NEW INDIA ASSURANCE CO LTD Vs. SPLOSNA PLOVBA

JUDGEMENT

(1.) Calicut enjoyed a reputation for its timber trade. Not without reason. It had a port, with limited facilities but unlimited historic connections. In its periphery flourished one of the best timber markets of the world, fed by what was once a boundless contiguity of tropical forests. The appeal at the instance of the plaintiffs the insurer and the shipper arises from an export transaction originating from that port. The carriers were from Yugoslavia and the consignees from Japan. The 2nd defendant acted as agents in India for the 1st defendant carriers. Defendants 3 and 4 owned, operated and managed the boat engaged for transport of the timber logs from the shore to the ship.

(2.) The ship 'M. V. Litija' anchored off Calicut at a distance of about three miles from the shore at about 15th of April 1972. The 2nd plaintiff who had entered into contract for the export of timber had obtained from the Customs Department on 7th April 1972 the shipping bill authorising the export of 23 logs of timber. They were loaded on to the boat in the evening of the 15th April 1972; and the boat was towed by the tug to the ship and tied along side the ship at about 8.30 a.m. on 16th April 1972. Two logs among the lot were loaded on to the ship. Before the third one could be loaded, the boat sank into the sea. The view of the sinking boat towards its last phases was secured by the photographs taken by a passenger on board the ship who was enjoying a trip around the world (Exts. B-8 and B-13 are the photographs and their negatives). The ship sounded the siren and gave a signal to the Port Office. The Tug Zamorin rushed to the spot and saved the crew by about 10.30 a.m.. The sinking of the boat was noted in the Log Book Ext. B-14, Ext. B-14(a), being the English translation from the Yugoslavian language. The port later gave clearance to the ship for sailing; and accordingly 'Litija' left the port at about 1.30 p.m. on 16th April 1972. Salvage operation partly succeeded; some logs were recovered; and some lost.

(3.) The goods were fully insured. The 1st plaintiff settled the claim of the shippers. They have now filed the suit, along with the shippers, claiming damages against defendants 1 to 4. Liability is sought to be cast on defendants 1 and 2 on the basis that they were responsible for the entire operations connected with the shipping of the timber, commencing from the loading of the logs on to the boat at the pier and the ultimate delivery of it to the consignees. According to counsel, this head of the claim came under what he termed as a contractual liability. Negligence was also alleged against defendants 1 and 2 on the ground that the winch of the ship failed when a log was being lifted the log that slipped fell on the boat and caused it to be capsized. Counsel for the appellant described it as a tortious liability on the part of the carriers.