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TMI Blog2007 (12) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order dated 2.12.2004 passed by a Division Bench of the High Court of Judicature at Madras in OSA No. 247 of 2000 affirming the judgment and decree dated 7.03.2000 passed by a learned Single Judge thereof in CS No. 75 of 1996. 3. Appellant is an owner of a fleet of vessels. A consignment of six sets of Sub Assemblies for PC 650 H.E. was entrusted by the respondent No. 1 for carriage thereof from Kobe, Japan to Madras. It contained 16 packages. It arrived at the Port of Madras on 17.12.1994. 4. A part of the consignment was found in damaged condition. An inspection therefore was made. Some damage was noticed in five cases. On the premise that the damage of short delivery had been caused due to negligence on the part of the emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the liability of the defendant has to be calculated thus, the liability must be calculated taking into weight of 16 cases which are governed by Ex.A-3 Bill of lading and in this case the liability will be more than what is claimed in the plaint. Therefore, the defendant cannot resist the claim of the plaintiff on this ground and the contract is governed by only Indian Carriage of Goods by Sea Act. Therefore, on issue No. 6 7. I hold that the contract is governed by Indian Carriage of Goods by Sea Act and the defendant is liable to the extent of the plaintiff's claim and these two issues are therefore answered against the defendant. 7. The Division Bench of the High Court in an intra-court appeal preferred by the appellant herein af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in Section 2(k) thereof. 12. The scope of the Japanese Act is stated in Article 1 thereof sating: The provision of this Act (except article 20bis) shall apply to the carriage of goods by ship from a loading port or to a discharging port, either of which is located outside Japan, and Article 20bis shall apply to the carrier's and his servant's liability for damage to goods caused by their tort. Paragraph 4 of Article 2 defines one unit of account to mean the amount equivalent to one Special Drawing Right as defined in paragraph (1) of Article 3 of the International Monetary Fund Agreement . Article 4 confers a liability upon the carrier stating that it shall not be relieved therefrom unless exercise of due diligence under the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immunities, the relevant portion whereof reads as under: 1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTO is liable to pay compensation in respect of loss or damage to the goods and the stage of transport where the loss or damage occurred is not known, the liability of the CTO in respect of such loss or damage shall not exceed the monetary limit indicated in this regard, in any international convention or national law that would have applied, if the contract was for the carriage of goods from a seaport in India and had been covered by a ocean bill of lading. However, the CTO shall not in any case be liable for an amount greater than the actual loss to the person entitled to make the claim.... Clause 7: Liability for loss or damage where the stage is known: (A) When in accordance with the condition 4 hereof, the CTO is liable to pay compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mage is not known. It merely provides that in such an event the quantum of loss shall not exceed the monetary limit provided for in any international convention or national law. No reason has been assigned in support of its findings by the High Court. Clause 7 of the Bill of Lading also should be read with Clause 6 thereof. In this case, the vessel sailed from Japan; its destination being Chennai. As the originating port is outside India, Section 2 of the Indian Act, as noticed hereinbefore, will have no application. The High Court, in our opinion, misread the said provision. 18. The provisions noticed hereinbefore, whether of the Japanese Act or the Indian Act or the Hague Rules, provide for a limited liability. Contention of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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