Kailasam, O.CJ.-This appeal is preferred by the defendant in C.S. No. 3 of 1968, the Shipping Corporation of India Ltd., against the judgment and decree of N.S. Ramaswami, J. That was a suit filed by the Metal Box Co. of India Ltd., for payment of a sum of Rs. 1,23,769 with interest. The plaintiff imported a certain quantity of tin plates from Japan. The goods imported had been insured with the New Zealand Insurance Co. Ltd., which is the second plaintiff in the suit. When the ship arrived at the Madras Port on 30th December, 1966 it was found that the consignment of the plates was wet. A survey was made and it was found that quite a number of tin plates were damaged. After the surveyor’s report, the first plaintiff made claim for damages to the extent of Rs. 1,23,769. The insurer the second plaintiff, accepted the claim of the first plaintiff and paid the said amount. The suit for recovery of the said amount is based on the ground that the damage to the goods being while the goods were carried by the ship, it was due to the fact that the defendant had not taken proper and sufficient care of the goods. The defence to the suit is that the damage was due to perils, dangers and accidents of the sea or act of God. According to the defendant sea water bad entered the particular hatch in which the cargo had been loaded and such entry of sea water was possibly through storm valve cover. The learned Judge framed seven issues, the important one being issue No 2, which is as follows:

“Was the damage due to peril of the sea, and if so, is the defendant liable for the same” ?

The learned Judge has referred to the evidence of P.W. 2. who deposed to the effect that the fracture of the overboard discharge valve cover on scupper would not normally occur and that would happen only under very exceptional circumstances by force of the sea, and was of opinion that it is not of much help. The learned Judge did not place much reliance on the clearance certificate granted to the vessel at the port from which it last sailed stating that the vessel was sea-worthy. The learned Judge observed that D.W. 2 in cross-examination conceded that the Mercantile Marine Department issues the clearance certificate merely on the basis of the records communicated by the Master of the ship and without the departmental people making an inspection of the ship before issuing the clearance certificate. At this stage, we may say that we are unable to reject the clearance certificate. and agree with the learned Judge that the vessel was not sea worthy. We would take into account the evidence of D.W. 2 that the fracture of the overboard discharge valve cover on the scupper would not normally occur and that could happen only under very exceptional circumstances by force of the sea. Apart from the evidence of D Ws. 1 and 2, the learned Judge referred to the log-book of the vessel Exhibit D-7. Against the dates 14th December, 1966, 15th December, 1966 and 17th December, 1966, the log-book entries show that the vessel was rolling and pitching moderately and sometimes heavily, that there was pounding and straining due to rough sea and swell and that hold vents were being attended to, but such an attention was restricted due to continuous drizzle, etc. On arrival of the ship at Madras Port, the Chief Officer of the vessel informed the Captain that sea water was leaking into the tunnel recess from the flange of scupper pipe located between frames Nos. 12 and 13 of the stud. The report of the surveyor that sea water had found access during the voyage between Wakamatau and Madras via Singapore is accepted by all parties concerned. In Exhibit P-19, the survey report, it is stated that the cause for the damage was contact with salt water. The surveyor recommended that storm valve situated between Nos. 18 and 19 through which it was feared that sea water might have found an entry in No. 5 L hold should be fitted with new cover and stud in place of the cover which was cracked and the stud

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