Decided on April 01,1952

British India Steam Navigation Co. Ltd Appellant
T.P.Sokkalal Ram Sait Respondents


- (1.) THE defendants in O. Section No. 711 of 1943 on the file of the City Civil Court, Madras, appeal against the decree of the learned Additional City Civil Judge awarding a sum of Rs. 1804 being the price of 44 bags of bcedi leaves short delivered to the plaintiff at the Madras harbour from S. S. "Howra" in which 1532 bags of beedi leaves had been shipped for transit from Vizagapatam to Madras.
(2.) THE plaintiffs were the consignees of 1,532 bags of beedi leaves shipped at Vizagapatam for being carried to Madras by S. S. "Howra". The defendants are the British India Steam Navigation Co. Ltd. by agents Messrs. Binny and Co (Madras) Ltd who are the owners of the ship in which these bags were carried. Out of the 1532 bags shipped at Vizag the evidence is to the effect that only 1488 bags were delivered at the Madras harbour, 44 bags being not traceable and hence short delivered. The suit was laid for recovering the price of these 44 bags and as stated above, the lower court granted a decree for a sum of Rs. 1804. Against that decree, the defendants have appealed. The only contest between the parties is with regard to the liability of the defendants for the price of the 44 bags short delivered. Ex. A. 30 is the Mate's receipt which shows that the 1532 bags of beedi leaves, the contents of some of the bags being exposed at the mouths, were stowed on deck at shippers' risk. The correspondence shows that on the complaint made on behalf of the plaintiffs, the defendants tried their utmost to find out how and where the 44 bags were lost and they were not able to find out the cause of the loss. In Ex. A. 7 dated 3rd December 1947, the defendants wrote to the plaintiffs' agent that they have made enquiries at all the ports at which the vessel called but could not trace the bags at all. There are similar letters, Ex. A. 15 regarding the search made for the goods, Ex. A. 16 where reference was made to the Calcutta principals and by Ex. A. 17 the defendants complained to the Traffic Manager, Madras Port Trust, that these and other missing bags of beedi leaves must have been delivered in error to others after they were landed and the Traffic manager was requested to investigate this shortage thoroughly. Ex. A. 18 is a further reminder to the Traffic Manager. After some correspondence between the plaintiffs and the defendants as well as between the defendants and the Port Trust and other authorities, finally by their letter dated 14 -5 -1948 the defendants disclaimed their liability for the amount and stated that they were unable to entertain the claim and accept any responsibility on the ground that the bill of lading was subject to the shippers' risk and contained a clause that the common carrier is not liable for the loss; The clause on which the defendants rely is type - written and is pasted at the end of the printed Bill of lading. It reads as follows. "Notwithstanding anything to the contrary herein contained live animals and/or deck cargo are received, kept and carried at the sole risk of the owner thereof, and neither the carrier, which expression includes both the owner of the ship and the operating ship owner for the time being) nor any stevedors, wharfinger nor any agent or servant of any of them nor any other person whomsoever for whom the carrier may be responsible shall be under any liability, whatever for the goods, nor for any loss or expense connected therewith however caused and whether due to negligence, unseaworthiness or otherwise. Shippers and all concerned are, therefore, advised to see that their insurance policies cover all and every risk whatsoever whether ashore or afloat and are made without recourse to the carrier or any of the parties aforemention ed". On account of this special clause in the bill of lading, the defendants contended that the plaintiffs had notice and knowledge to the effect that neither the carrier, nor the agent or servant, or any persons for whom the carrier may be responsible, shall be under any liability whatever for the cargo, nor for any loss or expense connected therewith, however caused, and whether due to negligence, unseaworthiness or otherwise. The defendants further pleaded that the loss has not arisen by reason of their negligence or any of their agents or servants and that in any event any claim founded on such negligence is not maintainable by reason of the special contract between the parties.
(3.) THE lower court has held, relying upon - - 'Wills v. Great Western Rly. Co.', (1914) 1 K. B. 263 that when consignment which was booked at owner's risk arrived at its destination and some of the goods were found missing, and the plaintiff made a claim upon the defendant for the nondelivery of a part of the goods, such non -delivery would not amount to "loss" within the meaning of the contract and that the plaintiff was entitled to damages. Apparently the attention of the learned Judge was not invited to the fact that this decision is no longer good law in England, because though this decision was confirmed by the Court of Appeal in - - 'Wills v. Great Western Rly.', (1915) 1 K. B. 199, when the matter was taken up to the House of Lords, in their decision reported in - - 'Great Western Rly. v. Wills', (1917) A. C. 148, the House of Lords reversed the judgment under appeal before them and held that non -delivery of part of the consigned goods was loss within the meaning of the contract. We have therefore to take it that the non -delivery in this case would amount to loss.;

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