KOHINOOR CARPET MANUFACTURERS Vs. FORBES GOKAK LIMITED

JUDGEMENT

(1.) PLAINTIFFS are a registered partnership firm who have filed the present suit against defendant No. 1 as the shipping agent of the defendant No. 2. Defendant No. 2 is the shipping company incorporated under the laws of Norway having its office c/o. Sirachan Shipping Company, 390, World Trade Center, Norfolk, Virginia 23510, U. S. A. Defendant Nos. 2 are carrier of goods. On 30th August, 1990 plaintiffs sent six rolls of carpets for Am Pak Trading Company in container No. TRIU 403005-8 vide Bill of Lading No. HOLU 0404 ROM NF 010 per vessel "hoegh DRAKE" Trading Co. to U. S. A. The port of loading was at Bombay and the port of discharge was Norfolk. The goods were to be exported by the plaintiff through the agent of defendant No. 2 i. e. the first defendant. The consignment was to reach its destination on 27-9-1990 and was to be cleared at Norfolk by clearing agents of consignee namely M/s. Cavilior Shipping Co. Inc. The clearing agents were advised that the cargo would arrive not by vessel "hoegh Drake" but by vessel "hoegh Dyke" on 5-11-1990. The cargo failed to arrived by the vessel "hoegh Dyke" on 5-11-1990. Plaintiff received a letter dated 24-6-1991 from M/s. Oriental Rug Warehouse, a division of M/s. Am Pak Trading Company informing the plaintiffs that the said shipment has been lost somewhere and that the shipping company, i. e. defendant No. 2 has not been able to locate the said cargo. Defendant No. 1 also wrote to the plaintiffs by their letter dated 5th July, 1991 that six rolls of carpets for Am Pak Trading Company did not out turn from the said container and also that they have not been able to locate the cargo till that date. It is the case of the plaintiffs that the consignee lodged their claim with the shipping company for the loss of cargo at destination. The claim was not accepted by the shipping company vide their letter dated May 20, 1991. Plaintiffs thereafter preferred claim with defendant No. 1 by letter dated 19th July, 1991. In the said letter the plaintiffs specifically stated that the defendant No. 1 will also remain responsible for any claim by M/s. Am Pak Trading Company for losses or damages suffered by them on account of non-receipt of the said cargo. It is their further case that the consignee lodged a claim with plaintiff by letter of 25th July, 1991 for the loss of profit, loss of prestige suffered by them by non-supply of the said goods to them. The case of the plaintiff is that as the defendant has neglected to pay the said claim of the plaintiffs for compensation for loss of cargo, defendants are jointly and severally liable for the losses. The claims have been quantified in the particulars of claim. In paragraph 12, it is averred that the claim can be enforced by action in rem against the carrier "hoegh Drake" and in personam against defendant Nos. 1 and 2. The plaintiffs case is that the office of the defendant No. 2 is situated at Bombay within the jurisdiction of this Court in its admiralty and vice admiralty jurisdiction. It is then averred that the suit is within limitation as the goods were shipped on 30-8-1990. The plaintiffs lodged their claim with defendants on 19-7-1991 i. e. within one year of the shipment of the said consignment. The suit it is contended is filed within three years of the cause of action.

(2.) DEFENDANTS filed their joint written statement. It was firstly contended that the suit was not maintainable under the admiralty jurisdiction of this Court. The suit it is contended, has been filed under the provisions of section 6 of the Admiralty Court Act, 1861. The claim of the plaintiff in the suit is for alleged loss of consignment which was on the vessel m. v. Hoegh Drake" at Bombay for carriage to the Port of Norfolk. The claim therefore, is not claimed in respect of goods coming into any port in India as envisaged by section 6 of the Admiralty Court Act, 1861. Without prejudice it is contended that the suit is barred by limitation. The consignment it is averred, was shipped on Board the vessel m. v. "hoegh Dyke" at an Indian Port, viz. Bombay and as such the provisions of the Indian Carriage of Goods by Sea Act, 1925 and the rules set out in schedule thereto are compulsorily applicable to the contract of carriage of the said consignments. Reference is then made to section 2 of the Indian Carriage of Goods by Sea Act, 1925 as also Rule 6 of Article 3 of the schedule to the Indian Carriage of Goods by Sea Act, 1925. Vessel M. V. "hoegh Dyke" it is pleaded arrived at the Port of Norfolk on 5-11-1990 and sailed from the said port on 7-11-1990 after discharging her cargo consigned to the said port. The suit has been filed on 25-8-1992 much after the expiry of one year period of limitation provided for by Rule 6 of Article 3 and the schedule to Indian Carriage of Goods by Sea Act, 1925 and therefore, is time barred. It is also averred that the plaintiffs have no cause of action to file or maintain the suit. The Bill of lading issued for the consignment which is in the subject matter of the suit has been endorsed by the plaintiffs and delivered to M/s. Am Pak Trading Co. the Notified Party mentioned in the said Bill of Lading. The plaintiffs, it is contended, are not holders of the said Bill of Lading and are therefore, not entitled to make a claim on the basis thereof or to file or maintain the suit. M/s. Am Pak Trading Company have in fact made a claim on second defendant on the basis of said Bill of Lading. Considering that the present suit is liable to be dismissed. It is then set out that the whole of the cause of action in the suit has not arisen within the jurisdiction of this Court and that the second defendants do not carry on business within the jurisdiction of this Court. Leave has also not been obtained under Clause 12 of the Letters Patent before filing of the suit. It is then, specifically pleaded that the suit against first defendant is not maintainable as they were not carriers of the consignment and are not owners of the vessel m. v. "hoegh Dyke" in which the consignment was shipped. They have merely acted as agent of the vessel and are therefore, not personally liable. In these circumstances, the suit against the first defendant is liable to be dismissed. Dealing with the merits of the matter, it is averred that the consignment was received on or about 30-8-1990 in respect thereof Bill of Lading earlier described was issued by the first defendant as agents of the second defendants. The Bill of Lading shows plaintiffs as shippers of the said consignment, and showed the consignee as "unto Order" and the notified party as M/s. Am Pak Trading Company. It is also averred that the said container was destuffed on 7th November, 1990 after discharge at the port of Norfolk when it was found that the said consignment was not traceable. There are various other contentions in so far as averments on merits of the claim by the plaintiffs.

(3.) ON 9-2-2001 issues have been framed which are reproduced herebelow. At this stage, considering the discussion hereinafter, the answer to the issue as proved, not proved or not required to be decided is also set out against the issues. ISSUES findings 1. Whether the suit is not maintainable for not answered in view the reasons stated in para 1 of the written of answers to other is statement? sues. 2. Whether this Court has jurisdiction to Partly in the affirma entertain the suit? tive. Suit against de fendant No. 2 not maintainable. 3. Whether the suit is barred by limitation? in the affirmative. 4. Do the plaintiffs prove that on 30th August, In the affirmative. 1990 they shipped 6 rolls of Indian hand made Woollen Carpets in Container No. 482005-8 vide Bill of Ladding No. HOLU 0404 ROM NP 010, was per vessel "hoegh Drake" of defendant No. 2 at U. S. A. for being carried to the port of Norfolk in U. S. A. ? 5. Does defendant No. 1 prove that it was not the in the affirmative. carrier of the suit consignment and that it acted only as agent of the vessels? 6. Are plaintiffs entitled to enforce their claim in the negative. in rem against the vessel "hoegh Drake"? 7. Whether the plaintiffs are entitled to enforce in the negative. their claim in personam against the defendants? 8. Whether the plaintiffs are entitled to a decree in the negative. against the defendants jointly and severally for a sum of Rs. 16, 69, 410, 13/-? 9. What order? suit dismissed.