INDIA EVERBRIGHT SHIPPING AND TRADING CO Vs. SHAW WALLACE AND CO LTD

JUDGEMENT

(1.) The complainant M/s. Indian Everbright Shipping and Trading Company is an exporter exporting various goods to different countries. M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE) entered into an agreement with the complainant for the purpose of exporting fresh frozen buffalo meat and in furtherance of it opened a Letter of Credit as per which the buffalo meat and mutton cracas were to be delivered at Fujairah Port. The complainant made the first shipment of fresh frozen meat weighing 22.540. MT of the value of US $ 11,670.21. In this respect the 1st opposite party M/s. Shaw Wallace and Co. Ltd. , of which the 2nd opposite party is the principal Company, approached the complainant for transporting the cargo by it by sea from the Port of Madras to the Port of Fujairah (UAE ). The complainant handed over the cargo to the 1st opposite party for shipment to Fujairah and the 1st opposite party issued a Bill of Lading which contained the details of the cargo, i. e. , 528 cartons of fresh frozen buffalo meat weighing gross at 11,088 Kgs. Now the case of the complainant is that while so the complainant was shocked to receive a fax message on 4.10.1992 from M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE), the consignee who are the importers, stating that the cargo shipped through the 1st opposite party was lying at Dubai for clearance instead of Fujairah; on enquiry, the 1st opposite party informed the complainant that due to the non-calling of the vessel at Fujairah the cargo was unloaded at Dubai; the 1st opposite party had misled the complainant stating that the cargo would be offloaded at Fujairah Port knowing that there was no calling of the vessel at Fujairah Port and issuing a Bill of Lading mentioning the discharge Port as Fujairah; by offloading the container at Dubai instead of Fujairah the opposite parties have clearly cheated the complainant and also the consignee; such offloading of the consignment at Dubai was against the terms of the Bill of Lading and also against the clear instructions of the consignee M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE); the complainant wrote a letter dated 23.10.1992 to the 1st opposite party stating that if they allowed the goods for inspection at Dubai they would be doing so at their own risk and their such action would be totally against the terms of the Bill of Lading and if inspite of that they did it they would be held responsible for all the losses the complainant would suffer on account of it; in that letter, the complainant have also written that by offloading the goods at Dubai, the 1st opposite party had put the complainant as well as the consignee into a lot of difficulties resulting in loss of reputation to the complainant; due to all this act of the 1st opposite party, only one-fourth of the cargo was delivered to the consignee; since the full cargo had not been delivered to them, the consignee had cancelled all the pending orders held by them with the complainant; due to the said deficiency in service on the part of the opposite parties, the complainant had been put to lot of difficulties. On these allegations, the complaint has been filed claiming damages under different heads such as value of the goods in 528 cartons, freight charges, loss due to cancellation of contract, and mental agony, all totalling to Rs.10,30,180/-.

(2.) The two opposite parties have filed written versions in which similar contentions have been raised. The opposite parties submit that as per the terms of the Bill of Lading, the opposite parties could use various modes of transporting and it was not necessary that the ship to which the cargo was entrusted should go through a particular route, but it should finally discharge the cargo at the Port of Fujairah (UAE ). Clause 20 of the Bill of Lading gave liberty to the opposite parties to use various modes of transport and transport the cargo through any Port. The complainant was aware that as per the terms of the carriage of goods, the cargo was to be taken by one or more vessels and the transhipment was also to be allowed for the cargo. It was only on this condition the cargo was accepted by the opposite parties for carriage. The opposite parties were at liberty to choose various modes of transport to deliver the goods at the Port of destination and there was no embargo put on the carrier that the consignment should not be offloaded at Dubai enroute Fujairah. There was no assurance given to the complainant that the cargo would be taken to the Port of destination without touching Dubai. The cargo which had been loaded in the vessel m. V/s. Tiger was taken to the transhipment point viz. , Colombo and from there it was taken by another vessel viz. , m. V/s. Trade Fast which arrived at Dubai on 8.9.1992, and there the cargo was put in storage in the consignee's warehouse before being transported to the ultimate Port of destination viz. , Fujairah. However, at the Port of Dubai, as a trade custom and practice, the legal authorities took samples of the cargo and a joint survey was also held. According to the Dubai Health Authorities, except two consignments of veal legs and chunks, rest of the items were found to contain bacterial infection which necessitated rejection. Accordingly, an order was passed by the Dubai Health Authorities that out of 7 items of consignment except the said two items the other items were to be destroyed. The opposite parties further submit that the consignment would have reached the destination but for the fitness certificate issued by the Dubai Health Authorities. The opposite parties had the liberty to discharge and store the cargo at any of the intermediary ports and the fact that the cargo was discharged at Dubai cannot be a ground for claiming damages against the opposite parties. There was no mis-declaration or breach of contract on the part of the opposite parties. It is not correct to say that the opposite parties had no intention of taking the cargo to Fujairah. If the local health authorities at Dubai examined the goods and came to the conclusion that some of the items were unfit for human consumption and they had to be destroyed, the complainant should blame itself for the bad quality of the goods. The opposite parties have not misled the complainant in any manner. There was no wrong delivery or wrong handling of the goods by the opposite parties. Therefore, the opposite parties are not liable to pay any amount to the complainant.

(3.) The points that arise for consideration are: 1. Whether there was any fault or deficiency in service on the part of the opposite parties? 2. If so, what relief, if any, can be granted to the complainant?