Delhi District Court
Cs No. 188/14 M/S Eximcorp India Pvt. ... vs . M/S Mediterranean Shipping Company Sa ... on 30 November, 2016
Page 1 of 43
IN THE COURT OF Ms. SUNENA SHARMA
Additional District Judge - 03 (South-East)
SAKET COURTS COMPLEX: NEW DELHI
CS No.188/14
Unique Case ID No.02406C0037882014
Date of Institution : 14.02.2014
Arguments concluded : 28.11.2016
Date of decision : 30.11.2016
M/s Eximcorp India Pvt. Ltd.
Having its registered office at 25,
RN, Mookherjee Road, Mission Court,
4th Floor, Suite C., Kolkatta-700001
West Bengal
Branch office at: Khasra No. 87/1,
Mundka Industrial Area, Delhi-Rohtak Road No.10,
Near Saraswati Dharamkanta, New Delhi-110041
Though its authorized person
Mr. Aashish Kumar
............. Plaintif
VERSUS
1) M/s Mediterranean Shipping Company S.A.
12-14, Chemin Rieu-CH-1`208, Geneva,
Switzerland
2) MSC Agency India Pvt. Ltd.
The Corenthum, B-52, 2nd Floor,
Plot No.A-41, Sector-62,
Noida (U.P.), 201301
Through its authorized representatives
Davinder Singh Kathuria
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 2 of 43
............... Defendant
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by plaintif for seeking recovery of Rs.11,57,848/- (Rupees Eleven Lakhs, Fifty Seven Thousand Eight Hundred Forty Eight Only) along with 18% pendente lite and future interest.
2. Briefly stated the facts of the plaintif's case are that plaintif which is a private limited company, has been in a business of import of goods since 1996. Defendant no.1 is a shipping line/carrier which deals in global marine transportation. Defendant no.2 is the agent of defendant no.1 in India. Defendant no.1 issued a bill of lading no. MSCUZ5526448 (BOL) dated 07.07.2012 in respect of the cargo of which plaintif was the consignee. As per the BOL port of discharge and place of delivery were Mundra Port, Gujrat India and ICD Tughlakabad, India respectively and the vessel number and voyage number were MSC MONICA/1231R. However, the cargo was discharged at Singapore on 28.08.2012 and reloaded on 30.08.2012 on the vessel MV Amsterdam Bridge for voyage 20R without any intimation to plaintif, the consignee. Vide letter dated 19.09.2012, defendant no.2 informed plaintif that vessel MV Amsterdam Bridge had experienced a fire on board on her way to CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 3 of 43Colombo from Nhava Sheva and the containers of the plaintif were on board of said vessel at the time of accident. It was further informed that the vessel at that time was in Mumbai and defendant no.2 was not the owner of the vessel. Vide e-mail letter dated 20.09.2012 plaintif highlighted as to why a cargo booked to ICD TKD needed to go to Colombo from Nhava Sheva when the same could have been discharged at Nhava Sheva and routed to ICD, TKD which could have saved both the time and the cost. Vide e-mail dated 22.09.2012, plaintif demanded return of their containers to Delhi as they did not want any kind of survey. Vide e-mail dated 24.09.2012, defendants informed plaintif that subject shipment shipped to MV Amsterdam Bridge had sufered a fire accident on board while in Nhava Sheva and they (defendants) were not the owners of the vessel. Vide e-mail dated 26.09.2012, plaintif was informed that the ship was still safely at anchor of Mumbai/Nhava Sheva and there were diferent options for future course of action and from said correspondence, it appeared that the ship was taken from Mumbai/Nhava Sheva to Colombo for discharge. Vide e-mail dated 03.10.2012, plaintif highlighted as to why the plaintif be a party to General Average when the containers on board got damaged as a result of defendants' mistake in sending the containers to Colombo instead of discharging the same at Nhava Sheva and had the containers been discharged rightly at Nhava Sheve, they would not have been the part of accident. Thus, plaintif should not be made to CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 4 of 43accept any arbitrary losses which had occurred on account of lack of diligence on the part of defendants. Vide e-mail dated 21.11.2012, plaintif informed defendants that their (plaintif) container was not the part of damaged containers and requested the defendants to arrange for transporting them (plaintif's container) to ICD, TKD without any delay. Vide e-mail dated 30.11.2012, plaintif objected to pay any amount to the adjusters as the plaintif considered the same as a willful design of defendants. Vide e-mail dated 31.12.2012, plaintif agitated that it was over three months that their containers were lying at Nhava Sheva and defendants had dragged them in a sham claim of salvors to press an unfair demand on the plaintif.
3. Despite plaintif's having agreed to pay the expenses for transportation of containers from Nhava Sheva to ICD, Tughlakabad, the matter remained unresolved and vide letter dated 21.01.2013, plaintif expressed its displeasure upon the same and further requested the defendants to sort out the matter urgently. Vide e-mail dated 23.01.2013, defendants asked plaintif to directly deal with Average Adjuster. Vide e-mail dated 28.01.2013, plaintif intimated them that they are agreeable to incur the expenses to be incurred by the owners of the vessels or their agent in getting the delivery of cargo of container No. INKU6671588 at the place of delivery, ICD TKD. Vide e-mail dated 07.03.2013, the plaintif further informed the owners of the vessel CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 5 of 43regarding the non delivery of the cargo/container despite plaintif's having given the requisite bond. Vide letter dated 05.04.2013, the owners of the vessel informed the plaintif that local port authority at Shanghai did not permit the vessel to enter the port for berthing and discharging her cargo. Vide e-mail dated 05.07.2013, plaintif was informed that their shipment has been reloaded to Amsterdam Bridge Ex Shanghai to continue on place of delivery. Thereafter, vide e-mail dated 10.07.2013, plaintif asked the defendants to supply them the estimated time of arrival at ICD Tughlakabad on subject mentioned shipment. Vide e-mail dated 10.07.2013, defendants informed plaintif that subject container no. INKU6671688 was arriving to Colombo on 15.07.2013. Vide e-mail dated 12.07.2013, defendants again requested plaintif to fulfill General Average procedure for enabling them to get the cargo released on arrival. Vide letter dated 16.07.2013, plaintif requested defendants to inform them about the amount required to be paid either to the adjusters or to the carrier for release of cargo and further agreed to pay the same once the cargo arrives in safe and sound condition, without prejudice to their rights. Vide letter dated 17.07.2013, defendants requested plaintif to deal directly with GA adjusters to complete the formalities for lifting the lien of GA adjusters on the cargo.
4. Vide e-mail dated 18.07.2013, plaintif requested the owners of the vessel for advising the carrier to release the CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 6 of 43container at its arrival on the destination as the plaintif had already remitted 50% value of the CFR invoice value by T No. 11520RTT0067813 dated 17.07.2013 for a sum of USD 3432 being 50% of invoice value of USD 6864 against container NO. INKU6671688 as security as per their requirement and the same was duly acknowledged by the owners of the vessels through their e-mail dated 22.07.2013. Vide e-mail dated 19.08.2013, defendants informed plaintif that containers were still at Singapore and further informed that carrier charges and local destination charges have been revised. Vide e-mail dated 13.11.2013, plaintif was informed by defendants that vessel Amsterdam Bridge was going to discharge the containers shortly at Colombo and would be available for fire inspection for cargo interest and plaintif was further requested to join the survey at Colombo. Vide e-mail dated 19.11.2013, plaintif informed defendants that any survey if necessary, can take place only at the place of delivery i.e. ICD Tughlakabad. Vide e-mail dated 20.12.2013, defendants sent a debit note dated 20.12.2013 for Rs.80,494.70/- saying that since the unit was lying at Colombo since longtime, defendant would revert back to plaintif with revised debit note in case any additional charges were found leviable.
5. Plaintif duly paid the provisional debit note freight bill dated 20.12.2013 and balance amount of Rs.22,393.49/- of the CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 7 of 43final bill of Rs.1,02,888.19/- on 24.12.2012 via NEFT and ultimately the delivery order was issued by the defendants to plaintif on 24.12.2013 and the plaintif received the cargo on 24.12.2013 only. Vide e-mail dated 20.12.2013, plaintif informed the defendants that the payment of IHC and other charges are made subject to outcome of civil suit that may be filed against the defendants for several months delay in transportation of the containers. It is further averred that there has been a clear cut delay of one year three months six days from the estimated date of arrival which was 18.09.2012, in delivery of cargo to the plaintif and hence, plaintif is claiming damages for the period w.e.f. 01.09.2013 i.e. the date on which defendants were fully in power and control to deliver the cargo of the plaintif without any further delay, because as per the defendants own intimation, the containers of the plaintif was safe from fire and was stationed at Nhava Sheva Mumbai and therefore, defendants could have got the containers of the plaintif released and to dispatch at the final place of delivery i.e. ICD, Tughlakabad and should not have allowed the shipment to travel from Mumbai to Shanghai then to Colombo then to Singapore then to Mundra and lastly to ICD Tughlakabad.
6. It is further averred that defendants have claimed Rs.19,930.12/- plus service tax towards port additional charges in their provisional debit note/freight bill dated 24.12.2013, which CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 8 of 43the plaintif was not liable to pay as the detention charges were levied for delayed cargo for which defendants are responsible. On this account of delay in delivery of the cargo, there has been immense harassment, humiliation, constant correspondence expenditure etc. to the plaintifs. It is further averred that the unjust and unreasonable delay in delivery of the cargo itself is a proof of breach of contract contained in the BOL entitling the consignees to recover damages sufered by it on account of container' demurrage; storage fees; freight surcharges, loss of profit, mental agony, harassment, humiliation etc, in addition to costs of the litigation and interest, from the Carrier. It is further averred that the transportation of the cargo was not in accordance with usual normal customary practice as there was an unreasonable and inordinate delay and accordingly plaintif vide e-mail dated 20.12.2013 informed the defendants that they would raise a claim of damages from the defendants at the same rate at which defendants had been charging the plaintifs for delay in lifting the cargo. As per defendants the detention tarif was revised w.e.f 01.09.2013, therefore, the plaintif is entitled to claim damages for the period w.e.f. 01.09.2013 till 23.12.2013 (114 days) @ USD 100 i.e. Rs.7,18,998/-. It is further averred that plaintif is also entitled for damages to the tune of Rs.4 Lacs for the mental agony and harassment sufered by it on account of inordinate delay in getting the delivery. Plaintif is also entitled to get refund of the security USD 3432 i.e. Rs. 2,16,456/- which was CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 9 of 43deposited by plaintif without any fault or default on his part. Plaintif is further entitled for refund of Rs.22,393/- paid by him on account of port charges in addition to Rs.19,930/- being actual charges.
7. Defendants contested the case by filing joint written statement wherein preliminary objections were taken to the efect that suit is bad for misjoinder of party as defendant no.2 is an Indian agent of disclosed principal M/s. Mediterranean Shipping Co. S. A. operating as MSC which is an international shipping line having their headquarter at Switzerland and therefore, defendant no.2 who has performed their duty only as an agent, is not personally liable for the alleged claim raised by the plaintif. The second preliminary objection is related to territorial jurisdiction as it is stated that as per clause 10.3 of BOL which is a contract of afreightment between the defendants and the shipper/consignor of the plaintif, this court lacks the territorial jurisdiction to try and entertain the present claim. The suit is also alleged to be liable for rejection for non disclosure of cause of action. It is averred that carriage of goods was undertaken by the defendants under the BOL which forms the contract of carriage which under clause 22 expressly provides for the liability of the plaintif to contribute towards General Average as and when declared. It is further averred that the fire broke on board of vessel carrying the goods from Singapore to Port of delivery and the owner of said carrier CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 10 of 43declared General Average and appointed an independent General Average Adjuster to whom the plaintif made payment directly and therefore, there is no cause of action for filing the present suit.
8. In reply of merits, the defendants took the defence that the ship MSC Monika was destined only upto Singapore and the onward carriage from Singapore to the place of delivery was arranged by the defendants by employing services of other vessel owner through ship MV Amsterdam Bridge which had regular voyages from Singapore with predestined itinerary. The said vessel was to discharge the cargo at Colombo from where it was to go to Mundra Port being the port of discharge. It is further stated that the BOL being the contract of carriage expressly entitled the defendants to engage the services of other carrier for further carriage without recourse to the shipper. It is further stated that plaintif had been explained in detail that the vessel had pre determined voyage originated from Singapore and was to go from Nhava Sheva to Colombo where the goods were to be transshipped to another ship since said vessel MV Amsterdam Bridge was not destined for Mundra port which was the port of discharge as per BOL. It is further the defendants' case that the goods which were to be discharged to Mundra port could not have been discharged at Nhava Sheva unless the shipper or the defendants had sought an amendment to the BOL. It is further CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 11 of 43stated that the container carrying goods caught fire on board and the owner of the vessel declared General Average and appointed General Average Adjuster. The goods of which the plaintif was the consignee were subject to general average as per the definite term of BOL. As the same were to be discharged at Mundra port and could not have been discharged at Nhave Sheva and since the Mundra Port was not in the itinerary of the vessel, goods had to be discharged at the place where the further carrier had arranged for trans shipment for their onward carriage to Mundra Port.
9. Defendants further alleged the reference to another Mumbai fire as oblique and baseless and submitted that defendants themselves have sufered losses on account of fire which was the act of God and perils of trade, beyond the control of any person. Since the General Average was declared, nothing could have been done till the time the claim was settled by General Average Adjuster and defendants had no control over the issue and the delay in settlement of general Average occurred due to adamant and untenable stance of the plaintif. It is further stated that since the General Average was declared by the vessel owner, the consignee/customer has to directly deal with the General Average Adjuster and submit the proof of settlement with the carrier to unable them to process the delivery of the goods after the lien of the onward carrier was settled and the plaintif CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 12 of 43was also asked to do the same by the defendants but the plaintif throughout resisted the compliance of requirement of General Average and was shifting the onus upon the defendants without any cause or justification. It is only after the plaintif realized the futility of non-corporation and began to comply with the terms of carriage, the defendants moved swiftly for enabling the delivery of consignment to the plaintif. Defendants categorically denied that the charges paid by the plaintif were pocketed by defendants and submitted payment of said charges is the liability of the importer of the goods and same were paid by defendants to the authorities like Railway and Port and CANCOR. It is further submitted that the Inland Haulage Charges were also payable in advance to the defendants so as to arrange the wagon of loading.
10. It is further alleged that the adamant attitude of plaintif resulted in delay of the process and the unforeseen calamity of fire which happened in Nhava Sheva when the goods were in transit in the hands of onward carrier was beyond the control of defendants. It is further stated that the goods unfortunately had to travel a long distance between India and Shanghai but the same was at expense of onward carrier and the plaintif was not charged for the same. It is further stated that the ships had proceeded between the ports but the acts of God are not in control of any person. Defendants categorically denied that there was any contemplation of time of performance of carriage in CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 13 of 43any agreement between the parties and further submitted that in such like contract where there is no direct shipping links between the port of loading and port of discharge, the time can not be contemplated. It is further stated that the contract of carriage but for the intervening act of God has been performed by the defendants in most professional and business like manner. Defendants further alleged that present suit has been filed with malafide motive of extorting money from the defendants. Defendants categorically denied that they are responsible for any delay or the losses sufered by plaintif on that account. The plaintif's quantification of alleged losses has also been categorically denied by the defendants. It is further stated that the detention charges for use of container of the shipping line are charged to compensate for the idle capital assets. It is further stated that the additional port charges were never pocketed by the defendants as alleged in the plaint and the plaintif had to pay the same due to its adamant and uncooperative attitude which led to delay in release of consignment. Defendants categorically denied their liability to pay any damages on any account whatsoever to the plaintif and further reserved their rights to sue to claim damages from the plaintif. It is further submitted that the alleged payment to the independent General Average Adjuster appointed by the onward carrier is as per the terms of contract evidenced in the BOL and the same is also in accordance with the international law of carriage of goods emanating from CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 14 of 43international treaties having force of law and recognized and applicable to all contracting countries. The act of fire on board of the onward carrier was an unfortunate act which was beyond control of defendants.
11. In the replication, plaintif categorically denied the averments of written statement and reiterated its stand taken in the plaint as true and correct.
12. After completion of pleadings, following issues were framed vide order dated 06.08.2014:-
1. Whether the suit of plaintif is bad for misjoinder of parties? OPD
2. Whether this court lacks the territorial jurisdiction to try and entertain the present suit? OPD
3. Whether the defendant no.2 is not personally liable for the claim of the plaintif? OPD-2
4. Whether the suit of plaintif is liable to fail in view of clause 22 of the terms and conditions of BOL? OPD
5. Whether the plaintif is entitled to recovery of the suit amount from the defendants? OPP
6. Whether the plaintif is entitled to any pendentelite and future interest? If so, at what rate? OPP
7. Relief.
13. During trial both parties examined one witness each. Plaintif examined its AR Ashish Kumar who was authorized on behalf of plaintif company vide board resolution dated CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 15 of 4305.01.2012 Ex. PW1/2 and he filed his evidentiary affidavit Ex. PW1/A wherein he relied upon various documents Ex. PW1/1 to Ex. PW1/39. Record however, reveals that except document Ex. PW1/1 and Ex. PW1/2, all other documents which were email correspondence exchanged between the parties, have been marked only as the requisite certificate of Section 65-B Indian Evidence Act was not filed in support of said electronic evidence. Ex. PW1/1 is the certificate of incorporation of plaintif company. The commercial invoice raised by the shipper, email letter dated 19.09.2012, 21.09.2012, 20.12.2012 and 17.07.2013 which were filed by the plaintif on record, were exhibited during cross examination of PW1 after the same were put to the witness by the defendant and same were exhibited as Ex. PW1/DX2 to PW1/DX7 respectively. The BOL was also exhibited during the cross examination of PW1 as Ex. PW1/D1.
14. In rebuttal, defendants examined Sh. Dinesh Joshi, the manager of defendant no.2 company as DW1 and he also filed his examination in chief by way of affidavit as Ex. DW1/A wherein he relied upon only two documents i.e. the route chart of SCI Line Route as Ex.DW1/1 and voyage operation schedule as Ex. DW1/2.
15. Both the two witnesses examined by the parties in their evidentiary affidavits deposed on the lines of their respective pleadings in the plaint and written statement, hence, for the sake CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 16 of 43of brevity the same are not reproduced herein. However, the relevant part of their cross examination shall be discussed in later part of this judgment while giving issue-wise findings.
16. I have given my thoughtful consideration to the arguments addressed on behalf of both the parties and also gone through the entire record including the written submissions filed by the parties.
My issues wise findings are as under:-
ISSUE NO.1 & 3:- Whether the suit of the plaintiff is bad for misjoinder of parties? OPD Whether the defendant no.2 is not personally liable for the claim of the plaintiff? OPD2
17. The onus of proving both the said issues was upon the defendants. Since the issues are inter-related, hence, the same are taken up together. Both the above issues were framed in view of the preliminary objection taken by defendants regarding misjoinder of defendant no.2. In the written statement it is alleged that defendant no.2 is the Indian Agent of the disclosed principal M/s. Mediterranean Shipping Company S. A. operating as MSC which is an international shipping line having its headquarter at Switzerland. It is further alleged that defendant no.2 being an agent of a disclosed principal can not be held personally liable for the alleged claim against the principal.
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 17 of 4318. It is argued on behalf of the defendant no.2 that defendant no.2 has performed all its duty as agent of disclosed principal M/s. Mediterranean Shipping Company S. A., which is also evident from the correspondences exchanged between the parties such as letter dated 19.02.2012, 21.09.2012, bill dated 20.12.2012 and 24.12.2013 which are available on record Ex. PW1/DX3, PW1/DX4, Mark AJ and Mark AK respectively, wherein it was expressly mentioned after defendant no.2's name 'as agent'. Counsel for the defendant further argued that as per section 230 of Indian Contract Act 1972, an agent of a disclosed principal is not liable to be sued. It is further argued that defendant no.2 has throughout acted in the capacity of an agent of defendant no.1 and in the light of the judgment of Hon'ble Bombay High Court in Midland Overseas Vs. CMBT Tana AIR 1999 Bombay 401; and another judgment of Hon'ble Supreme Court in Merine Container Services South Pvt. Ltd. Vs. Go Garments (1998) 3SSC 247, wherein it was held that the agent of shipping line can not be sued, defendant no.2 can not be held personally liable for the alleged claim against the principal.
19. In this regard, I have carefully gone through the contents of plaint and the correspondence exchanged between the parties. Section 230 of Indian Contract Act is the relevant provision which reads as under:-
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.Page 18 of 43
Section 230 Agent cannot personally enforce, nor be bound by, contracts on behalf of principal-
In absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is the personally bound by them.
Presumption of contract to contrary. - such a contract shall be presumed to exist in the following cases:-
1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad:
2) Where the agent does not disclose the name of its principal:
3) Where the principal, though disclose, cannot be sued;
20. As per pleaded case of plaintif, defendant no.2 is the agent of defendant no.1 in India and the seller of goods i.e. consignor/shipper had entered into a contract of afreightment with defendant no.1 and it was defendant no.1 who issued BOL no. MSCUZ5526448 dated 07.07.2012 in favour of consignor. It is nowhere the plaintif's case that defendant no.2 ever contracted with plaintif or consignor personally or acted in its independent capacity without disclosing the name of principal. In the instant case, rather plaintif has impleaded both the principal as well as the agent as defendant no.1 & 2 respectively and from various correspondence which are e-mail letter dated 19.09.2012, 21.09.2012 and 24.09.2012, plaintif's own documents filed on record, it is categorically clear that defendant no.2 always acted as agent of a disclosed principal. In the instant case, principal is not only disclosed but has also been impleaded as defendant no.1 CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 19 of 43by the plaintif itself. Plaintif has nowhere pleaded or proved any inherent incapacity of principal so as to be sued in its own name. In such circumstances, in view of the law laid down by Hon'ble Bombay High Court in Midland Overseas (supra), defendant no.2 cannot be sued for the alleged claim against disclosed principal i.e. defendant no.1 herein. In said judgment, the Hon'ble High Court has observed that:-
"Under Section 230 of the Act before the agent can be sued it must be pleaded and shown that principal is undisclosed and the contract, the breach of which is sued on was entered into by the agent as having contracted personally. Where the contract is entered into by agent contracting on behalf of foreign principal who is named and disclosed, the agent cannot be sued personally nor made personally liable.
21. Merely because the principal is a company based in Switzerland, shall not attract the third presumption of Section 230, which only contemplates the inherent incapacity of a principal to be sued in its own name, which is not the case herein.
Accordingly, both the issues are decided against the plaintif and in favour of defendants.
ISSUE NO.2:- Whether this court lacks the territorial jurisdiction to try and entertain the present suit? OPD
22. The onus of proving said issue was again upon the defendants. In this regard, defendants have examined Sh. Dinesh Joshi, Manager of defendant no.2 as DW1. As per his deposition contract of carriage was entered into between plaintif's consignor CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.Page 20 of 43
and defendant no.1, through its agent in Newzeland vide a BOL Ex. PW1/D1 and as per the BOL which is a contract of afreighment, the documents through which plaintif derived title in the goods and consequential the suability has provided for an exclusive jurisdiction for raising the claim, in clause 10.3 which reads as under:-
10.3 Jurisdiction- It is hereby specifically agreed that any suit by the Merchant, and save as additionally provided below any suit by the Carrier, shall be filed exclusively in the High Court of London and English Law shall exclusively apply, unless the carriage contracted for hereunder was to or from the United States of America, in which case suit shall be filed exclusively in the United States District Court, for the Southern District of New York and U.S. law shall exclusively apply. The Merchant agrees that it shall not institute suit in any other court and agrees to be responsible for the reasonable legal expenses and costs of the Carrier in removing a suit filed in another forum.
The Merchant waives any objection to the personal jurisdiction over the Merchant of the above agreed fora.
In the case of any dispute relating to Freight or other sums due from the Merchant to the Carrier, the Carrier may, at its sole option, bring suit against the Merchant in the fora agreed above, or in the countries of the Port of Loading, Port of Discharge, Place of Delivery or in any jurisdiction where the Merchant has a place of business.
23. It is urged on behalf of defendants that parties in an international contract are free to choose their forum and jurisdiction for settlement of the dispute arising out between them. It is further urged that in a domestic contract, parties cannot confer jurisdiction on a court which does not have jurisdiction but in an international contract the parties can choose a forum even if said forum may not be having jurisdiction as per CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 21 of 43the domestic law and in such circumstances, the forum and jurisdiction chosen by the parties shall oust the jurisdiction of all other courts. Likewise, in the instant case, in view of the fact that plaintif who is the consignee of the goods has raised the present claim under the BOL, he (plaintif) is bound by its terms and as being the transferee of a BOL, plaintif has got no better title than the transferor/shipper himself had. In this regard, counsel has placed reliance on the judgment of Hon'ble Supreme Court in British India Stream Navigation Co. Ltd. vs. Shanmughavilas Cashew Industry & Ors. (1990) 3 SCC
481.
24. Per contra, it is argued on behalf of the plaintif that the act of the defendants appearing before the Indian Court and filing their defence by way of written statement will amount to their submitting to the jurisdiction of this court and hence, the argument of lack of territorial jurisdiction is not tenable in law. It is further argued that the defendants had throughout corresponded with the plaintif at their Delhi office and even the claim of general average was paid by plaintif at Delhi and even the damages on account of delay in delivery of consignment has also occurred to plaintif at Delhi therefore, this court even otherwise, is conferred with the jurisdiction as series of cause of action has arisen within its territorial jurisdiction. It is further argued that applicability of law and the territorial jurisdiction of a court based on a cause of CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 22 of 43action, are two separate issues and the territorial jurisdiction of a court cannot be ousted merely because the law applicable is of a third country. In this regard, reliance is placed on judgment of Hon'ble Delhi High Court in Metal Distributors (UK) Ltd. vs. $emmsons International Ltd. & Ors. In FAO (OS) No. 138/2005 decided on 27.08.2008 wherein while relying upon the judgment of Laxman Prasad vs. Prodigy Electronics Ltd. & Ors. (2008) 1 SCC 618, it was held that:-
"applicability of law of a particular country would not mean that the case is also to be filed in that country alone. It was further held that if the parties had agreed upon the applicability of laws of a particular country that would not mean that there was also an agreement upon the territorial jurisdiction of the court of that country as well."
25. However, in the instant case, as per clause 10.3 of BOL, the parties had agreed for filing of any suit either by the Merchant or the Carrier exclusively in the High Court of London and also for the applicability of English Law exclusively, unless the carriage contracted for was to or from the United States of America in which case the exclusive jurisdiction was conferred to United States District Courts for the Southern District of New York and U.S. Law was agreed to be exclusively applicable. In said circumstances, there is no question of applicability of aforementioned judgment of Hon'ble High Court as relied upon by plaintif wherein as per clause 13 of the contract dated 05.01.1996, the parties had agreed only about the applicability of the English Law and no exclusive jurisdiction was given to any CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 23 of 43court.
26. I have also carefully perused the judgment of Hon'ble Supreme Court in British India Stream Navigation Co. Ltd. (supra). In said case, the shipping line was sued by the consignee for damages for short supply of goods which the consignee had purchased from East Africa as the same were shipped in a vessel chartered by the shipping line incorporated in England, pursuant to a contract of afreightment evidenced by three bills of lading issued to the consignor/shipper and from the shipper the bills of lading were received by the consignee who became the holder of bills of lading. As per the law laid down in said judgment, a BOL is not a negotiable instrument in the strict sense as the transferee of a BOL gets no better title than the transferor himself had. The property in the cargo passes to the consignee or the endorseee of the BOL but the contract where under the consignment or endorsement is made has always to be taken into consideration. Thus, the consignee or the endorsee gets such right as its consignor or endorsor had in respect of goods mentioned in the BOL. This is inconformity with private international law applicable to the case. Mere possession of BOL does not unable the holder to sue a person at a place where the transferor himself could not have done. Where the negotiation of a BOL is by the person who had a right to sue on it, mere possession of it does not unable the holder to sue any person who CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 24 of 43was not liable under it and not to sue another who was liable under it to make good the claim. He cannot also sue at a place not intended by the parties when the intention has been expressed.
In said judgment, it was further held that;-
"in the present case the appellant appeared before the Indian Court as defendant to protest its jurisdiction and put forth its defences subject to that protest. Question is whether shipper could or could not have the right to sue at Kochin under the bills of lading. If he could not have done so, the appellant's appearance to protest about jurisdiction would not cure the defect of jurisdiction."
27. Though in said judgment, on account of no specific ground about lack of jurisdiction being taken by the appellant before the lower Appellate Court or in the special Leave Petition before the Hon'ble Supreme Court, the appellant was held to have waived the objection as to the jurisdiction or to have subjected to the jurisdiction of the court.
28. However, in the instant case, the defendants have throughout contested the claim on the ground of lack of territorial jurisdiction and specific issue in this regard was framed by the court and therefore, the defendants cannot be held to have either subjected to the jurisdiction of this court or to have waived of said objection.
29. In view of the fact that the plaintif herein is the CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 25 of 43consignee/holder of bills of lading, he is entitled to get only such rights as the consignor or the endorser had in respect of the goods. Since the consignor/endorser of BOL had agreed to get the dispute resolved by filing the suit only in London Courts, the plaintif herein cannot maintain the suit against the defendants who are also party to said BOL, before any court other than the courts to which the jurisdiction has been confined by the parties under BOL.
30. In the event of English Court alone having the jurisdiction, the application of Indian statutes and the jurisdiction of Indian courts would be to that extent inapplicable. Reliance again placed on the judgment in British India Stream Navigation Ltd. (supra), wherein it was held that, "The Indian Bills of Lading Act, 1856 was based on the English Bills of Lading Act, 1855 (18 & 19 Vict. C. 111) (Act 9 of 1856). Under Section 1 of the Indian Bills of Lading Act, 1856 also every consignee of goods named in a BOL and every endorsee of a BOL to whom the property in goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the BOL had been made with himself.
31. As per clause-2 of BOL, contract evidenced by the BOL is between Merchant and Carrier. The term 'Merchant' as defined in clause (1) of BOL also includes the consignee of the goods and the holder of BOL. In view thereof, plaintif who is the consignee of CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 26 of 43the goods cannot escape from the applicability of exclusion clause (10.3) of BOL, which provides for exclusive jurisdiction to Hon'ble High Court of London for adjudication of any suit filed by the Merchant in respect of the carriage unless the carriage contracted was to or from the Unites States of America in which case, U.S. District Courts for Southern District of New York shall have the exclusive jurisdiction. Though, the BOL was issued to consignor/shipper from whom it was received by the plaintif/consignee but there is nothing on record to show that the shipper/consignor has ever repudiated the stipulations in BOL in any manner.
32. It is trite law that in private international law governing BOL, consignee derives same rights and title as the consignor thereof had under the BOL and when the exclusion clause is held to be binding on consignor/shipper, the same shall also be binded on the consignee.
In the backdrop of above discussion, the issue is decided against the plaintif and in favour of defendants.
ISSUE NO.4:-Whether the suit of plaintiff is liable to fail in view of clause 22 of the terms and conditions of BOL? OPD
33. The onus of proving said issue was cast upon the defendants. For discharging the onus, defendants examined only one witness Sh. Dinesh Joshi who filed his evidentiary affidavit as CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 27 of 43Ex. DW1/A wherein he deposed that as per clause (4) of BOL Ex. PW1/D1, which is a contract afreightment between defendant no.1 and shipper/consignor, carrier was entitled to sub contract/assign carriage to some other Carrier. At the time when agent of defendant no.1 at Christ Church Newzeland was approached by plaintif's consignor/shipper for carriage of goods from Bluf Port at Newzeland to ICD Tughlakabad, New Delhi through Mundra Port in India, the shipper was provided with all the details of services by said agent and shipper was duly informed that defendant no.1 did not have any direct service to India and that further carriage of goods shall be delegated by them to a subsequent Carrier and shipper shall be bound by the terms of subsequent Carrier and it is only upon the consignor's acceptance of said terms, goods were delivered to agent of defendant no.1 at Bluf Port. Pursuant to said terms containers carrying plaintif's consignment were loaded to defendant no.1's Vessel 'MSC Monica' on 06.08.2012 and after the goods reached Singapore the transshipment port, further carriage of goods was entrusted to far Eastern Services Pvt. Ltd. who had SCI (Shipping Corporation of India) line services to India from Singapore only through the marked service route Ex. DW1/1 and voyage operation schedule Ex. DW1/2. Mundra being a small port was not on SCI Line Route and therefore, had to be covered by subsequent Carrier by arranging carriage from Colombo to Mundra Port. Accordingly, goods were transshipper from Singapore to Colombo CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 28 of 43by onward carrier ship 'Amsterdam Bridge' voyage 020W. Witness further deposed that after the vessel left Nhava Sheva for its final destination to Colombo, fire broke out on board of vessel carrying the goods from Singapore to Colombo for onward carriage and consequently, owner of said Carrier declared General Average and appointed an independent General Average Adjuster M/s Groninger Welke Jenssen from Germany. Accordingly, defendant no.2 informed the same to plaintif and asked them to deal directly with General Average Adjuster because the information regarding goods can be provided only by the owners of the goods and it is they (owners) of the goods who have to make/receive payment of Average Adjuster.
34. In this regard, PW1 in his examination in chief has deposed that after receiving the information from defendant no.2 vide their letter dated 19.09.2012, regarding fire on board of vessel MB Amsterdam Bridge on her way to Colombo from Nhava Sheva, plaintif vide their e-mail communication dated 19.09.2012 reverted back to defendant no.2 in order to know as to why Cargo booked to ICD Tughlakabad needed to go to Colombo from Nhava Sheva when the same could have been discharged at Nhava Sheva and routed to ICD Tughlakabad which could have saved both time and cost.
35. It is urged on behalf of plaintif that since the fire on CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 29 of 43the vessel MB Amsterdam Bridge broke out on her way to Colombo from Nhava Sheva, there would have been no occasion for the plaintif to contribute towards General Average, if the goods were released/discharged at Nhava Sheva Port. It is further submitted that inaction on the part of defendants to get the goods released on Nhava Sheva Port had led the plaintif to pay the contribution towards General Average which the defendants are liable to reimburse to the plaintif.
36. Per contra, counsel for defendant argued that the goods which were to be discharged at Mundra Port could not have been discharged at Nhava Sheva unless the shipper or the defendants had sought an amendment to the BOL. Since it was against the specific contract between the parties, the custom rules do not permit a change in the port of unloading unless manifest is amended beforehand. It is further argued that as per Customs Act, the Carrier entering the customs area has to file manifest with full description of goods alongwith the copies of BOL and the shipping line cannot unload goods contrary to manifest which has to be in strict conformity to the BOL. It is urged further that if the consignee of the goods want to change the manifest then he has to approach the shipping line before the manifest of the ship is filed at the Port sought to be changed for the purpose of unloading and for that consignee can either apply directly or through its agent and has to pay some extra charges CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 30 of 43for the amendment. Perusal of the affidavit of DW1 shows that even DW1 has deposed on the same lines of aforementioned arguments of defendant's counsel in Para-9 of his affidavit.
37. DW1 in his cross examination also deposed that by the time the Vessel reached at Nhava Sheva Port, plaintif's cargo was safe from fire but he reiterated that even in absence of any fire, the cargo would have to be carried to Colombo and from Colombo it had to be carried to Mundra Port through another vessel. In answer to the question that the defendants failed to advise the consignee that for change of manifest the consignee had to approach the shipping line, the witness answered that this was a general trade practice that if any changes were required after booking and stuffing of cargo, only the shipper or the consginee have to approach the shipping line and agent. He further deposed that even in case of emergency it is the shipper and the consignee who may request any agent at the port of loading or port of discharge for such amendments or changes in the BOL but, in the instant case neither shipper nor consignee ever made any such request. He further stated that even in such incident of emergency, changes could not be done without clearing all formalities relating to General Average Adjuster.
38. DW1 further deposed that defendants could not go beyond the contract and if any changes were required after CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 31 of 43issuance of BOL and loading of container on the vessel, that could be done only upon shipper's/consignee's written request but, in the instant case, defendants did not receive any such request either from the shipper or the consignee therefore, defendants did not make any changes. It is also necessary to mention here that DW1 in his examination in chief specifically deposed that plaintif being the importer of the goods had been aware of movements of the goods from time to time and in the practice of international carriage of goods, merchants also employ their agents who gather information from the Port Gazettes and other Bulletins issued by the Master of the ship coming to the port. He has further deposed that plaintif had been aware of the fact that as per BOL, the goods were to be unloaded only at Mundra Port and the change of port of discharge cannot be made by the shipping line or the subsequent Carrier unilaterally. Further that, for amendment of port of unloading there has to be change in import general manifest which has to be initiated by the importer or his agent by justifying his reasons before the Custom Authorities and since the consignor of the goods showed for the port of loading as Mundra, shipping line was bound by the same and had to perform the carriage as per said terms and therefore, whatever loss the defendants had sufered was actual part of peril of import & export trade and plaintif should have taken adequate insurance/indemnity for the same.
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 32 of 4339. It is worthwhile to mention that in the cross examination, no suggestion was put to DW1 that shipping line or the subsequent Carrier could have unilaterally changed the port of unloading without the written request of the Merchant nor there is any suggestion that consignor/shipper or the consignee i.e. the plaintif had ever applied for change of port of discharge and in said circumstances, the shipping line i.e. defendants herein were under an obligation to honour the terms of BOL prescribing Mundra as port of discharge. In absence of any change in the written manifest, there was no question of defendants releasing the plaintif's cargo at Nhava Sheva Port as the goods have to be carried to Mundra Port via Colombo as per the marked route of SCI.
40. In the instant suit, plaintif is seeking recovery of Rs.11,57,848/- out of which Rs.2,16,456/- has been claimed against the general average contribution paid by the plaintif to General Adjuster. It is argued on behalf of defendants that in view of clause (22) of BOL, plaintif's claim to said extent is liable to fail. Because, as per said clause in event of accident, danger, damage or disaster before or after commencement of voyage resulting from any cause whatsoever, whether due to negligence or not, for which, or for consequence of which, the Carrier is not responsible by statute, contract or otherwise, the goods and the Merchant shall, jointly and severally, contribute with the Carrier in CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 33 of 43General Average to the payment of any sacrifices, losses or expenses of general average nature, as may be determined by the General Average Adjuster duly appointed by the Carrier, and his determination as to the liability for general average contribution and his computation in the same shall be final and binding on all the parties to the venture.
41. It is argued on behalf of defendant that since the fire broke on the vessel Amsterdam Bridge, after the same left the Nhava Sheva Port for its final destination to Colombo as the cargo was to be transshipped to a subsequent Carrier for its transportation to Mundra Port, therefore, the goods of the plaintif alongwith the other cargo on the vessel were exposed to common danger making the plaintif liable to contribute towards general average as per York- Antware Rule, 1994.
42. It is further argued that as per the information received from the General Average Adjuster, the ship carrying burnt goods on board sailed through many places. The Colombo Port where it was to reach at last was not capable for handing the ship with burnt cargo and the ports at Singapore and Philippines were asking for high charges therefore, the vessel was ultimately taken to Shanghai Port in China where the burnt cargo was segregated and after the ship was repaired, it came back to Colombo where the goods were discharged for onward carriage to Mundra Port CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 34 of 43from where they ultimately came to ICD Tughlakabad, therefore, the delay is not attributable to defendant so as to make them liable for any compensation/damages.
43. As per clause 22 of BOL, parties had agreed for adjustment of general average claim at any place as per Carrier's auction in accordance with York Antewerp Rule, 1994 except Rule
22. Further, it was agreed that once general average is declared by Carrier, the goods on board as well as the merchant shall jointly and severally, contribute with the Carrier in general average to the payment of any sacrifice, losses, of expenses of a general average nature and shall also pay salvage and special charges incurred in respect of goods as determined by an independent General Average Adjuster duly appointed by the Carrier and all such deposits shall, if required, be made by the goods, shipper, consignee or owner of goods to the Carrier before delivery.
44. As already noted above, a BOL is intended to provide for rights and liabilities of parties arising out the contract of afreightment therefore, if the consignee claims the goods under a BOL, he is bound by the terms of BOL.
45. As per clause 4.1 of BOL, Carrier shall be entitled to sub contract on any terms whatsoever the whole or any part of CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 35 of 43carriage, including liberty to further sub contract. Clause 4.2 says that merchant undertakes not to raise any claim against agent or sub contractor of Carrier, if any liability whatsoever in connection with the carriage of goods, whether or not arising out of negligence on the part of such person.
46. Considering the aforementioned terms of BOL, it is clear that Carrier was entitled to sub contract with any other Carrier for carriage of goods and hence, the act of defendant no.1 in loading the goods to another vessel Amsterdam Bridge at Singapore, for its onward transit to Colombo via Nhava Sheva cannot amount to be a breach of contract of afreightment. Furthermore, as already held above, defendants without any beforehand written request from plaintif could not have got the cargo released on Nhava Sheva Port and since the accident of fire took place during transit of goods from Nhava Sheva to Colombo, as per the terms of clause 22 r/w clause-4, plaintif was liable to pay general average contribution as determined by General Average Adjuster and cannot seek recovery of said payment from defendants herein. In view thereof, plaintif's claim to the extent of Rs.2, 16, 456.24/-, paid by him towards contribution of general Average adjuster deserves to be rejected. The issue stands accordingly, decided against the plaintif and in favour of defendants.
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 36 of 43ISSUE NO.5:-Whether the plaintiff is entitled to recovery of the suit amount from the defendants? OPP
47. The onus of proving said issue was upon the plaintif. In the instant case, plaintif has claimed recovery of Rs.11,57,847/- under following heads:-
1 Security amount deposited by Rs.2,16,456.24/-
plaintif 2 Port detention charges Rs.22,393.49/-
3 Damages on account of delayed Rs.7,18,998/-
delivery of Cargo for 114 days @ USD 100 per day.
4 Damages on account of Rs. 2,00,000/-.
harassment, mental agony,
suferance, humiliation and extra
pains on account of delayed
delivery
Total Rs.11,57,847/-
48. As far as recovery under first head of security amount is concerned, the same was paid towards general average contribution and in view of my finding on issue no.4, plaintif is not entitled to recovery of said amount.
49. As regard the other claim relating to port detention charges, damages on account of delayed delivery of cargo and on account of mental harassment and suferance, the claim of the CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 37 of 43plaintif has been refuted by the defendants on the ground that it was plaintif who throughout resisted to complete the formalities which were necessary for expeditious transshipment of plaintif's consignment. It is further averred that once the general average is declared nothing could be done till the time the general average claim is settled by the consignee with the General Average Adjuster and since the plaintif initially kept avoiding said payments and lastly, settled the claim with the General Adjuster only in the month of July, 2013 and made payment of final freight bill only on 24.12.2012, the defendants cannot be held liable for the damages sufered by plaintif on account of said delay in delivery of cargo. It is further averred that delay in settlement of general average claim occurred due to adamant and untenable stand of plaintif as the plaintif kept corresponding with the defendant no.2 despite the fact that in case of general average, the customers have to directly deal with the General Adjuster because carrier has no control over the Average Adjuster.
50. I have carefully perused the pleadings and the documents placed on record by the plaintif. As per the plaintif's own documents i.e. e-mail dated 23.01.2013, 12.07.2013 & 17.07.2013, plaintif was time and again requested by the defendants to directly deal with the General Adjuster and to fulfill the requisite formalities for settling the claim with General Adjuster so as to enable the defendants to get the cargo released CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 38 of 43on its arrival and it is only on the repeated requests of the defendants, plaintif ultimately remitted the security for payment of contribution towards General Adjuster only on 17.07.2013 vide CFR invoice value by TN number 11520RTT0067813. From the correspondence placed on record, it is clear that defendants had been throughout in touch with the plaintif and giving it requisite information for settling the claim with the General Adjuster and also for completing the other formalities regarding the payment towards detention of the containers at diferent ports. On the other hand, plaintif has failed to bring out any material on record to show any breach or deficiency on the part of the defendants. Even after payment of general average contribution, the vessel with consignment had to travel diferent ports of diferent countries on account of the burnt cargo on board for which the defendants cannot be held responsible so as to fasten them with any liability.
51. The accident of fire is one of the perils of Marine Trade for which plaintif should have got the consignment insured. During the cross examination, plaintif's witness was also asked about any insurance policy taken by plaintif in respect of the consignment in question to which the witness replied that he had given the insurance policy to his counsel. But, the same was never placed on record either by the plaintif or his counsel, so as to show that no such risk was covered under the insurance policy CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 39 of 43and if covered, plaintif has not received any such claim from the insurance. PW1 himself admitted in his cross-examination that inland haulage charges, delivery charges, washing charges and other sundry charges were paid by the plaintif to the defendants' company as per the contract of carrier. The said testimony of PW1 falsify the plaintif's stand that said charges were illegally raised and pocketed by the defendants. As per deposition of DW1, the charges were paid by defendants to the authorities like Railways, Port and CANCOR and same were the liability of the importer of the goods. It is further deposed that after settling the claim of General Adjuster, plaintif was required to submit the proof with the defendants to enable them to process the delivery of goods after lien of onward carrier was settled. It is further deposed that the goods had to travel long distances between India and Shanghai though the same was done at the expenses of onward carrier, on account of the fact that Colombo port where it was to reach at last, was not capable of handling the burnt cargo and the Ports of Singapore and Philippines were asking for high charges and it is only after the repairs at Shanghai port in China, the vessel came back to Colombo where the goods were discharged for onwards carriage to Mundra Port. There is no rebuttal to this deposition of DW1 from the plaintif's side as no question or suggestion was put to DW1, to deny his assertions in this regard.
52. In view of my findings on issue no.4, defendants have CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 40 of 43duly proved on record that as per the terms of BOL, the port of delivery/discharge was Mundra Port and in absence of amendment in written manifest, the defendants could not have got the consignment released at Nhava Sheva port and thus, there was no breach of contract on the part of the defendants for not getting the cargo released at Nhava Sheva; the delay which occurred on account of the fire on board which led to the declaration of a general average by the vessel owner and subsequent travel of vessel to diferent countries and detention of containers on diferent ports cannot be attributed to defendants and in view thereof, plaintif is not entitled even to claim any damages on account of mental harassment.
53. As per Clause 17 of BOL, the carrier, its servants or agents shall have a lien on the goods and any document relating thereto for freight and for general average contribution to whomsoever due. It further provides that carrier, its servants or agents shall also have a lien against the merchant on the goods and any document relating thereto for all sums due from the merchant to the carrier. As already noted above, as per Clause 4.1 of BOL, the carrier is entitled to sub contract the whole or any of the part of carriage, including liberty to further sub contract. 4.2 of BOL further envisages merchant's undertaking that no claim whether arising in contract of bailment, tort or otherwise shall be made against any sub contractor of the carrier which imposes or CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 41 of 43attempts to impose upon any of them or any vessel owned or chartered by anyone of them, any liability whatsoever in connection with the goods or carriage of goods whether or not arising out of negligence on the part of such person.
54. It is also worthwhile to mention that as per Clause 14.6 of BOL, the merchant shall comply with all the regulations, requirements of the customs, port and other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses (including, without prejudice to the generality of forgoing freight for any additional carriage undertaken), incurred or sufered by reason thereof or by reason of any illegal, incorrect or insufficient declaration, marking, numbering or addressing of goods, and shall indemnify the carrier in respect thereof including reasonable expenses and cost.
55. As per Clause 9.1 of BOL, the carrier may at any time and without notice to merchant (a) use any means of transport or storage whatsoever; (b) transfer the goods from one conveyance to another including transshipping or carrying the goods on a vessel other than the vessel named on the front hereof or by any other means of transport whatsoever, even though transshipment or forwarding of the goods by such means may not have been contemplated or provided for herein.
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 42 of 4356. Clause 9.2 of BOL provides that anything done or not done in accordance with Clause 9.1 or any delay arising therefrom shall be deemed to be within the contractual carriage and shall not be a deviation.
57. Clause 2 of BOL deals with contracting parties and warranty and reads as under:-
The contract evidenced by the bill of lading is between carrier and merchant. Every person defined as "Merchant" is jointly and severally liable towards the carrier for all the various undertakings, responsibilities and liabilities of the merchant under or in connection of this bill of lading and to pay the freight due under it without deduction of set off. The merchant warrants that in agreeing to the terms and conditions in this bill of lading, he is the owner of the goods and he does so with the authority of the owner of the goods or of the person entitled to possession of the goods or of the bill of lading.
58. The above discussed facts and circumstances of the case, if analyzed in the light of aforementioned terms and conditions of BOL, do not warrant any imposition of any liability upon defendants for any alleged damages sufered by defendants on account of delay. But for the reason of fire on board, which was beyond the control of defendants, the consignment was to reach within the expected time. In the light of aforementioned terms and conditions of bill of lading, the carrier i.e. defendants herein cannot be held liable for alleged losses sufered by plaintif on account of delay, containers demurrage, storage fees, freight surcharges, loss of profit, mental agony and harassment. Even CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.
Page 43 of 43otherwise, except the verbal assertion in evidentiary affidavit of PW1, plaintif has failed to adduce any iota of evidence to prove on record the damages allegedly sufered by him on account of delay.
Having regard to aforementioned discussion, this issue is decided against the plaintif and in favour of defendants.
ISSUE NO. 6:- Whether the plaintiff is entitled to any pendentelite and future interest? If so, at what rate? OPP
59. In view of my findings on aforementioned issue no.5, this issue is also decided against the plaintif and in favour of defendants.
ISSUE NO. 7:- Relief
60. In view of my findings on issue no.1 to 6, the suit of the plaintif is dismissed with no order as to costs.
61. Decree sheet be prepared accordingly. File be consigned to record room.
(Sunena Sharma) Addl. Distt Judge-03/South-East Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 30.11.2016.
CS No. 188/14 M/s Eximcorp India Pvt. Ltd. vs. M/s Mediterranean Shipping Company SA & Anr.