DEVESSY PATHAJ KATHAVALA BY POWER HOLDER, ANANDAJI MALSI Vs. NEW BOMBAY STEAMSHIPS, LTD, BY THEIR AGENTS MESSRSKERWAR AND CO

JUDGEMENT

(1.) The plaintiff is the petitioner in this Civil Revision Petition. He was the plaintiff in S.C.S. No. 80 of 1927 on the file of the Court of the Subordinate Judge of Cochin, the defendant being the firm of B.M.V. Kini Brothers, agents of the Bombay Steamships, Limited. The plaintiff sued the defendant to recover the price of 5 bags of certain grains, which, he alleged, formed part of a consignment which he shipped from Bombay to Cochin in the defendant's Steamer "S. Section Indira". The allegation is that the plaintiff sent 157 bags of grains of different kinds by the said Steamer from Bombay to Cochin and that when delivery was made at Cochin there was a shortage of 2 bags of oorid and 3 bags of long dhal. In the place of the above the defendant offered 5 bags of onions. The plaintiffs declined to accept the same, and accordingly filed a suit to recover the price of 2 bags of oorid and 3 bags of long dhal. The plea of the defendant was that though in the bill of lading, in the margin the names of the particular grains said to be the contents of the bags delivered by the plaintiff to the defendant are mentioned, yet the bill of lading contains the statement " weight, contents and value, when shipped, are unknown," and that delivery by the company of packages "externally in good condition as received shall be conclusive evidence of the delivery of the full weight and contents" and that the defendant was not liable. The learned Judge who tried the suit came to the conclusion that the five bags in question contained the marks of the plaintiff. In the mate's receipt (which was granted to the plaintiff when the goods were taken into the ship along with the boat-note and after the same were accepted by the person who took charge of the same) mention was made that the consignment is " said to be " of particular grains. In exchange for the mate's receipt, a bill of lading was given to the plaintiff in the usual course, and, as already remarked, in the margin of the bill of lading there is a description of the number of bags and of the particular grain which the bags were said to contain. Being of opinion that the company was not conclusively bound by the mention in the margin of the bill of lading of the particular kinds of grains the bags were said to contain, and that the company was discharged of its obligations by delivery to the plaintiff of the total number of bags containing the initials (marks) of the plaintiff, the learned Subordinate Judge dismissed the plaintiff's suit. The plaintiff has preferred the present Civil Revision Petition.

(2.) On plaintiff's behalf his learned advocate drew my attention to the Import Manifest and the Outturn Report which have been exhibited as Exs. C and D in this case and he emphasised upon the duty that the Master of the ship was under to give to the harbour authorities, a correct description of the goods landed in any particular harbour. It was argued that having regard to the description of the goods in Exs. C and D it must be taken that the goods that were actually carried from Bombay to Cochin were goods of the description mentioned in the margin of the bill of lading. He also contended that there must be a specific finding on the question whether the five bags in dispute were the identical bags that were shipped by the plaintiff at Bombay. On behalf of the respondent the learned Counsel who appeared for the company drew my attention to the mate's receipt as well as to the contents of the bill of lading. The mate's receipt only stated that so many bags were received which were "said to contain" particular grains, and there were the conditions in the bill of lading already mentioned by me, namely," the nature of the contents unknown, "and," delivery by company of packages externally in good condition shall be conclusive evidence of the delivery of the full contents". The learned Counsel also strongly relied on the circumstance that the learned Judge has found that those five bags contained the plaintiff's marks under which the consignment was shipped by the plaintiff.

(3.) It seems to me that one thing is clear, that the company was bound to deliver the exact bags that were shipped at Bombay, subject of course to the conditions and exceptions contained in the bill of lading, and that the company was not entitled to take advantage of any misdescription of the goods with a view to withhold from the plaintiff the exact bags that. were actually shipped by the plaintiff. If, for example, the description of the bags was that they contained grains of an inferior quality but it was proved that the grains contained in the bags were of a superior quality, it is not open to the company to say that they would deliver to the plaintiff only grains of an inferior quality. In fact, subject to the exceptions and conditions mentioned in the bill of lading relating to loss by perils of the sea, etc., the company is bound to deliver the identical bags that were shipped at Bombay by the plaintiff to be carried to Cochin. The argument that was advanced on behalf of the petitioner is, that both in the boat- note (which however has not been produced in this case) and in the bill of lading itself, there is a specification in the margin of the number of bags shipped and of the contents of the same (the names of the particular grains which the bags contained being specified there) and therefore the onus is upon the defendant company to prove that those descriptions were wrong. It is clear that the marginal notes to the bill of lading did not mention " onions," and the five bags in question offered to the plaintiff at Cochin were bags which contained "onions". What then is the effect of the specification in the margin of a bill of lading of the description of the goods, which, according to the merchant, truly represented the quality and quantity of the goods that were shipped, when considered along with the clause in the bill of lading, namely, "the contents, weights and value unknown, etc." This question came up for consideration before this Court in the case reported in The British Steam Navigation Company, Ltd. v. Krishnaswami Aiyar (1920) 62 I.C. 709. There the receipt that was granted to the shipper contained the words " said to contain" such and such goods. There was also the other usual clause, namely, "contents and weight unknown". On those facts the learned Judge who tried the suit on the Original Side of this Court came to the conclusion that the company was bound to deliver the goods specified in the circumstances. That decision, however, was reversed by a Bench of this Court consisting of Sir John Wallis, C.J. and Krishnan, J. The learned Judges held that such questions had been decided in England and that the real meaning to be attached to such shipping documents was that the shipping company was not prepared to accept the description given by the merchant, and that for their purpose of determining the freight due to them they were prepared to accept the classification and the weight mentioned by the merchant. After referring to the course of business in such matters, namely, that the shipper takes a boat-note, delivers the goods to some person in charge on the ship and gets a mate's receipt for the goods, and then in exchange for the same gets a bill of lading from the agent or the Master of the ship in the usual course, the learned Judges made the following observation: Reliance was placed upon the mate's receipts and the bill of lading as shifting the burden on to the defendant company. The mate's receipts expressly say said to be so many bags. When the shipping company takes care to give a receipt of that sort so that it may not be vised as an admission against them as to the number of bags received by them, it seems to me that there is no justification for using it as making out a prima facie case as to the number of bags actually put on board.