Solomon Shaheen v Kelfallah Duralia [1921] SLCA 4 (24 January 1921)

23rd Ja11uary 1920. 10 SOLOMON SllAHEEN Appellant. 11. KA.LF ALLAH DURALIA - Respondent. Action for damages for defa1tlt in carriage by sea and tlelit•ery of goods in a canoe-Local c1tsto1n thai owne1• who lets a canoe to another for his e.rclusi ue 1J.~e can take cargo and passengers, other than those sent by the tJc1'Son hiring the canoe. The Plaintiff hired from the Defendant a canoe to take his goods from Kambia to ~·reetown. 'l'he Defendant sent other goods and passenger:; in the canoe, which was lost. Jleld that a natiYe custom for the person letting a canoe to another, to plnce in it other loads and passengers, is not Aupportable under section 6 of tho Protectorate Courts J udsdiction Ordinance, 10031. J ndgment of the Circuit Court set aside, and judgment for tl1e Appellant for £162 lOs. 9d., with costs, in the Circuit Court and the Court of Appeal. Appeal from a judgment of Parodi, .J., in thP Circuit Court of the Protectorate o£ Sierra Leone. J . F. Bo.~lon and Betts for the Appellant . .1/ cCarthy for the Rcspoiulent rites:- .,\ddison on Contracts. 11th Edition . p. 1027. Boston, in reply, cites :- _\.ddison on Contracts, 4th Edition, p. 989. P"GRCELL, C.J. This is an appeal from the judgment of 1\fr. Justice Parodi, dated 2nd December, 1918, when sitting in the Circuit. Court nt Moyamba. The Plaintiff (the .Appellant in this Court) claim ed £ J62 10,.;. 9d. damages for brcac·h of clut: in, and about, the carriage and deli>ery of goods from Kambia to Freetown. The facts of this case may be here stated as briefly as possible:- The Plaintiff, who is a Syrian trader, stated that he hir ed in .July, 1918, a canoe to take his goods from Kamhia to Free- 1 Now Cnp. 16!), sec. fl, Vol. 1!., p. 1166. 11 town; that such goods were sufficient to entirely fill the canoe, and that he contracted for the exclusive use of this canoe, but that dUI'ing such voyage the Captain of this vessel took on board passengers and cargo, which had the effect of overloading the canoe, and caused her to sink, in consequence of which Plain­ tiff's loss was occasioned. The Defendant, on the other hand, denies the Plaintiff's story i11 almost every particular, and contends that he merely agreed to convey the Pbintiff's load to Freetown, that he (Plain­ tiff) had not the exclusive use of the canoe, it was open to him (Defendaut) to carry other passengers and loads which, in fact, he did, and that the subsequent loss of the cargo was due to a violent storm "·hich arose, and was in no way due to the over­ loading of the canoe. He further set up that he was entitletl to the protection of the provisions of section 6 of Ordinance No . 6 of 1903.1 Section 6 runs as follows :- " Nothing in this 01·dinance shall deprive the Court " of the District Commissioner, or the Circuit Court, in its " civil jurisdiction, in causes or matters between natives, " and persons not natives, where it may appear to the " Court that substantial injustice would be done to either " party by a strict adherence to the rules o£ English law " o£ the right to observe and enforce the observance, or " shall deprive any person o£ the benefit, o£ any law, or " custom, existing in the Protectorate, and not being " repugnant to natural justice, equity and good conscience, " nor incompatible either directly or by necessary impli­ " cation with any enactment of the Colonial Legislature " existing at the commencement of this Ordinance, or which " may hereafter come into operation : Provided that no " party shall be entitled to claim the benefit of local law " or custom, if it shall appear either from the e:1rpreas con­ " tract, or from the nature o£ the transaction, out o£ which " any suit or question may have arisen that such party " agreed that his obligations in connection with such " transaction should be regulated exclusively by English " law; and, in cases where no express Tllle is applicable " to any matter in controversy, the Court shall be governed '' by the principles of justice, equity and good conscience." The learned Judge found that the canoe sank in deep waters during the course of a strong tornado, and that Plaintiff's loss 1 Now Cap. 169, sec. 5, Vol. II., p. 1156. SRAHEEN v. DUIULu. PUROELL, 0.1. SHAHEEN tl. D un.u.IA. PtrnCELL, C.J. 12 was caused by the act of God, and he further came to the con­ clusion that injustice would be done to the Do£cndant. were he to be denied the benefit. of a local custom by the strict adherence to the rules of English law, such custom being that, eYen though the canoe in question was hirt'd by the Plniutifl' for his exclus iYe use, he (Defendant) was nevertheless entitled to take other cargo and other passengers. After ver·y carefully coxl!;idering all the faets of this case, as 1 now know them, hoth from the a1·guments addressed to us from the Bar and from a perusal of the record, I am unable to agree with the conc]w;ion anived at by the learned ,Judge in the Uourt below. I am satisfied :- (1) that there was a rontraet betwet'n the P laintiff and the Defendant for ihC' exclusive hirin~ of his <·anoe to <·onyey Plaintiff's goods from Ram bia to l•'reetown, and that the Defendant, for the purposes of that partic ular voyage, was not a common carrier; (2) that in hrf'ach of this cm1tract the Defendant, b: taking nhoard the c:moe passengers and otht'r cargo, oyer­ loaded her, and caused her to sink; (3) that the loss of tht' Plaintiff's goods was due solely to such overloading of the canoe, and was not due to any Rtorm a.t all ; (4) that the Defendant was not entitled to claim t he benefit of a local custom of the kind contended for under the pro' isions of section G o£ Ordinance No. 6 of 1903,t as such custom, even if it was proved- which it was not-is obviously, from eYery standpoint, unsupportab le. It follows, therefore, that the judgment o£ the Cour L below must be set aside, with costs, here and in the Court below, and judgment must be entered for £162 l Os. 9d., with costs. PENI NGTON, J. I concur. McDONNELL, Acting J. I concur . 1 Now Cap. Hi9, sec. 5, Vol. II, p. 1166,