PARRY AND CO LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The 2nd defendant which is a company incorporated in West Germany and whose agent is the 3rd defendant, a company having its registered office at Cochin, contracted by Ex. P-5 dated 4 1 1957 to sell and deliver ammonium sulphate to the plaintiff, the Union of India, represented by the Deputy Director of Food, Government of India at Cochin and for that purpose chartered the steamship, "Maria Dolores' owned by the 1st defendant, which is a company incorporated in Rome and whose agent is the 4th defendant, a company having its registered office at Cochin, under Ex. P1 charterparty dated 11 4 1957. The cargo of ammonium sulphate, having a gross weight of 100,766 kilos and packed in 101,240 single jute bags, and of 1953 empty spare bags supplied free of charge, was loaded into the vessel at the port of Bremerhaven and shipped "in apparent good order and condition" by the 2nd defendant, under the bill of lading, Ex. P-2, dated the 13th May 1957, for delivery to it, "or order, or assigns", at the port of Cochin in "like good order and condition". Ex. P-2 was endorsed to the Regional Director (Food and Agriculture), Cochin. The ship arrived at the Port of Cochin on the 13th June, 1957. At the port, about 7000 bags of ammonium sulphate were discharged overside in stream into lighters and after being thus lightened, the ship was brought to the wharf and the balance, including the available spare bags, was discharged under the ship's tackle on the wharf. In the course of discharge, large spillings were noticed in the holds of the ship by P. W. 1, the Assistant Director of Food. While unloading under ship's tackle, several bags were noted as torn, or slack, or defective, by tally clerks stationed at the wharf. From the wharf, the bags were removed and stacked at the transit shed, by the port labourers, the "bad order bags", numbering about 2956, being segregated from the remainder. At the instance of P. W. 1, and after prolonged correspondence, a survey of the "bad order bags" was arranged for by the 3rd defendant, and a shortage of over 82 tons of ammonium sulphate was then discovered. Besides the spillings in the holds of the ship, there were spillings in the transit shed too, and all the spillings were swept and collected in bags and were found to weigh over 43 tons. Allowings this, the net shortage was of 38 tons 16 cwts. 3 quarters 24 Ibs. in respect of 2956 bags surveyed. Further, 369 out of the spare bags were not delivered to the plaintiff or accounted for. Accordingly, a claim was lodged against defendants 3 and 4, and P. W. 1 took delivery of the goods at the transit shed. On the above counts, the plaintiff sued to recover damages in the sum of Rs. 13489.33 p. from the defendants.

(2.) The 3rd defendant contended chiefly, that the goods were to be delivered under the ship's tackle and were in fact so delivered to the plaintiff, that there was no shortage until such delivery, and that it is not liable for loss or damage after such delivery, or for loss or damage, if any, resulting from insurable risks from sea-transit even before delivery, and pleaded that 369 spare bag were used for replacing defective bags and have thus been accounted for.

(3.) The 4th defendant maintained inter alia, that Ex. P-2 the bill of lading, was subject to the clause in it, "weight and quality unknown", that under Ex. P-l, the charterparty, the terms and conditions of which were incorporated in Ex. P-2, the shipowner was responsible only for the "correct outturn by number of bags" specified in Ex. P-2, that the 2nd defendant as charterer had the duty of unloading at the port of discharge employing its agents and stevedores for the purpose, that the loss or damage, if at all, had occurred during unloading or storage in the transit shed, and not while the goods were in its custody, and that even otherwise, the shipowner is not liable and is protected by the exceptions and limitations in Ex. P-l; the alleged short delivery of 369 spare bags was denied. In the event of the claim being accepted and found to be good against defendants 1 and/ or 2, defendants 3 and 4 did not contend, that as the respective agents, they were not liable.