants at the very highest, though I have no doubt it is most unlikely. However, when it is a question of the application of such general principles and burden of proof, I think the proper method is to take it against the party at the very highest and compute on that basis. So, taking and assuming that all the other 58 bags which were also lost belonged to the plaintiff, we find that the remaining 51 bags must have been included in the 222 of unidentifiable goods. This is a result arrived at by mathematical calculation in respect of which it seems to me there cannot possibly be any doubt. I may however advert in this connection to an argument attempted to be put forward by the learned vakil for the appellants with regard to Ex. V-(a). He tried to argue that that statement cannot be relied on for the purpose of showing how many bags were lost otherwise. But it is a statement made in the usual course of business by respectable companies and I for my part refuse to accept the suggestion made on behalf of the appellants that the figures therein shown are not correct. It would lead to very serious consequences if responsible companies concerned with such a lot of shipping can be regarded as capable of entering incorrect figures in the statements prepared in the regular course of business. I therefore reject this suggestion on behalf of the appellants altogether. Then the result is that, so far as 51 bags out of the quantity claimed by the plaintiff are concerned, the defendants have mathematically demonstrated that at least that number must have been included in the 222. So in respect of that number of bags they are exempt from liability because they have been declared by the Port authorities to be unfit for human consumption and dealt with on that basis. Under the bill of lading they are not liable for the obliteration of marks and if, as a matter of fact, there were 51 bags belonging to the plaintiff in that quantity, they are not liable for non-delivery of the same. As regards the 58 bags, however, I must find that, on the application of the very principles contended for, it has not been shown, or, established that those were or must have been included in the quantity of unidentifiablt goods. In the absence of any such evidence, the conclusion is clear that the defendants have not made out the ground of their exemption. I have therefore come to the conclusion in this case that the decree of the lower Appellate Court must be set aside and that, instead, there must be a decree for the plaintiff for 58/109 of the amount decreed in favour of the plaintiff by the Court of First Instance and, taking that the superior and the inferior bags were really proportionate, the amount would be Rs. 770-8-0. This figure on calculation is admitted to be correct on both sides. Mr. Nambiar for the respondents took up another point with regard to the joinder of defendants. He argued that the 2nd defendant, the Madura Company, Ltd., was admittedly styled by the plaintiff himself as the agent of the 1st defendant company and there was therefore no reason for joining the 2nd defendant company. But it must be observed that both the defendants have acted together in all these proceedings, signed the same written statement, took the same pleas and acted in all proceedings conjointly. No doubt, if the question had been pressed, the plaintiff would have been bound to elect to have the decree against only one of the parties and I have no doubt on the allegations it must be against the first defendant company alone. But 1 find that, though there was a decree passed against both the defendants in the Court of First Instance, there was no ground of appeal taken in the Memorandum of Appeal to the Lower Appellate Court. I must therefore assume that the objection on the ground of misjoinder of defendants was deliberately abandoned and, I have no doubt, for excellent reasons, because it is notorious that, though they are different companies, they have no different interests so far as the subject-matter of this litigation is concerned and, in these circumstances, I do not think any useful purpose is likely to be served by pursuing the matter further.
3. There must therefore be a decree for Rs. 770-8-0 in favour of the plaintiff with interest thereon from this date till the date of payment. The parties will pay and receive proportionate costs throughout.
