SUPREME PAPER MILLS LTD Vs. OWNERS

JUDGEMENT

(1.) The plaintiff has filed the Suit for recovery of sum of Rs. 9,35,267 with 18% interest per annum on the said sum.

(2.) The main averments found in the plaint are as follows :The plaintiff Supreme Paper Mills Ltd., Calcutta, placed orders for the supply of bleached soft wood sulphite pulp from one M/s. Georgia Pacific International Corporation, U.S.A. for 4, 480 bales weighing about 1016 M. T. under four different bills. The consignment was loaded on board the 1st defendant vessel at Bellin Gha, Washington, U.S.A. on 3-8-85 covered by the respective Bills of Lading of the same date. The C.I.F. value of the entire consignment amounted to Rs. 42,86,999.44. The Bills of Lading on liner terms were issued in the name of the 2nd defendant Charterers of the 1st defendant vessel. After the consignment was loaded on board of the 1st defendant vessel and the Bills of Lading issued, the documents were transferred to the plaintiff and the plaintiff became the owner of the cargo, entitling them to take delivery of the same and the consideration for the consignment was paid to the suppliers. The 1st defendant vessel arrived at the Port of Calcutta on 20-10-85 and the agents of the defendants on or about 24-10-1985 informed the plaintiff that since the vessel had not yet been given a berth, they would discharge the cargo overside the vessel at sea and the cost of such discharge should be borne by the plaintiff. The defendants also threatened that the ship would proceed to Madras and discharge the cargo there and treat the contract of carriage as fulfilled at that point. The plaintiff by letter dated 25-10-1985 pointed out that the agreement was to carry the goods up to the Port of Calcutta and under no such circumstances should the cargo be diverted to Madras. However on 1-11-1985 it was informed that the 1st defendant vessel had proceeded to the Port of Madras and was discharging the cargo at the said Port and would treat the contract as fulfilled with such discharge. Though the plaintiff informed the defendant that such discharge would be in breach of contract and the defendants be liable for all damages arising out of such breach the 1st defendant vessel has discharged the cargo at Madras on 4-11-1985. When the contract of carriage refers to the port of discharge as Calcutta/Haldia, the defendants ought to have discharged the cargo as undertaken. Clause 6 of the Bill of Lading clearly states that the carriers shall carry the goods to the port of destination and should the goods be carried beyond the port of destination, the carrier shall tranship or re-ship the goods at the carrier's expense. Hence such transhipment or reshipment charges should be borne by the defendants. On account of the breach committed by the defendants, the plaintiff suffers expenses to a total sum of Rs. 9,35,267 and the defendants are jointly and severally liable to pay the amount to the plaintiff. Hence the Suit.

(3.) The main averments found in the written statement filed by the 1st defendant are as follows :(a) As per clause (3) of the liner terms any dispute arising under the four bills of lading dated 3-8-1985 issued by the 2nd defendant in favour of one M/s. Georgia Pacific International Corporation who in turn have endorsed the Bills of Lading in favour of the plaintiff, any dispute arising under those bills of lading shall be decided in the country where the carrier has its principal place of business and the law of such country shall apply except as provided elsewhere therein. Clause (2) of the Bills of Lading provides that the Hague Rules contained in the International Convention for the unification of certain rules relating to Bill of Lading shall apply to the contract. As per Article (1)(a) of the Hague Rules as amended by the Brussels Protocol in 1968 a carrier has been defined as to include the owner or the charterer who enters into a contract of carriage with a shipper. Clause 17 of the Bill of Lading deals with the identity of the carrier contemplates someone other than the owner being adjudged to be the carrier. The 2nd defendant are the time-trip charterer of the vessel m.v. 'ARABELLA' have entered into a contract of carriage with the shipper and is thus the carrier within the meaning of the Hague Rules which are applicable to the present Bill of Lading. Even if the 1st defendant are construed to be the carrier, the Suit should have been filed in Canada, wherein the 1st defendant has it's principal place of business and this Court has no jurisdiction to try the suit and the suit should be dismissed on this ground alone.(b) The vessel 'm.v. ARABELLA' arrived at the Port of Calcutta on 20-10-1985, as there was a go-slow strike by the dock workers at Calcutta Port and also as there was no immediate prospect of berthing space being made available for the vessel to the discharge of it's cargo, the 2nd defendant Charterer offered overside delivery of the cargo on the condition that the plaintiff bears the cost of such overside delivery. The plaintiff was willing to bear only 50% of the expenses and in view of the stalemate the 2nd defendant instructed the master of the vessel to sail to the Port of Madras. Clauses 8 and 64 of the charter party provide that under the orders and directions the Master is to conform to the charterers or their representatives/agents, instructions. The plaintiff obtained delivery of cargo from the vessel at Madras without any demur or protest. As per Clause 16 of the Bill of Lading, the Master and the carrier have the liberty in case of, inter-alia, labour troubles, strikes, labour obstructions etc. any of which on board or on shore to discharge the cargo at the port of loading or any other safe and convenient port. The other provisions under Clause 16(c)(d) and (f) also give such right to discharge the cargo. In view of the over-siding provisions of Clause 16 the plaintiff cannot seek recourse to the provisions of clause 6. Therefore the suit of the plaintiff against the 1st defendant is liable to be dismissed.