UNION OF INDIA Vs. TRANSMERINE SHIPPING AGENCIES LTD.

JUDGEMENT

(1.) THE suit was for damages for short supply of and damage to the cargo for which an amount of Rupees 21,323.33 paise was claimed. It was the plaintiff's case that defendant No. 1 who were the agents of the owners of vessel 'S.S. Gloria' agreed to carry the said cargo in bags on or about 7 -11 -1966 from Guanica to India; and the charter -party in respect thereof was signed by defendant No. 1 as agents for the owners of the said vessel; and the same was also signed on behalf of the plaintiff, Union of India - by the Joint Secretary and Chief Controller of Chartering, Ministry of Transport, for and on behalf of the President of India. The said goods were received on or about 14 -12 -1966 by defendant No. 2, that is - owners of the vessel S.S. Gloria at Port Guanica in the form of cargo of 2,00295 bags of Ammonium Sulphate weighing 10014.750 M.T. gross along with 2000 empty bags for safe carriage to India. A bill of lading was issued on the very day at Guanica by the Master of the Vessel along with a signed weight certificate. The vessel arrived at Outer Tuna Buoy of the port of Kandla on 31 -1 -1967. It berthed at berth No. 3 of the said port. After a fortnight, that is on 16 -2 -1967, the work of discharging cargo commenced and the same was completed by 22 -2 -1967. A certificate of completion of discharge dated 26 -2 -1967 was issued, along with a statement of facts dated 25 -2 -1967. As provided in the charterparty agreement, the India Supply Mission, Washington, Messrs. Vinsons, Gandhidham were appointed as stevedores by the plaintiff's officers stationed at Kandla and the stevedoring operations were carried out by the said stevedores on behalf of the plaintiff and clearance operations were carried out departmentally between the period from 16 -2 -1967 to 5 -5 -1967. Delivery was taken by the plaintiff through the Port and it was the plaintiff's case that, at the time of discharge operations, defective condition of the cargo was noticed, and slack and torn bags, as also ship sweeping bags were found, and it was also found that there was shortage of 2000 empty bags; and these defects were incorporated in the certificate of completion of discharge dated 26 -2 -1967. Subsequently, survey was taken and provisional claim for shortage and/or damage etc. was lodged with the local shipping agents of the carrier, that is - defendant No. 4 by the plaintiff on 27 -2 -1967, through its office at Kandla dock. The ship survey was arranged only with regard to a part of the cargo by the local shipping agents, that is - defendant No. 4 in respect of 3310 bags found slack and torn including 150 empty bags and 60 bags ship -sweeping. They, however, failed and neglected to arrange the survey with regard to the remaining cargo which had landed in defective condition and the plaintiff, therefore, through its office at Kandla, arranged an independent survey for 425 bags slack and torn and 620 bags ship sweeping through Master Marine Surveyor, Kandla Port Trust, Gandhidham viz. Capt. D.V. Singh. The clearance was made after this independent survey. Apart from the short delivery of 2000 spare bags which were found, there was non -delivery of 280 empty bags, the same being in very badly deteriorated containers. A claim, therefore, for a total sum of Rs. 21,323,33 paise was lodged with defendant No. 4, vide plaintiff's letters dated 28 -9 -1969 and 7 -2 -1968 and as the claim was not accepted, the suit was filed for recovery of the said amount.

(2.) IT was the defence of the defendants that, in spite of the demand by the Master of the vessel of a written declaration from the plaintiff's office regarding tally of the cargo before commencement of the discharge as per clause 5 of the charter party, no such declaration or tally was done. It was denied that the quantity of Ammonium Sulphate with specific weights mentioned in the plaint was received, as alleged and it was stated that the bill of lading mentioned shippers' weight with the remarks "unknown" and the weight certificate dated 14 -12 -1969 relied upon by the plaintiff was not admitted by the defendants. It was also contended that the suit was barred by limitation and that it was bad for want of necessary parties, Relying on Clauses 4 and 5 of the charterparty, it was contended that, as the shippers, that is - the plaintiffs, were in charge of loading, stowing, trimming and discharging of the cargo free of expense and risk to the vessel but under the supervision of the master, and, as before the commencement of discharge, the plaintiff had failed to give notice in writing of the intention to tally the cargo and, as such tally was not taken at the vessel's hatchways, the defendants could not be held liable for any damage or compensation, as claimed.

(3.) THE learned, Judge, on the evidence led before him, though he found that the plaintiffs had proved that they had suffered loss to the extent of Rs. 19,923 -33p., instead of Rs. 21,323 -33p. as claimed by them, held that the defendant had proved that the suit cargo was damaged by careless and rough handling by the plaintiff's stevedores and that the defendants were not liable for the suit claim. He also held that the plaintiff had failed to prove that the defendants had been negligent in taking care of the cargo while in their custody, causing damage to the suit cargo. He, therefore, dismissed the suit with costs. It is this order of dismissal of the suit by the learned Judge passed on the 29th Sep., 1971 which is challenged by the appellant - Union of India (Original plaintiff) in this first appeal.