Calcutta High Court
Blue Ocean Exports Private Limited vs Owners And Parties Interested In The ... on 19 October, 2001
Equivalent citations: (2002)1CALLT123(HC)
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly
JUDGMENT A.K. Ganguly, J.
1. This suit has been filed by Blue Ocean Exports Private Limited against the owners and parties interested in the vessel 'Tiger Creek'. The suit has been filed by the plaintiff for the arrest of the vessel 'Tiger Creek' in order to secure its claim out of the alleged non-delivery of cargo.
2. The case of the plaintiff is that it entrusted the vesssel with its cargo for the purpose of its carriage from the Port of Haldia to the Port of Dubai. The further case is that in connection with the said cartage of cargo, several Bills of lading all dated 1st February 1999 were issued and one A.M. Hossain and Brothers were the notified parties in those Bills of Lading which were issued by one Samudera Shipping Line Pvt. Ltd. but the case of the plaintiff is that the cargo was not delivered to the party to whom it was sent and, as such the cargo has been lost. Consequently an order of arrest was passed on 14th September 2000.
3. In the instant suit, the Bengal Tiger Lines Cyprus, the present charterer of the said vessel, M.V. Tiger Creek, entered appearance and contested the maintainability of the suit. Two points have been raised on the basis of which it is urged that the suit is not maintainable. Those points are as follows :
Previously, another Admiralty Suit on the self-same cause of action was filed by the plaintiff on 7th September 2001 but the same was withdrawn.
4. On 7th September 2001 on the prayer of the plaintiff, the following order was passed:
"Before:
The Hon'ble Justice Ganguly, Mr. Sayantan Basu,
Advocate Appears.
07.09.2001
THE COURT: Mr. S. Basu submits that his client is not interested to proceed with suit being Admiralty Suit No.5 of 2000 and the applications. As such both the applications and suit are dismissed as not pressed."
5. It is clear from the aforesaid order of this Hon'ble Court that no leave was obtained by the plaintiff to file any subsequent suit, but, the subsequent suit, which is the present suit, has been filed, it is alleged, on the self-same cause of action after withdrawal of the previous suit being Admiralty Suit 5 of 2001. So this second suit is alleged to be barred view of the provisions of Order 23 of the Civil Procedure Code.
2. This suit has been instituted by the plaintiff more than one year after the alleged non-delivery of cargo and, as such, the same is not maintainable inasmuch as the liability of the ship owner in respect of the claim of the plaintiff stands discharged on the expiry of one year after the alleged delivery or non-delivery of the goods inquestion.
6. In other words, from the plaint itself, it appears that the Bills of Lading which were issued in respect of the carriage of cargo are dated 1st February 1999 and the instant suit has been filed on 14th September 2001 which is after the period of more than 2 years and a half from the date on which the Bills of lading were issued. Therefore the suit is not maintainable in view of the provisions con tainted under Section 2 of the Indian Carriage of Goods by Sea Act, 1925 read with Article 111(6) of the Rules under the schedule to the said Act. Various authorities have been cited and reliance has also beet) placed on various text books by the learned counsel for the parties. The matter was argued at length and a decision on those points is vital for the maintainability of this Admiralty proceeding. So this Court proposes to deal with the points raised.
7. The learned counsel of the defendant relied on the said Indian Carriage of Goods by Sea Act, 1925 ( hereinafter referred to as COGSA) in support of his second point. The learned counsel relied on Section 2 of COGSA which is as follows:
"Section 2. Application of Rules--Subject to the provision of this Act, the rules set out in the schedule (hereinafter referred to as "the rules") shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in [India] to any other port whether in or outside [India]."
8. The learned counsel also relied on Section 4 of COGSA which is as follows:
"Section 4. Statement as to application of rules to be included in bills of landing--Every bill of lading or similar document of title, issued in [India] which contains or is evidence or any contract to which the Rules apply, shall contain an express statement that it is to have effect subject to the provisions of the said Rules as applied by this Act."
9. The learned counsel also relied on the schedule to COGSA which contains the rules relating to the Bills of Lading. Article III of the said Rules relates to the responsibility and liability of the carrier. Rule 6 of the said Article is as follows:
"Rule 6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject or Joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods."
10. The learned counsel relied specifically on a part of the said Rule 6, where it has been laid down that in any event the carrer of the ship shall be discharged from all liability in respect of loss or damage unless the suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. It may be noted that in this case, the plaintiff did not dispute that the said period of one year has elapsed between the period when the goods should have been delivered and the institution of this Admiralty suit. Dispute has been raised on a different issue namely that the said Rule 6 of Article III of the schedule to COGSA is not applicable in this case.
11. The learned counsel for the defendant has urged that the schedule to COGSA contains Hague Rules which were evolved in the international convention beginning at Hague and concluded in the year 1924 at Brussels. Reference was made to the statements of object and the reasons of the said Act. Reference was also made to the preamble of the said Act to show that the said Act and the rules are the direct result of international conference on Maritime law held at Brussels in the year 1922.
12. It has further been stated that Section 2 of COGSA provides that the rules set out in the schedule will apply to all shipments made in India from any of its port to a port in or outside India. Therfore, there is statutory force behind the said rules by reason of Section 2 of the said Act. The learned counsel further submitted that the effect of Section 2 of the said Act and the rules are not in any way diluted by reason of Section 4 of the said Act.
13. In support of his contentions, the learned counsel for the defendant relied on the following cases:
1. East & Wast Steamship Co., George Town, Madras v. A.S.K. Ramalingam Chettia, reported in AIR 1960 1058.
2. American Export Isbrandsten Llnes Inc. & Anr. v. Joe Lopex and Anr., .
3. Vita Food Products incorporated v. Yunus Shipping Co. Ltd. (in Liquidation), reported in 1939 Appeal Cases 277.
4. Republic of India & Anr. v. India Steamship Co. Ltd., reported in 1998 Appeal Cases 879.
5. Jugolinija Rajia Jugoslavija and Anr. v. Feb Leather Ltd. & Anr.. .
6. National Insurance Company Ltd., v. M/s. Navrom Constantza, .
7. Vallabh Das v. Madan Lal and Others, .
8. A.J. Judah v. Rampada Gupta, .
9. M. V. AL Quamr v. TSA Vliris Salvage (International) LTD. and Ors., .
14. The learned counsel also relied on various treaties on the shipping laws. The learned counsel relied on (a) Carber on Bills of Lading, (b) Scrutton on Charter-parties and Bills of Lading, (c) Bills of lading Law and Contract by Nicholas Gaskell, (d) Carver's Carriage by Sea Vol. I, (e) Messon Admiralty Jurisdiction and Practice and (I) Jackson's Enforcement of Maritime Claims and Actions in Rem.
15. The learned counsel for the plaintiff has contended that in the instant case the Bill of Lading does not contain an express statement that the same will have effect subject to the provisions of the rule as applied by the said Act. Therefore, it has been submitted by the plaintiff that the rules set out in the schedule to the said Act do not have any statutory force on the Bill of Lading in the instant case. Thus for non-compliance of Section 4 of COGSA the contract expressed in the Bill of Lading has not become void. It has been further submitted that Clause 25 of the Bill of Lading only makes out a contractual provision.
16. Therefore, in the aforesaid background, it is urged that Section 28 of the Contract Act. as amended, would be attracted, Clause 25 of the Bill of Lading which purports to extinguish the right of the plaintiff and discharges the defendant from any liability on the expiry of one year is not sustainable as a contractual term in view of Section 28 of the Contract Act, as amended. In other words, the provisions of the Hague Rules which stand incorporated in the Bill of Lading by virtue of Clause 2 and which virtually extinguishes the right of the plaintiff is void in view of amended Section 28 of the Contract Act.
17. It has been urged in the alternative even if Indonasian Law is the governing law here, the said law, in the absence of any proof of the nature of that law, it must be taken to be Indian Law is the governing law. Therefore, Section 28 of the Contract Act as amended is applicable since Indian law is the governing law between the parties.
18. In order to properly appreciate the said point, Section 28 of the Contract Act as amended, is set out below:
"Section 28. Agreements in restraint of legal proceedings void.--(Every agreement,--
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent)-
Exception 1.--Saving of contract to refer to arbitration dispute that may arise.--This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Exception 2.--Saving of contract to refer questions that have already arisen.--Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration."
19. The learned counsel further submitted that in the instant case the paramount clause in the Bills of Lading does not contain any express statement referred to in Section 4 of COGSA. The learned counsel has referred to sample Bills of lading contained in Shipping Law Handbook by Michael Bundock.
20. In so far as the objection on the bar of suit under Order XXIII of the Civil Procedure Code is concerned, the learned counsel submitted that the owners of the two vessels namely M.V. Gilian and M.V. Tiger Creek are different. In order to drive this point home the learned counsel referred to the affidavit of one Asok Kumar Auddy filed in the Admiralty suit relating to vessel M.V. Gilian and the affidavit of one Sivaraman filed on behalf of defendant therein.
21. Therefore it has been argued that the withdrawal of the suit is operative against the defendant who is different from the defendant in this suit.
22. It has been further contended that in an Admiralty proceeding in India a vessel is clothed with a juristic personality and admittedly the withdrawal order which is related to a different vessel is against a different juristic entity. In the instant case, there is no identity of parties as defendant in both the suits are different and without identity of parties the provisions contained under Order XXIII of the Civil Procedure Code will have no application.
23. It has been further urged that abandonment of suits or their withdrawal without leave has been palced on equal footing under Order XXIII Rule 1 sub-Rule 4. Therefore, a withdrawal of a suit against one party will not prevent the plaintiff from filling a suit on similar cause of action against the whole world but it will only prevent the plaintiff from filing a suit against the same defendant on the same cause of action. Since in the instant case defendants are not the same, the subsequent suit is not barred. it has been further contended that in the instant case additional cause of action has been pleaded. Therefore, there is no identity in cause of action of both the suits.
24. The learned counsel for the plaintiff relied on the following cases:
1. Province (State) of Madras represented by the Chief Secretary, Govt. of Madras v. I.S. & C. Machado, a registered firm of General Merchants and Commission agents, Tutlcorln, .
2. Muhammadi Steamship Co. v. Keserishin Vallabdas, reported in AIR 1957 Travencore Cochin 133.
3. Far Eastern Steamship Co., Kakinada v. Kaika Trading Co. Ltd., .
4. The St. Joseph, reported in 1933 Probate 119.
5. Ocean Steamship Co. Ltd. v. Queensland State Wheat Board, reported in 1941 (1) King's Bench 402.
6. Manni Lal Awasthi v. Emperor,
7. Albert Judah Jadah v. Ramapada Gupta, .
8. Shri Lachoo Mal v. Shri Radhey Shyam, .
25. The learned counsel also relied on the following texts:
(a) Maxwell on Statutory interpretation page 328 to 330,
(b) Crawford Construction Statute pages 540 to 543. Article 272,
(c) Carver carriage of goods by sea 572 and 575.
26. These are the rival contentions of the parties. It is obvious that for deciding the controversy raised in this case, the construction of the provisions of COGSA assumes major importance.
27. A perusal of COGSA shows it was brought into existence to give effect to Code of Rules drafted at the International Conference on Martime Law held in Brussels. This is clear from the statement of objects and reasons of the said Act. In order to make this point clear, this Court thinks that it will be appropriate to set out Clauses 2, Sand 4 of the statement of objects and reasons. Those clauses are set out below:
"Clause 2. There has been a demand for many years among the different commercial interests which handle bills of lading for uniformity among all maritime countries in the definition of the liabilities and risks attaching to the carrier of goods by sea. Some countries, e.g. Canada, Australia, and the United States of America, enacted legislation prohibiting carriers of goods by sea from contracting themselves out of certain kinds of liability. The matter was discussed at several International Conferences between shipowners, shippers and bankers if an attempt to secure the universal adoption of an agreed set of rules.
Clause 3. A Code of rules was drawn up in 1921 by the International Law Association at the Hague. These were subjected to criticism by the various interests affected till finally agreement was reached at the International Conferences on Maritime Law held in Brussels in October 1922, and again in October 1923. A Code of rules defining the responsibilities and liabilities to which a carrier of goods by sea should be subject and also the rights and immunities he was entitled to enjoy was drawn up, and it was unanimously recommended that every country should give legal sanction to these rules. The United Kingdom has done so by the Carriage of Goods by Sea Act (1924) (14 and 15 Geo. V., c. 22). It is proposed to do the same in India by this Bill.
Clause 4. This Bill follows closely the English Act. The agreed Code of rules are reproduced in the Schedule. Clause 5 of the Bill exempts from these rules goods carried in the coasting trade under documents other than bills of lading whilst Clause 6 saves the carrier from claims for shortage of weight in certain cases of bulk shipments where, by the custom of the trade, the weight entered in the bill of lading is a weight ascertained or accepted by a third party other than the carrier or shipper and this fact is so stated in the bill of lading."
28. From the preamble of COGSA, the said intention is made further clear. The preamble is also set out below:
"Whereas at the International Conference on Martime Law held at Brussels in October, 1922, the delegates at the Conference, agreed unanimously to recommend their respective Governments to adopt as the basis of a convention a draft convention for the unification of certain rules relating to bills of lading;
And whereas at a meeting held at Brussels in October, 1923, the rules contained in the said draft convention were amended by the Committee appointed by the said Conference;
And whereas it is expedient that the said rules as so amended and set out with modifications in the Schedule, subject to the provisions of this Act, have the force of law with a view to establishing the responsibilities, liabilities, rights and immunities attaching to carriers under bills of lading."
29. In this context, the provisions of Sections 2 and 4 are to be considered, it becomes clear on consideration of those sections that the dominant intention behind enacting the said Act was to bring about uniformity and unification of certain rules relating to the Bill of Lading. Since in shipping business the voyage across the sea to different ports of different countries is inevitable. It was felt, and quite rightly so, that different clauses in different Bill of Lading will create confusion. So clauses of Bill of Lading were sought to be standardized and the basic component of those clauses were reduced in the form of Schedule to the said Act. It was made very clear from the preamble that those rules in the Schedule to the said Act 'shall have the force of law' with a view to clearly demarcating the responsibilities, liabilities, rights and immunities of carriers under the Bill of Lading.
30. Originally, the aim was that the rules would be formulated voluntarily through a standard Bill of Lading. But this voluntary approach did not work. Then the discussions led to the formulation of Hague Rule in 1921. After that in the International Convention in Brussels in the year 1921 these rules were adopted requiring to parties to this Convention to enact legislation incorporating these Hague rules. As a result, United Kingdom enacted the Carriage of Goods by Sea Act, in the year 1924 and in India COGSA was enacted in the year 1925 closely following the British Act of 1924.
31. In the back-ground of this express legislative intent, this Court finds that Section 2 of COGSA is mandatory in nature so far as the applicability of rules in the Schedule to COGSA, is concerned. Of course those rules will apply only to a carriage of goods by ships carrying goods from any port in India to any other port whether in or outside India. The requirement of Section 4, in this context, is an additional requirement, viz. every Bill of Lading or similar document of title, which contains or evidences any contract to which this rule apply, shall contain an express statement that such documents are to have the effect subject to the provisions of the rules as applied by COGSA.
32. Construing those two sections, this Court is of the opinion that the mandate of Section 2 is not dependant on the compliance with the requirement of Section 4. Section 2 is subject to only two conditions (i) Section 2 will apply subject to the provision of COGSA. viz. Section 7 of COGSA which shows that nothing in the said Act shall affect the operation of Sections 331 and 382 of the Merchant Shipping Act, 1958 and (II) Section 2 will apply to ships carrying goods from any port in India to any port in or outside India.
This Court has taken this view for the following reasons:
(a) It is obvious that the Bill of Lading or similar document of title referred to in Section 4 is contractual document between the parties. It is well settled that by a contract between the two parties, the operation of statute cannot be waived or abandoned or frustrated.
(b) Since Section 2 is an Act of Legislature which gives effect to resolutions of International Martime Law of Conventions. It cannot be washed-away or its application cannot be suspended by a contract, which is an act of the parties. Such a construction is opposed to all norms of interpretation specially in a case where Section 2 has not been made expressly subject to the contract between the parties.
33. This Court is further of the view that Section 4 has two parts. The first part makes it clear that to every Bill of Lading issued in India which contains or evidences a contract, the rules will apply. But. In addition, it has been further stated in the second part of Section 4 that such Bill of Lading shall contain an express statement that it is to have effect subject to the provisions of the rules. Therefore, it cannot be said that unless an express statement is made, the rules cannot apply. In the instant case in the Bill of Lading, according to my Judgment, the express statement has been made.
34. This Court is of the view that sometimes legislature in order to avoid a confusion and emphasize some aspect inserts certain provisions by way of abundant caution. This Court is taking this view keeping in mind the dominant Intention behind enacting COGSA. The intention plainly was to clear confusion about different clauses in different Bills of Entry and the purpose was to achieve uniformity in the interest of Martime trade. Keeping this legislative intent in mind, this Court has to interpret Sections 2 and 4 of COGSA. So interpreted it is clear that Section 2 applies independently of Section 4 and the first part of Section 4 makes it further clear. Of course, to make the rules applicable, the requirement of Section 2, which have been discussed hereinabove, must be complied with.
35. That legislature inserts words in the statute by way of caution has been accepted by Courts. In this connection, the observations of Lord Reid in Inland Revenue Commissioner v. Dowdell O'Mahoney & Co. Ltd., reported in 1952 (1) All England Report 531 (H.L.) may be kept in mind. At page 537 of the report, the learned Judge said "but It is not very uncommon to find the Legislature Inserting superfluous provisions under the Influence of what may be excessive caution". On this principle, reference may also be made at least to two decisions of the Hon'ble Supreme Court. The first of those decisions was rendered in the case of Gokarajer Rangarjer . While construing Twentieth Amendment of the Constitution, Justice Chlnnapa Reddy speaking for the Supreme Court held "It is true that as a general rule the parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious)." It is not unknown to find Legislature Inserting superfluous provisions under the influence of what is known as abundant caution. The principle was also accepted by Supreme Court in Hakim Ali v. Board of Revenue, .
36. This is an accepted mode of construction of the statute. Following this principle, this Court finds that the later part of Section 4 of COGSA has been Inserted by way of abundant caution and is merely directory but Section 2 is mandatory.
37. Apart from that, It is clear from the preamble of COGSA that the rules in the schedule have the force of law and a perusal of rule 6 under Article III of the schedule makes it clear that the same has been enacted for limiting the liability of the carrier and the said provisions which have been made under the schedule, were made in public Interest The clear public interest is to put both the carriers of the goods and its owner on notice about their respective liabilities and rights. Those respective liabilities and rights having been statutorily fixed are not negotiable and can not be altered on the basis of any different intention in the Bill of Lading, in respect of a shipping to which Section 2 applies.
38. In fact, on a perusal of two clauses of the Bill of Lading in the case in hand, it does not appear that any other different Intention is expressed in it. Clause 25 of the Bill of Lading substantially incorporates Clause 6 of schedule III to the said rules under COGSA.
39. By a mere incorporation of the terms of Clause 6 of Article III of the schedule to COGSA in the Bill of Lading, those clauses, which otherwise have the force of law, do not become mere contractual term.
40. Apart from that, Clause 2 of the Bill of Lading, which is known as the paramount clause expressly provides that the said Bill of Lading "shall have effect subject to the provision of Articles I to VIII Inclusive of the Article of International Convention for the unification of certain Rules relating to Bills of Lading at Brussels of August 25, 1924 [hereinafter called the Hague Rules)".
41. It has also been further stated in the Bills of Lading that those rules will be deemed to be Incorporated in the concerned Bill of Lading and nothing stated therein, shall be deemed a surrender by carrier of any of the rights and Immunities under the Hague rules.
42. Reference in this connection was made by the learned counsel for the defendant to the decision of the Hon'ble Supreme Court in the case of East & West Steamship (supra). In the said decision the learned Judges of the Hon'ble Supreme Court Interpreted COGSA and also Its schedules. Interpreting para 6 of Article HI of the schedule to COGSA the learned judges held that the same provides for extinction of the right of the owner of cargo to obtain compensation after lapse of the period mentioned and is not merely a rule of limitation. The learned Judges held the provisions of the Article III of the schedule to COGSA must be Interpreted in such a manner that It does not provide different meaning to different country and thus keeping the position uncertain with both the shipper and the ship owners. The learned counsel for the defendant has drawn the attention of this Court to para 11 of the said judgment in which the learned Judges have considered the International character of the said legislation. The relevant observations from para 11, page 1062 of the report are extracted:
"This International character of the provisions of law as Incorporated in the articles to the schedule to the Act makes It Incumbent upon us to pay more than usual attention to the normal grammatical sense of the words and to guard ourselves against being influenced by similar words in other acts of our Legislature."
43. The learned counsel for the defendant relied on the decision in the case of American Export (supra). In that Judgment the Supreme Court construed the provisions of para 6 Article III of the Schedule to COGSA and relying on those provisions the Supreme Court held that suit filed more than one year alter the ship left the port is barred by limitation. The Supreme Court relied on the Judgment in referred to above. The Supreme Court specifically considered this question in paragraphs 5 and 7 of the said Judgment.
44. Next reliance was placed by the learned counsel for the defendant on a Division Bench Judgment of Calcutta High Court in the case of Jugolinija (supra). In that case also the Division Bench of Calcutta High Court referred to the previous two Judgments of the Supreme Court referred to above and held that if the plaintiff wants to rely on foreign law he must plead and prove the foreign law. In the absence of any such pleading, the Court can proceed by applying the law in India. In coming to the said conclusion, the learned Judges of the Division Bench also considered the previous Supreme Court's judgments referred to above.
45. The learned counsel also referred to Carver on Bills of Lading, para 9063 page 448. The learned Author in the said paragraph has stressed the economic necessity behind the legislation limiting the liability of the carrier and made it clear in the said paragraph that if the Bills of Lading are on uniform terms, the same would facilitate international trade and will be to the advantage of the industry. It has also been pointed out that the Bills of Lading are required to pass through various hands of traders and financial institutions and a uniformity of the contract terms would facilitate such transactions. These are the compelling reasons for putting forward in 1921 at a meeting of Martime Law Committee of the International Law Association, a set of rules. A further draft was produced at London and the subsequent Diplomatic Conferences in Brussels in 1922. 1923 and 1924 led to the eventual adoption of what are now usually called the Hague Rules in August 1924. Even though Initially criticized in England, they were in fact, enacted into law of United Kingdom in August 1924 before their adoption in Brussels. They were also adopted in India in 1925.
46. The learned counsel also relied on Scrutton on Charterparties and Bills of Lading, 18th Edition. The learned counsel has drawn the attention of this Court to Section 3 of Carriage of Goods by Sea Act, 1924 of the English Act and submitted that the same is virtually Identical with Section 4 of COGSA. While construing the merit of the expression 'shall contain', in Section 3 of the British Act which is Identical with Section 4 of the Indian Act, scrutton at page 413 of the treatise held that the obligation Imposed by this section is concerned primarily with the form of Bill of Lading and not with its content. It has been made very clear that apart from the provisions of Section 3, rules applied to Bills of Lading Issued in Great Britain or Northern Ireland by reasons of Section 1 of the Act (which is corresponding to Section 2 of COGSA) and Article II of the Rules Irrespective of whether they are expressly in corporated on not. Therefore, it has been held by Scrutton on the authrity of Vita Food Products v. Yunus Shipping Company (supra) that "In any case that arises in a Court in Great Britain or Northern Ireland, this Act will be enforced in Section 1 as part of statute law".
47. In so far as the 'express statement' referred to Section 3 of the British Act, corresponding to Section 4 of COGSA is concerned the same has been often described as a clause paramount and such clause paramount is often an 111 drafted clause.
48. This Court finds that such clause paramount in the Instant case is Clause 2 of the Bill of Lading and the said clause is extracted below:
"Clause 2. This Bill of Lading shall have effect subject to the provisions of Article I to VIII Inclusive of the International Convention for the unification certain Rules relating to Bill of Lading at Brussels of August 25, 1924 (hereinafter called the Hague Rules), which will be deemed to be Incorporated herein and nothing herein contained shall be deemed a surrender by carrier of any of the rights and/or Immunities under the said Hague Rules.
The monetary units mentioned in the Hague Rules and in this Bill of lading are to be taken to be lawful currencies of the Commonwealth concerns (2) in so far as shipments coming within the compulsory provisions of any law in force at the placement or at the place of delivery giving legal force with or without modification to the said Hague Rules, this Bill of Lading is to have effect subject to the said provisions as If the said provisions were Inserted herein verbatim and if any stipulations herein shall wholly or in part contravene the said provisions. This Bill of Lading shall be read as If the said stipulations (but only the extent that it shall show contravene and no further) were deleted here from."
49. From a perusal of the said clause it is clear that the said clause is also III drafted but from the persual of the said clause it is clear that the Bill of Lading has been made expressly subject to the provisions of Article 1 to VII of the International Convention for the Unification of Certain Rules relating to Bills of Lading at Brussels of August 25, 1945 (hereinafter called Hague Rules). Therefore, the very fact that the Bill of Lading has been made subject to the Hague Rules amounts to incorporation of a statement that the Bill of Lading is to have effect subject of the provisions of the said Rules under the said Act. This Court is Inclined to take this view, and it cannot be disputed that the said Act incorporates the Hague Rules to its schedule.
50. There is no standard manner in which such statement has to be made. The Bills of Lading are commercial documents and its drafting is seldom artistic. Commenting on such commercial documents in the shipping trade namely Charterparties. Lord Diplock in Federal Commerce v. Tradax Export, reported in 1978(1) A.C. 1 (House of Lord) observed that "Charterparties are not notorious for their stylistic elegance or easy intelligibility by those whose business does not lie in the market" (page 14 of the report). What is true of Charterparties is equally true of Bills of Lading so far Inartistic drafting is concerned. Therefore, all that 1 am trying to point out is that there is no predetermined form in which the express statement mentioned in Section 4 is to be recorded in the Bills of Lading.
51. But in my judgment from a fair reading of Clauses 2 and 25 of the Bills of Lading in the Instant case such a statement can be said to have been recorded.
52. In the insatant case the Bill of Lading contains the statement that the provisions of Articles I to VIII of the International Convention for Unification of Certain Rules relating to the Bills of Lading at Brussels will apply.
53. The learned counsel also relied Bills _of Lading Law and Contracts by Nicholas Gaskell. While describing the Importance of the clause paramount, Gaskell has stated, that the same is to have effect subject to the provision of the said Rules as applied by the Act and the said statement was known as clause paramount presumably because it would have "supremacy over the terms of the contract". [See Gaskell at page 59].
54. The learned counsel also relied on Carver's Carriage by_Sea. Vol. I. 13th Edition.
55. Reliance was also placed on Carver in order to show that the learned author has interpreted the decision of the Privy Council in Vita Food Products (supra) in the said treatise. After Incorporating the said decision Carver has given the summary in para 575 page 408-409 in the aforesaid book. The said summary is set out below:
"Summary. It is therefore submitted that the international effect of legislation of state X, which is similar to the British Carriage of Goods by Sea Act 1924, can be summarized, at least so far as It is tested in a Court of Great Britain, a Dominion or colony, as follows:
(I) a bill of lading not Issued in state X will be unaffected by such legislation (assuming that It applies only to outward shipments);
(II) a bill of lading issued in state X, and of which the law of state X is the proper law, will be subject to the Hague Rules, whether It expressly Incorporates them or not;
(Ill) a bill of lading Issued in state X, but which is governed by the law of state Y, will not be subject to the Hague Rules unless:
(a) It expressly incorporates them, or (b) it is subject to them by a law of state Y (e.g. where the legislation of state Y applies to both Inward and outward bills of lading and the shipments is to state Y).
56. The learned counsel for the defendant relied on Clause (ii) of the said summary and rightly said that the same is applicable here. In the instant case the Bill of Lading has been Issued in India and in this country the governing law is the Indian Law. Such law is subject of Hague Rules whether the Bill of Lading Incorporates It or not.
57. The learned counsel for the defendant has also relied on the decision in Vita Food Products reported in 1939 Appeal Cases 277. In that case the shipment was from Newfoundland to Nova Scotia. In that case the Bill of Lading did not contain an express statement as is required by the law of Newfoundland but It provided for a choice of English Law. On those facts the Privy Council held that in view of the choice of law, Newfoundland Act could not apply but since the English Carriage of Goods by Sea Act, only applied in the case of outward shipment, which is also true in case of the Indian Act. The shipment in that case was not in accordance with the English Act.
58. The learned counsel submitted that in the instant case COGSA applies statutorily to this Bill of Lading. So the Contract Act, as amended, cannot apply to the clauses of this Bill of Lading. The learned counsel also relied on the decision in the case of National Insurance Company (supra). In that case the learned Judge of this Court held that Section 2 of the said Act was merely an extension of the Hague Rules to a case of carriage of goods in ship. Carrying goods from any Port of India to any other Port in India or outside and it has been held that the said Act had adopted the Hague Rules and that gave it a statutory recognition. The said judgment also relied on the Division Bench Judgment of Calcutta High Court and also AIR 1972 SC and AIR 1960 SC.
59. The learned counsel for the plaintiff, despite the aforesaid position, which clearly shows that Clauses 2 and 25 of the Bill of Lading, in this case.
have complied with Section 4 of COGSA, contended that the rules made under COGSA will bind the parties as contractual provision and not as statutory provision, the learned counsel further contended that the Rule 6 of Article III of the Schedule to COGSA does not apply to the shipment as a statutory provision. The learned counsel also urged that where Bill of Lading does not contain the statement mentioned under Section 4, rules will not apply as statutory provision and submits that the Bill of Lading, in the Instant case, is merely a contract of carriage. In support of the aforesaid submissions, the learned counsel relied on the decision of Province of Madras, represented by the Chief Secretary, Government of Madras (supra). The learned counsel relied on paragraphs 5, 6 and 7 of the said judgment to the effect that the provisions of the rules embodied in the schedule to COGSA do not apply 'Proprio Vigore' to all contracts of carriage by sea. But, only in the cases, where a Bill of Lading has been issued incorporating therein the provisions of the Act the rules may apply. Before arriving at the said finding It appears that the learned Judges of the Madras High Court considered Section 4 of COGSA and also the Judgment of the Privy Council in Vita Food Products (supra). The learned Judges also considered the observation in the Judgment of the Privy Council where it held that disobedience of the term of Section 4 of COGSA cannot render the Bill of lading Illegal.
60. This Court falls to understand how could Privy Council in Vita Food Products (supra) consider Section 4 of the Indian Act as It was not admittedly under consideration at all. The learned judges also relied on the subsequent decision in the case of Canada & Dominion Sugar Co. Ltd. v. Canadian National Steamship Ltd., reported in AIR 1947 Privy Council 40.
61. But the facts in the Madras case were totally different. It appears that the shipment in the Madras case was from Trivandum when it was not a Port of British India. It is clear from para 4 that the bags were loaded at Tribandum on 25th December, 1945. The learned Judges held in para 4 at page 521 of the report that unless the starting point or the port of loading is a Port of British India, the Act is obviously Inapplicable. Therefore, the learned judges of the Division Bench in the Madras case found that the assumption of the learned trial Judge that there must have been some legislation in Travancore on the same line as COGSA is without any basis. In fact, no such legislation was found in force in the same State. The learned Judges also noted that only after Travancore acceded to Indian Union by reason of the Central Act 18 of 1945, COGSA became applicable after the notification was Issued by the Central Government. The Division Bench found that by adoption of laws order 1950, Section 2 of COGSA was amended so as to cover ships from the Port in India to any other Port in or outside India. The COGSA became applicable in respect of vessels sailing from the Port of Trivandum only after 1950 and not before that. Therefore, the Division Bench of Madras gave its decision in a respect of a shipment when COGSA was not applicable to that shipment. So any finding in that Judgment on Section 2 of COGSA is totally irrelevant for the purpose of this case. In the present case, there is no dispute about the applicability of Section 2 of COGSA and the Court is of the view that since Section 2 applies the rules in the Schedule would also apply.
62. Apart from that, from para 8 of the Madras judgment. It appears that the letters issued in respect of its loading are known as 'Satmi letter' and are not Bill of Lading. Since no proper Bills of Lading were Issued as is found in para 8 of the said Madras Judgment, Its observation on a construction of Section 4 of COGSA does not have any value as a precedent. Therefore, the Madras decision is totally distinguishable.
63. The next decision which was cited on this point by the learned counsel for the plaintiff was rendered in this case of Mohammadi Steamship Co. Ltd. It appears that the Bills of Lading in question are not filed in that case by either of the parties. Even though the plaintiff was summoned by the defendant to produce the Bills of Lading, but the same was not produced. Since, the Bill of Lading was not produced and It could not considered by the Court, Its observations on Section 4 of COGSA is wholly academic and can not be cited as a precedent. It cannot be doubted that the provisions of Section 4 of COGSA would apply in the case of a shipment which is covered by the Bill of lading and not otherwise.
64. The next judgment of the learned single Judge of Andhara Pradesh High Court in the case of Pal Eastern Steamship Co. contains certain observations in para 13 to the effect that mere reference in the plaint to the provisions of COGSA does not alter the nature and terms of contract evidenced in the Bill of Lading. It was held in that Judgment that the Bills of Lading do not contain specific statement as to the application of the rules in the Schedule and in the absence of such statements, provisions of Act cannot be Invoked. In coming to the said decision, the learned Judge relied on the Madras Judgment and also on the Judgment of the Travancore Cochin High Court and also on the Privy Council decision in the case of Vita. Food Products. This Court finds that in the Instant case, the Bills of Lading incorporate the provisions of the rules in the Schedule to COGSA which have been discussed above. But the terms of the Bills of lading in the Andhra Pradesh case have not been quoted in the Judgment. Therefore, this Court is not in a position to appreciate the observations made in para 13 of the Judgment.
65. This Court has already held for the reasons discussed above that Section 2 of COGSA applies independently of Section 4 subject to certain conditions mentioned in Section 2. Therefore, Interpretation of the learned single Judge in the Andhra Pradesh Judgment given in para 11 of Section 2 and Section 4 of COGSA is not acceptable to this Court.
66. Learned counsel for the plaintiff has relied on two decisions in support of the proposition that in the instant case the provisons of Rule under the schedule to COGSA will not be applicable to the Bills of Lading in question. The first decision on which reliance was placed was in the case of The St. Joseph, reported in 1933 Probate Division 119. In that case, a French firm of aeroplane manufacturers sold to the plaintiffs certain aeroplanes and other goods. The French sellers, by their agents in Antwerp, chartered the St. Joseph, a Norwegian vessel owned by the defendants, for the transport of goods and they were shipped at Antwerp under Bills of Lading in which the plaintiffs' name was inserted as consignees. The plaintiffs presented Bills of Lading to the ship and received the goods which were found to be damaged. On an action against the defendant, they admitted liability but contended that the contract was governed by Belgian law and their liability was limited by Article 91 of the Belgian Code, which is embodying the provisions of the Hague Rules. The Rule to which reference was made by the defendant is set out below:
"Neither the carrier nor the ship shall in any event be held responsible for loss or damage caused to ... goods for a sum exceeding 3500 belgas or 17,500f. per package or unit unless the nature and the value of such goods has been declared by the shipper before shipment and this declaration has been inserted in the bill of lading."
67. It is clear that the said rule is not similar to the causes in the schedule to COGSA and it was made clear that the Bill of Lading contained no reference to Hague Rules or Article 91. On those facts, it was held that the property in the goods passed to the plaintiffs after Inspection in Finance and not by consignment under the Bills of Lading. On those facts in that case, it was held that Bill of Lading was a mere receipt and the contract was not governed by Belgian law.
68. The said decision shows that admittedly Belgian law was never applicable. The Court held in page 128 of the report that neither the charterparty nor the Bill of Lading was made by Belgians nor were the shippers Belgians. Therefore, Belgians Law did not apply. But in the Instant case, it is nobody's case that Indian law does not apply. In this case since COGSA applies, It applies along with the Rules to its schedule.
69. The other decision was in the case of Ocean Steamship Company, Limited v. Queensland State Wheat Board, reported in 1941(1) King's Bench Division 402. In that case the plaintiffs contracted with the defendants to carry a quantity of wheat from Brisbane in Australia to Liverpool and Glasgow. In that case the shipowner alleged that the defendants had shipped wheat in a dangerous condition so that it had contaminated other goods and they claimed damages from the shippers of the wheat. The shipowners alleged that the contract was governed by English Law.
Overruling the said claim, the Court of Appeal held that as the parties had Incorporated Into the bill of lading all the terms, provisions and conditions of Australian Act, therefore, Clause 16 of the Bill of lading which provided that the contract should be governed by the law of England was null and void as being Inconsistent with Section 9 of the Australian Act. It is clear from what is stated above that factually the decision in Ocean Stemship is totally distinct from the facts of the present case. On those facts, the Court of appeal held that since the place of shipment was from Brisbane in Australia, Section 9 of the Australian Act provides that law in force at place of shipment will be applicable and any stipulation to the contrary in the Bill of Lading is null and void. Therefore, the said case was decided on a totally different principle as pointed out above and does not help the plaintiffs' case at all.
70. Now comes the question how a Schedule to an Act is to be construed. The learned counsel for the plaintiff has urged that the schedule to COGSA must be construed as contractual provision and therefore, he has urged that those provisions being contrary to Section 28 of the Contract Act, as amended, are void.
71. With great respect to the learned counsel this interpretation of the Schedule to an Act cannot be accepted for various reasons.
72. How a schedule to an Act is to be Interpreted has been laid down by various authorities which the Court proposes to consider now. One of the earliest authorities on this point was the Judgment delivered by Lord Justice Brett Attorney General v. Lamplough, reported in 1879(3) Exd. 214 at page 219. The learned Judge said as follows:
"A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute and is as much an enactment as any other part."
73. Francis Bennion in his treatise on Statutory Interpretation, 2nd Edition has given some guidance on how to construe a Schedule. According to Bennion, a schedule is an extension of the section, which induces it. Material is put into a schedule because it is too lengthy or detailed to be conveniently accommodated in a section, or because it forms a separate document. [ page 490|
74. The learned author has Illustrated the said principle with certain examples and one of the examples, which the learned author chose is the Carriage of Goods by Sea Act, 1971, and Section 1(2) thereof. The said subsection provides "the provisions of (the Hague-Visvy Rules) as setout below in the schedule of this Act shall have the force of Jaw". In the instant case, the preamble to COGSA has also stated that the Rules in the schedule shall have the force of law.
75. Bennion's interpretation, of Schedule has been accepted by the Constitution Bench of Supreme Court in M/s. Ujagar Prints etc. etc., v. Union of India and Others . In para 29 at page 531 of the report. To the same effect is in the Judgment of the Hon'ble Supreme Court in the case of M/s. Aphali Pharmaceuticals Ltd. v. State of Maharashtra and Ors., . Reference may be made to para 30 at page 2237 of the report.
76. Counsel for the plaintiff relied on Maxwell on Statutory Interpretation and Crawford on Statutory Construction for the purpose of contending that every one has a right to agree to waive an advantage given to him under law. Therefore, by agreeing not to make an express statement in the Bill of Lading, the defendant might have waived the advantage given under Clause 6 of Article HI of the Schedule to COGSA.
77. First of all this argument is factually incorrect in as much as I have already held that Clauses 2 and 25 of the Bill of Lading Incorporate the terms of relevant Schedule to COGSA. This is more so in view of the fact that It is not expected that such commercial document will be drafted very artistically. But as a legal proposition also the principle of waiver cannot be pressed Into service in the instant case. The terms of the Schedule do not merely Incorporate a right for the protection of the Individual in his private capacity. The rules embodied in the schedule are based on the public policy of standerdising Bills of Lading in International Maritime Trade in the basis of International Conventions. The said clauses are not mere rules of limitation either. This has been made clear by the Hon'ble Supreme Court in East and West Steamship Company (supra). Both in Maxwell and Crawford it has been stated that the right of waiver is not available if it infringes any public right or public policy. So the right of waiver cannot be availed of in this case and in fact, there cannot be any such right of waiver in respect of the clauses under consideration.
78. In Sri Lachoomal v. Sri Radhesyam, , the aforesaid principles in Maxwell have referred to along with the exception that waiver cannot be exercised if it infringes public right or public policy.
79. So after considering the rival contentions this Court finds that preliminary objection raised on the second point by the defendant is a sound one and the said objection is sustained. In view of the said preliminary objection, the instant suit filed by the plaintiff much after the period of one year mentioned in Rule 6 of Article III of the Schedule to COGSA is not maintainable.
80. In so far as the first point of maintainability is concerned, the learned counsel for the defendant submits that if an earlier suit on the same cause of action is withdrawn without leave to file a fresh suit, the subsequent suit on the same cause of action is barred. Reliance in this connection was placed on the case of Vallabh Das (supra). While construing the provisions of Order 23 Rule 1 the learned Judges of the Supreme Court held that the subject matter referred to in Order 23 Rule 1 of the Civil Procedure Code means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. In the instant case, in the affidavit filed by the defendant they have annexed the plaint in the previous suit in order to show that both are filed on same cause of action. The learned counsel also relied on the decision in the case of Albert Judah (supra).
81. The learned counsel for the plaintiff argued that the power under Order XXIII of the Code is applicable only where the defendants in both the suits are the same. But since that is not the position here, this suit cannot be said to be barred. In support of this contention the learned counsel relied on this decision reported in AIR 1928 Allahabad 629. Even though the terms of the Order XXIII do not expressly say so but Mulla while commenting on the said order has said "though the rule does not expressly say so the fresh suit that is barred must be suit against the same defendant" (Mulla, 14th Edition 1818). But one thing is clear that a rule relating to non-suiting must be construed very strictly. So the expression subject matter in Order XXIII must be strictly scrutinized. The corresponding section the previous Code of 1882 was Section 373 and the expression used was "same matter" Instead of "subject matter" used in the present Order XXIII. In a Madras decision under the present Code in the case of Pandillapalli Singa Reddi v. Yeddula Subba Reddi and Two Others, reported in (1916) ILR 39 Madras 87 Hull Bench) it has been stated that the terms "subject matter" or the "same matter" which occurred in the corresponding Section 373 of the old Code have not been defined. But the learned Judges held that the same should be construed strictly having regard to the penal nature of the provision. After saying so, Chief Justice Wallis gave the following elucidation to the expression of subject matter which I quote herein below:
"Without attempting an exhaustive definition of all that may be Included in the term "subject-matter" we are of opinion that where, as in the present case, the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relied claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit."
82. While saying so, the learned Chief Justice agreed with the old Calcutta decision in the case of Gopal Chandra Banerjee v. Purna Chandra Banerjee, reported in 4 CWN 110.
83. Same view was expressed by Chief Justice Sir Basil Scott in the case of Rakhmabai Kom Piraji Sapkal, heir of the deceased Ptraji Bin Krishna Sapka v. Mahadeo Narayan Bundre, reported in (1918)42 ILR Bombay 155. The learned Chief Justice at page 158 of the report speaking for the Court held as follows:
"We are of opinion that "subject-matter" means, to use the words of Order 1, Rule 1, "the series of acts or transactions alleged to exist giving rise to the relied claimed". Obviously the first series of acts or transactions which formed the basis of the first suit was Incomplete, or the plaintiff would have been able to prosecute his suit to decree. It was Incomplete because there was no notice to quit. The second series of acts or transactions is complete because the notice to quit has been given, and therefore, the two suits are not in respect of the same subject matter."
84. In the Bombay case an ejectment suit was filed but prior thereto another suit was filed by the plaintiff for ejectment of the defendant. The previous suit was withdrawn without Court's permission to bring a fresh suit as it was found defective for want of notice to quit. Thereafter a notice to quit was given by the plaintiff and as the defendant did not obey the notice, the subsequent suit was filed and It was held by the Bombay High Court but the subsequent suit was maintainable.
85. The same view has been accepted by the Division Bench of Calcutta High Court in the case of Bhagaban v. Prasanna, reported in 38 CWN 133. In the Calcutta case also the first suit was withdrawn as the ejectment notice was found to be defective. So the subsequent suit with notice was not held to be barred.
86. Coming to the facts of the present case this Court finds that here apart from the fact that the defendants are different, the relief claim for in Admiralty Suit No. 7 of 2001 and the admiralty Suit No. 5 of 2001 are not Identical. In the subsequent suit a further decree for the sum of Rs. 1 crore has been claimed for.
87. In para 45 of the plaint of the subsequent suit damages have been claimed apart from claiming the amount of Cargo loss in the previous paragraph. In para 44 of the plaint in the subsequent suit fraud has been alleged with particulars against the defendant. But the aforesaid pleadings of fraud are absent in the previous suit. Whether such pleading or prayer can ultimately succeed is not tested at the stage of considering maintainability of the proceeding. This is welt settled.
88. Therefore, if both the plaints are strictly construed this Court cannot, at this stage, come to the conclusion that the second suit is barred being a suit on the same subject matter. In that view of the matter this Court is of the view that the point of maintainability under Order XXIII of the Code does not succeed.
89. But since in view of the finding of this Court on the second point, the suit is not maintainable, in view of the bar contained under Rule 6 of Article III in the Schedule to COCSA, this suit has to be dismissed. It has been held by the Supreme Court on the construction of the said provision that the said clause completely extinguishes the liability of the carrier and is not merely a case of limitation. For the reasons aforesaid, the suit is dismissed and the order of arrest is discharged.
There will be no order as to costs.
Later :
In view of the fact that the suit is dismissed and the order of arrest is discharged, the defendant is discharged from Its undertaking about the return of the ship.
Prayer for stay of operation of the judgment and order is made but considering the facts and circumstances of the case, the said prayer is refused.
90. All parties including the Marshal, Calcutta Port Authorities, Custom Authorities and Registrar, O.S. are to act on a signed copy of the operative portion of this judgment and order on the usual undertaking.