G.K.Mitter, J. - (1.) This is an application for stay of a suit under a clause contained in a bill of lading reading "any dispute arising under this bill or lading is to be decided in Sweden according to Swedish Law."
(2.) The dispute relates to a shipment of 1034 bundles of M. S. Flats shipped by A. B. Cottrain of Stockholm, Sweden on April 28, 1956. The goods were loaded at Gothenburg in Sweden on the ship "Kyoto" belonging to the Swedish East Asia Co. Ltd., described in the plaint as a limited liability company incorporated under the appropriate laws of Sweden and having its office at Gothenburg in Sweden outside the jurisdiction of this court and carrying on business through its agent United Liner Agencies of India (Private) Ltd. at No. 18, Brabourne Road, Calcutta within the jurisdiction of this court. The bill of lading is dated April 28, 1956. The ship reached Calcutta within a few weeks thereafter. The plaintiffs complaint is that it received only 1020 bundles out of the consignment and the defendant failed and neglected to deliver the balance of 14 bundles of M. S. Flats. The plaintiff claims to be the endorsee of the bill of lading which contains the usual clause with regard to shipment that the particulars of weight, description etc. given thereon were furnished by the shipper, the goods being described as M. S. Flats untested Thomas quality 50 x 12 in lengths of 8' x 11" and multiples thereof with tolerance 5". the gross weight being 1458.780 Kos. They were described as shipped on board in apparent good order and condition unless otherwise stated & were to be discharged at the port of discharge or so near to there as the vessel may safely get and be always afloat. There was a further condition reading 'Weight, measure marks, numbers, quality, contents and value if mentioned in the bill of lading are to be considered unknown unless the contrary has been expressly acknowledged and agreed to. The signing of this bill of lading is not to be considered as such an agreement."
(3.) By the written statement filed herein the statements contained in paragraph 1 of the plaint are admitted as substantially correct. But the defendant does not admit that the bill of lading was endorsed in favour of the plaintiff or that the endorsement was for valuable consideration or that the plaintiff was the owner of the goods covered by the bill of lading. The substantial defence seems to be contained in paragraph 3 of the written statement where it is stated that "alter the said cargo was discharged as aforesaid and while the same were in the custody of the port authorities it was found that as a result of insufficient packing for which the carrier owed no responsibility, several bundles had become loose. By a letter dated September 18, 1956 the plaintiff informed the defendant that the plaintiff itself would be willing to take delivery of the loose cargo in the custody of the port authorities if the defendant agreed to meet the plaintiff's claim in case the weight of the cargo as received by the plaintiff fell short of the shipped weight. In response to the plaintiffs request the defendant agreed to meet the plaintiffs claim in case there was any discrepancy between the weight of the cargo as delivered and the shipped weight.;