PISTIS COMPANIES NAVIERS, S.A., REPRESENTED BY ITS AGENT PEGASSUS OCEAN SERVICE LTD. Vs. THE UNION OF INDIA (UOI) BY THE REGIONAL DIRECTOR (FOOD)

JUDGEMENT

(1.) This appeal involves an adjudication as to the liability of a ship -owner in respect of shortage in delivery of bulk cargo carried in its vessel under the terms of a charter party. The ship -owner is M/s. Pistis Companies Naviers, S.A. The charterer was the Union of India or rather its representative in the United States, the India Supply Mission. The ship in question is S.S. Tihi, A representative of the Union Government chartered the ship under charter party entered into with the vessel's owner and executed in London on 5th August 1965, for carrying in bulk a. quantity of ammonium sulphate by sea from San Franchisee to a port in India. It was provided in the charter party that its terms shall constitute the contract of carriage. It was further provided that certain provisions of the United States Carriage of Goods by Sea Act shall regulate the rights and privileges of the carrier. Pursuant to the charter, the ship which was at the time in London, proceeded empty to San Francisco. There the agent of the Union Government loaded a consignment of ammonium sulphate in bulk in the ship's holds. Before loading, the consignment was got weighed and the weight certified. This was done under the Public Weigh Master's Certificate of Weight and Measure, Department of Agriculture, State of California. The Certificate was dated 3rd September, 1965. The weight, according to the certificate, was 21,606.240 1bs. The mate's receipts were issued on the same day after the loading of the cargo in the vessel. Those receipts showed the same weight in pounds and their equivalent as 9,800 -52 metric tonnes. The bill of lading, which was also, dated 3rd September, 1965 and issued at San Francisco by the Master of the ship described the goods as ammonium sulphate in bulk said to weigh 21,606,240 1bs, 9,800 -52 metric tonnes.

(2.) The bill of lading further stated that the cargo was received in apparent good order and condition from the shipper. The ship arrived in Madras Port and berthed on 20th October 1965. It commenced discharge of the cargo on the same day and completed it on 30th October, 1965. The discharge was effected by workmen engaged by the regional office of the Feed Department of the Union Government. On taking charge of the consignment, the Assistant Director (Clearance) of the Food Department found that the ship had delivered only 9,735.768 metric tonnes of ammonium sulphate as stated in the out -turn statement issued by the Madras Port Trust. There was thus a shortage in the delivery of 64.751 metric tonnes. The officers of the Food Department then issued notice to the steamer agent of the shipping company demanding compensation for the shortage in delivery. This demand, however, was not complied with. The Union of India then sued the ship -owner as well as the steamer agent for damages valued at Rs. 26,548 -50. The suit was file in the City Civil Court Madras.

(3.) The Defendant resisted the suit disclaiming any responsibility for the shortage. They pleaded that no liability attached to the ship on the terms of the charter party which, they maintained, constituted the contract of carriage in the case. They further pleaded that the cargo in question was bulk cargo and the responsibility for any shortage therein was to be suffered wholly by the shipper, particularly because he happened also to be the charterer of the ship. They claimed that the shortage might have occurred owing to defective handling at the time of discharge fey the workers employed by the consignee. They pleaded that the cargo was not weighed in the presence of the ship's officers at the time it was loaded in the ship's holds and that it bore the weighment certificate only from a third party. It was urged that in such cases and under the custom of the port of loading the carrier could not be rendered liable for any subsequent shortage in delivery at the port of discharge. They also plead d that even in the bill of lading the Master did not, in so many words, accept the weight given in the certificate. In any case they pleaded that ammonium sulphate was susceptible to shrink and the shortage in weight might well have been occasioned by such shrinkage.