K. Bhaskaran, J. -
(1.) THE only point that calls for determination in this second appeal relates to the nature and extent of the liability of a carrier for short delivery in terms of weight in a case in which the number of bags and weight noted in the Bills of Lading are qualified by the notation (rubber stamp seal), "Weight declared by the shippers, but not checked."
(2.) THE plaintiff was the consignee in respect of 2000 bags of sugar purchased by him through his commission agent, P. W. 2, from a Sugar Factory at Kakkinada and shipped from Vizagapatam in 'S.S. Janani' belonging to the defendant Steam Ship Company, under Exts. P -1, P -1(a), P -1(b) and P -2, Bills of Lading, which showed the weight of each bag to be 101 Kgs. The plaintiff's forwarding and, clearing agent, P. W. 1, at the time of delivery at Cochin found that there was shortage of contents in 40 bags, and on survey being done at his instance, it was revealed that the shortage came to 1002 Kgs., and a shortage certificate to that effect was issued by the local agents of the defendant Steam Ship Company. The plaintiffs suit is one for recovery of the value of the slackage by way of damages from the defendant. P. W. 2 in his evidence deposed that he had caused the bags to be weighed at the factory and that the weight was found to be as mentioned in the Bills of Lading. He also stated that he had checked the weigh; of certain bags taken at random from the whole lot at the time when they were kept in the shed belonging to the shipping agents and found it to be correct. Believing this evidence of P. W. 2, and taking the view that the shipping company was bound by the statement in the Bills of Lading in regard to weight, the trial court decreed the suit. The view taken by the first appellate court was that P. W. 2's evidence that he had found the weight correct could not be accepted as conclusive as the possibility of shortage occurring during the transit of the goods from Kakkinada to Vizagapatam when the consignment was not accompanied by the agents of the plaintiff or the defendant could not be ruled out. The first appellate court further held that the weight noted in the Bills of Lading was subject to the endorsement incorporated by the rubber stamp seal, "Weight declared by the shippers, but not checked", and as such, the weight noted in the Bills of Lading cannot be treated as prima facie evidence against the carrier so as to shift the burden of proof on the question of initial weight from the shippers to the carrier.
(3.) SRI T. L. Viswanatha Iyer, the learned counsel for the appellant, argues that the provisions contained in Article III, Rule 3 of the Rules relating to tie Bills of Lading as contained in the schedule to the Indian Carriage of Goods by Sea Act, 1925, make it obligatory on the part of the ship owner to note the loading marks, the number of packages and the weight of the goods in the Biil of Lading; and the carrier, in this case, having noted the weight in Exts. P -1, P -1(a), P -1(b) and P -2, "Bills of Lading, cannot be heard to say that the onus to prove the initial burden is on the shippers. Rule 3 of Article III referred to above reads as follows: - -
"3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper bill of lading showing among other things - -
(a) The loading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases on coverings in which such goods are contained in such a manner as should ordinarily remain legible until the end of the voyage;
(b) Either the number of packages or prices, or the quantity or weight, as the case may be as furnished in writing by the shipper;
(c) The apparent order and condition of the goods;
Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he had reasonable grounds for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking." From the proviso to the Rule quoted above it is evident that the carrier is at liberty to contract out of the liability with respect to loading marks, number, quantity or weight, if he had reasonable ground for suspecting that what has been noted by the shippers does not accurately represent the particulars of the goods actually received or he has had no reasonable means of checking the goods with reference to the particulars noted in the Bills of Lading. It is in this background that the implication of the notation "Weight declared by the shippers, but not checked", introduced in the Bill of Lading by rubber stamp seal, becomes relevant for consideration in this case.;