THE GREAT EASTERN SHIPPING CO. LTD. Vs. THE UNION CARBIDE INDIA LTD.

JUDGEMENT

(1.) This appeal is directed by the Defendant against the judgment of the learned Second Assistant Judge, City Civil Court, Madras, whereby the suit of the Plaintiff -Respondent was decreed as prayed for with costs. The Plaintiff, Union Carbide India Ltd., is a limited liability company, carrying on business at Tiruvothiyur High Road, whereas the Defendant is the Great Eastern Shipping Co. Ltd., carrying on business at Madras, through its agents P. Devarajooloo & Sons. On 20th August, 1,965, a consignment of 1516 bags of Zinc calots was entrusted to the Defendant for carriage by sea by its vessel S. S. Jag Ganga from Calcutta to Madras. The vessel arrived at Madras on 2nd September 1965, and discharged the cargo. Suspecting heavy shortage in 126 bags out of the total consignment of 1,516 bags, the Plaintiff applied on 3rd September, 1965 to the Defendant's agent Devarajooloo Naidu & Sons for survey, and on survey by the Defendant, it was found that there was a shortage of 3,017 Kgs. of calot zinc. According to the Plaintiff, the value of the shortage came to Rs. 9,714 -74. The original bill of lading and survey report were forwarded to the Defendant for settlement of the claim. But the Defendant failed and neglected to pay the amount, with the result the Plaintiff instituted the suit for recovery of the sum of Rs. 9,714 -74.

(2.) The Defendant, in its written statement, while admitting that the consignment of 1,516 bags of zinc calots was entrusted to it for carriage by sea from Calcutta to Madras, as per the bill of lading dated 20th August, 1965, contended that the bags were not sufficiently strong to withstand ordinary handling in transit, that the nature of the cargo was such that the bags would get torn and tattered even during normal handling, that under the contract of affreightment, the ship was not responsible or liable for slack, cut and torn bags and loss or shortage of contents, and, therefore, the carrier was exonerated of all liability for the damage sustained by the shipper. The Defendant also put the Plaintiff to strict proof of the weight and value of the shortage. It further contended that the vessel carried the cargo during rainy season and it encountered bad weather during the passage from Calcutta to Madras, and the carrier cannot be held liable for any damage caused by such rainy weather. The Defendant also took the plea that if the loss had been occasioned while the cargo was in the custody of the Port Trust, it is the Port Trust that would be liable, and not the Defendant, and that the suit was bad for non -joinder of the Madras Port Trust.

(3.) The learned Judge framed the following issues for trial: