EAST AND WEST STEAMSHIP CO GEORGETOWN MADRAS NARANDAS MATHURADAS NARIELWALA NARANDAS MATHURADAS NARIELWALA Vs. S K RAMALINGAM CHETTIAR:BHARAT LINE LIMITED :BRITISH INDIA STEAM NAVIGATION CO LIMITED

JUDGEMENT

(1.) These three appeals - Civil Appeal No. 88 of 1956, Civil Appeal No. 91 of 1958 and Civil Appeal No. 92 of 1958, of which one is from a decision of the High Court of Madras and the other two from decisions of the High Court of Bombay raise some common questions of general importance to carriers of goods by sea and of shippers as regards the 3rd clause of paragraph 6 of Art III in the Schedule of the Carriage of Goods by Sea Act (hereinafter called "the Act"). This clause provides that "in any event the carrier and the shipper shall be discharged from all liability in respect of loss or damage unless a suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered". In all the three appeals before us the carriers' main defence to claims of 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 1-8-1948, and 78 out of the 90 bundles were delivered on 25-8-1948, to the appellant through his clearing agent the second respondent. Five more bundles were delivered on 25-9-1948. 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 24-3-1950. The first respondent brought the present suit on 27-6-1950, claiming Rs. 1,023-5-0 as compensation -Rs. 974-13-0 for the value of the undelivered goods and Rs. 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 cl. 6 of Art. III of the Act; (2) that the suit was also barred as no claim had been made within the period of one month from the date of arrival of the vessel as stipulated in the bill of lading and (3) that the goods were insufficiently packed and therefore carrier was not liable for the alleged loss. The learned Judge of the Small Causes Court who tried the suit as also the Judge who heard the matter on a new trial application held that the plaintiff's right to claim to compensation was extinguished before the date of the suit.

(3.) As regards the second defence based on the stipulation in the bill of lading that notice has to be given within one month the trial Court held that this term in the bill of lading was void and of no effect. The learned judges who heard the new trial application disagreed with this and accepted the defence on this point also. In the result they dismissed the new trial application and confirmed the order of dismissal made by the learned trial Judge. Against this order the High Court of Madras was moved by the plaintiffs under section 115, Civil Procedure Code. The learned Judge held that the term in the bill of lading as regards one month's notice was repugnant to Rule 8 to Art. III of the Schedule to the Act and was void. He was also of opinion that the date of the final repudiation of liability by the Shipping company as regards the short delivery or non-delivery is the date "when the goods should have been delivered" within the meaning of the 3rd clause of the 6th paragraph of Art. III and so whether this clause provided for extinction of a right or only prescribed a rule of limitation the defence based on this clause of the Act could not succeed. He expressed his own opinion, however, that this clause did not provide for extinction of the right but merely prescribed a rule of limitation. In view of his conclusions he set aside the decision of the lower courts and remanded the suit for further disposal to the trial court. After remand the trial court on 4-5-1954, decreed the suit for a sum of Rs. 974-13-0. Against that decree no steps were taken by the Shipping Company. It was after that date that the Shipping Company applied for and obtained from this Court special leave to appeal on 11-10-1954. It has to be noticed that as the decree made in the suit has become 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 other two appeals from the Bombay High Court also we have heard the counsel for both sides in this appeal in full.