SURENDRA OVERSEAS LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Chief Controller of Chartering, Government of India chartered the vessel 'A. P. Aruna', owned by the defendants, and entered into a charter party on 16 -8 -1963 under Ex. B.1. The charter was intended for the carriage of certain consignments of urea together with a certain quantity of empty gunny bags from Venice -Port Merghera to a port in West coast or East cost in India. The bills of lading evidencing the loading of he cargo are Exs. A.1 and A.2, which in turn incorporated the material terms contained in the charter party. Exs. A. 10 and A.11 are he certificates of weight issued at the port of shipment, whilst Exs. A.12 and A.13 are the certificates of origin relating to the goods. Ex. A.14 is the invoice issued by the seller. The invoice discloses the shipment of two consignments of urea, in all, 1,31,140 bags, for carriage to Madras and also 1312 empty bags along with it. Ex. A.15 is the certificate of inspection given by the High Commissioner of India at the port of shipment. The ship arrived at Madras on 10 -10 -1963 and commenced discharging of the cargo on 11 -10 -1963 and completed the same on 14 -10 -1963. The plaintiff's case is that out of the consignment of urea so loaded and as evidenced by the invoice as above, there was a short -landing of 370 bags of urea contend. The vessel also discharged 1340 bags of urea slack or torn or cut and 130 bags of ship sweepings. It appears that the ship's manifest under Exs. B2 and B3, also noticed such a situation. At or about the time of discharge, there was what is known as hatch survey, but without notice to the plaintiff. This is seen from Ex. B.5. This hatch survey was under taken by the vessel on its own responsibility when it was lying in No. 2 West Quay, Madras Harbour. It is common ground that this survey was not undertaken in the presence of the plaintiff or any one on their behalf. On the basis of the said hatch survey, the Master of the ship issued what is known as the Master's certificate of discharge of the cargo under Ex. B.11. As per the custom availing at the Port of madras, the cargo which was so discharged and hatch surveyed, was handed over to the Port Trust Authorities, who took delivery of the same from the Quay, apparently as the agents of the ship. Till this stage, it is common ground that there was no physical delivery of the cargo to the plaintiff as the consignee. After the Port Trust so took delivery of the cargo, as is usual, the plaintiff under Ex. B.4 requested their clearing agents, the South India Corporation (Agencies) Pvt. Ltd. to effect clearance after getting the usual certificate from the Port Trust Authorities. The Port Trust under Ex. A.3 gave what is popularly known as the B certificate, which is a short landing certificate, after making due enquiries as regards the quantum of the discharged cargo. Under Ex. A.3, the short landing of 370 bags as claimed by the plaintiff and also 1340 urea slack or torn or cut bags and 130 bags of ship sweepings were noticed. At this stage, it is proper to note that the short landing as disclosed in the B certificate was corroborated by the ship's out -turn statement Ex. A.32. That also discloses the short landing of the abovesaid 370 bags of urea etc. Even the tally sheets Ex. A. 44 of the Port Trust Authorities, who effected the discharge, would also confirm such shortage. As a matter of fact, a survey at the instance of the plaintiff consequent upon the issue of the short landing certificate under Ex. A.3 was held on 17th and 18th of October 1963 and from Ex. A -4 which is the certificate which followed such survey it is seen that 1340 bags of urea were slack and torn and there weight was lesser than in invoice weight and that there were ship sweepings of 130 bags which were also naturally lesser in weight than the avowed quantity as per the invoice. This is besides the shortage of 370 bags of urea as already noted.

(2.) IT was in these circumstances that the plaintiff came to court seeking for the value of the goods so short landed as also for the value of the goods damaged. The defendants in their written statement relied upon the charter party and in particular clause 4 therein, and pleaded that the cargo was duly delivered to the consignee as soon as it was discharged at the West Quay, that delivery of the goods to the Port Trust would imply delivery to the consignee and that, in view of the hatch survey held in the presence of the Master as evidenced by Exs. B -1 and B -11, they were not in any way responsible either for the shortage or the damage to the cargo. One other contention was raised by the defendants. They would attribute the damage to the cargo to the faulty and negligent stevedoring by the persons engaged by the plaintiff in the course of the discharge of the cargo from the vessel. Lastly they would state that they had performed their part of the contract of affreightment and they were therefore absolved from liability.

(3.) THE main contention of Mr. Duleep Singh, the learned counsel for the appellants it that Exs. B -1, B -5 and B -11 are primary documents, which disclose a normal discharge of the cargo, and that in any event, under Ex. B.1, it should be deemed that he delivery of the cargo was to the consignee when it was discharged at the West Quay, though physically it was handed over to the Port Trust Authorities. In the main, his contention is that the delivery of the cargo to the Port Trust should be deemed and accepted to be delivery to the consignee, and, if so accepted, Ex. B -1 and in particular clause 4 therein, exonerates the defendants from all supervening liability either in the matter of the shortage of the goods, or in respect of the damage to them in the course of the implementation or working out of the contract of affreightment.