Calcutta High Court
Seahorse Shipping And Shipmanagement ... vs The Board Of Trustees For The Port Of ... on 6 May, 1988
Equivalent citations: AIR1989CAL212, AIR 1989 CALCUTTA 212
Author: Suhas Chandra Sen
Bench: Suhas Chandra Sen
ORDER Suhas Chandra Sen, J.
1. M/s. Seahorse Shipping and Shipmanagement Private Limned, the petitioner 1 herein, is a company incorporated under the Companies Act, 1956. It carries on business as a Steamer Agent in the Port of Calcutta and acts as Steamer Agents of various parties including Ceylon Shipping Corporation, a company incorporated in Sri Lanka.
2. The Ceylon Shipping Corporation carries on business as shipowners and carriers of goods. The goods which are destined for delivery in India are picked up by Ceylon Shipping Corporation from various Ports and are unloaded at Colombo. From Colombo the goods are transhipped to vessels operated by Ceylon Shipping Lines, a subsidiary of Ceylon Shipping Corporation, which operates a feeder service between Colombo and the Indian Ports. Delivery of cargo at Indian Ports are given on the basis of production of Bills of Lading issued by the Ceylon Shipping Corporation.
3. It is the case of the petitioner that the petitioner 1, M/s. Seahorse Shipping and Shipmanagement Private Limited (hereinafter described as the Seahorse) at all material times acted and still acts as the Steamer Agent of the Ceylon Shipping Corporation. It renders service as such Agents to many other shipping companies. The Ceylong Shipping Corporation for the purpose of carrying cargo from Colombo to Indian Ports and from the Indian Ports to Colombo used to charter and still charters slots in container ships. It is the case of the petitioners that it acted as Agent on behalf of any shipper for unloading cargo from ships and that it acted as slot charterer of any ship be longing to the Ceylon Shipping Corporation or any other company. This assertion of the petitioner is to be borne in mind in deciding the controversy raised in this case.
4. On or about 10th Jan., 1985 M. V. Stein Hoft, a vessel chartered by the Ceylon Shipping Corporation, discharged a consignment of 15 containers at Netaji Subhas Dock, Calcutta. The containers had been originally shipped from the Port of Kobe at. Japan. The containers were stated to have been fully stuffed with computer print out paper waste compressed in bales and/or bundles. The cargo was consigned to the order of the Bank of India and the party to be notified on arrival of the cargo was mentioned in the Bill of Lading as M/s. Sanjay Paper and Chemical Industries Limited. Calcutta (hereinafter described as the Consignee). The 15 containers were described as F.C.L. containers (Full Container Load). The point that containers were transhipped is not material for the purpose of this case.
5. Seahorse as Steamer Agent of the Ceylon Shipping Corporation gave notice on 2nd Jan., 1985 to the consignee about the arrival of the consignment at the Port of Calcutta. But when the ship, M. V. Stein Hoft. arrived at the Calcutta Port on 10th Jan., 1985 and discharged cargo on 11th Jan., 1985, the consignee did not take any step for taking delivery of the said consignment of 15 containers. The consignment was allowed to lie unclaimed at Nelaji Subhas Dock, Calcutta.
6. The Calcutta Port Authority allows free time of 21 days for removal of cargo, if cargo is not removed within the free time, then rent charge becomes payable from the 22nd day of the landing of cargo. There is no dispute that rent charges in respect of the aforesaid unclaimed cargo contained in 15 containers become payable with effect from 2nd Feb., 1985. The controversy however, is about the liability of the Seahorse to pay the rent charge levied by the Port. This controversy has two aspects. It is the case of the Port that the petitioner as Steamer Agent had to do the destuffing operation within the free period of 21 days from the date of landing of the cargo.
7. The Port has held the petitioners liable for the delay in destuffing of all the containers and has levied charge on the petitioners. It is for the Port to establish that facts exist which will make the petitioners liable for these charges. The case of the petitioners is that it is not the duty of the petitioners to destuff the containers after unloading. Nothing has, however, been produced on behalf of the Port to establish how this duly has been cast upon the petitioners who are Steamer Agents.
8. On behalf of the petitioners, reliance has been placed on certain provisions of India-Pakistan-Bangladesh-tariff which is annexure "A" to the affidavit of Vilas Waman Katra affirmed on 13th Nov., 1986.
"1.4. DEFINITIONS Carrier Carrier includes the owner of the charterer of the vessel who enters into a contract oi carriage with a shipper.
Merchant Includes the Shipper, holder of the Bill of Lading, consignee, receiver of the Goods any person owning or entitled to possession of the Goods or of the Bill of Lading, and any one acting on behalf of any such person.
Container Denotes-an item of equipment so defined by the International Standars Organization.
Goods Any cargo tendered by the Merchant and accepted by the Carrier.
FCL/FCL (Full Container Load) Denotes a Container load of goods, the Merchant being responsible for packing and unpacking the container.
(1) LCL/LCL (Less than Container Load) Denotes Goods in any quantity intended for carriage in a container, the Carrier being responsible for packing and unpacking the container the cost of which being recoverable from the Merchant by way of the LCL Service Charge.
FCL/LCL Denotes a shipment of Goods which the Merchant is responsible for packing into the container and the Carrier.
(1) is responsible for unpacking the container, the cost of unpacking being recoverabale from the Merchant by way of the LCL Service Charges.
LCL/FCC Denotes a Shipment of Goods which the Carrier .
(1) is responsible for packing into the container, the cost of which being recoverable from the Merchant by way of the LCL Service Charges and the Merchant is responsible for unpacking the container."
9. The case of the petitioners that the containers in this case were F.C.L. containers has not been disputed by the respondents. In that event, liability to destuff these containers is of the Merchant and not the Carrier.
10. Therefore, the petitioners as Steamer Agent or the Agent of the Carrier could not be saddled with the responsibility for destuffing such containers. Under these circumstances, it is difficult to see how the Port Authority can lawfully levy any charge on the carrier or its agent for delay in packing or unpacking the containers.
11. On behalf of the respondents, my attention has been drawn to the exract from the proceedings of the trustees Eleventh Meeting held on the 21st Oct., 1982. In that meeting, it was resolved, inter alia, (1) The date of destuffing may continue to be treated as the date of landing of the cargo contained in the containers and rent on such cargo may be recovered in terms of Section 6(A) of the Trustees' Scale of Rates. In other words, in all cases, whether destuffing be done within the free time of 15 days or thereafter, the consignee should always be given the benefit of 3 clear working days after the date of destuffing of the containers, after which rent, if any, may be realised from the consignee.
(ii) Rent on cargo transported in containers may be recovered from the Marine Account of the Steamer Agents from the 16th day from the date of landing of the containers up to and inclusive of the date of destuffing, if destuffing is not done sithin the free time of 15 days.
12. This resolution passed by the trustees fails to take notice of the fact that the responsibility for destuffing an F.C.L. container is that of the consignee. In fact, there are some internal contradictions in the resolution itself. It gives the consignee benefit of three clear working days after the date of destuffing of the containers after which rent if any, may be realised from the consignee. But the resolution records that rent on cargo transported in containers may be recovered from the Marine Account of the Steamer Agent from the 16th day from the date of landing of the containers upto and inclusive of the date of destuffing, if destuffing is not done withihin the free time of 15 days.
13. In other words, if the Steamer Agent fails to destuff a container within the free time of 15 days, the rent of cargo transported is liable to recovered from the Marine Account of the Steamer Agent from the 16th day. That means that even if the consignee fails to take delivery of the cargo after destuffing on the 16th day, the Steamer Agent will remain liable for the failure of the consignes to remove the cargo and his Marine Account is likely to be debited.
14. The Steamer Agent has no contractual or statutory relationship with the consignee. It has not been stated by the respondents that the Steamer Agent will be liable to destuff the cargo from a container even in a case where the full load of the container is for the benefit of a particular consignee. If the Steamer Agent fails to destuff the cargo within the free time of 15 clays before levying any charge, the Port Authority must establish that the Steamer Agent had a responsibility for destuffing and his failure to destuff within the free time of 15 days has resulted in unnecessary occupation of port area.
15. The liability of a Steamer Agent can only be statutory or contractual. The Steamer Agent has not entered into any contract with the consignor or the consignee. As Agent of the carrier he may have some duty to perform in respect of the cargo carried by the carrier. It has not been shown how the carrier will be liable for payment of port charges because of the failure of the consignee to take delivery of the goods. Assuming that the goods remain in the port area because of the failure of the Steamer Agent to destuff the goods, it has not been established how this failure will make the Steamer Agent liable to pay port charges for the entire period of time during which the goods lay unremoved in the port area before and after destuffing.
16. There is also no statutory liability of a Steamer Agent to pay occupancy charges for goods which were not removed by the consignee or the consigner or their agents from the port area. The port authority has also not been authorised by the statute to levy any such charge, in exercise of rule-making power the port authority cannot impose a liability upon a Steamer Agent which is contrary to the Statute and also arbitrary.
17. Moreover, a point has been made on behalf of the petitioner which is also of substance. The containers contained cargo belonging to the respondents. At the highest, the Port Authority could levy occupancy charges in respect of those containers upon the Steamer Agent. The respondent were not entitled to levy any cargo charges upon the Steamer Agent. The Steamer Agents have no control over the cargo and are not responsible for removal of the cargo. If the cargo has been left unremoved, it is the consignee or the consignor of the cargo who will have to pay the occupancy charges. But a Steamer Agent cannot be compelled to pay for the Cargo over which he has no control.
18. In this case, the Port Authority is seeking to recover charges from the Steamer Agent because of the delay in removing the goods by the consignee. Under the provisions of Section 59 of the Major Port Trust Act, 1963 the Board has a lien on goods for all rates and rent due to the Board in respect of goods which have baeen placed in any area belonging to the Board. Sub-section (2) of Section 59 provides that such lien of the Board shall have priority over all other Hens and claims except for general average and for the ship owner's lien upon the said goods for freight and other charges.
19. The Board has also been empowered by Section 61 to sell by public auction goods in respect of which rent is payable. Section 61 is important for this case and is as under : --
"61. Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged.-- (1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty four hours after the landing of the animals or goods as the Board may think fit, sell by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner such goods or so much thereof as, in the opinion of the Board, may be necessary-
(a) if any rates payable to the Board in respect of such goods have not been paid, or
(b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or
(c) if any lien of any ship-owner for freight or other charges of which notice has been given has not been discharged and if the person claiming such lien for freight or other charges has made to the Board an application for such sale.
(2) Before making such sale, the Board shall give ten days' notice of the same by publication thereof the Port Gazette, in the Official Gazette and also in at least one of the prinicipal local daily newspapers :
Provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of.
(3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known, notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the decision to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent.
(4) Notwithstanding anything contained in this section, arms and ammunition and controlled goods may be sold at such time and in such manner as the Central Government may direct.
Explanation.-- in this section and section 62 -
(a) "arms and ammunition" have the meanings respectively assigned to them in the Arms Act, 1959;
(b) "controlled goods" means goods the price or disposal of which is regulated under any law for the time being in force."
20. It will appear from this section that the Board has been invested with the power to sell goods placed in its custody for any rates or rent payable to the Board in respect of any goods in its custody. The right to sell has been given in Sub-section (1) of Section 61. The manner in which the sale can be effected has been set out in Sub-section (2) and (3) of Section 61. Sub-sec. (2) lays down that before exercising power of making such sale the Board shall give ten days' public notice.
21. Sub-section (3) of Section 61 provides that notice shall be given to the owner by letter if the address of the owner of the goods has been stated on the manifest of the goods or in any other documents which have come in the hands of the Board or is otherwise known.
22. Sub-section (3) has also made it clear that omission to give individual notice to the owner shall not prevent a bona fide purchaser for value from acquiring title to the goods.
23. But it is to be noted that there is no provision for giving any notice to the Steamer Agent or the Carrier. This section clearly indicates that it is the owner who is liable for payment of the rates and also the rent in respect of goods over which he may exercise lien. Before exercising such right of sale, apart from public notice, a notice has to be given only to the owner of the goods where the address of the owner is known to the Board. No notice is required to be given to any Steamer Agent because the sale of the goods will not prejudicially affect the Steamer Agent in any way.
24. Chapter V of the Major Port Trust Act, deals with Works and Services to be provided at Port. Section 35 confers upon the Board power to execute certain works and provide appliances for that purpose. Section 35A empowers the Board to provide public landing places and also bathing ghals etc. Section 36 provides that the Board may undertake to carry out on behalf of person any work or service or any class of works and services on such terms and conditions as may be agreed upon between the Board and the person concerned.
25. Some argument has been made about the scope of Section 36 and it has been stated in the affidavit on behalf of the Board that in this case, services were rendered under Section 36 by the Board for which the rent has become payable.
26. But Section 36 contemplates providing any service "on behalf of any person.....on such terms and conditions as may be agreed upon between the Board and the person concerned".
27. In order to bring the case within Section 36, the Board will have to establish that there was a contract between the Board and the Steamer Agent for rendering any service. The Board has not been able to establish any contract which was entered into by and between the Board and tahe Steamer Agent.
28. It has been stated on behalf of the petitioners that the Board has allowed landing facilities and also storage space for the containers under Section 42. This contention appears to be of substance.
29. Sections 37, 38, 39, 40 and 41 relate to user of dock, berth, wharf etc. by sea going vessel and are not relevant for the purpose of this case.
30. Section 42 provides for rendering of certain service by the Board or any other person empowered by the Board. These services include, inter alia, receiving, removing, shifting, transporting, storing or delivering goods brought within the Boards' premises.
31. Section 42 is also important for the purpose of this case and is as under : --
"42. Performance of services by Board of of her person -- (1) A Board shall have power to undertake the following seviccs : --
(a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board;
(b) receiving, removing, shifting, transporting, storing, or delivering goods brought within the Board's premises;
(e) carrying passengers by rail or by other means within the limits of the port or port approaches, subject to such restrictions and conditions as the Central Government may think fit to impose;
(d) receiving and delivering, transporting and booking and despatching goods/ originating in the vessels in the port and intended for carriage by the neighbouring railways or vice versa, as a railway administration under the Indian Railways Act, 1890, and
(e) piloting, hauling, mooring, remooring, hooking or measuring of vessels or any other service in respect of vessels.
(2) A Board may if so requested by the owner take charge of the goods for the purpose of performing the service or services and shall give a receipt in such form as the Board may specify.
(3) Notwithstanding anything contained in this section, the Board may, with the previous sanction of the Central Government, authorise any person to perform any of the services mentioned in Sub-section (1) on such terms and conditions as may be agreed upon.
(4) No person authorised under Sub-section (3) shall charge or recover for such service any sum in excess of the amount leviable according to the scale framed under Section 48 or Section 49 or Section 50.
(5) Any such person shall, if so required by the owner, perform in respect of goods any of the said services and for that purpose lake charge of the goods and give a receipt in such form as the Board may specify.
(6) The responsibility of any such person for the loss, destructaion or deterioration of goods, of which he has taken charge shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act 1872.
(7) After any goods have been taken charge of and a receipt given for them under this Section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transhipped''.
32. It will be seen from the provisions of sub-see. (1) of Section 42 that the services that the Board may render include receiving as well as storing of goods brought within the Board's premises. Sub-sec. (2) of Section 42 empowers the Board to render any of the services mentioned in Sub-section (1) "if so requested by the owner".
33. Similarly, Sub-section (5) provides that any person who is authorised by Sub-section (3) of Section 42 may perform any of the services mentioned in Sub-section (1) of Section 42 if requested by the owner of the goods.
34. Under the provisions of the Major Port Trust Act, a Steamer Agent cannot call upon a board to render any of the services mentioned in Sub-section (1) of Section 42. The Steamer Agent also cannot call upon a person authorised under Sub-section (3) of Section 42 to render any of the services enumerated in Section 42(1).
35. These provisions of the Act go to show that the Steamer Agent has no statutory rights or liability in respect of the goods unloaded by a ship. The services that the Board may render in respect of those goods must be treated as services rendered to the owner of the goods. If any notice is to be given for non-payment of rates or rent in respect of storage charge of the goods, a notice has to be given, if at all, to the "owner of the goods and at the address mentioned in the manifest."
36. The definition of the word "Owner" as given in Section 2(c) of the Act is as under :--
" 'Owner' (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port includes any part-owner, charterer, consignee mortgages in possession thereof."
37. Under this definition, a person who is treated as "Owner" includes the "consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods". The "Agent" in the context of this definition must be an agent of the consignor or the consignee or the shipper. Every agent of the consignor or the consignee or the shipper will not be treated as "owner" but only those agents who have not been engaged for the sale, custody, loading or unloading of such goods by the consignor, consignee or shipper will be treated as "owner". This definition of "owner" cannot be construed to mean that an agent of any person who is not a consignor, consignee or shipper and who has anything to do with loading or unloading of goods will be treated as owner.
38. It is to be noted that the definition of "owner" does not include the carrier. It will be absurd to construe the definition in a way that will confer greater rights and larger obligations on the agent than that of the principal. If the carrier has not been treated as the owner of the goods, I fail to see how the agent of the carrier can be treated as owner. The primary responsibility for unloading cargo at the port of destination is that of the carrier. The carrier may engage an agent for inter alia, unloading goods from the Steamer on his behalf. In this process, the agent does not incur a greater liability than the carrier in respect of the goods. Section 2(o) of the Act has not treated the carrier as owner of the goods carried by the carrier. It is only the consignor, consignee and the shipper who have been treated as owners. The "Agent" in this context can only be an agent of the consignor, the consignee or the shipper.
39. Moreover, the word "owner" has to be understood in the sense defined in Section 2(o) "unless the context otherwise requires". The broad definition of the word "owner" cannot be given as a matter of course wherever the term has been used in the Act. Chapter V of the Act, deals with "Works and Services to be provided at Ports". In that Chapter the Board has been authorised to render various services (Section 42). The Board has been made responsible for, inter alia, loss of goods (Section 43).
40. Chapter VI of the Act deals with imposition and recovery of rates at Ports. Section 48 provides as follows : --
"48. (1) Every Board shall from time to time frame a scale of rates at which, and a statement of the conditions under which, any of the services specified hereunder shall be performed by itself or any person authorised under Section 42 at or in relation to the port or port approaches-
(a) transhipping of passengers or goods between vessels in the port or port approaches:
(b) landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within the limits of the port or port approaches;
(c) cranage or portage of goods on any such place;
(d) wharfage, storage or demurrage of goods on any such place;
(e) any other service in respect of vessels, passengers or goods, excepting the services in respect of vessels for which fees are chargeable under the Indian Ports Act.
(2) Different scales and conditions may be framed for different classes of goods and vessels."
41. Section 49 provides : --
"49. Scale of rates and statement of conditions for use of property belonging to Board.-
(1) Every Board shall, from time to time, also frame a scale of rates on payment of which, and a statement of conditions under which, any property belonging to, or in the possession or occupation of, the Board, or any place within the limits of the port or the port approaches may be used for the purposes specified hereunder : --
(a) approaching or laying at or alongside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels;
(b) entering upon or plying for hire at or on any wharf quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods;
(c) leasing of land or sheds by owners of goods imported or intended for export or by steamer agents;
(d) any other use of any land, building, works vessels or appliances belonging to or provided by the Board.
(2) Different scales and conditions as may be framed for different classes of goods and vessels.
(3) Notwithstanding anything contained in Sub-section (1), the Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under Sub-section (1)."
42. The fees that are leviable by the Board must have some nexus with the services rendered by the Board. If the Board allows goods to be stored in any area belonging to the Board, the Board is entitled to storage or demurrage charge of the goods. The charge must be paid normally by the owner of the goods which can only be the consignor or consignee. A Steamer Agent who is engaged by the carrier to look after their interest cannot be called upon to pay the storage-charge any more than the owner of the vessel can be made liable for such charges. It is irrational to call upon the carrier of the goods to pay storage charges for the goods. In fact, the Act has specifically protected the right of a ship owner or his agent by the provisions of Section 60 which are as under : --
"60. Ship-owner's lien for freight and other charges. -- (1) if the master or owner of any vessel or his agent, at or before the lime of landing from such vessel any goods at any dock, wharf, quay, stage, jetty, barth, mooring or pier belonging to or in the occupation of a Board, gives to the Board a notice in writing that such goods are to remain subject to a lien for freight or other charges payable to the ship-owner, to an amount to be mentioned in such notice, such goods shall contunue to be liable to such lien to such amount.
(2) The goods shall be retained in the custody of the Board at the risk and expense of the owners of the goods until such lien is discharged as hereinafter mentioned; and godown or storage rent shall be payable by the party entitled to such goods for the time during which they may be so retained.
(3) Upon the production before any officer appointed by the Board in that behalf of a document purporting to be a receipt for, or release from, the amount of such lien, executed by the person by whom or on whose behalf such notice has been given, the Board may permit such goods to be removed without regard to such lien, provided that the Board shall have used reasonable care in respect to the authenticity of such document."
43. Similarly, if goods are not removed from the premises of the Board within the specified time limit, Section 62 provides : --
"62. Disposal of goods not removed from premises of Board within time limit.-- (1) Notwithstanding anything contained in this Act, where any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month, from the date on which such goods were placed in their custody, the Board may, if the address of such owner or person is known, cause a notice to be served upon him by letter delivered at such address or sent by post, or if the notice cannot be so served upon him or his address is not known, causea notice to be published the Port Gazette or where there is no Port Gazette, in the Official Gazette and also inat least one of the prinicpal local daily newspapers, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction or by lender private agreement or in any other manner.
Provided that where all the rates and charges under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board.
(2) The notice referred to in Sub-section (1) may also be served on the agents of the vessel by which such goods were landed.
(3) If such owner or person does not comply with the requisition in the notice served upon him or published under Sub-section (1), the Board may at any lime after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction after giving notice of the sale in the manner specified in sub-sees. (21 and (3) of Section 61.
(4) Notwithstanding any thing contained in Sub-section (1) or Sub-section (2) -
(a) the Board may, in the case of animals and perishable or hazardous goods, give notice of removal of such goods although the pariod of one month or, as the case may be, of two months specified in Sub-section (1) has not expired or give such shorter notice of sale and in such manner as, in the opinion of (he Board, the urgency of the case requires;
(b) arms and ammunition and controlled goods may be sold in accordance with the provisions of Sub-section (4) of Section 61.
(5) The Central Government may, if it deems necessary so to do in the public interest, by notification in the Official Gazette, exempt any goods or classes of goods from the operation of this section."
44. Sub-section (2) of Section 20 makes it clear that theagenl of the vessel is not being treated as the owner. Sub-section (1) of Section 62 lays down that where any goods placed in the custody of the Board arc not removed "by the owner or other person entitled thereto" within one month, the Board may., if the address of "such owner or person is known", cause a notice to be served upon him. The "owner" in this subsection does not include a Steamer Agent. Sub-sec. (2) of Section 62 specifically provides that the notice referred to in Sub-section (1) may also be served upon "the agent of the vessel by which such goods were landed". Sub-sees. (1) and (2) of Section 62 make a clear distinction between an owner and an agenl of the vessel by which goods were landed.
45. Section 63 provides :--
"63. Application of sale proceeds. -- (1) The proceeds of every sale under Section 61 or Section 62 shall be applied in the following order -
(a) in payment of the expenses of the sale;
(b) in payment, according to their respective priorities, of the lines and claims expected in Sub-section (2) of Section 59 from the priority of the lien of the Board;
(c) in payment of the rates and expenses of landing, removing, storing or ware-housing the same, and of all other changes due to the Board, in respect thereof including demurrage (other than penal demurrage) payable in respect of such goods for a period of four months from the date of landing;
(d) in payment of any penalty or fine due to the Central Government under any law for the time being in force relating to customs;
(e) in payment of any other sum due to the Board.
(2) The surplus, if any, shall be paid fothe importer, owner or consignee of the goods or to his agent on an application made by him in this behalf within six months from the dale of the sate of the goods.
(3) Where no application has been made under Sub-section (2), the surplus shall be applied by the board for the purposes of this Act."
46. This section lays down the priority of various claimants to the sale proceeds of the unclaimed goods. The expenses of the sale has to be met first. Thereafter if the ship owner has any lien on the goods, that will have to be met. The Board's lien comes thereafter. The surplus, if any, has to be handed over to the importer, owner or consignee of the goods or to his agent. If no lien is claimed by the ship owner or his agent under Section 60, then the entire sale proceeds is available to the Board for meeting its claim, in such a case, neither the ship owner nor his agent can claim that the surplus, if any, shall be paid to him.
47. It is to be seen that the word "Owner" in Section 63(2) has not been used in the sense of the definition given in Section 2(o) of the Act. By specifically mentioning "importer, owner or consignee of the goods or to his agent" the legislature has used the word "Owner" in a restricted sense and not in the extended sense given in Section 2(o) in which "Owner" will include consignor, consignee and also shipper and an agent in Section 63(2) means an agent of the importer, owner or the consignee. The Steamer Agent is not included
48. Therefore, the logical conclusion of the argument advanced on behalf ol the Port Authority will be that a Steamer Agent will be liable to pay the storage charge of the cargo unclaimed by the consignee but will have no claim on the sale proceeds of the cargo even if there is a surplus after meeting the dues of the Port.
49. It is well settled maxim of construction that any interpretation which leads to absurdity must be avoided.
50. In my judgment, the Steamer Agent cannot be made liable for the storage charge of the cargo. A Steamer Agent, unless there is a specific contract to the contrary, cannot remove the cargo from the port area. It can be removed cither by the consignor or the consignee or the shipper. Clearing Agents may be engaged by a consignee for removal of cargo which has been brought on his account to the port area. Similarly: Forwarding Agents may also be engaged by a consignor for despatch of cargo from the port area. Such agents may be treated as agents of the consignor or consignee, as the case may be, with authority to remove ear go. But a Steamer Agent, who is an agent of t he j owner of the vessel into which the cargo has to be loaded or from which the cargo is to be unloaded, has no authority by virtue of his being a Steamer Agent to remove the cargo from the port area. A charge cannot be reasonably and lawfully levied upon such an agent by the Port Authority. Such a charge will be arbitrary and will amount to unreasonable restriction on a Steamer Agentsj right to carry on trade.
51. It is not necessary to express any opinion about the consequence that may follow if the Steamer Agent fails to destuff goods which have arrived in containers. In this particular case, the goods came in a container which is a F.C.L. container (Full Load Container). The entire load of goods contained in such a container was meant for a single consignee. Therefore it was not the responsibility of the petitioner as Steamer Agent to destuff such containers.
52. A point has also been taken on behalf of the petitioners that the impugned charges levied on the Steamer Agents by the Port Authority are unreasonable and no other Port Authority has thought it reasonable lo levy such charges on the Steamer Agents. It has been argued that even in Haldia Dock area such charges are not levied. It has been asserted in Para. 21 of the petition that no other Port Trusts in India has thought it fit to impose upon the steamer agents, the burden of cargo rent in respect of containerised cargo and that the aforesaid resolution and/or decision of the Respondent No. 1 to make the Steamer Agents of the Ship liable for such cargo rent is discriminatory against the petitioners unreasonable and ultra vires.
53. In reply, it has been stated in para. 17 of the affidavit of Prabir Chandra Bhattacharyya affirmed on 30th July, 1986 "With regard to the allegations made in para. 21 of the writ petition I deny that the said resolution and/or decision of the Respondent 1 is discriminatory against the petitioners unreasonable and ultra vires as alleged or at all. The petitioners and all other steamer agents have paid the charge all along. I state that the Respondents 1 and 2 act according to their resolution and are not bound by any alleged practice or procedure of other parts."
54. In my judgment, the contention of the petitioners must be upheld. The Port Trust Authority has not been authorised to demand payment of cargo rent from Steamer Agents who act as agents of vessels carrying the cargo to the Port of Calcutta. I am not ex pressing any opinion on the question whether such cargo rent can be levied upon Clearing Agents or Forwarding Agents who are the agents of the consignor and the [consignee. But an agent of an owner of the | vessel cannot be made liable for storage charge of cargo because he has no authority to remove the cargo from the port area. The rent due on cargo landed in the port area can be recovered from the importers, consignors, consigneesor their agents or any other person entitled to take delivery of the cargo.
55. There is some dispute about whether the resolution or decision of the Respondent 1 to recover rent for containerised cargo from Steamer Agents has been approved by the Central Government or not. However, making a Steamer Agent liable for cargo rent merely because he is an agent of the owner of the vessel which discharges the cargo at the Calcutta Port is unreasonable and constitutes unreasonable restriction on the fundamental right of a Steamer Agent to carry on Business guaranteed by Article 19(g) of the Constitution.
56. The levy is also arbitrary and unreasonable and violates Article 14 of the Constitution.
57. Moreover, the port authority cannot by a resolution impose a liability to pay for storage charge upon a person who is not authorised by the consignee or the consignor to remove the goods from the port area. The Major Port Trust Act, has not empowered the Board to impose any charge upon a Steamer Agent only because as an agent of the carrier, he has something to do with unloading of the goods. In my judgment, the resolution of the Board by which Steamer Agents have been made liable forpaymenl of storage charge is ultra vires the provisions of the Major Port Trust Act. By exercise Article of rule-making power the Board cannot impose a charge which is not authorised or contemplated by the Statute.
58. There is also another aspect of the matter. The imported goods have to be cleared by the Customs Authorities. Assuming the goods have baeen discharged by a ship with the help of a Steamer Agent and thereafter the consignee or the clearing agent has been unable to get the goods cleared by the Customs Authorities and the goods remain in the port area for an indefinite length of time, can it be said that the Steamer Agents must pay for the storage charge of the goods for the period during which the goods remained in the port area? In my view, it will be unreasonable to make a Steamer Agent liable for storagecharges of goods not cleared by a consignee. The goods remained uncleared because the consignee did not evidence any interest in the removal of the goods. The port authority has not been authorised by the Statute in such a case to levy storage charge upon a Steamer Agent.
59. In the premises, this writ petition must succeed. There will be an order directing the Respondent 1 to withdraw and/or cancel para. 2 of the Public Notice dt. 16th Nov., 1982 which is annexure "D" to this petition. There will also be an order or direction in the nature of certiorari quashing the show cause notice dt. 12th June, 1986 addressed to the petitioner 1 and also the impugned letter dt. 24th June, 1986. The Respondents are directed to refund the sum of Rs. 5,00,000/- wrongfully realised from the petitioners within a period of four weeks from date.
60. The writ petition is finally disposed of as above.
61. There will be no order as to costs.