UDAY UMESH LALIT.J. - (1.) This appeal by special leave challenges the judgment and order dated 27.10.2006 passed by the Division Bench of the High Court at Calcutta allowing appeal namely A.P.D. No.338 of 1997 and setting aside the decree dated 09.04.1997 passed by Single Judge of the High Court in Suit No. 12 of 1998.
(2.) On 27.08.1987 at about 1148 hrs. the vessel "M.V. Chennai Nermai" belonging to the appellant (formally known as South IndiaShipping Corporation Ltd.) arrived at the lock gate of Haldia Port for loading of cargo of coal at Haldia Docks for delivery at the port of Tuticorin. The vessel de-ballasted while at the lock gate upto 1300 hrs. At 1306 hrs., in terms of the Rules of Calcutta Port Trust, Berthing Master Mr. Rajak of the Port Trust boarded the vessel and by 1342 hrs. the forward and aft tugs were attached for towing the vessel from the lock gates to the berthing area of Haldia Port. While the vessel was being berthed at about 1354 hrs., the startboard quarter of the vessel came in contact with a coal loader stationed by the side of the berthing area and the coal loader got damaged.
(3.) On the same day a letter was issued by the Plant Engineer, Haldia Dock Complex to the Master of the vessel putting the responsibility for the loss on the vessel. A reply was given by the Master that very day denying acceptance of liability while emphasizing that the coal loader was not kept at proper possession. On the same day a notice was sent from Marine Operations Division, Calcutta Port Trust to the Master of the vessel holding said Master and the vessel responsible for the damages with a request to immediately intimate acceptance of liability. The Master put endorsement; "Received without prejudice, I do not accept liabilityfor above as contravention proper position of safe berthing letters follows:" A reply to the said notice was also sent by the Master on the same day, reiterating that the coal loader was not kept at a proper position as against the normal practice of keeping the loader in the center of the jetty and that the communication between the Berthing Master and the tugs was poor. On the very day, a letter was also sent by the Master of the vessel to the Deputy Chairman, Haldia Dock Complex, Haldia that the vessel had also suffered damage as a result of the coal loader not having been kept proper position and for other reasons mentioned in said letter.;