Madras High Court
Union Of India (Uoi) And Anr. vs Tatvani Shipping Company And Anr. on 7 November, 1997
Equivalent citations: (1998)1MLJ437
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
JUDGMENT A.R. Lakshmanan, J.
1. The appeal against the second respondent South India Corporation (Agencies) Limited is not pressed.
2. The appellants filed O.S. No. 237 of 1982 on the file of Subordinate Judge at Tuticorin praying for a judgment and decree directing the defendants to pay the plaintiffs a sum of Rs. 4,74,118.67 with interest at 9 per cent per annum from the date of the plaint till date of decree and, subsequent interest at 6 per cent per annum till date of realisation with costs of the suit.
3. The case of the plaintiff in short is as follows: The first respondent-first defendant is the owner of the ship and the second respondent is the agent of the first respondent at Tuticorin. The first respondent received on board at CONSTANTZA in the Repub-lic of Rumania 17610.920 M.T. of bulk Urea in apparent good order and condition for carriage to Indian ports on 24.8.1981 and issued a Bill of lading evidencing such receipt on the same day. On issue of such Bill of Lading the first respondent undertook to deliver the cargo in like good order and condition and at the same quantity to the Ministry of Agricul-ture, New Delhi, India or their order. The bill of lading is signed by the Master of the vessel. According to the appellants at the port of loading the quantity of the goods into the vessel was determined by electronic machine and also verified by draft. The ship arrived at Tuticorin on 17.09.1981 and discharge of cargo was completed on 20.10.1981. The weight of the cargo unloaded was ascertained by means of draft survey. As per the draft survey a quantity of 220.850 M.T. of bulk Urea was short landed. According to the appellants against the total quantity of 17610.920 M.T. of bulk urea shipped, the ship delivered only 17390.070 M.T. of urea. A draft survey was conducted on behalf of the appellants by J.B. Boda Ma-rine and General Survey Agencies Limited on 20.10.198l and the shortage of 220.850 M.T. of bulk urea was detected. Therefore, the defendants-respondents are bound to make good to the plaintiffs the loss occasioned by the said short delivery. The cost of the short landed quantity was estimated at Rs. 3,95,920 apart from this the freight charges, the value of insurance at 1 per cent of C & F works out to Rs. 4,694.24. Thus in all the appellants claim a sum of Rs. 4,74,118.67. According to the appellants, the shortage was solely due to the first defendant and their agents and servants failing to exercise due care and diligence to make the consignment and the parts of the said ship, fit and safe for the reception, carriage and preservation of the cargo and in not exercising due care and diligence in handling, carrying and caring for the said consignment.
4. The suit was resisted by the first defendant. They filed separate writtenstatement opposing the suit claim. According to the first respondent the shipment in question was subject to charterparty dated 7th July, 1981 marked as Ex. A-8 which was entered into between the first respondent and the Union of India and as per the terms of the said charter party the entire cargo was loaded and discharged by the charterers free of risk and expense to the vessel. The bill of lading also contains a clause stating "Weight, measure, quality, condition, contents and value unknown". In the above circumstances, the first respondent contended that they are not bound by the quantity mentioned in the bill of lading. They also do not object that at the port of loading the quantity loaded on board was determined by electronic machine or that the same was also verified by draft or that the goods control office at Burchrest had issued a certificate to that effect. In any event they said that they are not bound by determination of the quantity as alleged in paragraph 6 of the plaint or by the certificate alleged to have been issued by the Goods Control Office at Bucharest, referred to above. It is their further case that the draft certificate can never indicate accurately or correctly the quantity brought and discharged by the vessel, and draft survey readings are always subject to inaccuracy and fluctuation due to various extraneous factors like, the swell and tidal conditions, density of the water, errors in reading the draft, etc. In this case, part of the cargo was discharged at the Tuticorin an-chorage and thereafter the vessel was brought to the regular berth for discharging the balance cargo. The initial draft readings were taken while the vessel was at the anchorage and it is common knowledge that at the anchorage the fluctuations in draft readings due to swell and tidal conditions are far more than at the regular berth. Therefore, they contended that the initial draft survey readings are bound to have been very inaccurate. They also say that the draft survey report of J.B. Boda marine and General Survey Agencies Private Limited, relied upon by the plaintiffs and referred in paragraph 8 of the plaint, is not a reliable or proper record or evidence of the quantity that was brought by the vessel. Therefore, it is submitted that the appellants-plaintiffs are not entitled to the suit claim.
5. On the above pleadings, learned Subordinate Judge, Tuticorin framed ten issues. On the side of the appellants-plaintiffs Exs. P-1 to P-12 were marked and on the side of the respondents-defendants Exs. D-1 and D-2 were marked. One Thiru Pandarinathan was examined as P.W. 1 and none was examined on the side of the defendants.
6. Learned Subordinate Judge, on a consideration of the entire materials placed before him both oral and documentary, dismissed the suit claim particularly on the ground that Ex. A-2 which is the certificate of Inspection furnished by O.C.M., Goods Control Office at Bucharest has not been proved in a manner known to law and, therefore, no reliance can be placed on the said document.
7. We have perused the documents and Exhibits marked on both sides and also the oral evidence tendered. Ex. A-1 is the bill of lading. Ex. A-2 is the cer-tificate of Inspection made at Burchrest on August 27, 1981. The certificate states that loading operation was done at Bucharest only by mechanical means and not by grab bucket and the loading operation was supervised by them and was performed from 17.7.1981 to 24.8.1981 and their inspectors were present throughout. It is also stated that no defects during loading of goods into the vessel and the loading was done on favourable weather, that the total quantity of the vessel was determined by electronic machine, verified by draft. In conclusion, they say that the content of the certificate is true to the personal knowledge of O.C.M. and nothing material has been concealed and no part of it is false, and that inspection had been carried out to the best of their knowledge and ability and the certificate does not ever any damage to the material after sailing of the cease.
8. A reading of Ex. A-2 shows that the contents of the certificate under Ex. A-2 is to the personal knowledge of the author of the said certificate. However, the said author was not examined on the side of the appellants. On the side of the appellants on Thiru Pandarinathan was examined as P.W.I. The said Pandarinathan is employed as Import Manager of the second plaintiff company at Tuticorin and that the second plaintiff acts as agents for the first appellant-first plaintiff. Ex. A-2 was marked through P.W. 1 Import Manager. Ex. A-2 was also marked subject to objection. We are of the view that marking of Ex. A-2 through a person who is not the author, and who does not know the contents the said certificate, cannot speak on Ex. A-2 and evidence, if any, elicited through him will be of no help or assistance to the appellants. The fact remains that Ex. A-2 has not been properly proved and admitted as exhibit in the proceedings. Therefore, no reliance can be placed to Ex. A-2.
9. On the side of the respondents only two documents were marked. They are Ex. D-1 the certificate of completion of discharge. The said certificate is signed by the Master of the Vessel, Receivers Agents (Gal-axy (Tuticorin) Agencies and by M/s. South India Corporation (Agencies) Limited. In Ex. B-1 it is certified that the vessel completed discharge at 14.30 hours on 20th October, 1981 and that a Joint Inspection of the above vessel was carried out at 14.45 hours on 20th October, 1981 and after she had completed discharge, they are satisfied that holds are swept and there are neither any urea nor any sweepings lying in the holds or on the deck of the above vessel. The Master of the Vessel made a remark as follows:
All cargo discharged in very good condition.
There is no reference to any shortage in delivery of the goods. Ex. B-2 is the letter dated 20th November, 1981 by the South India Corporation (Agencies) Private Limited addressed to Messrs Galaxy (Tuticorin) Agencies, Tuticorin. 1 with a copy marked to Tuticorin office in acknowledgement of their letter No. SICA/599/81 dated 14.11.1981. In Ex. B-2 letter they pointed out that in view of the fact that the cargo was loaded/discharged by the charterers/Receivers and the vessel had not taken any part in either of the operations, they were unable to entertain any provisional claim. Further more, B/L was signed by the Master for "quantity/quality/measurement unknown". A reading of Exhibit B. 1 will show that the entire cargo was discharged in very good condition. This remark was made by the master of the ship. Under such circumstances we are of the view that it is not open to the appellants/plaintiffs now to say that as per the draft survey the quantity of 220.80 M.T. of bulk urea was short landed. It is the specific case the first respondent that as per the terms and conditions of the relevant charter party dated 7th July, 198-1 entire operation of loading and discharging at the port of shipment and at Tuticorin respectively were carried out by the charterers through their agents free of risk and expense to the vessel, and the first respondent took no part whatsoever in the loading or dis-charging of the cargo. As already stated the bill of lading clearly stated that the weight, measure, quality, condition, contents and value etc. were unknown. After loading and sailing from the port of shipment, the vessel did not break bulk or unload any cargo at any intermediate port of call. Nor the vessel carry any other cargo except the suit shipment. Upon arrival of the vessel at Tuticorin, the plaintiffs-appellants discharged the cargo through their stevedores and agents free of risk and expense to the first respondent-first defendant. And after completion of discharge, a joint inspection of the vessel by the plaintiffs' representatives and the 1st respondent's representatives showed that all cargo on board the vessel had been completely discharged. In the above circumstances, as rightly pointed out by the learned Counsel for the first respondent that there was no possibility whatsoever of any short landing by the ship and therefore the first appellant is not liable to the appellants in any manner. In any event the bill of lading contains a clause that weight, measure, quality, condition, contents and value were now known, the first respondent is not liable for the alleged short landing.
10. Under Section 5 of the English Carriage of Goods by Sea Act corresponding to Section 6 of the Indian Carriage of Goods by Sea Act, where, in the case of a bulk cargo, the quantity mentioned in the bill of lading is not even prima facie evidence against the carrier, therefore, in this case, in our view, the first de-fendant-first respondent is not liable for the alleged short landing or any other quantity.
11. The argument advanced by the learned Counsel for the appellants was that the draft survey would indicate the accurate quantity brought and discharged by the vessel. We are unable to accept the said contention. The draft survey can never indicate the accu-rate or correct quantity brought and discharged by the vessel and draft survey reading are subject to in-accurate and fluctuation due to various extraneous factors like, the swell and tidal conditions, density of the water, errors in reading the draft etc. It is a uni-versally acknowledged fact that draft surveys are never accurate and are subject to considerable fluctuations. It is not in dispute that part of the cargo was discharged at Tuticorin anchorage and thereafter the vessel was brought to the regular berth for discharging the balance cargo. Initially draft reading was taken while the vessel was at the anchorage and it is Common knowledge that the anchorage the fluctuations in draft readings due to swell and tidal conditions are for more than at the regular berth. Therefore, as rightly pointed out by the learned Counsel for the respondents that initial draft survey readings are bound to have been very inaccurate. Therefore, the draft Survey report of J.B. Boda Marine and General Survey Agencies Private Limited, relied upon by the plaintiffs is not a document which could be relied upon or looked into as a piece of evidence of the quantity otherwise brought by vessel to Tuticorin or of the quantity unloaded from the vessel.
12. It is true that the appellants/plaintiffs lodged a provisional claim for the alleged short landing or urea in bulk. As already noticed the second respondent, on behalf of the first respondent has repudiated the claim of the second plaintiff as could be seen Ex. B-2. We are of the view that the first respondent's vessel had carefully brought and delivered in full to the plaintiffs at the port of Tuticorin whatever cargo that was loaded on board the vessel by the charters/consignors. As the contract of carriage was on 'free in and out' terms and as the entire loading and unloading of the cargo were done by the charterers-plaintiffs free of risk and expense to the first defendant and as the master had no means of determining or ascertaining the quantity that was loaded on board the vessel at the port of shipment and since the bill of lading clearly states that the weight, measure, quality etc. were unknown, the first respondent, in our opinion, is fully entitled under law to rely on the said clause in the bill of lading and in the above circumstance, the first respondent is not liable to the appellants for any alleged short landing. No negligence or want of care on the part of the first defendant and its agents and servants. Even assuming without admitting that there was any shortage, the same must have been due to either short-loading at the port of shipment or loss of cargo due to rough and negligent handling by the plaintiffs'-appellants' stevedores or agents during unloading operations at the anchorage and later at the regular berth and or due to loss of cargo due to its inherent nature and or due to inevitable wastage and or ocean loss.
13. Learned counsel, for the appellants cited very many citations. We first refer to the rulings of our High Court in the judgment reported in Nippon Yeesan Kalsha Limited v. Union of India (1986) 2 M.L.J. 45. In that case, an endorsement' said to weight' was found in a bill of lading while interpreting the said' terms learned single Judge of this Court has held as follows:
An endorsement 'said to weigh' found in a bill of lading could only mean that there was no ad-mission or acceptance of the weight to the carriers, as declared by the shippers or consignors, as declared by the shippers or consignors. Such an endorsement could not be taken note of as con-clusive proof of weight of the goods shipped. The fact that the bags were found torn and in slack condition at the place of destination and delivery will not lead to any inference or proof that a par-ticular weight of goods was supplied at the place of consignment.
14. Learned Counsel for the respondent cited the following judgment reported in M/s. Thakur Shipping Company Limited, Bombay v. Food Corporation of India It was held by Division Bench of this Court Comprising of Natarajan, J. and Sethuraman, J. wherein the learned judges have made a reference to the ear-lier judgment of this Court in the case of Food Corporation of India v. Property Steamship Company , where a similar question was considered and answered. In that case also the Food Corporation of India entered into a charter party with the steamship company for transport of 91,600 bags of rice from Bankkok to Tuticorin. On arrival of the ship at Tuticorin, the rice bags were unloaded. A portion of the consignment was found damaged and there was shortage of rice. The plaintiff therein filed suit for damages for the shortage that had occurred. A Division Bench of this Court, agreeing with the trial court, rejected the claim of the Food Corporation of India and held that since the defendants, the ship owners had neither loaded not unloaded the goods, the plaintiff's agents having assumed the responsibility of transporting the goods by undertaking the operation of stevedoring, and each boat note carried the words 'ship not responsible' and no protest had been made by the plaintiff, the defendants could not be held responsible for the shortage. The ration in the abovesaid case will apply on all fours to the instant case also since the respondent-corporation had undertaken to load and discharge the ship at its risk.
15. A learned single Judge of this Court in the case of The Shipping Corporation of India v. Union of India A.I.R. 1976 Goa, Daman and Diu 49, while interpreting bill of lading has held as follows:
The clause in a bill of lading that "measurement, weight and quantity, not known" meant that the particulars contained in the document were those furnished by the shipper and that the carrier did not accept the particulars as correct. The burden of proving such particulars was on the shipper and by independent evidence de hors the particulars appearing on the document.
16. In K. Assainar v. Malabar Steamship Company Limited , learned single Judge Of this Court has held that bill of lading was subject to notation of 'weight declared by the shippers but not checked. It is indicative of disclaimer of responsibility and liability. It is open to carrier to contract out of his liability, that no presumption arises merely on the ground that certain quantity has been mentioned in the bill of lading when what has been noted has been qualified by the further statement that the weight was declared by the shippers, but not checked by the carrier. In such a case, the carrier could not be held responsible for shortage when there is no acceptable proof that the actual weight was as noted in the bill of lading at the time of shipment. Learned single Judge while coming to the said conclusion has referred to the various decisions of various courts. There other unreported judgment of our High Court rendered by K. Venkataswami, J., as he then was in C.S. No. 38 of 1979, dated 10.10.1984, Maharajan, J., in C.S. No. 76 of 1967 dated 18.11.1970 and Fakir Mohamed, J., in C.S. No. 380 of 1997 also be usefully referred to in the present context, wherein learned Judges have held that bill of lading is not prima facie evidence when there is disclaimer clause.
17. We shall now advert to the judgment cited by the learned Counsel for the appellants in A.S. No. 165 of 1974, dated 5th August, 1973 comprising of Sethuraman and Balasubrahmanyan, JJ. The above appeal involved an adjudication as to the liability of a ship owner in respect of shortage of delivery of bulk cargo carried in its vessel under the terms of charterparty. The lower court granted a decree only as against the shipowner and the suit against the agents was dismissed. The shipowner preferred the above appeal. In this case, the actual mode of hand. It shows that the delivery at the Madras Port was by"over side delivery". The evidence discloses that the cargo was unloaded from the ship with coir mats, put in slings and taken from the vessel directly into the Hopper wagons standing alongside the ship. From these wag-ons the goods were transferred to gunny bags by means of charters and thereafter the bags were taken to the transshipment shed. In the case in hand the actual mode of discharge adopted is entire different. We are of the view that the delivery of bulk cargo is governed in every case strictly by the terms of the contract of carriage, and, in their absence, by the custom of the port discharge. This is widely accepted position of law. In our opinion, the above case cited by the learned Counsel for the appellants is not applicable to the facts of this case and distinguishable on facts. For all the foregoing reasons, we are also unable to accept the contention of Mr. P.B. Krishnamoorthy that the draft survey is the only means of ascertaining the weight and quantity discharged in the case of bulk cargo. We are of the opinion, that the bill of lading does not constitute prima facie evidence of the quantity of the cargo loaded on port and the appeal, therefore, fails and is dismissed, of course, not for the reasons assigned by the learned Subordinate Judge but for our own reasons. No costs.