INDIAN SHIPPING INDUSTRY LTD Vs. DOMINION OF INDIA

JUDGEMENT

(1.) THIS is a suit filed by a, shipping company against the Dominion of India arising out of 3, contract dated 20-1-1944, made between the plaintiffs and the Textile commissionery Bombay, acting on behalf or the Governor General in Council, who has now been succeeded by the Dominion of India.

(2.) UNDER the said contract the plaintiffs agreed to transport from Bombay by country crafts standard cloth to certain ports on certain terms and conditions. As one of the terms of the said contract the plaintiffs had to deposit a sum of Rs. 1,00,000 as security for the due fulfilment of their obligations under the agreement. A de-posit was accordingly made on 9-3-1944, Thereafter the plaintiffs from time to time received 575 bales of cloth for being carried from Bombay to Cochin and Aileppey in the country craft "jayant". The said country craft left Bombay for the ports of Cochin and Alleppey on 15-3-1914. After passing Khanderi, water began to enter the said country craft and the Tindel of the country craft baled out the water. On the morning of 17-3-1944, the Tindel decided to go to Jayagad port. Owing to low tide he had to anchor the craft at some distance from the port. However, the crew on the said craft were unable to bale out the water that was coming into the craft. The Tindel went ashore and informed the Customs Officers. As a result, 50 bales of cloth were removed to the shore in good condition. In the meantime the craft was full of water and grounded as a result. After a great deal of correspondence lost took place between the plaintiffs and the Textile Commissioner the goods which were in a damaged condition were brought back to Bombay; but as the defendants refused to take back the goods, 302 bales were lying in the open in the Port Trust docks and 218 bales in the godowns of the plaintiffs' clearing agents. The defendants claimed that the plaintiffs were under the terms of the contract liable for the damage caused and refused to return the security deposit of Rs. 1,00,000 which, was lying with the Textile commissioner. This suit has been filed by the plaintiffs to recover this sum of Rs. 1,00,000 as also a sum of Rs. 52,971-6-3 being the hire amount and expenses incurred by the plaintiffs in respect of the goods carried by the said craft "jayant" as well as by other country crafts.

(3.) IT is the case of the plaintiffs that the provisions of the Indian Carriage of Goods by Sea Act (26 of 1925) apply to the contract of affreightment in this suit, and that, therefore, under this contract, of affreightment they did not give an absolute warranty of seaworthiness. The defts contend that the Carriage of Goods by Sea Act does not apply, and that, in any event, if it does apply, this case is taken out of the provisions of the Act by reason of Article 6 of the rules relating to bills of lading which are given in the schedule to that Act. As the entire case depends mainly upon the question as to whetner the liability of the plaintiffs as carriers is governed by the Indian Carriage of Goods by Sea Act, 1925. or not, I decided, on an application made in that behalf by counsel for the defendants, to try the following two issues as preliminary issues: