STATE OF KERALA Vs. NEW DHOLARU STEAMSHIPS LTD
LAWS(KER)-1968-9-7
HIGH COURT OF KERALA
Decided on September 11,1968

STATE OF KERALA Appellant
VERSUS
NEW DHOLARU STEAMSHIPS LTD. Respondents

JUDGEMENT

- (1.) The question in this appeal depends upon what is the true reading of the 3rd clause of Para.6 of Art.3 in the Schedule of the Carriage of Goods by Sea Act, Central Act, XXVI of 1925, (hereinafter referred to as the Act) and is whether, when on the date of suit more than one year has elapsed from the date of departure from the port of delivery of the ship which carried he contracted goods but not from the last date of actual delivery of a portion of them the consignee has a subsisting right to claim compensation for short delivery.
(2.) Para.6 of the aforesaid Article reads as follows: "6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need, not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection. 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. In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods."
(3.) The suit out of which this appeal arises, was filed on 7-4-1962 by the appellant, the State of Kerala, against a shipping company, the New Dholaru Steamships Ltd., for damages for short delivery of 10 and odd tons of M. S. Rods valued at Rs. 7,600 and odd. The goods were shipped at Calcutta on board "S. S. Jayalakshmi" under 2 bills of lading for delivery at Cochin. The ship arrived at Cochin on 7-7-1960 and left that port on 12-7-1960. Except 10 and odd tons covered by the suit the rest of the goods was delivered by the defendant to the plaintiff on several dates, the last of which was 28-7-1961. The suit was resisted by the defendant on various grounds one of which based on Para.6(3) of the aforesaid Article was that the plaintiff had no subsisting enforceable right to claim compensation. Issues 4 and 5 raised in the suit related to it and they were heard preliminarily and disposed of. The decision of both the trial and lower appellate courts on them was against the plaintiff.;


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