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High Court of Judicature at Madras
THE HONOURABLE MR JUSTICE MISHRA & THE HONOURABLE MR JUSTICE BAKTHAVATSALAM
India Steamship Co. Ltd.
Versus
Steel Authority of India Ltd
O.S.A. No.11 of 1981
Decided On :Decided on : 16-08-1990
CARRIAGE OF GOODS BY SEA ACT, 1925 - SECTION 4 - LIMITATION ACT, 1963 - SECTION 10 - GENERAL CLAUSES ACT, 1897 - SECTION 11 - MADRAS GENERAL CLAUSES ACT, 1891 - SECTION 11 - GERMAN COMMERCIAL CODE - BILL OF LADING - INTERPRETATION - LIABILITY OF CARRIER - DISCHARGE OF LIABILITY - EXTINCTION OF RIGHT - TIME FOR FILING SUIT - DELAY - CONDONATION - IMMUNITIES - SHORT DELIVERY - DAMAGES - GOLD CLAUSE AGREEMENT - LIMITATION OF LIABILITY.
Fact of the Case:
The plaintiff, Steel Authority of India Limited, successor-in-interest of Hindustan Steel Limited, filed the suit for the recovery of Rs. 2,25,798.33 with interest from the defendant/appellant. Admitted facts are that the plaintiff entered into a contract bearing No. A/T. 1117 dated 19th February 1974 with Mettelugiehande Gmbh, Berlin, for the supply of Prime CRCA Steel confirming to DIN 1623 St. 12-03 against their impo rt licence No./G/T/2397707/OR/46/H 35-36 dated 1.12.1972. The goods which were covered by the sellers invoice and packed in sheet metal boxes, 36 parcels in all, weighing 101.370 metric tonnes gross, were delivered to the vessel ‘Indian Tribune’ owned by the defendant, at Rustock (West Germany) for the destination Madras Vide Bill of Lading No. 1008/21 dated 11.2.1974. The vessel arrived at Madras Port on 6.6.1974, discharged part of the cargo and then left for Calcutta on or after 14.6.1974.
Finding of the Court:
The court held that the German Law would apply, that the German Code provided a period of one year for filing of a suit, that section 4 of the Limitation Act is not available to the plaintiff or that the provisions of the General Clauses Act are also not available to it. However, the court extended the period of one year for the filing of the suit by the period of recess of the court until it allowed parties to file claims on and from 25.6.1975. The court also held that the carrier was not liable for the short delivery of 27 parcels as the plaintiff had failed to prove that the parcels were meant for delivery to it. However, the court held that the carrier was liable for the short delivery of 9 parcels and decreed the suit for the value of those parcels.
Issues: 1. Whether the suit was barred by extinguishment of liability of the defendant as per provisions of the Bill of Lading Clause No. 13? 2. Has the defendant discharged the entire goods entrusted to it by the consignor, and if so, is not the defendant absolved of liability of the suit claim? 3. Did the plaintiff deliberately refuse to undertake delivery of its cargo as discharged by the defendant; and is not the defendants liability restricted to 100 sterling p er package or German DM 1250 per package?
Ratio Decidendi: 1. The period of one year for filing of a suit under the German Commercial Code is not a period of limitation and that consequently, the Limitation Act will not apply and the plaintiff cannot have advantage of Section 4 of the Limitation Act. 2. The provisions of Section 10 of the General Clauses Act (Central Act) 1897 or Section 11 of the Madras General Clause Act (Madras Act 1 of 1891) do not apply to the case, yet the principles embodied therein must be extended to treat the period of one year for the filing of the suit in the German Code to have been extended by the perio d of recess of the court until it allowed parties to file claims on and from 25.6.1975. 3. The carrier was not liable for the short delivery of 27 parcels as the plaintiff had failed to prove that the parcels were meant for delivery to it. 4. The carrier was liable for the short delivery of 9 parcels and the plaintiff was entitled to damages for the value of those parcels.
Final Decision: The appeal was allowed in so far as damages calculated for alleged non-delivery of 27 parcels are concerned. The decree of the trial court, however, was affirmed with respect to non-delivery of 9 parcels. There shall be no costs in appeal.
MISHRA, J.
The defendant, India Steamship Company Limited has appealed against a money decree. The plaintiff, Steel Authority of India Limited, successor-in-interest of Hindustan Steel Limited, filed the suit for the recovery of Rs. 2,25,798.33 with interest from the defendant/appellant. Admitted facts are that the plaintiff entered into a contract bearing No. A/T. 1117 dated 19th February 1974 with Mettelugiehande Gmbh, Berlin, for the supply of Prime CRCA Steel confirming to DIN 1623 St. 12-03 against their impo rt licence No./G/T/2397707/OR/46/H 35-36 dated 1.12.1972. The goods which were covered by the sellers invoice and packed in sheet metal boxes, 36 parcels in all, weighing 101.370 metric tonnes gross, were delivered to the vessel ‘Indian Tribune’ owned by the defendant, at Rustock (West Germany) for the destination Madras Vide Bill of Lading No. 1008/21 dated 11.2.1974. The vessel arrived at Madras Port on 6.6.1974, discharged part of the cargo and then left for Calcutta on or after 14.6.1974.
2. According to the plaintiff, the customs authorities on inspection found that many packets have no labels as well as markings were not according to the specifications; in some cases, there were no markings at all and in the case of some, the port of destination was shown as Bombay. Thus the plaintiff came to know that the goods covered by the Bill of Lading have not been landed by the cargo ship concerned. The Madras Port Trust also issued a B Certificate stating that the 36 parcels show in the Bill of Lading were not landed by S.S. ‘Indian Tribuns’ which arrived in Madras on 6.6.1974. The plaintiff therefore lodged their claim with the defendant to the tune or Rs. 2,27,080.44 made of Rs. 2,550.96 being the approximate insurance premium. On the request of the defendant, according to the plaintiff, the claim was split into two, one for Rs. 2,08,134.15 being the C&F value of
33 packages, shortlanded and approximate insurance and the other for Rs:18,921-29 in respect of 3 packages. A sum of Rs. 1,268.85 towards insurance premium however was realised by the plaintiff from the defendant. The plaintiff accordingly fileda claim for the balance of Rs. 2,25,798.33.
3. The defendant in their written statement stated that according to the German commercial Code which applied to the transhipment concerned, the liability as carrier stood discharged in respect of losses and/or damage as no suit was brought against them within one year after the delivery of the goods or the date on which the goods should have been delivered. There was, according to the defendant, “complete discharge of their liabilities as there was a complete extinguishment of their liabilities in terms of the law applicable to them. They also stated that the particulars such as contents,, quality, quantity, condition and value of the consignment were unknown to the carrier and as carrier they were not responsible for the weight, measurement and gauge nor for specifications, brand or countermark value of the goods. They maintained that the shipper had not complied with the Iron and Steel Clause of the Bill of lading which only stated that 36 parcels prime C.R.C.A. steel sheets conforming to DIN 1623 St. 12.03 were shipped and gave no other details. All the goods of the said Bill of lading had been stowed in No. 2 Lower Hold and there was no other steel cargo in that hold or in any other hold of the vessel. In Madras, according to the defendant, the only steel cargo discharged was from the said hold and consequently the cargo discharged could not belong to anybody other than the plaintiff. According to them, steel could be imported only by the plaintiff and bynoneelse and cargo of steel for Bombay, Calcutta or Madras was meant only for the plaintiff and noneelse. The marking on the parcel was immaterial. As the plaintiff was the only consignee of such cargo, there was no chance of any mix-up, as the vessel did not carry similar cargo to any other consignee. The defe
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