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TMI Blog1962 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ndments to the Madras Port Trust Scale of Rates in 1958. By the amendment, scale 'E' was added under Chapter V. It was to come into force from March 1, 1958. The scale laid down charges to be paid by masters, owners or agents of vessels in respect of Port Trust labour requisitioned and supplied but not fully or properly utilised. The charges, for the sake of brevity, may be said to be on account of the labour of the Port Trust, Madras, rendered idle on account of some lapse on the part of the ship. owners or on account of extra payment to labour for the simultaneous working of more than one work at the vessel's hatch. The labour requisition Form to be submitted by the steamer-agents was also modified and the new form contained an undertaking on the part of the steamer-agents for the payment of the charges laid down in the Board's scale of rates from time to time in respect of labour rendered idle or not properly utilised and also for working more than one hook simultaneously at the hatch. These amendments in the scale of rates were made by the Board in the exercise of its power under s. 42 of the Madras Port Trust Act, 1905 (Mad. Act 11 of 1905), hereinafter called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore a ship has reached its berth, the steamer agent is required to make an application and a deposit in his current account to cover charges for the working of the vessel in respect of overtime, supply of cranes, water and appliances and from March 1, 1958, to meet the scale' 'E' contingencies also ; (vi) the operation which goes on at the quay is described thus : After the Port Trust pilot brings the vessel to the berth alloted to her : The stevedore labour supplied by the Madras Dock Labour Board, a statutory body, board the vessel, prepare the slings in the holds or hatches, work the ship's winches and the cargo is hoisted on the quayside. When the sling rests on the shore or in the barge in the case of discharge at moorings, the shore labour unsling the cargo and the Trust's Tally Clerk notes the items in a tally sheet. As each sheet is closed a duplicate copy of the import tally sheet is given to the steamer agent's representative on the spot. This duplicate copy is the receipt prescribed under section 39 (3) of the Madras Port Trust Act. The shore labour remove the cargo from the point of landing to the shed or open for stacking and subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge or stacking point. (ii) It is not correct that the ship-owner has nothing to do with the import cargo after it has been landed by the stevedores at the landing point on the quay, as the ship-owner in each case by the bill of lading has to deliver the goods to the consignee named in the bill of lading or his nominee and he remains liable under his contract until he has delivered the goods to the person who is entitled to take delivery of the goods. (iii) Under s. 39 of the Act the Port Trust gives facilities and undertakes certain services. One of such services is the moving of the goods from the landing point to the storage or stacking point and thereafter delivering the goods to the persons entitled under the bill of lading. The Board does not undertake the unloading of the goods from the ship to the quay. The ship-owner makes his own arrangements through the stevedores, though the Board is authorised to undertake such services on behalf of the ship-owner. It is a service to the ship-owner by the Board to give the ship-owner a receipt for the goods to keep them in custody and deliver to the consignee. The services undertaken in respect of the import cargo till they have been mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hook allowance from the steamer agents under scale 'E' is legitimate. (x) The additional charge made under scale 'E' is a charge in respect of facilities afforded to and services undertaken on behalf of the ship- owner, master, agent by the Board in relation to the cargo which is under contract of carriage by them, in the same way as harbour dues. To understand the exact nature of the impugned charges, it is necessary to quote the scale 'E' charges to which objection is taken : SCALE E-Charges Against Masters, Owners, or Agents of Vessels in respect of Port Trust Labour requisitioned and supplied but not fully or properly utilised Item Classification for purposes no. of this Scale 1. Port Trust Mazdoors rendered idle on account of the breakdown of ship's winches, wrigging of ship's derricks, shifting of cranes at the request of the steamer agents or stevedores, cargo not being ready for shipment, completion of loading and/or unloading before the end of the shift, late arrival of vessel at the berth or for any other reason which is attributable to the vessel and is beyond the control of the workmen. Note : Idle time will be calculated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or different kinds of cargo per hook per shift. 'Datum lines' means the 'standard output' of the work to be performed by a gang in a particular hook during a shift. The output is calculated in deadweight tons. Thus a daily wage rate as well as a wage rate for standard output have been fixed for all categories of workers who have been classified in five categories, one of which is the Port Trust Shore Labour. If the 'workers produce more than the datum lines, they are entitled to the increased wage rate. There is steady increase in the earnings if the output exceeds the 100% of the datum tonnage and at 150% the worker gets twice his daily wage rate and at 200% the piece rate wage is thrice the daily wage rate. These features of the scheme sufficiently indicate the significance of 'idle time' for the workers. If, during a shift, the workers are not actually employed on the job for which they are engaged and have to remain idle, their output of work during that shift, on the basis of tonnage, is bound to be less and, consequently, their earnings would be less than what they could be if they had been continuously employed during the shift. To compensate such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the entrustment is for ultimate delivery of the goods to the consignees and that the service is rendered to the shipping agent even though the consignee also benefits by that service and it Was not necessary for imposing the liability that the shipping agent must exclusively benefit from the service rendered. On appeal, the appellate Bench reversed the order, allowed the petitions and issued a writ of mandamus as prayed. It held that the Board had no authority to introduce the new scale 'E' rates payable by the master, owner or agent of the vessel, -that the ship-owner's liability ends when the goods had been put over the rail of the ship and from the moment the goods are put within the reach of the Board employees to take charge of them and tally clerk passes the receipt on behalf of the Board. The services in respect of which the new charges are sought to be levied cannot be deemed to be services rendered to the master, owner or agent of the vessel. They must be deemed to be services rendered to the consignee. The purpose of the requisition by the steamer agent was really to avoid delay and consequent congestion and, generally, for the convenience of the Board. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vessel from which the goods have been landed or transhipped. Section 40 laying down the responsibility of the Board for loss etc., of goods reads: (l) The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods. received for carriage by railway to the provisions of the Indian Railways Act, 1890, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words 'in the absence of any special contract' in section 152 of the last- mentioned Act. Provided that, till the receipt mentioned in sub-section (3) of section 39-is given by the Board, the goods shall be at the risk of the owner. (2) The Board shall not be in any way responsible for loss of or damage to goods of which it has taken charge, unless notice of such loss or damage shall have been given within one month of the date of the receipt given for the goods under sub-section (3) of section 39. Section 41-A deals with relinquishment of services subject to the control of the Central Government and sub-s. (1) of s. 41 provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 provides for the preservation of lien for freight or other char es including landing charges payable to the ship owner after the the Board. Section 54 provides for the retention of such goods in the custody of the Board at the risk and expense of the owners of the said goods until such lien is discharged and also provides that the godown or storage rent would be payable by the party entitled to such goods for the time during which they may be so retained. Section 56 provides for the sale of goods after two months if rates or rents are not paid or lien for freight is not discharged. Section 57 provides for the publication of the notice for sale in the case of perishable goods in the custody of the Board, in the Gazette and section 58 provides for giving notice to the owner of the goods of his address is known. Section 59 provides as to how the sale proceeds are to be applied. It is to be applied in the payment of the expenses of sale in payment of the liens and claims excepted in s. 52 from the priority of the lien of the Board and in payment of the rates and expenses of landing, removing, storing or warehousing the same, and of all other charges due to the Board in respect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer agent, shipper or consignee may remove any part of such cargo from the harbour premises until authorised by the Port Trust so to do after dues shall have been paid. By-law no. 6 provides that harbour dues on goods landed, together with any other charges incur-red under the Port Trust Scale of Rates, shall be paid before removal of the goods from the harbour premises. By-law no. 7 provides that all applications for permission to export or import goods shall be on approved forms and that such forms shall be filled in and signed by the shipper or consignee of the goods or by his agent. We may also refer to the Manual of Instructions issued by the Board for the Traffic Department. Mr. Desai has urged that the Manual should not be looked into as it is not part of the record. Strictly, this is correct, but whatever extra is contained in the instructions is really amplification or explanation of facts already on record, in the affidavit and the common counter- affidavit filed on behalf of the parties. We can look at the manual of instructions for this purpose. The instructions provide that agents of vessels will inform the Traffic Manager of the probable date of arrival of their steam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clauses of sub-s. (1), and secondly, empowers the Board to undertake those services. The Board is thus enabled to undertake those services. Sub-section (1) does not make it a duty of the Board to undertake those services. It is only by virtue of sub-s. (2) that the Board is to perform in respect of goods, if required, all or any of the services mentioned in cls. (a), (b) or (d) of sub-s. (1), those services being in connection with the landing of goods between vessels in the port and the wharves, piers, quays or docks in possession of the Board and in connection with the receiving, removing, shifting, transporting, storing or delivering of goods brought within its premises and despatching goods intended for carriage by neighbouring railways. Sub-section (3) again says that the Board is to take charge of the goods for the purpose of performing the services, if required to do so, and, in that case, the Board is to give receipt in the form and to the effect prescribed by the Central Government. It is therefore clear that the performance of any of the services mentioned in sub-s. (1) of s. 39 and the taking of charge of the goods are consequent on the Board being required to do so by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the cargo at the quay and thus to enable a quantity of cargo to be discharged quickly. The services rendered, by the Board are therefore services to the ship and, cons- equently, charges for them are to be realised from the steamer-agents. It is also urged that the harbour dues are collected from the consignees as the Board is a bailee of the ship-owner who is a bailee of the shipper and who is bound by the contract to deliver the goods to the consignee or his nominee, on the presentation of the bill of lading, The Board's taking charge of the goods landed does not amount to its taking delivery of the goods from the ship-owner in fulfilment of the ship-owner's duty to deliver the goods to the consignee, for the simple reason that the Board does not get the goods on the presentation of the bill of lading. There is no doubt that the object of the impugned charges is what is urged for the appellant. The charges are for labour rendered idle on account of some default on the part of the ship-owner or his agent and not on account of anything-which is within the control of the workmen. We have already refer-red to the features of the piece-rate scheme showing the necessit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking delivery of the goods from the ship-owner. It is true that on the Board's taking charge of the goods and giving a receipt about it to the ship-owner, the master or the owner of the vessel is absolved from liability for any loss or damage which may occur to the goods which had been landed, but this provision by itself does not suffice to convert the receiving of the goods by the Board after they had been landed by the ship-owner to the Board's taking delivery of those goods on behalf of the consignee. The Board simply takes charge of the goods on being required by the steamer-agent to take charge of it. Section 40 speaks of the responsibility of the Board for the loss, destruction or deterioration of the goods of which it has taken charge as a bailee under ss. 151, 152 and 161 of the Indian Contract Act. Section 148 of the Contract Act states that a bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to whom they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e delivery thereof under the contract of carriage, the carrier will not be deemed to have delivered the goods in accordance with the terms in the bill of lading. The responsibility of the carrier for the goods does not cease merely by the technical discharge of the goods from the ship but continues up to their delivery in accordance with the terms of the bill of lading. It is urged by Mr. Desai that under the general law, the responsibility of the master of the ship ceases when he has discharged the goods from the ship and has placed them in such position that the consignee can take charge of them and that whatever -is done, thereafter, in connection with the goods, is done on behalf of the consignee and for his benefit. The charges for labour rendered idle and for labour working more hooks simultaneously, are not charges for services rendered subsequent to the landing of the goods. These are charges which are incurred at the last stage of the process of landing of the goods and therefore prior to the actual landing of the goods. They are, even under the general law, for services rendered to the master of the ship whose liability for loss or of damage to the goods continues u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery. If he merely puts the goods on the rail of his ship, he does not give delivery : that is not enough. If, on the other hand, the consignee merely stands on the other ship, or on the barge or lighter, or on the quay, and does nothing, he does not take delivery. The shipowner has performed the principal part of his-obligation when he has put the goods over the rail of his ship; but I think he must do something more-he must put the goods in such a position that the consignee can take delivery of them. He must put them so far over the side as that the consignee can begin to act upon them; but the moment the goods are put within the reach of the consignee he must take his part in the operation. At one moment of time the ship-owner and the consignee are both acting-the one in giving and the other in taking delivery; at another moment the joint act is finished. These observations apply when the goods are to be delivered to the consignee alongside the ship and not when they are-handed over to the Statutory body, like the Board, as a sub-bailee. How the delivery is to be made depends on the terms of the bill of lading and the custom of the Port. The case is no authority for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so protected. Clause 2 of the Bill of lading provided : During the period before the goods are loaded on or after they are discharged from the ship on which they are carried by sea, the following terms and conditions shall apply to the exclusion of any other provisions in this bill of lading that may be inconsistent therewith, viz., (a) so long as the goods remain in the actual custody of the carrier or his servants'.. - (b) whilst the goods are being transported to or from the ship........ (c) in another cases the responsibility of the carrier, whether as carrier or as custodian or bailee of the goods, shall be deemed to commence only when the goods are loaded on the ship and to cease absolutely after they are discharged therefrom. It was held that this clause did not protect the shipowner in spite of the width of these expressions and its operation must be limited and modified to the extent necessary to enable the effect to be given to the main object and intent of the contract and at least so as not to permit the carrier deliberately to disregard his obligation as to delivery against the production of the bill of lading. In the present case, it was further contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the owner of the goods and that service rendered by receiving the goods from the ship at the quay is therefore service to the consignee. We do not construe the expression any other service in respect of vessel, passengers or goods' in cl. (e) of s. 42 of the Act in this manner. If it is interpreted as suggested, the Board must charge the passenger to whom services are rendered. This is not done. Any charges so incurred must be realised from steamer- agents who may, in their turn, charge the passengers for the same. We do not agree with the contention that the charges for labour rendered idle are in the nature of compensation or damages in respect of any loss, inconvenience or expenses caused to the Board or its shore-labour in consequence of any default attributed to the master of the ship. There is no question of damages. The labour has been engaged. It is paid for the time during which it remains idle, for no fault of its own. Charges for that are levied from the person who required that labour and is responsible for its remaining idle. Of course, if the idle time was due to the default of the labour, no such charges are required to be paid by the ship-owner. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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