1997 (11) TMI 540 - HC - Indian Laws

Summary

Issues Involved:
1. Liability for Shortage in Delivery of Cargo
2. Validity and Reliability of Evidence (Certificate of Inspection and Draft Survey)
3. Applicability of Charter Party Terms
4. Interpretation of Bill of Lading Clauses
5. Burden of Proof and Carrier's Liability

Detailed Analysis:

1. Liability for Shortage in Delivery of Cargo:
The appellants claimed a shortage of 220.850 M.T. of bulk urea upon delivery, alleging that the first defendant and their agents failed to exercise due care and diligence. The court noted that the entire loading and unloading operations were conducted by the charterers, free of risk and expense to the vessel. The bill of lading contained a clause stating "Weight, measure, quality, condition, contents and value unknown," which absolved the carrier from liability for the quantity mentioned. The court concluded that there was no negligence or want of care on the part of the first defendant, and any alleged shortage must have been due to short-loading at the port of shipment or handling during unloading operations.

2. Validity and Reliability of Evidence (Certificate of Inspection and Draft Survey):
The appellants relied on Ex. A-2, a Certificate of Inspection by O.C.M., Goods Control Office at Bucharest, and a draft survey report by J.B. Boda Marine and General Survey Agencies Limited. The court found that Ex. A-2 was not properly proved as the author was not examined, and thus, no reliance could be placed on it. Additionally, the court held that draft surveys are inherently inaccurate due to factors like swell and tidal conditions, density of water, and errors in reading the draft. Hence, the draft survey report was not considered reliable evidence of the quantity discharged.

3. Applicability of Charter Party Terms:
The shipment was subject to a charter party agreement dated 7th July 1981, which stipulated that the cargo was loaded and discharged by the charterers free of risk and expense to the vessel. The court emphasized that the first respondent did not participate in the loading or unloading operations, and the bill of lading's disclaimer clause further supported the carrier's non-liability for the alleged short landing.

4. Interpretation of Bill of Lading Clauses:
The bill of lading included a clause stating "Weight, measure, quality, condition, contents and value unknown," which the court interpreted as a clear disclaimer of responsibility for the quantity of goods shipped. The court cited several precedents, including judgments in *Nippon Yeesan Kalsha Limited v. Union of India* and *M/s. Thakur Shipping Company Limited, Bombay v. Food Corporation of India*, which supported the view that such clauses absolve carriers from liability for the quantity declared by shippers.

5. Burden of Proof and Carrier's Liability:
The court held that the burden of proving the actual quantity shipped was on the appellants, who failed to provide independent evidence beyond the bill of lading. The court referenced Section 5 of the English Carriage of Goods by Sea Act and Section 6 of the Indian Carriage of Goods by Sea Act, which state that in the case of bulk cargo, the quantity mentioned in the bill of lading is not prima facie evidence against the carrier. Therefore, the first defendant was not liable for the alleged short landing.

Conclusion:
The court dismissed the appeal, concluding that the first defendant was not liable for the alleged short delivery of bulk urea. The evidence provided by the appellants was deemed unreliable, and the terms of the charter party and bill of lading protected the carrier from liability. The appeal was dismissed with no costs.