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2019 Supreme(SC) 175
SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, UDAY UMESH LALIT, JJ.
ESSAR SHIPPING LTD. - APPELLANT
VS.
THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA - RESPONDENT
CIVIL APPEAL NO. 5654 OF 2007
Decided On : 15-02-2019
For the Appellant :Mr Pinaki, Advocate and Mr. Chira Ranjan Addy, Advocate
For the Respondent:Mr. Parag P. Tripathi, Sr. Advocate, Mr. A. V. Rangam, Advocate, Mr. Buddy A. Ranganadhan, Advocate and Ms. Stuti Krishn, Advocate, for the Respondent.
IMPORTANT POINT
When the committee set up by Government did not consider delay in anchoring the vessel to be one of the reasons for damage to coal loader, Division Bench of High Court was not correct in taking this aspect in consideration.
Headnote:(a) Administration of justice – Committee set up by Government not considering delay in anchoring the vessel to be one of the reasons for damage to coal loader – Division Bench of High Court taking this aspect in consideration – Not proper. (Para 22)
(b) Port of Calcutta Bye-laws – Bye-laws 16 and 20 r/w Section 116, Major Port Trust Act, 1963 – Damage to coal loader by vessel in question – Acceptance of liability obtained from Master of the vessel – Committee constituted by government not fixing and individual liability – Appellant filing suit for declaration that the acknowledgement of liability dated 01.09.1987 was void and without any legal effect and for cancellation of said endorsement – Held, trial court of the High Court rightly decreed the suit in view of the opinion of the committee. (Para 24)
[1916] 2 AC 556 – Distinguished
Facts of the case:
Master of the Vessel owned by appellant was alleged to have damaged a shiploader in the docks. On the Master accepting liability the vessel was allowed to sail out of port. The committee constituted by the Government held that no individual responsibility can be assigned.
The appellant instituted Suit No. 12 of 1988 on the original side of the High Court at Calcutta praying inter alia for a declaration that the acknowledgement of liability dated 01.09.1987 was void and without any legal effect and for cancellation of said endorsement.
The respondent filed its written statement with a counter claim and claimed a decree for Rs.30 lakhs.
The Single Judge by his judgment and order dated 09.04.1997 decreed the suit.
Appeal thereagainst was allowed.
Finding of the Court:
The committee considered the facts in correct perspective.
Result: Appeal allowed.
JUDGMENT :
Uday Umesh Lalit. J.
This appeal by special leave challenges the judgment and order dated 27.10.2006 passed by the Division Bench of the High Court at Calcutta allowing appeal namely A.P.D. No.338 of 1997 and setting aside the decree dated 09.04.1997 passed by Single Judge of the High Court in Suit No. 12 of 1998.
2. On 27.08.1987 at about 1148 hrs. the vessel "M.V. Chennai Nermai" belonging to the appellant (formally known as South India Shipping Corporation Ltd.) arrived at the lock gate of Haldia Port for loading of cargo of coal at Haldia Docks for delivery at the port of Tuticorin. The vessel de-ballasted while at the lock gate upto 1300 hrs. At 1306 hrs., in terms of the Rules of Calcutta Port Trust, Berthing Master Mr. Rajak of the Port Trust boarded the vessel and by 1342 hrs., the forward and aft tugs were attached for towing the vessel from the lock gates to the berthing area of Haldia Port. While the vessel was being berthed at about 1354 hrs., the start board quarter of the vessel came in contact with a coal loader stationed by the side of the berthing area and the coal loader got damaged.
3. On the same day a letter was issued by the Plant Engineer, Haldia Dock Complex to the Master of the vessel putting the responsibility for the loss on the vessel. A reply was given by the Master that very day denying acceptance of liability while emphasizing that the coal loader was not kept at proper possession. On the same day a notice was sent from Marine Operations Division, Calcutta Port Trust to the Master of the vessel holding said Master and the vessel responsible for the damages with a request to immediately intimate acceptance of liability. The Master put endorsement; "Received without prejudice, I do not accept liability for above as contravention proper position of safe berthing letters follows :
"A reply to the said notice was also sent by the Master on the same day, reiterating that the coal loader was not kept at a proper position as against the normal practice of keeping the loader in the center of the jetty and that the communication between the Berthing Master and the tugs was poor. On the very day, a letter was also sent by the Master of the vessel to the Deputy Chairman, Haldia Dock Complex, Haldia that the vessel had also suffered damage as a result of the coal loader not having been kept proper position and for other reasons mentioned in said letter.
4. Again on 29.08.1987 the Master of the vessel wrote to the Manager, Marine Operations, Haldia Dock Complex referring to the failure on part of tugs and faulty communication system specially in the conditions where there were strong winds. On 30.08.1987 the vessel completed loading operations but was kept waiting for want of clearance by the Port authorities. On 31.08.1987 a notice was issued by the Manager, Marine Operations Division, Calcutta Port Trust to the Master of the vessel holding him and the vessel responsible for the damages with a request to intimate acceptance of liability. The endorsement put by the Master on the copy of said letter was; "Liability accepted under protest without prejudice to owners/agents contention for right of defence." Another notice was sent by the Manager, Marine Operations Division of Calcutta Port Trust on 01.09.1987 to the same effect. The endorsement on the copy of said notice was to the following effect:
"Liability accepted without prejudice to the extent of only loader being put in working condition on turn key basis."
After the aforesaid endorsement, the vessel was allowed to sail out of Haldia Docks on 01.09.1987.
5. On 20.10.1987 an Order was passed by the Government of India, Ministry of Surface Transport setting up a Committee as under:
"A shiploader at the coal berth at Haldia Dock complex was damaged on 27.8.87 when a vessel "Chennai Nermai" was being berthed. The damage was of serious and extensive nature. It has been decided to set-up an enquiry committee to examine the various aspects of the accident and f
