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TMI Blog1960 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... f compensation by the owners of the goods was based on this clause and the courts had to consider whether this defence was available to the carrier. 2. The appeal from the Madras High Court was in respect of a consignment of 90 bundles of brass circles which were consigned to the respondent at Madras from Bombay to Madras per S. S. Fakira, a Steamer belonging to the East and West Steamship Co. The Ship arrived in Madras on August 1, 1948, and 78 out of the 90 bundles were delivered on August 25, 1948, to the appellant through his clearing agent, the second respondent. Five more bundles were delivered on September 25, 1948. After some correspondence between the Shipping Company and the first respondent regarding the seven bundles not delivered the appellant company repudiated finally the respondent's claim on March 24, 1950. The first respondent brought the present suit on June 27, 1950, claiming ₹ 1,023-5-0 as compensation - ₹ 974-13-0 for the value of the undelivered goods and ₹ 48-8-0 as the profit of which he had been deprived. The claim for this amount of profit was given up at the Trial. The appellant's defence was : (1) that the suit having been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come final and unassailable, this appeal is really of academic interest. In view however of the fact that the main question of law raised, viz., as regards the scope and interpretation of the 3rd Clause of para. 6 of Art. III of the Schedule to the Act is being raised before us in the other two appeals from the Bombay High Court also we have heard the counsel for both sides in this appeal in full. 4. Of the two appeals from Bombay - the one Civil Appeal No. 92 of 1958 is in respect of some consignments at Bombay by S. S. Tweedsmuir Park, S.S. Finnamore Hill and S. S. Ismalia - all vessels belonging to the first defendant, the British India Steam Navigation Company Ltd. S. S. Tweedsmuir and S.S. Finnamore Hill arrived in the port of Bombay on or about September 10, 1948, and steamer Ismalia arrived in Bombay on September 6, 1948. The vessels discharged their cargoes alongside on to the docks belonging to the Trustees of the Port of Bombay. The plaintiffs took delivery of the goods packed in bags which bore their distinctive and identifying marks, but were unable to obtain delivery of 164 bags out of the consignment sent by Ismalia, 869 bags out of the consignment sent by Finnamore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipper or consignee in respect of which he claims compensation from the shipping company. The learned judges also held that so far as the shipping company was concerned the delivery of goods is given or ought to be given as soon as the goods are landed and therefore in this case the goods with regard to the three ships having been cleared on September 19, 1948, September 25, 1948, and September 27, 1948, respectively. These were the dates on which the goods "should have been delivered" for the purposes of the application of the 3rd clause of paragraph 6 of Art. III. Accordingly agreeing with the Trial Judge that the liability of the shipping company was discharged and the suit was not maintainable they dismissed the appeal. 6. The other appeal from the Bombay High Court, viz., Civil Appeal No. 91 of 1958 is in respect of a consignment of 6,000 bags of cocoanut from Cochin and 4,733 bags of copra and cocoanuts from Badagara consigned to the plaintiffs for carriage to Bombay by the steamer "Bharatjal" belonging to the appellant, the Bharat Lines Ltd. The steamer arrived in Bombay Port some time in the middle of September, 1948. The plaintiffs however failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has been preferred. 8. From what has been said above it is clear as we have already indicated that the main questions in this appeal are as regards the interpretation of the 3rd Clause of paragraph 6 of Art. III in the Schedule to the Act. 9. The first and the most important of these questions is as regards the meaning of the word "loss" as used in the said clause. Does it mean only such loss as occurs when one says "the goods have been lost" or does it include also such loss as is sustained by the owners of the goods - whether the shipper or the consignee - when the carrier fails to deliver the whole or part of the cargo shipped ? The second question that arises for consideration is whether this clause only prescribes a rule of limitation or also provides for the extinction of the right to compensation after a certain period of time. The next question is as regards the ascertainment of the date on which the goods not delivered "should have been delivered" for the purposes of this clause. Apart from these questions as regards the interpretation of the 3rd clause of paragraph 6 of Art. III, it will be necessary to consider also whether the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act merely purported to codify the law, he went on to observe :- "But if this is the canon of construction in regard to a codifying Act, still more does it apply to an Act like the present which is not intended to codify the English law, but is the result (as expressed in the Act) of an international conference intended to unify certain rules relating to bills of lading. It will be remembered that the Act only applies to contracts of carriage of goods outwards from ports of the United Kingdom; and the rules will often have to be interpreted in the courts of the foreign consignees. For the purpose of uniformity it is therefore important that the courts should apply themselves to the consideration only of the words used without any predilection for the former law...". 13. The House of Lords was in that case interpreting certain provisions of the English Carriage of Goods by Sea Act, 1924. Our own Act applies to contracts of carriage of goods outwards from the ports of India. Section 2 states that the rules set out in the Schedule shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading". "The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection." "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered." "In the case of any actual or apprehended loss or damage, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods." 15. The seventh paragraph contains provisions as regards issue of a shipped bill of lading. 16. The eighth paragraph is in these words :- "Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this article or lessening such liability otherwise th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss will occur to the owner of the goods. In such a case, even though there may not have been "loss of the goods" the goods are lost to the owner. The word "loss" as used in paragraph 6 is in our opinion intended to mean and include every kind of loss to the owner of the goods - whether it is the whole of the consignment which is not delivered or part of the consignment which is not delivered and whether such non-delivery of the whole or part is due to the goods being totally lost or merely lost to the owner by such fact of non-delivery there is in our opinion "loss" within the meaning of the word as used in paragraph 6. 19. It is worth noting in this connection that while paragraph 5 makes it clear that loss there means loss to the carrier and paragraph 6 speaks of loss or damage to or in connection with the goods, the Legislature has in the 6th paragraph of this Article left the words "loss or damage" unqualified. The object of the rule however being to give immunity to the carriers and the shippers from claims of compensation made by the owners of the goods in respect of loss sustained by them, it will be unreasonable to read the word &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiffs. In the course of the voyage the ship was wrecked; all the cotton was more or less damaged, some of it was lost, some was so damaged that it had to be sold before reaching the port and marks on a very large number of the bales were so obliterated by sea water that none of the cotton that was lost or sold and only a portion of what was carried to the port could be identified as belonging to any particular consignment. The plaintiffs had insured the goods with the defendant company against the usual risks. The question arose whether there was a total loss of a part of each owner's cotton or whether there was a total loss of the plaintiff's consignment. The court held that it could not be said that there was an actual total loss of the plaintiffs' consignment nor a constructive total loss of these, that the principle of proportion applied in cases of general average or jettison where it is not known whose goods are sacrificed should be properly applied to cases of this nature where because of the bales of different shippers being undistinguishable by reason of the action of the sea and without the fault of the respective owners it becomes impossible to asce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused to a shipper or a consignee by reason of the inability of the ship or the carrier to deliver part or whole of the goods, to whatever reason such failure may be due. 26. On the next question whether this clause prescribes only a rule of limitation or provides for the extinction of a right to compensation, it will be observed that the Bombay High Court has not discussed it at all, apparently because on the facts of the case before it, it would have mattered little whether the provision was one of limitation or of extinction of right. The question is however of some importance in the facts of the Madras Case. For if the provision is one of limitation there would be some scope for argument in the facts of that case that the period was extended by acknowledgments of liability within the meaning of Art. 19 of the Limitation Act. The question we have to decide is whether in saying that the ship or the carrier will be "discharged from liability", only the remedy of the shipper or the consignee was being barred or the right was also being terminated. It is useful to remember in this connection the international character of these rules, as has been already emphasised above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for recovery of compensation for non-delivery. Indeed the learned Judge in the Madras High Court himself has based his conclusion on this question on the view of law he had earlier expressed as regards Art. 31 of the Limitation Act that the starting point of limitation there is the final repudiation of the liability by the company. With great respect to the learned Judge, we are of opinion that the cases as regards the ascertainment of the date when the goods "ought to be delivered" as used in Art. 31 of the Limitation Act are of no assistance for our present purpose. Most, if not all of the cases which have considered the question of the ascertainment of the date when the goods "ought to be delivered" for the purpose of Art. 31 deal with cases of transport by Railways where no date has been or can be specified in the contract for carriage. We cannot however ignore the fact that the conditions of carriage of goods by ship are essentially different from contracts of carriage of goods by Railways in one respect, viz., that whereas in contracts of carriage of goods by Railways there is ordinarily no knowledge as to by which particular train the goods will be des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... craft or any other suitable place without notice and the goods may be stored............ The company shall have the option of making delivery of goods either over the ship's side or from lighter or store ship of hulk or custom house or warehouse or dock or wharf or quay at consignee's risk. In all cases the company's liability is to cease as soon as the goods are lifted from and leave the ship's desk.........". 28. In the Civil Appeal No. 91 of 1958 the terms of delivery are in paragraph 15 and is in these words :- "15. The company is to have the option of delivering these goods or any part thereof, into receiving ship or board or craft or landing them at the risk and expense of the shipper or consignee as per scale of charges to be seen at the Agents Offices..." 29. In these appeals we are not concerned with the facts of these terms of delivery of contract except that they show that it is clearly understood between the parties to the contract that delivery is to commence as soon as possible after the arrival of ship at port and completed before the ship leaves the port. Indeed even if there were not definite terms in the bill of lading as regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen after correspondence the carrier intimates its inability to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case of part delivery the date when the bulk of the consignment was delivered the date when the goods should have been delivered - for the purpose of the third clause of the 6th paragraph of Art. III of the Act is the date when the ship by which the goods were contracted to be carried has left the port at which delivery was to be made. 31. Applying the above clause to the facts of the cases before us it is obvious that these suits for compensation were not maintainable. It is hardly necessary therefore to consider the additional defence raised in all the three suits by the shipping companies, viz., that the claim for compensation not having been made within thirty days from the date of arrival of the vessel in accordance with the terms of the bill of lading no compensation is payable. The learned Judges of the Bombay High Court did not think it necessary to consider this additional defence as they accepted the defence based on the third clause of the 6th paragraph of Art. III which has been discussed above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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