MERCANTILE STEAM NAVIGATION COMPANY Vs. THANULINGOM PILLAI
HIGH COURT OF KERALA
MERCANTILE STEAM NAVIGATION COMPANY
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(1.) The defendant in S. C. 12 of 1965 on the file of the Munsiff Court, Cochin is the revision petitioner. The main question raised in this revision petition is whether S.14 of the Limitation Act could be applied in a suit for damages filed under the Carriage of Goods by Sea Act (shortly stated the Act).
(2.) The plaintiff in this suit is one Thanulingom Pillay, Proprietor, Messrs. K. S. T. Subbiah Pillay and Bros., Hardware merchants, Chalai, Trivandrum, and the defendant is the Merchant Steam Navigation Company (Private) Limited, represented by their agent Bhangee Jeevath Khona, Bazaar Road, Cochin. The suit was laid in the District Munsiff's Court, Trivandrum in the first instance for recovery of damages to the extent of Rs. 266.83 Ps. for short delivery of two bundles of copper wire despatched to the plaintiff from Bombay by the steam ship s. s. Victoria Marie belonging to the defendant. The suit was filed on 13-11-63. The Munsiff of Trivandrum holding that he has no jurisdiction to entertain the suit, returned the plaint on 23-12-64 for presentation before the proper court. In the order returning the plaint, the learned Munsiff had given time limit till 17-1-65 for its re-presentation; the suit was represented on 14-1-65 in the Munsiff court of Cochin. The plaintiff claimed exclusion under S.14 of the Limitation Act (Act 36 of 1963) of the period of pendency of the suit in the Trivandrum Munsiff's court in computing the period of limitation for the suit and that has been allowed by the Munsiff Another point raised against the maintainability of the suit, viz., that the defendant being mere agents of the company the suit cannot be maintained against them, has also been found against the defendant.
(3.) On the first point, the learned counsel argued that the Indian Limitation Act has no application to a suit filed under the Act and that the period of one year prescribed in R.6 of Art.3 under the Schedule to the Act, is inscrutable and has to be applied irrespective of the rules of exclusion provided in the Law of Limitation. On the authority of East and West Steamship Co. Madras v. Ramalingam Chettiar ( AIR 1960 SC 1058 ) it was argued by the learned counsel for the petitioner that R.6 of Art.3 of the Act which runs:
".... In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered ......"
does not prescribe a rule of limitation; but provides for the extinction of the right to compensation and therefore the Limitation Act has no application. That was a case where an extension of the period of limitation was claimed on the ground of acknowledgment of the liability. The suit itself was filed beyond the period prescribed in clause.(3) of R.6 of Art.3 of the Act, and also that no claim was made within the period of one month from the date of arrival of the vessel as stipulated in the Bill of Lading. It was held in that case that since the suit was not brought within one year as provided in R.6 of Art.3 of the Act, the right itself was extinguished. In other words, the suit having not been brought within the time specified, the company was discharged from all liability irrespective of the loss. Interpreting the expression 'discharged from liability" the learned Judges have held that it means a total extinction of the liability following upon an extinction of the right. The learned Judges would observe :-
'Rules of limitation are likely to vary from country to country. Provisions for extension of periods prescribed for limitation would similarly vary. We should be slow therefore to put on the words "discharged from liability" an interpretation which would produce results varying in different countries and thus keeping the position uncertain for both the shipper and the ship owner. ...... We find it difficult to draw any reasonable distinction between the words "absolved from liability" and "discharged from liability" and think that these words "discharged from liability" were intended to mean and do mean that the liability has totally disappeared and not only that the remedy as regards the liability has disappeared. ... The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance. The Legislature could not but have been conscious of this distinction when using the words ''discharged from all liability" in any Article purporting to prescribe rights and immunities of the shipowners. The words are apt to express an intention of total extinction of the liability and should, specially in view of the intentional character of the legislation, be construed in that sense. It is hardly necessary to add that once the liability is extinguished under this clause, there is no scope of any acknowledgement of liability thereafter.";
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