Angelopoulos v General Manager, Kenya and Uganda Railway (C.A. 14/1929 (Msa.).) [1929] EACA 114 (1 January 1929)

## APPELLATE CIVIL.

## Before STEPHENS, J.

## D. & A. ANGELOPOULOS (Appellants) (Original Plaintiffs)

## THE GENERAL MANAGER, KENYA AND UGANDA RAILWAY (Respondent) (Original Defendant). C. A. $14/1929$ (Msa.).

The Kenya and Uganda Railway Ordinance, 1927, section 36limitation of liability. Section 40—burden of proof in respect of loss of goods.

$Held$ :-That the provisions of Section 36 (1) are not antagonistic to the provisions of Section 40, as they come into action in different circumstances.

JUDGMENT.—This is an appeal from the Judgment of the learned Resident Magistrate of Mombasa, dated 28th March, 1929, on the following grounds:-

(1) The learned Resident Magistrate erred in holding that the condition in the contract sued on, putting the onus of proof on the plaintiff to prove wilful misconduct, was valid in spite of section 40 of Ordinance No. 15 of 1927.

(2) The learned Magistrate erred in holding that section 36 (1) of the Railway Ordinance, No. 15 of 1927, permitted a special contract with regard to onus of proof and not merely with regard to a limitation of liability consistent with the Ordinance.

(3) The learned Magistrate erred in dismissing the plaintiff's case in the absence of proof from the defendant that the damage was not occasioned by the wilful misconduct of the defendant's servants.

The plaintiff claimed damages from the Kenya and Uganda Railways Administration for injury to a consignment of coffee. The coffee was sent on an owner's risk consignment note, on which there is a footnote that no claim can be entertained for loss or damage unless occasioned through the wilful misconduct of the Administration's servant. The plaintiffs alleged that two of the bags of coffee were damaged by oil through neglect or misconduct of the Administration's servant, and that in consequence the plaintiffs suffered damages amounting to Sh. 261.80.

Mr. Morrison for the appellant contended that section 40 of the Ordinance applies to all claims for damages during transport, and that therefore even under a special contract it is not necessary to prove how the damage was occasioned. In other words that the conditions annexed to the owner's risk note are invalid. and that a consignor cannot contract outside the terms of section 40 of the Ordinance.

Section 40 of the Ordinance recites one of the obligations of the High Commissioner, namely to compensate for loss or damage without calling on the consignor to establish how the loss or damage occurred.

Section 36 (1) states that the liabilities of the High Commissioner may be limited by special contract, which special contract must be in a form approved by the Governor-in-Council, and in consideration of the consignor having his goods carried at a lower rate, he agrees to waive any claim for damages, except on proof of wilful misconduct. This special form of contract was approved by the Governor-in-Council on 30th January, 1926.

The same practice prevails on English railways and I suppose on most railways. A higher rate in which the railway compensates for loss or damage without calling on the consignor to establish how the loss or damage occurred, and the other, a lower rate, in which wilful misconduct on the part of the Railway must be proved.

It seems clear to me that the provisions of section 36 (1) are not antagonistic to the provisions of section 40, as they come into action in different circumstances.

I therefore dismiss the appeal with costs both in this Court and in the Court below.