JUDGMENT

S.B. SINHA, J.—

1.Leave granted.

2.Application of the Indian Carriage of Goods by Sea Act, 1925 (for short “the Indian Act”) vis-`-vis the Japanese Carriage of Goods by Sea Act, 1992 (for short “the Japanese Act”) is in question in this appeal which arises out of a judgment and order dated 2.12.2004 passed by a Division Bench of the High Court of Judicature at Madras in OSA No. 247 of 2000 affirming the judgment and decree dated 7.03.2000 passed by a learned Single Judge thereof in CS No. 75 of 1996.

3.Appellant is an owner of a fleet of vessels. A consignment of six sets of Sub Assemblies for PC 650 H.E. was entrusted by the respondent No. 1 for carriage thereof from Kobe, Japan to Madras. It contained 16 packages. It arrived at the Port of Madras on 17.12.1994.

4.A part of the consignment was found in damaged condition. An inspection therefor was made. Some damage was noticed in five cases. On the premise that the damage of short delivery had been caused due to negligence on the part of the employees of the appellant, a suit was filed on the original side of the Madras High Court. Claim of damage, however, was therein confined to two cases only, viz., case Nos. 00002 and 0013. In the said suit, the following relief was prayed for:

“(a)A sum of Rs.16,72,143.87 with interest from the date of plaint all the date of realization (interest of 18%) at 18% p.a as the transaction being commercial one under Section 34 CPC.”

5.In the written statement, the respondents inter alia pleaded ‘limited liability’ on their part. A learned Single Judge of the said Court held the appellant liable for payment of damages being responsible for causing damage and loss to the consignment which had occurred at a time when the cargo was in its charge.

6.In regard to the contention of the appellant that the contract of carriage having been concluded in Japan, the Japanese Act shall apply and not the Indian Act, it was opined:

“Another contention is raised on the side of the defendant that Indian Carriage of Goods by Sea Act has been amended by the Multi Model Goods Transportation Act of 1993 and the maximum liability of the carrier per package is not 100/- as contended by the plaintiff and the maximum liability is 666.67 Special Drawing Rights per package or two special drawing rights per kg of gross weight of the goods lost of damaged, whichever is higher, Calculated thus, according to the defendant, the maximum liability of the defendant will be only Rs. 1,31,471.11/-. Even assuming that the liability of the defendant has to be calculated thus, the liability must be calculated taking into weight of 16 cases which are governed by Ex.A-3 Bill of lading and in this case the liability will be more than what is claimed in the plaint. Therefore, the defendant cannot resist the claim of the plaintiff on this ground and the contract is governed by only Indian Carriage of Goods by Sea Act. Therefore, on issue No. 6 & 7. I hold that the contract is governed by Indian Carriage of Goods by Sea Act and the defendant is liable to the extent of the plaintiff’s claim and these two issues are therefore answered against the defendant.”

7.The Division Bench of the High Court in an intra-court appeal preferred by the appellant herein affirmed the said finding relying on or on the basis of Clause 6 of the Bill of Lading, stating:

“On the basis of above clause 6, the submission of the learned counsel for the appellant/defendant, that the Japanese Carriage of Goods by Sea Act is applicable to the facts of the case, cannot be countenanced.”

8.A notice was issued by this Court confined to the question as to whether the appellant has a limited liability to the claim of the respondents.

9.Mr. C.A. Sundaram, learned senior counsel appearing on behalf of the appellant, placed before us the relevant provisions of the Indian Act, Japanese Act as also the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague Rules) to contend that as the