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TMI Blog1998 (12) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... case as averred in the plaint and as spoken to by P. W. 1 Bhaskaran Nair, the Superintendent of the 1st plaintiff company, could be briefly stated as follows:-- The 2nd defendant contracted to carry on board the ship S.S. Salomague, belonging to the 1st defendant, 8750 bags of Dar-Es-Salaam quality Tanzanian raw cashew-nuts shipped by M/s. National Agricultural Products Board of Dar-Es-Salaam to be delivered at Cochin. The 3rd defendant is the local agent for defendants 1 and 2. The defendants were bound to deliver the said consignments in the same good order and condition in which they were entrusted to them. The consignment was packed in new single gunny bags according to the standard packing usually done for packing cashew-nuts. The 2nd defendant received the cargo for delivery at Cochin, and issued Ext. B1, a true copy of which is Ext. A-1, bill of lading at Dar-Es-Salaam. That showed the weight of the cargo, the total number of bags entrusted, and the marks on the bags. Original bill of lading, Ext. B-1, had been surrendered to the 3rd defendant. Freight was collected by the 3rd defendant on the basis of the weight shown in Ext. A-1. Ext. A-2 is the copy of the invoice dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-10 is the letter dated 9-10-1972 received by the 2nd plaintiff from the 3rd defendant; therein the 3rd defendant took the stand that the carriers were not responsible for the shortage alleged and the claim thereon according to the terms and conditions of the relative bill of lading, and repudiated the liability to the plaintiffs' claim. Thereafter the 1st plaintiff satisfied the 2nd plaintiff of their claims, as evidenced by Ext. A-11 letter of subrogation. This was followed by the letter, a true copy of which is Ext. A-12, issued by the 2nd plaintiff's recovery agent; and Ext. A-13 is the reply received from the 3rd defendant. Ext. A-14 is the true copy of another letter sent by the recovery agent on behalf of the 1st plaintiff to the 1st defendant demanding the amount. Ext. A-15 is the bill of entry that passed through the customs. The 2nd plaintiff's name as the allottee is shown therein. It is not true to say that the weight indicated in the bill of lading is not correst. Ext. B-1 is a clean bill of lading. 3. The 1st defendant remained ex parte. The contention of defendants 2 and 3 as put forward in the joint written statement filed by them and as spoken to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment was received by the vessel and it is not correct to say that the 3rd defendant discharged it with 1115 bags out torn etc.; no joint survey with notice to the defendants was conducted; no proper or valid notice as required by law was given to the defendants regarding the alleged loss, damage or shortage; no notice in writing about the so-called loss or damage was given to the defendants before or at the time of removal of the goods; it is denied that 26,442 Kgs. of cashewnuts was found in short weight; there was no failure or neglect on the part of the defendants to deliver the consignment of cashewnuts in the same order and condition it was entrusted to them; the bursting of hags or packages or the bags with torn or slacked or mouth-stitched were only due to the condition and nature of inadequacy or insufficiency of the packing, not due to the neglect or fault of the defendants, and after discharge at the port; and it is not admitted that the value of the alleged shortage in weight of cashewnuts would come to ₹ 45,057.17. 4. The trial court dismissed the suit holding under Issues Nos. 5, 8 to 10 and 12, discussed under paragraphs 4 to 8 of the judgment, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff who was not the consignee. Normally, when the goods arrive at the port of destination, the person rightly entitled to the goods, whether as consignee or as indorsee or holder of bill of lading, should be ready to receive the goods. He proves his right to the goods by presenting the bill of lading to the Captain of the vessel. The indorsement is effected either by the shippers or the consignee writing his name on the back of the bill of lading which is called indorsement in blank , Or by his writing deliver to 'I' (or order, P) which is called an indorsement in full , So long as the goods are deliverable to a name left blank, or to bearer, or the indorsement is in blank, the bill of lading may pass from hand to hand by mere delivery, or may be redelivered without any indorsement to the original holder, so as to affect the property in the goods. But the holder of the bill may, at any time, fill in the blank either in the bill or indorsement, or restrict by indorsement the delivery to bearer, such power being given to him by the delivery to him of such a bill of lading. By mercantile custom such an indorsement and delivery of a bill of lading, made after shipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeal that the witnesses examined on the side of the plaintiffs were not present at Dar-Es-Salaam to vouchsafe the condition of the packing and also the actual weight of the goods loaded. The documentary evidence available in Ext. B-1, according to the learned Subordinate Judge, was not helpful to the plaintiffs inasmuch as that was stated therein reads: ..... .weight, measure, marks numbers, quality, contents and value unknown...... The reasoning of the trial court was that the carrier not having acknowledged or accepted any absolute liability inasmuch as in Ext. B-1 bill of lading it was stated as follows:-- Shipped at Dar-Es-Salaam in apparent good order and condition, weight, measure, marks, numbers, quality, contents and value unknown,..... inspite of the fact that the number of packets was shown to be 8750; and the weights 6,89,640 Kgs. gross. In support of its decision that Court relied on the decision rendered by one of us (Bhaskaran J.) in Hajee K. Assainar v. Malabar Steamship Company Ltd. (1974 Ker LT 675): (AIR 1975 Ker 114), wherein it was observed as follows (at p. 117 of AIR):-- In the instant case, even though the bills of lading evidenced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder or some person under whom the holder claims. The endorsee of a bill of lading is entitled to enforce the rights under the bill of lading on the basis that in regard to weight, package and conditions stated therein are correct. The 2nd plaintiff being an endorsee who has stepped into the shoes of the C.I.F. buyer, and the bill of lading having been stamped with the words Shipped on Board , which presumably was done after the weight of the goods entrusted for carriage was checked and found correct, the burden of proving that the position is otherwise, squarely falls on the defendants, not on the plaintiffs. The contrary view taken by the court below is not correct either in law or on facts. The decision in R. W. Paul Ltd. v. Pauline (1920 Lloyd's Rep 221) is to the point. In Attorney-General of Ceylon v. Scindia Steam Navigation Co. Ltd., India (1961-3 WLR 936 : 1962 AC 60) it was held: ..... .though the statements in the bills of lading as to the number of bags shipped did not constitute conclusive evidence as against the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollecting freight the weight as noted in the bill of lading was accepted. During the time of discharge of the cargo he had gone, to the place of discharge several times. He did not know the average weight of a bag, though he knew that the weight of a gunny bag would be about 1 Kg., or a little more or less. Ext. P-6 is a certificate issued by the 3rd defendant company. It showed that 1115 bags were torn and in a burst condition. In Attorney-General of Ceylon v. Scindia Steam Navigation Co. Ltd., India (1961-3 WLR 936: 1962 AC 60) it was held as follows:-- It was a reasonable and proper inference in all the circumstances that the bags that were shipped contained rice, and there was evidence, accepted by the respondent, that a full bag of rice weighed about 160 lb. There had, accordingly, been a short delivery of 235 bags of rice each weighing about 160 lb. and on the evidence neither the contents of those bags had been accounted for nor were the 235 empty bags themselves delivered. The appellant was therefore entitled to the damages claimed and not, as contended by the respondent, to the value of 235 empty bags only. In William D. Branson, Ltd. v. Furness (Canada) Ltd. (1955 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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