PENGUIN MARITIME LTD. Vs. LEE & MUIRHEAD LTD.

JUDGEMENT

(1.) The plaintiff is a company incorported in Liberia owning the" vessel m.v.LISSOM. The defendant is a firm of agents working at" the port of Haldia, Calcutta, West Bengal. The plaintiff entered" into a Charterparty with one Inglewood Gestion S.A., Geneva as a" Charterer. The Charterer appointed the defendant as its agent in" Haldia. Upon the recommendation of the Charter the plaintiff also" appointed the defendant his agent in respect of the cargo to be" loaded on the plaintiff's vessel at Haldia. The vessel arrived at" Haldia on 12th September, 1996. The plaintiff issued the formal" notice of readiness. The defendant knew about the arrival. The" defendant had acted on behalf of the plaintiff in respect of the" vessel since 11th September, 1996. The defendant had to undertake" the formalities for loading the cargo on board the plaintiff's vessel" upon certain terms of the Haldia port authorities. The defendant" had to see that the cargo to be loaded was ready for loading when" or before the plaintiff's vessel arrived and to appoint a surveyor to" check the condition of the cargo. The plaintiff had to issue a clean" mate's receipt (which could be issued only if the cargo was in a fit" condition). It is the plaintiff's case that the defendant did not" comply with the material terms of the port authority. It failed to" inform the plaintiff of the specific conditions and terms. The vessel" remained berthed. The cargo was to be loaded. The loading could" not commence because the cargo was not ready for loading. The" plaintiff was made to vacate the berth by the port authority. The" plaintiff's vessel was again brought for berthing. The loading" commenced. Thereafter a Surveyor was appointed by the plaintiff." The Surveyor opined that the cargo was not in a fit condition.

(2.) The plaintiff has claimed that the samples of the cargo found" unsuitable was sent to one M/s. Briggs and Company for testing." The report of the inspection showed that the cargo was infested" with insects, weevils and larvae so as to make it unfit for human" consumption. The plaintiff has further claimed that the parties" appointed their respective surveyors to carry out the joint survey." Certain samples were sent to the UK for analysis. All these took" time when the plaintiff's vessel incurred cost which the defendant" called upon the plaintiff to pay and which was paid. Ultimately the" cargo was rejected and not allowed to be loaded. It was then that" the plaintiff was informed that the defendant had given an" undertaking that a "clean mate's receipt" would be issued by the" plaintiff, but which could not be issued. The plaintiff's ship sailed" without the cargo after considerable delay of 76 days from the time" of the ultimate rejection.

(3.) The plaintiff has claimed that the plaintiff initially and" mistakenly considered the charterers as the parties liable for the" delay and the consequent costs to the plaintiff. However much" later on 26th November, 1996 it was brought to the knowledge of" the plaintiff that it was the undertaking given by the defendant to" the port authorities which resulted in the port authority insisting on" the clean mate's receipt which could not be given due to the" infested cargo and hence the plaintiff has held the defendant liable" for the loss incurred by the plaintiff for having given the" undertaking without the plaintiff's knowledge and consent. The" plaintiff claims that the defendant failed to carry out its obligations" as the plaintiff's agent. The defendant did not appoint the Surveyor" as required and did nothing to protect the plaintiff, but only acted" on behalf of the charterer and the shipper. In addition the" defendant constrained the plaintiff to accept unacceptable cargo" upon its undertaking given to the port authority on 11th September," 1996 before the ship arrived.