2012 (7) TMI 966 - HC - Customs

Summary

Issues Involved:
1. Whether the endorsement "said to contain" in the bill of lading means there was no admission or acceptance of the total number of cartons by the carriers.
2. Whether the fourth defendant, Madras Port Trust, is answerable for the suit claim.
3. Whether the fifth defendant, CONCOR, is liable to the suit claim.

Summary:

Issue 1: Endorsement "said to contain"
The court examined whether the endorsement "said to contain" in the bill of lading (Ex.A4) meant that the carriers (defendants 1 and 2) did not admit or accept the total number of cartons declared by the consignor (third defendant). The court referenced previous judgments, including *M/S. Thakur Shipping Co. Ltd. v. Food Corporation of India* and *Nippon Yeesen Kaisha Ltd. v. Union of India*, which held that such endorsements indicate that the carrier does not assure the correctness of the declared quantity. The court concluded that the plaintiffs failed to prove that 250 cartons were actually shipped, and thus, the carriers and bailees (defendants 4 and 5) could not be held liable for the short delivery.

Issue 2: Liability of Madras Port Trust
The court considered whether the fourth defendant, Madras Port Trust, was liable for the suit claim. The court noted that the container was a Full Container Load (FCL) and was meant for "door to door" delivery. The original seal of the container was intact when it reached the Container Freight Station (CONCOR), and the Customs inspection was done at CONCOR premises. The court found that the Port Trust did not take charge of the cargo and thus could not be held liable for any alleged loss.

Issue 3: Liability of CONCOR
The court evaluated the liability of the fifth defendant, CONCOR. It was established that the container arrived at CONCOR with the original seal intact, which was broken by Customs in the presence of the Clearing Agent of the first plaintiff and resealed. The next day, the container was opened, and a shortage of 50 cartons was found. The court found no evidence of tampering with the seal while the container was in CONCOR's custody. The court concluded that CONCOR could not be held responsible for the alleged loss as there was no tampering with the container.

Conclusion:
The court allowed both appeals, setting aside the trial court's judgment and decree against the fourth and fifth defendants. The suit against them was dismissed, and the connected miscellaneous petition was closed.