Delivery of cargo to the Port Trust does not constitute delivery to the consignee, and a clause in a charter party providing that a declaration by the Master of the vessel that all cargo shipped had been delivered to the receivers would be conclusive evidence of that fact cannot bar the consignee's claim for short-landing and damage to the cargo, where there was no physical delivery of the cargo to the consignee until after a survey revealed the short-landing and damage.

RAMAPRASADA RAO, J. - The Chief Controller of Chartering, Government of India chartered the vessel 'A.P.J. Aruna', owned by the defendants, and entered into a charter party on 16-8-1963 under Ex. B.1. The charter was intended for the carriage of certain consignments of urea together with a certain quantity of empty gunny bags from Venice-porto Merghera to a port in West coast or East coast in India. The bills of lading evidencing the loading of the cargo are Exs. A.1 and A.2, which in turn incorporated the material terms contained in the charter party. Exs. A.10 and A.11 are the certificates of weight issued at the port of shipment, whilst Exs. A. 12 and A.13 are the certificates of origin relating to the goods. Ex. A.14 is the invoice issued by the seller. The invoice discloses the shipment of two consignments of urea, in all, 1,31,140 bags, for carriage to Madras and also BI2 empty bass along with it. Ex. A. 15 is the certificate of inspection given by the High Commissioner of India at the port of shipment. The ship arrived at Madras on 10-10-1963 and commenced discharging of the cargo on 11-10-1963 and completed the same on 14-10-1963. The plaintiffs case is that out of the consignment of area so loaded and as evidenced by the invoice as above, there was a short-landing of 370 bags of urea content. The vessel also discharged 1340 bags of urea slack or torn or cut and 130 bags of ship sweepings. It appears that the ship's manifest under Exs. B2 and B3, also noticed such a situation. At or about the time of discharge, there was what is known as hatch survey, but without notice to the plaintiff. This is seen from Ex. B.5. This hatch survey was undertaken by the vessel on its own responsibility when it was lying in No. 2 West Quay, Madras Harbour. It is common ground that this survey was not undertaken in the presence of the plaintiff or any one on their behalf. On the basis of the said hatch survey, the Master of the ship issued what is known as the Master's certificate of discharge of the cargo under Ex. B.11. As per the custom availing at the Port of Madras, the cargo which was so discharged and hatch surveyed, was handed over to the Port Trust Authorities, who took delivery of the same from the Quay, apparently as the agents of the ship. Till this stage, it is common ground that there was no physical delivery of the cargo to the plaintiff as the consignee. After the Port Trust so took delivery of the cargo, as is usual, the plaintiff under Ex. B.4 requested their clearing agents, the South India Corporation (Agencies) Pvt. Ltd. to effect clearance after getting the usual certificate from the Port Trust Authorities. The Port Trust under Ex. A.3 gave what is popularly known as the B certificate, which is a short landing certificate, after making due enquiries as regards the quantum of the discharged cargo. Under Ex. A.3, the short landing of 370 bags as claimed by the plaintiff and also 1340 urea slack or torn or cut bags and 130 bags of ship sweepings were noticed. At this stage, it is proper to note that the short-landing as disclosed in the B certificate was corroborated by the ship's out-turn statement Ex. A.32. That also discloses the short landing of the abovesaid 370 bags of urea etc. Even the tally sheets Ex. A. 44 of the Port Trust Authorities, who effected the discharge, would also confirm such shortage. As a matter of fact, a survey at the instance of the plaintiff consequent upon the issue of the short landing certificate under Ex. A.3 was held on 17th and 18th of October 1963 and from Ex. A-4 which is the certificate which followed such survey it is seen that 1340 bags of urea were slack and torn and their weight was lesser than the invoice weight and that there were ship sweepings of 130 bags which were also naturally lesser in weight than the avowed quantity as per the invoice. This is besides the shortage of 370 bags of urea as already noted.

2. It was in these circumstances that the plaintiff came to