2001 Supreme(Cal) 689

High Court Of Calcutta
A. K. GANGULY
BLUE OCEAN EXPORTS PRIVATE LIMITED - Appellant
Versus
M.V.TIGER CREEK - Respondent
Admiralty Suit 7  Of  2001
Decided On : 10/19/2001

Section 2 of COGSA applies independently of Section 4 subject to certain conditions mentioned in Section 2. The requirement of Section 4 is an additional requirement, viz. every Bill of Lading or similar document of title, which contains or evidences any contract to which this rule applies, shall contain an express statement that such documents are to have the effect subject to the provisions of the rules as applied by COGSA.

Headnote:

COGSA - Applicability - Statement in Bill of Lading - Hague Rules - Limitation of Liability - Maintainability of Suit - Order XXIII CPC - Same Subject Matter.

Fact of the Case:

Plaintiff entrusted cargo to vessel for carriage from Haldia to Dubai. Bills of Lading were issued and cargo was not delivered. Plaintiff filed an Admiralty Suit for arrest of the vessel. Defendant, the charterer of the vessel, contested maintainability of the suit on two grounds: (1) the suit was barred as a previous suit on the same cause of action was withdrawn without leave; and (2) the suit was not maintainable as more than one year had elapsed since the alleged non-delivery of the cargo, and the liability of the ship owner was discharged under Section 2 of COGSA read with Article III(6) of the Rules in the Schedule to the Act.

Finding of the Court:

1. Section 2 of COGSA applies independently of Section 4 subject to certain conditions mentioned in Section 2. The requirement of Section 4 is an additional requirement, viz. every Bill of Lading or similar document of title, which contains or evidences any contract to which this rule applies, shall contain an express statement that such documents are to have the effect subject to the provisions of the rules as applied by COGSA. 2. Section 4 has two parts. The first part makes it clear that to every Bill of Lading issued in India which contains or evidences a contract, the rules will apply. But, in addition, it has been further stated in the second part of Section 4 that such Bill of Lading shall contain an express statement that it is to have effect subject to the provisions of the rules. Therefore, it cannot be said that unless an express statement is made, the rules cannot apply. 3. The rules in the Schedule to COGSA have the force of law and a perusal of rule 6 under Article III of the schedule makes it clear that the same has been enacted for limiting the liability of the carrier and the said provisions which have been made under the schedule, were made in public interest. The clear public interest is to put both the carriers of the goods and its owner on notice about their respective liabilities and rights. 4. The Bill of Lading in the instant case incorporates the terms of relevant Schedule to COGSA. Clauses 2 and 25 of the Bill of Lading substantially incorporate clause 6 of schedule III to the said rules under COGSA. 5. The provisions of Rule 6 of Article III of the Schedule to COGSA must be construed as statutory provision and therefore, those provisions being contrary to Section 28 of the Contract Act, as amended, are not void. 6. The suit is not barred under Order XXIII of the Code as the defendants in both the suits are different and the relief claim for in Admiralty Suit No. 7 of 2001 and the admiralty Suit No. 5 of 2001 are not identical.

Issues: 1. Whether the suit is barred as a previous suit on the same cause of action was withdrawn without leave? 2. Whether the suit is not maintainable as more than one year had elapsed since the alleged non-delivery of the cargo, and the liability of the ship owner was discharged under Section 2 of COGSA read with Article III(6) of the Rules in the Schedule to the Act?

Ratio Decidendi: 1. Section 2 of COGSA applies independently of Section 4 subject to certain conditions mentioned in Section 2. The requirement of Section 4 is an additional requirement, viz. every Bill of Lading or similar document of title, which contains or evidences any contract to which this rule applies, shall contain an express statement that such documents are to have the effect subject to the provisions of the rules as applied by COGSA. 2. Section 4 has two parts. The first part makes it clear that to every Bill of Lading issued in India which contains or evidences a contract, the rules will apply. But, in addition, it has been further stated in the second part of Section 4 that such Bill of Lading shall contain an express statement that it is to have effect subject to the provisions of the rules. Therefore, it cannot be said that unless an express statement is made, the rules cannot apply. 3. The rules in the Schedule to COGSA have the force of law and a perusal of rule 6 under Article III of the schedule makes it clear that the same has been enacted for limiting the liability of the carrier and the said provisions which have been made under the schedule, were made in public interest. The clear public interest is to put both the carriers of the goods and its owner on notice about their respective liabilities and rights. 4. The Bill of Lading in the instant case incorporates the terms of relevant Schedule to COGSA. Clauses 2 and 25 of the Bill of Lading substantially incorporate clause 6 of schedule III to the said rules under COGSA. 5. The provisions of Rule 6 of Article III of the Schedule to COGSA must be construed as statutory provision and therefore, those provisions being contrary to Section 28 of the Contract Act, as amended, are not void. 6. The suit is not barred under Order XXIII of the Code as the defendants in both the suits are different and the relief claim for in Admiralty Suit No. 7 of 2001 and the admiralty Suit No. 5 of 2001 are not identical.

Final Decision: Suit dismissed.