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HIGH COURT OF CALCUTTA
G. K. Mitter
LLOYDS TRIESTINO SOCIETA PER AZINNI DI NAVIGAZIONE SEDE IN TRIESTA - Appellant
Versus
LAKSHMINARAYAN RAMNIWAS - Respondent
Suit 1039 Of 1957
Decided On : JULY 4, 1958
JURISDICTION - STAY OF SUIT - CONTRACT OF CARRIAGE - CLAUSE PROVIDING FOR EXCLUSIVE JURISDICTION OF FOREIGN COURTS - VALIDITY AND ENFORCEABILITY - CONVENIENCE OF FORUM - SECTION 28 OF THE INDIAN CONTRACT ACT - INTERPRETATION AND APPLICATION.
Fact of the Case:
The plaintiff, an endorsee of bills of lading issued by the defendant shipping company, filed a suit in Calcutta for compensation for short delivery of goods shipped from Genoa to Calcutta. The defendant relied on clauses in the bills of lading, governed by Italian law, which provided for exclusive jurisdiction of the Courts at Trieste or Genoa and renunciation of the competence of other judicial authorities.
Finding of the Court:
The Court held that the clause in the bills of lading providing for exclusive jurisdiction of the Courts at Trieste or Genoa was not void under Section 28 of the Indian Contract Act, as it did not absolutely prohibit the plaintiff from enforcing his rights in the ordinary tribunals of the land. However, the Court found that it would be more convenient to have the suit tried in Italy, considering that most of the evidence necessary to prove the plaintiff's case would be available at the ports of shipment in Italy.
Issues: 1. Whether the clause in the bills of lading providing for exclusive jurisdiction of the Courts at Trieste or Genoa was void under Section 28 of the Indian Contract Act? 2. Whether it would be more convenient to have the suit tried in Italy or in Calcutta.
Ratio Decidendi: 1. The Court interpreted Section 28 of the Indian Contract Act and held that it was void to the extent that it sought to oust the jurisdiction of the Court which would otherwise be competent to try the suit. However, the Court found that the clause in the bills of lading did not absolutely prohibit the plaintiff from enforcing his rights in the ordinary tribunals of the land and was, therefore, not wholly void. 2. The Court considered the convenience of the parties and the availability of evidence in determining the appropriate forum for the suit. The Court found that most of the evidence necessary to prove the plaintiff's case would be available at the ports of shipment in Italy and that it would be more convenient to have the suit tried there.
Final Decision: The Court ordered a stay of all further proceedings in the suit until further orders of the Court, allowing the plaintiff to take legal proceedings in Italy. The Court reserved costs and granted the defendant the liberty to mention the matter and ask for costs if no proceedings were taken in Italy.
( 1 ) THIS is an application on the part of Messrs. Lloyds Triestino Societa Per Azinni di Navigazione Sede in Triesta, defendant No. 1 herein for stay of a suit.
( 2 ) THE suit was filed on June 8, 1957 by Messrs. Lakshminarayan Ramniwas, a firm carrying on business at 18, Netaji Subhas Road, Calcutta, against the said Steamship Co. , described in the cause title of the plaint as carrying on business through their agents Messrs. Turner Morrison and Company (Private) Ltd. , and the Commissioners for the Port of Calcutta. The plaintiff claims to be an endorsee of several bills of lading issued by the defendant No. 1 in March, 1956 for certain consignments of Mild steel round bars to be transported from Genoa (Italy) to Calcutta. The said consignments reached Calcutta in "s. S. Alga" on May 22, 1956 and it is alleged in the plaint that on delivery of the goods being taken through the plaintiff's clearing agents in June, 1956 it was found that 22 bundles of rods were short landed and a certificate to that effect was issued by the Commissioners for the Port of Calcutta. By reason of such short delivery the plaintiff claims compensation to the extent of Rs. 15,154/6 np.
( 3 ) BY its written statement filed on August 1, 1957 the defendant No. 1 relies on several clauses in the bills of lading which are in the Italian language with the English rendering thereof side by side. Clauses 3, 7, 21, 25, 31 and 32 referred to are as follows :--" (3) The declaration as to weight, quantity, volume, contents and value of the goods are considered as given unilaterally by the Shipper and do not constitute any proof against the Captain or any acknowledgment by him, the obligations of the Master and of the Owners being limited to the re-delivery of the goods loaded in the same apparent condition of packing in which they were received, excepting cases of Force Majeure and the other causes provided for in this Bill of Lading. 7. Every package must at time of shipment, be in good condition without any trace of damage or pilferage; cases must be strengthened with iron bands or safety netting properly fixed; bagged cargo must be in double bag. Every package must be indelibly marked to show marks, countermarks, numbers and any other indication as well as Port of destination and port of transhipment, if any, to correspond with declarations made on the bills of lading and/or shipping order so as to avoid confusion and mistakes. For packages weighing more than 1000 kilos the Shippers must indicate on the package its weight and specify same oil the bill of lading. The Company and the Captain are not liable to the Shipper and the Receiver for any consequences deriving from the non-fulfilment of these regulations. 21. The goods shall be discharged on arrival of the vessel by the Port Stevedores for account and at the expense, risk and peril of the shipper or receiver; the unloading shall take place without the obligation of giving notice to the receiver even during the night and holiday. The company may demand that the discharge be effected by firms of stevedores of their choice. 25. Any claim for damage or shortage or other claim inherent to the present bill of lading must be submitted in order to be considered, in writing to the company before taking delivery of the goods and within 7 days from the arrival of the vessel at port of destination. 31. All requests for compensation in respect of damage, shortage, deterioration, loss of goods loaded shall be submitted for friendly settlement to the agencies of the shipping company at the place of discharge. Failing a friendly agreement, both the shipper and the receiver as well as any other party interested in the cargo, if intending to take legal steps against the company, for the abovementioned causes and in general for whatsoever other causes, may summon them before Judicial Authorities of Trieste or Genoa, hereby expressly renouncing the competence of any other Judicial Authorities. No excep
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