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HIGH COURT OF CALCUTTA
Mrs. Padma Khastgir & Ail, Sen Gupta, JJ.
Steel Authority of India Ltd.
vs.
Bangladesh Shipping Corporation & Ors.
APPEAL FROM ORIGINAL ORDER No. 34 of 1984
Decided On : April 12, 1989
FOREIGN IMMUNITY - STATE-OWNED VESSEL - S. 86, CIVIL PROCEDURE CODE, 1908 - HAGUE RULES, 1925 - CARRIAGE OF GOODS BY SEA ACT, 1925 - LIMITATION - REJECTION OF PLAINT - ORDER VII RULE 11, CIVIL PROCEDURE CODE, 1908 - APPLICABILITY OF HAGUE RULES - LIABILITY OF SHIP OWNER - DELIVERY OF GOODS - CONVERSION.
Fact of the Case:
Bangladesh Shipping Corporation (BSC), a state-owned company of the People's Republic of Bangladesh, filed an application to dismiss a suit filed against it by Steel Authority of India Ltd. (SAIL) in the Calcutta High Court. BSC claimed foreign immunity under Section 86 of the Civil Procedure Code, 1908, and argued that the Hague Rules, incorporated into the Carriage of Goods by Sea Act, 1925, extinguished its liability since SAIL failed to file the suit within one year from the date the vessel left the Port of Calcutta.
Finding of the Court:
The High Court allowed BSC's application and dismissed the suit against it. The court held that BSC was entitled to foreign immunity and that the Hague Rules barred SAIL's claim.
Issues: 1. Whether BSC was entitled to foreign immunity under Section 86 of the Civil Procedure Code, 1908. 2. Whether the Hague Rules, incorporated into the Carriage of Goods by Sea Act, 1925, extinguished BSC's liability due to SAIL's failure to file the suit within one year from the date the vessel left the Port of Calcutta.
Ratio Decidendi: 1. The court held that the averments in the plaint did not indicate the date when the vessel sailed off from the Port of Calcutta after discharging the cargo. Therefore, it could not be determined whether SAIL's suit was barred by limitation. 2. The court held that at the stage of considering the rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908, the court must proceed on the basis that the averments made in the plaint are true and correct. The applicant praying for rejection of the plaint must establish that the plaint ex facie does not disclose any cause of action or is barred by any law, including limitation. 3. The court held that the Hague Rules incorporated in the Carriage of Goods by Sea Act, 1925, provided that the carrier and the ship shall be discharged from all liability in respect of the loss and damage unless the suit is brought within one year after the delivery of the goods or the date when the goods should have been delivered. However, in the instant case, the goods were not delivered, as evidenced by the letters written by BSC acknowledging its inability to deliver the balance of the goods. Therefore, the clause that the ship owner shall be discharged from liability in respect of loss and damage unless the suit is filed within one year after the delivery of the goods or the date when the goods should have been delivered, did not extinguish the liability of the ship owner.
Final Decision: The High Court set aside the impugned order and judgment and allowed SAIL's appeal. The court held that BSC was not entitled to foreign immunity and that the Hague Rules did not extinguish BSC's liability. The court granted liberty to SAIL to take such steps as it was entitled to in accordance with law.
Mrs. Padma Khastgir, J. : In a suit filed by the Steel Authority of India Ltd. against Bangladesh Shipping Corporation and others, an application was taken out by Bangladesh Shipping Corporation for an order that the plaint filed in Suit No. 703 of 1931 be rejected and/or taken off the file and the suit against the defendants be dismissed. In the said application, Bangladesh Shipping Corporation the defendant no. 1 stated that the vessel M. V. Bangladesh Maitri' belonged to Bangladesh Shipping Corporation which was under the Ministry of Communication of the Government of Peoples Republic of Bangladesh. The said government being a government of a foreign state and the petitioner being of such foreign State the petitioner was entitled to foreign immunity, as such, this Court had no jurisdiction to hear and/or proceed with the suit. Without the necessary permission of the Central Government as contemplated under s. 86 of the Civil Procedure Code.
2. The plaintiff filed the instant suit on account of loss and damages suffered by it for non-delivery/short delivery and/or delivery in damaged condition of diverse goods carried by Bangladesh Shipping Corporation on board their vessel 'Banglar Maitri' (hereinafter referred to as the said vessel). The said vessel touched the Port of Calcutta in September, 1979 and discharged its cargo between November, 1979 and December, 1979 and thereafter left the Port of Calcutta on March 12, 1980 and obtained a certificate to that effect from the Calcutta Port Trust. The petitioner relied upon the provisions of Hague Rules which have been incorporated in the Contract of Carriage into India by and between the parties as evidenced by the Bill of lading and submitted that all the liabilities of the petitioner stood extinguished as no claim had been preferred within one year from the date when the said vessel left the Port of Ca1cutta and as such the plaintiff had' no subsisting cause of action upon which the said suit could be instituted.
3. Mr. Justice Dipak Kumar Sen (as he then was) allowed the application by directing that the name of the defendant no. 1 be struck off and deleted from the Cause title of the plaint and dismissed the suit against the defendant no 1. The plaintiff had filed the suit against the defendant no. 1 Bangladesh Shipping Corporation as the owner of the vessel Banglar Maitri. The defendant no.1 as a common carrier had been sued whereas the defendant no. 2 acted as an agent (of the defendant no. 1) and was entrusted with the handling of the cargos discharged at Calcutta by the said vessel. By five several bills of lading the defendant no. 1 acknowledged to have received in apparent good condition on board the vessel from London various machinery equipment and machine parts to be carried safely by the defendant no. 1 to Calcutta and be delivered to the plaintiff under various forms and conditions as agreed upon by and between the parties. After the vessel arrived at Calcutta in September, 1979 .in the course of and during unloading of the' goods and the cargo, the said vessel caught fire as a result whereof a portion of the cargo was destroyed and/or damaged. Between November and December, 1979 the remaining portion of the consignment were landed at the Calcutta Port. After payment of the Customs Duty and loading charges the said goods were stored at the warehouse of the defendant no. 3, the Bengal Bonded Warehouse Association at the instance of the defendant no. 1 and 2. On behalf of the plaintiff the said consignment was inspected, surveyed in the presence of the representatives of the defendant nos.1 and 2. The plaintiff filed a suit for damages caused to the said goods. By letter dated 9th September, 1980 the defendant no. 2 on its own behalf as also on behalf-of the defendant no.1 requested the plaintiff to pay the rent and/or the go down charges including loading and unloading charges and on 19th of September, 1980 the defendant no. 2 for self and on behalf of the de
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