Carriers and their agents retain liability for goods until actual delivery is completed, and failure to deliver constitutes a breach of contract.

1This revision petition by the plaintiffs in Small Cause suit No. 108/67 on the file of the court of the Additional Munsiff, Cochin, is against the dismissal of the suit upon the following facts:

2 The appellants, Johar & Sons (P) Ltd., Cochin, sued the defendant Pierce Leslie & Co., Ltd., as the Shipping Agents of The Clan Line Steamers Ltd., to recover a sum of Rs. 303.28 being the net value of 18 pieces of Drag Link Ends in short supply which arrived at Cochin Port on 4-3-63 by "S. S. Clan Maciver". The consignment was booked in good condition by the consignor, Quinton Hazell Ltd., Great Britain, on board the ship at Liverpool to be delivered over to the appellants on the terms and conditions of a Bill of Lading under an import licence. The defendant as the shipping agents of the carrier had to deliver the goods to the appellants' clearing agents, Chakiat Agencies, Cochin. But, no delivery was effected in respect of the above 18 pieces of Drag Link Ends, though other goods under the same consignment had been delivered to them. The delivery was an open delivery on 10th May, 1965 in the presence of the Chakiat Agencies and the defendants' employees. The result of the open delivery was the loss of 18 pieces of the above Motor spare parts of the value of Rs.303.28. There was some exchange of notices between the appellants and the defendants. But, the defendants denied their liability as well as the responsibility to make good the loss to the appellants. Hence the suit.

3 The defendants in then written statement contended that the court has no jurisdiction to entertain the suit, that the claim, if any, was barred by limitation as the same was not made within one year of the date of delivery, that the goods were in the charge and control of the Port Trust, Cochin, that the Port Trust alone was liable for the damages, if any, incurred by the appellants, that there had been no negligence or delay on the part of the defendants for the short delivery alleged and that, therefore, the suit as against them had to be dismissed with costs.

4 The lower court framed, in all, 7 points for determination and recorded finding on each of them. The lower court found that there was short delivery to the extent of 18 pieces of Drag Link Ends out of the consignment in question, that the appellants would be entitled to get Rs. 303.28 towards the value of those missing pieces of Motor spare parts, that Port Trust is not liable for the claim, that the suit was not barred by limitation, that the appellants had no cause of action against the defendant to claim the amount independently from them as the agents of the Clan Line Steamers Ltd., that the suit against the defendants is not maintainable and, therefore, the suit was dismissed, however, without costs. The defendants were seen to have submitted to the jurisdiction of the lower court to decide the question in issue in the suit. So, it is stated as against point No. 3 that the contention whether the lower court had jurisdiction to entertain the suit was not pressed by the defendants.

5 The point that devolves to be decided is whether the defendant is liable in damages as the agents of the carrier The Clan Line Steamers Ltd., The appellants have chosen to lay the claim against the shipping agents of the Clan Line Steamers Ltd., who carried the goods in question in the ship "S. S. Clan Maciver" from Liverpool to the Cochin Port on the basis of Ex. D. 1, Bill of Lading. On the conditions and terms of Ex. D1, Bill of Lading, the carrier had to deliver the goods to the appellants or their agents Open delivery in this case was made only on 10-5-65, though the goods arrived in the Port of Cochin on 4-3-65, There had been no evidence in the case that it was due to the neglect or indifference of the appellants that the goods were not taken delivery of by them or their agents soon after the goods arrived in the Port on 4-3-65. On behalf of the appellants, P.W. 1 is examined and P W 2 is the Manager of the Chakiat