Olatunji Omotayo V. Arbuckle Smith & Co. Ltd (1954)
LawGlobal Hub Judgment Report – West African Court of Appeal
Contract—Breach of duty—Act of God.
Tort—Negligence—Act of God—Plaintiff’s breach of a regulation.
Damages—Goods lost-through defendants’ fault—Goods recovered and stolen while in charge of plaintiff’s servant—Loss of future profits—Interest on money lost.
The plaintiff (now appellant) sued for damages on the ground that his logs had been lost owing to breach of duty and negligence on the part of the defendants’ servants.
His case was that the defendants had allotted him space on a steamer and asked him to have the logs at a certain base and to supply specifications; that he had them ready there as a raft and supplied the specifications, and that from there they were towed to the steamer by the defendants’ tug but not loaded; and that the logs were washed out to sea by the tide during the night.
It was common ground that if not loaded, the tasshould have been taken back to the base from which they had been towed.
The trial Judge accepted the facts alleged by the plaintiff and found that the captain of the steamer had refused to take the logs on board because of a dispute he had with the defendants, the charterers, but that they did not know the logs had not been loaded and could not be held to have been negligent for not taking the logs back to the base; that the loss had been due to a defect unknown to both parties in the wire rope holding the logs together as a raft, for which defect the defendants were not to blame any more than for the strong tide, an act of nature, which had carried the logs away, otherwise the defendants would have been responsible as the logs had been in their custody in circumstances which made them liable for their safety.
The plaintiff’s “ water-boy ” on the raft testified that they had been properly rafted. But as the logs were more than twenty, the plaintiff ought, under a certain regulation, to have hud a crew of more than one on the raft. The trial Judge held that the plaintiff had been negligent in that respect. But there was no suggestion in the evidence that the defendants’ servants when taking the raft over queried the breach of the regulation or took steps to remedy it.
Six logs were recovered and put in charge of the plaintiff’s water-boy; they were afterwards stolen.
The plaintiff in his appeal claimed for the whole number of Jogs, also for loss of future profits which might have been had from using the money he would have received for the logs to get and send more logs abroad.
(1) The logs had passed out of plaintiff’s control at the base where the defendants took the logs over properly rafted to tow to the steamer; they should have returned the logs to that base, but their servants left the logs alongside the steamer where they were subjected to the tide, the ebb and flow of which was something in the ordinary course of nature which the defendants must be deemed to have been aware of; therefore they must be held liable in the absence of evidence that no reasonable precaution on their part could have avoided the loss.
(2) The plaintiff’s breach of the regulation in having only one water-boy could not be invoked by the defendants as they were in charge of the raft at the time of the loss.
(3) The plaintiff was not entitled to compensation for the six logs stolen from his water-boy, and his claim to future profits was too remote, but he would be allowed a sum for loss of interest on his money.