Meghji Virji Dodhia v Smith Mackenzie & Co Ltd

High Court, Nairobi 25th June 1973; 13th,, 14th, 15th January,

Chanan Singh J 4th, 5th December 1975;

15th February, 11th June 1976

Shipping - carriage of passengers – contract ticket – contents – terms excluded by statute – whether carrier entitled to contract out of statute – whether validity of conditions may be made subject to English law – merchant Shipping Act (cap 389), section 188(2)

Shipping - carriage of passengers - contract ticket - breach or nonperformance of stipulation – trial before subordinate court – whether jurisdiction of High Court ousted – whether damages and costs in High Court at large - Merchant Shipping Act (cap 389), section 188(3)

Shipping - carriage of passengers – contract ticket – contents – baggage – what constitutes baggage for purposes of sea travel – Merchant Shipping Act (cap 389), section 188(2)

The plaintiff purchased a ticket for his wife and himself to travel by sea from Mombasa to Bombay. The ticket stated, inter alia, that it was “accepted by the passenger subject to the conditions and regulations on the face and reverse which shall be governed by English law”. On the reverse, the ticket stated: “Notwithstanding the other conditions and terms whether express or implied and whether statutory or otherwise to which the contract contained in or evidenced by this ticket … might otherwise be subject, [the defendant] … shall be exempted from all liability in respect of any … loss, damage. . . of whatever kind … to … any baggage, property, goods, effects, articles, matters or things belonging to or carried by, with or for any passenger”. The plaintiff booked various items of luggage at Mombasa for carriage to Bombay and was issued with an appropriate receipt. Some of the items were not, however, delivered at Bombay and the plaintiff sued the defendant in the High Court for damages for their loss. On the question of the liability of the defendant for the loss and whether section 188(3) of the Merchant Shipping Act limited the amount of damages and costs which might be awarded in the High Court,

He1d:

(1) That a ticket issued to a passenger in respect of passage on a ship proceeding from any place in Kenya was governed by section 188 of the Merchant Shipping Act which applied to both the person of a passenger and his luggage; accordingly, the attempt to draft the ticket in terms which would make the validity of its conditions subject to English law (if that were the intent) was ineffective.

(2) Section 188 did not admit of any contracting out of its provision by the owner or charterer of a ship; accordingly, the purported exclusion of terms which were “statutory’’ was void and did not deprive the plaintiff of his right to pursue a remedy against the defendant.

(3) On the true construction of section 188(3), the plaintiff had a choice between initiating proceedings in a magistrate’s court and in the High Court; but the limitation imposed by section 188(3) on the damages and costs which might be awarded applied only to awards by subordinate courts and did not restrict the amount that could properly be awarded by the High Court.

Observations on what is properly regarded as “baggage” for purposes of sea travel.

Cases referred to in judgment:

Baxter’s Leather Co v Royal Mail Steam Packet Co [1908] 2 KB 626; 77 LJKB 988; 99 LT 286, CA.

Britten v Great Northern Railway Co [1899] 1 QB 243; 68 LJQB 75; 79 LT 640.

Hudston v Midland Railway Co [1869] LR 4 QB 366; 38 LJQB 213; 20 LT 526.

Macrow v Great Western Railway Co (1871) LR 6 QB 612; 40 LJQB 300; 24 LT 618.

Paterson Steamship Ltd v Canadian Co-operative Wheat Producers Ltd [1934] AC 538.

Action

Meghji Virji Dodhia, also known as Meghji Virji Shah, issued proceedings in the High Court (Civil Case No 1356 of 1969) against Smith Mackenzie & Co Ltd as agent for the British India Steam Navigation Co Ltd claiming damages for items of luggage booked at Mombasa for delivery to Bombay which were not delivered to Bombay. The facts are set out in the judgment of Chanan Singh J.

RN Khanna (instructed by Khanna & Co) for the Plaintiff.

Mansur Satchu (instructed by Atkinson, Cleasby & Satchu) for the Defendant.

Cur adv vult.

Adalja v Adalja

High Court, at Nairobi March 11, 1971

Chanan Singh J

Civil Case No 132 of 1971 (OS)

Divorce - institution of proceedings - leave to present a petition within three years of the marriage - grounds of exceptional depravity - instances of exceptional depravity – circumstances in which leave ought to be given - grounds for abridgement of the statutory period before commencement of proceedings for divorce - effect of finding of fact that a ground exists.

The applicant sought leave to file a petition for the dissolution of the marriage before the statutory three years since the celebration of the marriage had expired, and alleged continued adultery as well as cruelty and desertion by the respondent. The adultery alleged was with one woman and was not denied, and was supplemented by acts of cruelty. The respondent had no feelings for the applicant and his affections lay for another girl with whom he was going about openly. The applicant was cut off from her relatives who were all outside Kenya. There was no suggestion that the marriage could succeed.

Held :

1. Unless three complete years have elapsed between the date of the marriage and the date of filing a petition for divorce, leave must be obtained to present the petition within three years of the marriage; and the court may abridge the three years’ period if it is satisfied that the case is one of exceptional depravity.

2. That the continued adultery of the respondent supplemented by acts of cruelty amounted to exceptional depravity, and it was useless to make the parties wait for the statutory three years to expire before proceedings for divorce could be instituted by the applicant.

3. At the hearing of an application for leave to file a petition for divorce before the statutory period, the court only makes a provisional finding of fact that a ground exists for abridging the statutory period.

The application was allowed.

Cases

No case referred to.

Statutes

No statute referred to.

Advocates

Mr Shah for the Respondent