MALABAR STEAMSHIP CO. LTD. Vs. DARA KILIKAR AND ORS.
HIGH COURT OF KERALA
Malabar Steamship Co. Ltd.
Dara Kilikar And Ors.
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Nandana Menon, J. -
(1.) THIS second appeal is by the 1st Defendant in the suit. The circumstances leading to this appeal are as follows: The Plaintiffs are merchants carrying on business in Mattancherry Bazaar. A consignment of 70 cases of foreign liquor was shipped by a firm called T, Motandas and Co, in 1948 as per Jagadamba, a steamer belonging to the first Defendant company, to the Plaintiffs. The steamer arrived at the Port of Cochin on 21 -5 -1948. According to the Plaintiffs when the cases were delivered it was found that the consignment was short of 15 bottles of brandy and 17 bottles of whisky. A survey was got conducted by Lloyd's Agents according to whose report the shortage was clue to breakage in handling in transit and pilferage.
Hence the Plaintiffs preferred a claim for the cost of the part of the consignment so found short of as well as proportionate freight charges and gal age ice. The Defendant company contended that were not liable. According to the company were rebounded at Bombay due to prior breakages and clauses in the bill of lading specifically stipulated that tire steamship company was not responsible for any breakages or shortages. The trial Court found that tire shortage complained of was true and the clause in the bill of lading intended to exonerate the steamship company from any liability for breakage or shortage was a void one as the same contended the provisions of Carriage of Goods by Sea,' Act. Hence the Plaintiffs' claim was upheld.
In the appeal preferred by the Steamship Company before the District Judge of Anjikaimal the findings of the trial Court were upheld. If is against those' concurrent findings that the company has now, come here in appeal. On behalf of the Appellant is contended that there is no evidence to support that' finding that there was short delivery of goods, that the lower Courts were wrong in holding that the" clause in tile bill of lading exempting the company from liability for breakage or shortage was invalid, and the interpretation placed upon the provisions of the Carriage of Goods by Sea Act is not correct.
(2.) AS regards the question of shortage what is urged on behalf of the Appellant is that there was , no proper consideration of the evidence by the lower appellate Court, the Court proceeding on the assumption that the shortage complained of was not disputed. In view of the statement in the judgment of the learned Additional Judge it is clear that this issue was not seriously pressed there. Further it is not correct to say that there is no evidence to support the finding on that point. What D. W. 1 says is that shortage was not likely. The bill of lading, namely,. Ex. I, refers to 70 cases of brandy and whisky.
The number of bottles is not mentioned. This is emphasized on behalf of the first Defendant. Ex.' A which is the survey report of the Lloyd's Agents -shows that they calculated the contents at the rate of 12 bottles per case. Ex. C (1) shows that the consign or calculated the price on that basis. D.W. 1" does not say that the procedure adopted by the Lloyd's Agents on the basis of each case containing: 12 bottles was unwarranted. P.W. 1 is the person' who prepared Ex A and deposes to the cases being; of standard packing & his calculation being based upon the said basis. So the finding regarding the short delivery cannot be questioned.
The main question for consideration is whether the special conditions incorporated in the bill of lading exonerate the carrier company from' any liability. The endorsement relied upon by the company is the typed portion below the tabulars ip: Ex. I being as follows:
All cases rebounded. N.R. for breakage and shortage of contents. Three cases broken before shipment and repaired.
While on behalf of the Defendant it is contended' that this condition effectively discharges them from any liability with regard to short delivery what 'is urged by the Plaintiff is that the bill of lading being; governed by the Indian Carriage of Goods by Sea. Act such a clause cannot protect the company, Ex. I in the margin the applicability of the Carriage of Goods by Sea Act is specifically referred to. In Indian Carriage of Goods by Sea Act, 2,6/1925, Article 3 deals with, the responsibilities and liabilities of a carrier. Rule 3 therein is as follows.
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 a bill of lading showing among other things (a) The landing 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 or covering 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 has reasonable grounds for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
Rule 4 says that a bill of lading so granted shall be prima facie evidence of the receipt by the carrier of the; , goods therein described. Hide 5 is to the effect that the shipper shall be deemed to have guaranteed to the carrier the accuracy of the statement! made by him and that shipper shall be liable for any loss caused to the carrier resulting from any inaccuracies in particulars given though the said right of the carrier shall nut limit his liability under the contract of carriage to any person other than the shipper. Rule 7 deals with the issue, of a "Shipped" bill of lading. Then 11. 8 which is a crucial one is as follows:
(3.) Any clause, covenant or agreement in a contract of carriage relieving the can for or the; ship from liability for loss or damage lo or in connection with the goods arising from negligence, or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these rules, shall' be mill A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.
The question is whether in the present case the 'typed endorsement relied upon by the carrier company' is affected by this clause. An identical provision exists in the English Carriage of Goods by Sea Act, 1924, on the basis of which the Indian Act was drafted. In Carver's Carriage of Goods by Sea Act (9th Edition) dealing with the said rule it Is observed as follows:;
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