National Consumer Disputes Redressal
D.K. Lall vs Samrat Shipping And Transport Systems ... on 14 July, 2003
Equivalent citations: III(2003)CPJ113(NC)
ORDER
B.K. Taimni, Member
1. Complainant D.K. Lall, Sole Proprietor M/s. Lall Enterprises has filed this complaint alleging deficiency in service on the part of opposite parties.
2. It is the case of complainant that after receiving export orders of handicraft items on payment against D.A. (Delivery against Acceptance), took up the work of exporting the said merchandise, comprising miniature paintings to M/s. Pandikas and iron furniture and iron handicraft to M/s. Natural Selection International, both in Spain. In all, the said export items were packed in 122 cartons. Miniature paintings in one carton for M/s. Pandikas and iron furniture in 121 cartons for M/s. Natural Selection International. These packages were checked and cleared by Custom Authority at Jodhpur and these 122 cartons were stuffed in one container vide stuffing sheet on record. For exporting goods the complainant hired the services of the 1st opposite party Samrat Shipping and Transport System Pvt. Ltd. having its offices in Delhi and Jaipur through its local agent M/s. Sai Shipping, Arihant Complex, Jodhpur who forwarded the container to Bombay where it was put on board vessel named CMBT Himalaya belonging to the 2nd respondent M/s. Contship Container Lines Ltd. This export cargo of 122 cartons were also insured with the 3rd opposite party M/s. National Insurance Company Ltd. under its Marine Cargo/Inland Transit Policy issued by 3rd opposite party to cover all risks with ICCA and SRCC risk and warehouse to warehouse risk. The consignment reached Barcelona, Spain on 1st March, 1997. While 121 cartons have been duly received by M/s. Natural Selection International, one carton marked for M/s. Pandikas comprising miniature paintings was never received/delivered by the consignee. Correspondent Bank has returned the documents unretired. Thus alleging deficiency on the part of the OPs this complaint has been filed praying for following reliefs :
(i) Award compensation by way of damages in favour of the complainant to the tune of Rs. 39,23,225/- (Rupees Thirty Nine Lacs Twenty Three Thousands and Two Hundred Twenty Five only) as claimed in this complaint against the Opposite Party/Parties found liable to answer the complaint and in the light of the facts and submissions made in the present complaint.
(ii) In case the Hon'ble Commission do not sustain the complainant's claim as aforementioned to the extent stated above, the Hon'ble Commission may award compensation equivalent to the value of the miniature silk paintings i.e. Rs. 31,97,025/- (Rupees Thirty One Lacs Ninety Seven Thousand and Twenty Five only) and interest thereon from the opposite party/parties found liable to pay the same.
(iii) Award interest @ 2% p.a. (at the bank lending rate) on the said amount of compensation from March, 1997 till the date of final payment of the claim by the opp. parties.
3. Opposite parties 1 and 2 have filed almost identical written versions. Their stand is that complainant is not a consumer. This case involves complex question of fact and law, which cannot be dealt in by the Consumer Forum. On merits their stand is that the complainant never stuffed/exported one carton containing miniature paintings and has falsely declared these to the opposite parties. Bill of Lading clearly shows 'Shipper's load/stock count' meaning thereby that 1st and 2nd opposite parties are not aware of the contents of the said consignment. The bill of lading also states 'particulars declared by the shipper, not checked by the carrier'. Another plea is that under Clause 17 of Bill of Lading and Article IV Rule 5 of Carriage of Goods by Sea Act, 1927 liability of loss or damage is limited to 2 SDRs per kgs., hence limited to 400 SDKs for loss of 200 kg., of miniature paintings which in Indian rupees comes to Rs. 21,428/-. It is also their case that the complainant is not their consumer as no freight was paid by the complainant to the 2nd opposite party. It was an F.O.B. contract.
4. Their further defence is that carton alleged to be delivered to M/s. Pandikas, could not be segregated, as it was not properly marked for which fault lies with the complainant. 1st opposite party has also taken an additional plea that under Section 230 of the Contract Act they cannot be held liable as they were only the agents of the principal.
5. In the written version filed by the 3rd opposite party Insurance Company, it is their case that the complainant in collusion with the buyers is trying to perpetrate a fraud on them with a view to make unjust financial game. Their main plea is that valuation indicated in the policy was C.I.F. + 10% whereas invoice in the instant case was an FOB and the Bill of Lading was clean. Thus it is clear that the liability of the seller came to an end as soon as consignment was loaded on to the ship. Section 8(1) and Section 8(2) of the Marine Insurance Act stipulates that the assured must be interested in the goods insured at the time of loss and where the assured has no interest at the time of the loss, he cannot acquire interest by an act or after he is aware of the loss.
6. Rejoinders were filed by the complainants. Affidavits by way of evidence were also filed. Three affidavits in all have been filed, one that of the complainant, one affidavit by that of Mr. Vivek Kapoor, Regional Manager of 1st opposite party on behalf of both 1st and 2nd opposite party, and third by Mr. Ramesh Goyal, Senior Branch Manager of the 3rd opposite party.
Arguments were heard.
7. Controversy veers around three points plus. These issues are whether miniature paintings did indeed form part of the container utilised for export, secondly what happened after arrival of container in Barcelona and thirdly legal proposition of status of consignment with reference to its being an FOB contract i.e. rights of the seller and his insurable interest in the goods; plus shall emerge from these three points. If opposite parties are found to be deficient, then to what extent they would be liable ?
8. A common plea is taken by at least the 1st and 2nd opposite party in specific terms and by the 3rd opposite party in round about manner when it alleges collusion between the buyer and seller and fraud, that miniature paintings were never sent nor did it form part of the container. There is no controversy that export orders in respect of the merchandise in question were received. We see on record (Annexure 3) a copy of the Invoice which details three set of paintings miniature.
This invoice has the seal of Custom Appraisal Officer. Then we have the packing list which gives packet-wise contents of miniature paintings. This is also endorsed/signed with seal of the Custom Appraisal Officer, Jodhpur and finally we have container stuffing sheet which bears the signature and seal of complainant. Custom Officer and others including Surveyor of the 3rd O.P. None of these documents have been challenged. It is settled position that consignment was exported through an Inland Container Depot, where, in order to facilitate exports from hinterland, formalities are completed in these notified and recognised depots, where the goods are certified for exports by custom officials. All this has been done and duly certified documents are on record that miniature paintings were part of exported items and stuffed in the container. Once they have crossed the custom barrier, it is in the possession of Container Depot. Complainant has little chance - if at all - to fiddle with the contents. We see no merit in the contention of the opposite parties that miniature paintings in fact were never exported i.e. they never formed part of the container. This plea is belied and runs contrary to unrebutted material on record. In these circumstances what we find is, nothing untoward can be found in the runup to the ship, and also the container reaching Barcelona in March, 1997.
9. It is at this stage that the real problem starts. Telex dated 27.3.1997 from the 2nd opposite party addressed to the 1st opposite party reads as follows :
"Further to your message of 27.3.1997 we have contacted C/Natural Selection who have agreed to take the full container and keep the pkt. assigned for Pandikas for collection. They CFM that the delivery costs to Pandikas will be met by Pandikas."
10. Vide telex dated 11.4.1997, 1st opposite party wanted advice from the 2nd opposite party at Barcelona, on the status of the delivery of the said container. Same day reply is received.
"Above mentioned container has been delivered on 9.4.1997."
11. Subsequent to this, a telex message dated 15.4.1997 addressed to 1st opposite party by the second opposite party is on record, which reads as follows :
"As per information sent to you on our A/M TLX CNTR was'unstuffed on our depot in order each receiver can pick up their shipment from depot directly.
When CNTR has been unstuffed, depot had problems in order to separate these shipments due to cartons are not dully market. How Natural Selection has picked up 121 cartons and Pandikas has to pick up 1 carton, but on 121 cartons picked up from Natural Selection is the carton from Pandikas.
This carton should be returned to our depot to effect customs procedures and carton staying on depot should be delivered to Natural Selection.
This matter is causing an extra haulage that receivers don't want to pay. As this problem has been caused due to cartons cannot be identified by marks on packages. Then this extra cost should be paid by shipper (extra Haulage Ptb. 15,000 USD 105 - Approx).
Pls. urgently contact shipper in order to explain situation AB-CNEE Pandikas need to solve this matter today.
Pls. CFM that shipper will pay this extra costs."
12. Telex dated 25.4.1997 between the same parties reads as follows :
"In reference your Tlx. Pls. note that for A/M CNTR, the CNGE Natural Selection took all 121 packages relating to above. The package for Pandikas is now in our depot and hasn't been collected. As Pandikas have informed us that the goods aren't what they are waiting for."
13. To this Telex the complainant offers to pay US $ 105 for the said purpose.
14. Vide Telex dated 29.4.1997 for the first time a doubt is raised whether the painting was actually despatched as it has not been received in Barcelona.
15. All this material on record read together leaves us in no doubt that as is clear from the Telex dated 11.4.1997 from the 2nd opposite party, that the whole container was, handed over to Natural Selection. Telex message dated 27.3.1997 and 11.4.1997 confirm this. When the re-transportation expenses are agreed to be paid by the complainant for no fault of his, the carton on inspection by Pandikas is not seen to contain his consignment.
His fax dated 30th October, 1997 spells the beans.
"We acknowledge your fax of 28 October and have noted the content. We has also noted that the National Commission before whom the complaint/claim is pending requires certain clarifications on certain issues (a) to (e) :
(a) It may be stated that the two boxes were opened at Barcelona Port in the presence of the Customs and Shipping Line. Since the goods did not belong to us, we refused to accept the same. Since the goods were against DA (Delivery against Acceptance) we refused to accept the consignment. Every time we had to pay expenses charges to the agent.
(b) Pandikas has no office at Barcelona. The Distance between Barcelona and Ferrol is 1,350 kms. And it has to be covered by train, which means that one has first to go to Madrid and then, from there, to Barcelona.
(c) The consignment (two boxes) were offered on two different dates and opened at the port. It appeared that the boxes had been opened earlier as the seals were not intact. They were again opened in the presence of the Officers of the Port, i.e. Shipping Line, Customs, etc.
(d) Since the consignment - Handicrafts Iron Furniture - did not belong to us as ordered, we refused to take delivery and clear the consignment. We were suspected when we saw the condition of the boxes, it looked that they had been opened previously.
(e) At a later date, after it was reported that the consignment was missing, on two different dates the package was offered to us which did not contain the ordered goods.
Needless to adhere that on account of criminal negligence on the part of the Shipping Company, we have suffered the damages and the loss of profit that we expected from the sale of the ordered silk paintings. We would honestly request to clear out our dues as already communicated to you. Our receipt of the amount can be filled by you before the Court and thus, we can claim reimbursement. In the interest of good order we are hopeful that you will retaining comply with our requirements so that we can start our business relations again. This is for our mutual benefit."
This contract not materialising, it is the correspondent Bank who is also the consignee as per Bill of Lading, who raised a demand of US $ 808 vide its telex dated 30.4.1998, from the complainant's banker i.e. Bank of Rajasthan for their charges and commission for their infructuous deal. On the other hand we have on record US $ 5808 being demanded from the complainant by Pandikas for his harassment, etc. We have also on record a letter from Bank of Rajasthan which is self-explanatory :
"This is to certify that export bill of US $ 81975 drawn on M/s. Pandikas, Apartado, IO, 15400 Ferrol, Spain sent to Banco Pastor, Avde Espena Ponferrada (Leon) Spain on date 10.3.1997. The documents containing following details :
B/L No. : 06014 dt. 27.1.1997 Invoice No. : LE/EXP/96-97/25 dt. 22.2.1997 Shipping Bill No. : 000506 dt. 27.2.1996 The Bill under reference payable on 60 days from B/L date but the payment not made by the buyer in view of non-receipt of goods and original documents received back by us,"
16. It is clear from above that container was handed over to Natural Selection which had 122 cartons, whereas he was entitled to get 121 cartons as per Bill of Lading. In our view plea of absence of clear marking on the carton for Pandikas is clearly an after-thought. Telex dated 27.3.1997 and 11.4.1997 make no mention of the fact. It appears that 2nd opposite party is looking for a defence after the blunder and appears to be an effort to become wise after the event. Bill of lading clearly shows the consignee as "Banco Paster" Apartado 90, 15400 FERROC Spain. In what circumstances the whole consignment went to Natural Selection when the consignee is the Bank, has not been explained at all by the O.Ps. Even if it is accepted for argument sake that carton meant for 'Pindikas' did not have proper markings but it is not the case of the O.Ps. that there was any marking problem with the cartons meant for Natural Selection. If this is so, then by process of elimination whatever was marked for Natural Selection should have gone to him and whatever i.e. one carton, left out would necessarily have been of that of Pandikas. Since the marking issue has been interjected at the later stage to cover up their delivery of whole of container to Natural Selection under whatever circumstances, the process obviously could not have been gone into by the carrier or his agents at Barcelona. To verify for himself the complainant went to Barcelona, got in touch with local office of 2nd respondent and in the company of the Counsel General of Indian Mission visited the Port godown. One-box is there but not with paintings. We are somewhat surprised to have the affidavit of one David Sharpies, Director of 2nd O.P. completely disowning the ground truth, by taking a plea that their representative have no authority to issue any certificate. In our view they clearly failed in their duty entrusted to them and their failure to deliver the carton of miniature paintings is a clear case of deficiency on the part of 2nd O.P.
17. We now go on to examine the main objection raised, relating to the contract being FOB and in that context, rights of the parties. It is again necessary re-count the sequence of events. The complainant after receipt of export order get. in touch with Mahavir Shipping, Jodhpur, agent of the 1st respondent. Goods are checked as per rules of Customs Department, shifted into a container in the presence of certain officials, Surveyor of Insurance Company, complainant and the Forwarding Agent. This container is sent to Mumbai. Documents sent to Mumbai are the invoice containing details of miniature paintings earmarked for Pandikas, packing list, shipping instructions, bill of lading, prepared by the 1st respondent. Two important points emerges from the invoice, packing list and shipping instructions. In the box "Terms of Delivery and Payment". What is written is "Price FOB shipment - By sea" conforming to this is the Bill of Lading where shipment is on "Freight - collect". Two points get established beyond doubt - one that it an FOB contract and secondly mode of payment is not mentioned. At a later stage Bill of exchange showing the terms of D.A. is shown - but there is nothing on record to show that this Bill of Exchange was shown to the O.Ps. or formed part of the documents given to the O.Ps. We are unable to entertain this document for our consideration. It is accepted that normally the title passes to the buyer once the goods crosses the rails of the ship. Paras 351 and 352 of the Halsbury's Laws of England (Fourth Edition Vol. 41} reads as follows :
"351. When property passes. Prima facie the property passes to the buyer on shipment, but as in a cif contract the inference may be rebutted and the moment of passing of the property postponed, as where the seller takes of deals with the Bill of Lading in such a form or manner as to show that he did not intend to appropriate the goods to the contract or that he has reserved a right of disposal until performance of the contract terms of payment, whether they are for payment in cash or by acceptance of a Bill of Exchange or under a Letter of Credit."
"352. Payment. Although, if noting is said, payment is due on delivery of the goods by the seller free on board the ship, in ordinary practice the fob contract contains special terms for payment analogous to those common in cif contracts. Thus, payment is often by 'cash against documents', or by the acceptance by the buyer of a bill of exchange against tender of the bill of lading, or under a confirmed letter of credit. Where terms of this kind are agreed with respect to payment, the effect may often be to postpone the passing of property until their performance."
18. After reading the above two paras what we see is, that despite absence of any clear terms of payment in any of the document listed above, complainant/seller still retains the table as he remains an unpaid seller, Para 237 of Halsbury Laws of England (supra) reads as follows :
"237. Meaning of unpaid seller : The seller of goods is an unpaid seller within the meaning of the Sale of Goods Act, 1979.
(1) When the whole of the price has not been paid or tendered, (2) When a bill of exchange or other negotiable instrument has been received as conditional payment and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or other.
If the buyer becomes insolvent, the fact that the user had originally agreed to pay for the goods at a future date, and that the instrument under or by which he would have paid at that future date is still outstanding, does not prevent the seller from being an unpaid seller."
19. As per material on record, it is only in a communication dated 21.11.1996 sent to the Customs Authorities that there is a reference that Bill is against DA - but no one else was provided with these terms of payment. So the normal meaning/interpretation of FOB has necessarily to come into play but it is not denied by the carrier that one carton has not been picked up Pandikas as it did not contain the contents ordered by him and reflected in the Bill of Lading i.e. miniature paintings. Since he refused to execute the order in view of "being offered a wrong carton" containing some iron handicraft items, Bank in Spain sent back documents unretired to its correspondent India Bank, thus making the status of the complainant of that on an unpaid seller as defined in Section 45 of Sales of Goods Act, which reads as follows :
"45. 'Unpaid seller' defined--(1) The seller of goods is deemed to be an "unpaid seller" within the meaning of this Act,--
(a) when the whole of the price has not been paid or tendered;
(b) when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.
(2) In this Chapter, the term "seller" includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price."
In our view, what clinches the issue in favour of the complainant and against 2nd O.P., is the letter from the Country's Counsel General in Barcelona, which reads as under :
"TO WHOM IT MAY CONCERN This is to certify that on Friday 24.11.00, Mr. Lall came to Barcelona from Medrid with the letter of Embassy of India to investigate of the case concerning to Pandikas with Contship Company.
We confirm the appointment with Contship Company to inspect the box of Pandikas on 27.11.2000 at 11 O'clock.
We visited Contship Company at 11 O'clock with Mr. Lall and the Traffic Manager of Contship Mr. Alfonso Perez and he took us in his car to Barcelona Port to check the box. The custom authority showed us one box, we opened the box, in presence of Contship Company, and custom authority, when we opened the box there was No Paintings Inside which Lall enterpises sent from India. Inspite of the paintings there was some metal items, Contship has confirmed that box has been lost. We are including letter of Contship Company.
Barcelona, 27th November, 2000 Sd/-
Consul General of India Seals"
Letter issued by Traffic Manager of Agents of 2nd O.P. is quite revealing :
"REE CMB HIMALAYA V.364W - B/L EUACSAMJPRL 06014 This is to confirm that Mr. D.K. Lall Enterprises has been on this date, jointly with a representation of the General Consulate of India in Barcelona and our Company Contship Containerlines represented by Mr. Alfonso Perez (Traffic Manager of C.P. Ships Agencies, Spain, S.L.), inspecting 1 package placed at our port warehouse, Cargo Depot, S.A. which should belong to the mentioned bill of lading.
Consignee of this package, Pandikas, had already checked/opened this box before but there was no paintings inside.
Within this inspection we have opened the box in presence of all the people detailed above and we may confirm that no paintings are in this box but metal items. So we may confirm that box containing painting miniatures has been lost.
Which I declare in Barcelona on November 27, 2000.
Sd/-
Alfonso Perez Traffic Manager CP Ships Agencies Spain Agents in Spain for Contship Containerlines"
The Director of 2nd O.P. Mr, David Sharpies conveniently has this to say in his affidavit filed on 22.2.2001 :
"...I say that as such Agents, they have no authority to issue certificate dated 27.11.2000 on behalf of the opponent."
It is all right to disown the certificate but what he told the Consul General about loss of the carton containing Miniature Paintings earmarked for Pandikas, remains unrebutted. The testimony of Consul General by way of certificate cannot be brushed aside lightly.
20. Material on record and sequence of events leaves us in no doubt that the carton containing Miniature Paintings meant for Pandikas was lost in the circumstances discussed in extenso above resulting in the complainant remaining an unpaid seller.
Para 239 of Halsbury Laws of England define the Rights of unpaid seller in following terms :
"Seller's rights ordinarily invisible : The unpaid seller's rights extend over every part of the goods for the price of all of them except where, by the terms of the contract or otherwise, the price has been apportioned. If, however, the buyer becomes insolvent, the unpaid seller's rights are, by implication of law and notwithstanding the apportionment of the price, exercisable over every portion of the goods not paid for in respect of any part of the price of the goods due under the contract."
Respondents have relied upon three judgments of the Hon'ble Supreme Court.
(i) National Tractors Hubli v. Commissioner of Commercial Taxes Bangalore, AIR 1971 SC 2277.
(ii) Mewar Tent Factory v. Union of India and Ors., AIR 1990 SC 1753.
(iii) National Thermal Power Corporation v. The Singer Company and Ors., AIR 1993 SC 998.
21. We have gone through the judgments of the Hon'ble Supreme Court referred to above very carefully and have to say that none of these apply in the facts and circumstances of the present case where while the consignment is on FOB basis but the consignor/exporter remains an unpaid seller.
22. The name of consignor and the buyer are clearly mentioned on the Invoice and the Packing list, Bill of Lading states - not negotiable unless consigned. 'To Order of' Consignee, who is clearly mentioned as the Bank. As per our earlier discussions we have seen that container was handed over to Natural Selection International without getting any endorsement from the consignee Bank who has since sent back the documents unreferred. The onus of delivery to the consignee, as per mercantile law clearly was on the carrier. The seller in this case clearly remains an "paid seller" hence retaining the right as per Sales of Goods Act (supra) and spelled out in para 239 of Halsbury's Laws of England (supra). Deficiency in service clearly lies on the carrier.
23. As far as Insurance Company is concerned we see on record that the complainant has obtained an Open Marine Policy for Rs. 50 lakhs, any single consignment limited to (Rs. 35 lakhs) for the period of 16.7.1996 to 15.7.1997. It has ICC(A), War, Strike, Inland Transit and Inland Transit SRCC clauses. It was a warehouse to warehouse policy from Jodhpur to any place in the world. As per condition of the policy, the complainant/insured intimated the details of the consignment to the Insurer Company on 25.3,1997. On 27.5.1997 insurer informed about the loss of this one consignment and unclaim is preferred for Rs. 29,28,147/-. It cannot be disputed that the Insurance Policy was on "basis of valuation -cif + 10" whereas, as discussed earlier, this consignment was sent on FOB basis thus in our view making the consignment violative of terms of policy. Even in the "Declaration" of this consignment sent to the Insured, no details of conditions of shipment are mentioned. As rightly pointed out by the learned Counsel for O.P. 3 that as held by Apex Court several times over "Insurance is a contract of good faith". In the instant case, the complainant clearly faulted on this account. Another points we see that Marine Policy as per Marine Insurance Act covers the risks of perils of sea. Section 7 of the Marine Insurance Act reads as follows :
"7. Insurable interest defined--(1) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure.
(2) In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof."
A plain reading of it shows the insurable interest, is limited to marine adventure, which is defined in Section 2(a) of the said Act.
"(a) 'Marine adventure' includes any adventure where,--
(i) any insurable is exposed to maritime perils Section 2(e) of this Act defines 'maritime peril' to mean perils consequent on or incident to the navigation of the sea..."
It is admitted position that no loss was caused by any peril of sea.
The complainant wishes us to accept this interpretation of "warehouse to warehouse policy".
"Warehouse to warehouse policy.--A policy of this name covers all risks starting from point when goods leave the warehouse of exporter until the point when warehouse of the assured is reached. When such policy covers all risks, the mere enumeration of same risks has to be treated as illustrative and not exhaustive. If rusting is a peril insured against and if such rusting takes place after the goods have started from the point of export and prior to their reaching the assured, the Insurance Company shall be liable." (Emphasis supplied)
24. In our view, as stated above, Marine Policy covers only perils of sea and covers warehouse to warehouse only in terms of inland transit. We get support in this from the definition of the 'term' brought in writing, by the complainant before us and reproduced above. Risk covered is when goods leave the warehouse of exporter till the point where warehouse of the assured is reached. In the instant case 'assured' was the complainant. Warehouse to warehouse cover is for inland purpose only. In the present case consignment i.e. container left the warehouse of complainant in Jodhpur and reached a warehouse in Spain safely. It is not the terms of the policy to cover the risk till the delivery is made to the consignee this meaning cannot be imported. Thus based on our above discussion we find no deficiency on the part of O.P. 3 and they cannot be faulted for any omission on their part. Flaws, if any, would be with the complainant.
25. Our above discussions clearly bring out that carrier were deficient in rendering service and have to be held accountable to the unpaid seller. As per Section 5 of the Article IV of the Indian Carriage of Goods by Sea Act, 1925 liability of the carrier is limited. Section 5 reads as under :
"Neither the carrier nor the ship shall in any event be or become liable for any loss or damage or in connection with goods in an amount exceeding 100 Pound per package or unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.
This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.
By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above named.
Neither the carrier nor the ship be responsible in any event for loss or damage to or in connection with goods if the nature or value thereof has been knowingly mis-stated by the shipper in the Bill of Lading."
26. As per record, no value of goods has been given in the Bill of Lading. This may have been stated in the invoice but law requires it to be mentioned in the Bill of Lading, to fall outside the purview of this section, which is not the case here.
As per record the miniature paintings were in 18 packets. Thus as per the above provision of law, the complainant shall be entitled to 1800 Pound. Thus we direct 2nd O.P. to pay equivalent of 1800 Pound in Indian rupee at the then prevailing rate of exchange along with interest @ 9% from 1.7.1997 till the date of payment which should be done within eight weeks of this order. This complaint is allowed only against 2nd opposite party with cost of Rs. 10,000/-. Complaint against 1st O.P. being only an agent of 2nd O.P. and 3rd O.P. for not being found deficient in rendering service is dismissed.