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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 ..... as 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 filed beyond the period prescribed in clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 and 1,657 bags out of the consignment sent by T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obtain delivery of 596 bags from the Badagara consignment and 470 bags from the Cochin consignment. They brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 requirement in the bill of lading as regards the time within which the notice of claim must be made in order that the carrier may be responsible is void as being ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other port whether in or outside India. Though in the appeals before us we are concerned with only contracts of carriage of goods from one Indian port to another Indian port, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 than as provided in these Rules, shall be null and void and of no effect. 17. A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability. 18. It has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 loss in that paragraph as restricted to only loss of the goods . When the object of this particular paragraph and the setting of this paragraph in the Article after the previous paragraphs are considered there remains no doubt whatsoever that the learned judges of the Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost 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 ascertain to whom the goods actually lost belonged. 22. This case it has to be noticed had to consider in view of the special terms of an insurance policy, whether there was a total or partial loss for the purposes of claims under the policy and the argument that there was a total loss within the meaning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Rules of limitation are likely to vary from country to country. Provisions for extension of periods prescribed for limitation would similarly vary. We should be slow therefore to put on the word discharged from liability an interpretation which would produce results varying in different countries and thus keeping the position uncertain for bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 despatched nor is there any undertaking by the Railways as regards such trains, there is ordinarily in contracts of carriage of goods by sea a distinct arrangement that the goods will be shipped by a particular vessel. Whether the bill of lading is in the older from beginning with the words shipped on board the..... or in the form more recently employed by some shipping companies, beginning with the words Received for shipment by.... (See Scrutton on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms 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 regards the delivery it would follow necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried by the ship should be made between the date of the arrival at the port and its departure from the port. For our present purpose it is unnecessary to consider whether delivery to the dock authority in any of these cases was or would have been equivalent to the delivery to the consignee. That would depend upon the custom of the port of discharge or on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. The learned Judge in the Madras High Court had however to consider this additional defence in view of his conclusions against the shipping company on the other defence. He held that the stipulation in the bill of lading that if no claim for compensation is made within thirty days from the date of arrival of the ship the shipping company will not be liable for compensation is void as it offends against para. 8 of Art. III. The relevant portion of this paragraph is in these words :- 8. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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