- (1.) The plaintiff has instituted this suit on 11th January, 1988 for cancellation of annexure-'A' to the plaint, which is an undated notice issued by the defendant to the plaintiff holding the plaintiff responsible for damaging its coal-loader and requiring the plaintiff to accept liability in that respect and for the payment of the cost of repairs. The annexure 'A' contained an endorsement, also undated, made by the master of the vessel belonging to the plaintiff, accepting liability, "without prejudice to the extent of only loader being put in working order on turn-key basis".
(2.) The facts of this case in short are that M.V. "Chennai-Nermai" an Indian Ship, owned by the South Indian Shipping Corporation Ltd. Madras under charter to the Poompuhar Shipping Corporation Ltd. arrived in Haldia from Sandheads on 27th August, 1987 for loading coal from the Coal-Berth within the Haldia Dock Complex. The vessel was placed in the locks, and the berthing master boarded the vessel in the lock and proceeded to Coal-Berth with the assistance of two tugs. The wind speed was 24 knots and arrival draft of the vessel was reported by the master as 8 meters. The master deballasted the vessel at the time of approaching Haldia lead in jetty for ingress into the dock system, and continued to do so in the docks, and in the process reduced the draft of the vessel. During passage to berth, stern of the vessel came in contact with the southern end of the Coal-Berth and the counter of the vessel touched No.1 ship-leader also referred to as the coal-leader, parked in the area. The ship-leader was consequently damaged, rendering it out of commission. The defendant issued the same notice to the plaintiff, three times and was satisfied with the third endorsement by the master, which is annexure "A" to the plaint, and in the left-hand corner of the notice the master of the vessel endorsed, that he accepted liability without prejudice to the extent of repair of the damaged coal-loader, and the vessel was allowed to leave Haldia Dock on 1st September, 1987.
(3.) According to the defendant, the draft on arrival of the vessel at the dock-complex was reported as 8 metres and the master continued de ballasting in the locks and the draft was reduced to 5.5. metres. The master did not declare this reduction of draft to the berthing-master the boarded the vessel at the locks. The water level inside the dock was 5.0 metre because of high tide against normal state of around 4.5 metres. It was contended by counsel for the defendant with great force that the reason for the accident was excessive de ballasting the master of the vessel and consequent reduction of draft dangerously below what the draft should have been in those conditions coupled with non-disclosure of the draft by the master to the berthing-master. The master did not take into account that natural conditions existent on that day did not warrant a light draft. The vessel was constantly blown towards the berth, which could not be checked, and as a result the vessel made contact with the coal-loader which was damaged to the extent of being put out-of-order. The other cause for the accident according to the defendant was due to the negligent navigation by the master and wrongful instance by him for parking the vessel alongside the No.1 coal-leader which was parked at the southern and instant of its location at the centre. It was submitted on behalf of the defendant, that under section 31(2) of (The) Indian Ports Act, 1908 the plaintiff was liable to pay the repairing costs of the coal-loader which had been damaged, despite the fact that the berthing-master was on board the vessel. The master of the vessel it was contended was all along in control of his vessel, the berthing master was only on beard in an advisory capacity and therefore, when the incident occured, the master had the command of the vessel and under section 116 of (The) Major Port Trusts Act, 1963, the owners were in law bound to pay for the damages caused by the vessel to the property of the defendant. Other than the endorsement by the master of the vessel, by way of acceptance of libaility for the damages, the plaintiff was earlier agreeable to furnish a bank-guarantee and secure the costs of repairs if the defendant was found liable. It was not however, acceptable to the defendant as it was possible to ascertain the damage. The counter claim of the defendant, it was submitted, was the amount which had been claimed by the repairers, and pursuant to an award in an arbitration proceeding between the defendant and the repairers that amount had already been paid by the defendant to the repairers. The defendant contended that there was no question of any duress or coercion by the defendant nor any particulars were set out in the plaint in that respect. Section 65 of (The) Major Port Trusts Act, 1963 it was submitted specifically provided that unless the provisions of section 116 were complied with no clearance would be given to the vessel to leave port. In support of his submissions counsel for the defendant cited and relied on decisions reported in AIR (1974) Cal 393; AIR (1952) SC 280; AIR (1967) SC 878.;