Federal Court, Malaysia
Lee Hun Hoe Ag LP, Ali Ag CJ (Malaya) And Raja Azlan Shah FJ
14 February 1977
KEYWORDS
Bailment – Action by cargo owner against port warehouse operator – burden on bailor to prove the condition of goods at the time of receipt by the bailee, then burden shifts to bailee to prove no-negligence
FACTS AND DECISION
Eight boxes of camera were shipped from Hong Kong to Penang (in Malaysia) under a clean bill of lading. They were discharged into lighters at Penang and then transferred to the warehouse operated by the port authority. Upon delivery to the indorsee of the bill, it was found that eight cameras were missing and some boxes tampered with. The indorsee brought an action against the shipowner, the lighter operator and the port authority. The Sessions Court found that the port authority was liable. The port authority appealed to the High Court that found that the port authority was not liable. On further appeal by the indorsee to the Federal Court, where the parties were only the indorsee and the port authority, the question was where the port authority was liable as bailee.
The Federal Court found that the indorsee was not able to prove the condition of the goods at the time of delivery into the warehouse, after changing of hands from the ship to the lighter and lighter to the warehouse. A mere proof of damage and loss compared against the bill of lading was not sufficient to shift the burden onto the port authority, and the Malaysian Federal Court found against the claimant.
OBSERVATION
Obligations of the bailor are set out in ss. 101, 104, 105 and 114 of the Contracts Act 1950, which has materially codified the common law and is materially identical to ss. 148, 151, 152 and 161 of the Indian Act. The burden of proof is set out in ss. 101-103, 106 and 114 illustration (g) of the Evidence Act 1950, which are identical to the Indian Evidence Act 1872 and with the Singapore Evidence Act (save that the section-number is in advancement by 2 numbers).
The said sections of the Malaysian Contracts Act provide as follows:
100. A “bailment” is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the “bailor”. The person to whom they are delivered is called, the “bailee”. …
104. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.
105. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 104.
114. If, by the fault of the bailee, the goods are not returned, delivered, or tendered at the proper time, he is responsible to the bailor for any loss, destruction, or deterioration of the goods from that time.
The said sections of the Malaysian / Indian Evidence Act provide as follows:
101. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact
The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
114. Court may presume existence of certain fact
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
Illustration
The court may presume—
…
(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;
…
The Privy Council in Port Swettenham Authority v Tw Wu And Company (M) Sdn Bhd [1978] 2 MLJ 137 (PC on appeal from Malaysian Federal Court (apex court)) held that s. 106 of the Evidence Act places the legal burden directly on the bailee, once the bailor has proved that the goods were delivered in a certain quantity and condition to the bailor and that they were returned in short quantity or in a different condition. The Privy Council disagreed with a speech in a previous Privy Council decision on appeal from India, where the previous board said that an identical s. 106 in the Indian Evidence Act 1872 merely required the bailee to put before the court the relevant evidence and it was for the bailor to prove fault on part of the bailee. The said speech was of Sir Walter Phillimore in Dwarka Nath v RSN Co Ltd AIR 1917 PC 173 at p. 175 as follows:
… Evidence Act of 1872, section 106 … it was therefore right that the defendant Company should call the material witnesses who were on the spot … But this provision of the law of evidence does not discharge the plaintiffs from proving the want of due diligence, or … the negligence, of the servants of the defendant Company. It may be for the Company to lay the materials before the court; but it remains for the plaintiffs to satisfy the court that the true inference from these materials is that the servants of the defendant Company have not shown due care, skill and nerve.
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