Back
HIGH COURT OF CALCUTTA
B. C. Mitra
TEXTILES AND YARN (P)LTD. - Appellant
Versus
INDIAN NATIONAL STEAMSHIP CO. LTD. - Respondent
Suit 388 Of 1958
Decided On : JANUARY 29, 1964
CARRIAGE OF GOODS BY SEA - SHORT LANDING - LIABILITY OF CARRIER - MAINTAINABILITY OF SUIT BY INSURED - SECTION 41 OF THE INDIAN CONTRACT ACT - LIMITATION - ARTICLE III, CLAUSE 6 OF THE SCHEDULE TO THE CARRIAGE OF GOODS BY SEA ACT, 1925.
Fact of the Case:
Plaintiff, as the consignee, filed a suit against the defendant, a carrier, for recovery of damages for loss of goods in course of transit from Madras to Calcutta. The plaintiff claimed that out of a lot of 25 bales shipped, two bales were short-landed. The defendant denied liability, alleging that its liability ceased when the consignment was discharged from the vessel and passed into the custody of the Commissioners for the Port of Calcutta. The defendant also contended that the plaintiff's claim was barred by limitation under Clause 6 of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925.
Finding of the Court:
1. The plaintiff proved that two bales were short-landed and it was likely that they got mixed up with other goods of similar description carried by the ship. The defendant failed to show how the consignment was dealt with during transit, and the presumption under Section 114(g) of the Evidence Act was made against it. 2. The suit was not maintainable by the plaintiff as the insured had already recovered the amount claimed from the Insurance Company and there was no assignment of the claim or title to the goods in favor of the plaintiff. Section 41 of the Indian Contract Act barred the suit as the plaintiff accepted performance of the promise to pay compensation from the insurer. 3. The plaintiff's right to sue was not extinguished by lapse of time under Clause 6 of Article III of the Schedule to the Carriage of Goods by Sea Act, as the defendant failed to discharge the onus of proving the actual date of departure of the ship from the Port of Calcutta.
Issues: 1. Was the right to sue extinguished by lapse of time of one year as provided in Clause 3 Article III para 6 of Schedule to the Indian Carriage of Goods by Sea Act? 2. Is the plaintiff owner of the goods in dispute? 3. Is the defendant absolved from all liabilities after unloading of the goods as alleged in paragraph 7 of the written statement? 4. Did the consigner declare the value of the goods prior to shipment as alleged in paragraph 9 of the written statement? 5. Is the suit maintainable? 6. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. The carrier is liable for the loss of goods during transit unless it can show how the consignment was dealt with and that the loss was not due to its negligence or want of skill. 2. An insured cannot maintain an action against the carrier for compensation for loss of goods unless there is an assignment of the claim by the insurer to the insured. 3. Section 41 of the Indian Contract Act bars a suit by the promisee if he accepts performance of the promise from a third person. 4. The limitation period of one year under Clause 6 of Article III of the Schedule to the Carriage of Goods by Sea Act is calculated from the date of departure of the ship from the port at which the delivery is to be made.
Final Decision: The suit was dismissed as it was not maintainable by the plaintiff and the defendant was not liable for the loss of goods.
( 1 ) THIS is a suit for recovery of Rs. 2040/- as damages for loss of goods in course of transit from Madras to Calcutta. The plaintiff's case is that out of a lot of 25 bales which were shipped two bales were short-landed. According to the plaintiff, the goods were duly booked, bearing proper markings of the consignor and the consignee, but due to negligence of the defendant or its servants and agents the full quantity of 25 bales were not lauded. The plaintiff obtained delivery of 23 bales only. The plaintiff, therefore, claims the sum of Rs. 2040/- as damages.
( 2 ) THE case as made out in the plaint is that on or about February 20, 1957 Messrs. Keshavlal Talakchand of Madras shipped 25 bales of yarn by the defendant's steamship S. S. "shivaratna". A bill of lading was issued by the defendant in respect of the shipment, and under the terms there-of the defendant was to carry the goods from the Port of Madras to the Port of Calcutta. The plaintiff claims to be the owner of the said goods consigned and is the endorsee or holder for value of the said bill of lading.
( 3 ) ON or about February 27, 1957 the ship arrived at the Port of Calcutta and it is alleged that the cargo was discharged until March 8, 1957. The plaintiff took delivery of the consignment on March 15, 1957 and March 19, 1957, from the Commissioners for the port of Calcutta and it was then found that two bales were short delivered and accordingly "not found" remark was recorded with the Port Commissioners on March 19, 1957. Thereafter on or about May II, 1957, a short landing advice, known as 'b' form was issued by the Port Commissioners to the plaintiff. According to the plaintiff, only 23 bales instead of 25 bales were discharged by the ship. It is alleged that the plaintiff has suffered loss in Rs. 2040/-for non-delivery of the two bales and the plaintiff claims the said sum as damages.
( 4 ) BY a letter dated May 30, 1957 the plaintiff submitted its claim for the sum of Rs. 2040/-against the defendant. The plaintiff's claim was supported by material documents.
( 5 ) IN the written statement it is alleged that the defendant is the carrier on hire subject to the provisions of the Carriage of Goods by Sea Acc (Act XXVI of 1925) and rules framed thereunder and also subject to the provisions of the conditions embodied in the bill of lading. The defendant denies that the plaintiff is the owner of the said consignment of 25 bales of cotton yarn or that it is an endorsee or holder for value of the said bill of lading. It is also denied that the vessel discharged cargo till March 8, 1957. The defendant also denies that two bales were short landed or that the "not found" remark was recorded with the Commissioners for the Port of Calcutta. It is alleged that the defendant's liability ceased when the consignment was discharged from the vessel on March 3, 1957 and passed into the custody of the Commissioners for the Port of Calcutta. The defendant also denies the issue of and authority of the Port Commissioners to issue, the short landing advice known as 'b' form. It is denied that only 23 bales out of 25 bales of cotton yarn were discharged from the ship and it is alleged that two bales being defaced with 'nil' marks were received by the Port Commissioners and were lying with them. There is a denial that the plaintiff has suffered loss in the sum of Rs. 2040/ -. It is further alleged that the claim of the plaintiff was made out of time and cannot be entertained. The allegations of negligence and carelessness on the part of the servants and agents of the defendant are also denied. It is further alleged that it was due to the negligent manner of the shipper or owner of the goods in not giving marks which should remain legible till the end of the voyage, that the marks became defaced and as such the defendant is not liable for any claim for damages. It is alleged that the plaintiff's claim in this suit has been extinguished and there is no enforceabl
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
