P.K. Shamsuddin, J.
1.1st defendant in O.S. No. 45 of 1981 on the file of the Court of Principal Sub Judge, Cochin, is the appellant. Suit was for damages for short delivery of certain cargo entrusted for carriage to the 1st defendant.
2. Plaintiff is a Company engaged in business as Printers and Publishers. 1stdefendant is a Shipping Company. 2nd defendant is local agent of the 1 st defendant-Company at Cochin, 3rd defendant is State Trading Corporation of India and the 4th defendant is Insurance Company.
3. State Trading Corporation of India is the authorised agent for import of newsprint. It placed order to purchase as per Ext. A2 invoice, 38 reels of white glazed newsprint from a Company named 'FINISH PAPER MILLS' ASSOCIATION' in Helsinki. The purchase was made with a view to supply paper to the plaintiff against their newsprint quota for the year 1979-80. The consignment had a total weight of 19-726 metric tonnes. On 15-1-1980 the above consignment packed in 38 bundies, was entrusted with the 1st defendant for carriage by sea from the port of Hamina to the port of Cochin and for delivery there to the plaintiff. The bundles so entrusted bore specific marks and numbers for their identification. 1st defendant received the above cargo on board their vessel 'LOK VINAY' and issued Ext. A5 bill of lading. On 14-2-1980, the State Trading Corporation on behalf of the plaintiff, insured the cargo against risks in voyage with the 4th defendant-Insurance Company as per Ext. A20 marine certificate of insurance. On 4-3-1980 while the consignment was in the high seas, the State Trading Corporation sold the consignment as per Ext. A6 invoice, to the plaintiff. The vessel arrived at Cochin on 20-3-1980. It carried not only the above cargo but also several other consignments of newsprint reels purchased by the State Trading Corporation on behalf of different customers. The vessel discharged all the consignments numbering 10118 reels at the Cochin Port, and left them in the custody of the Port Authorities and sailed out of the Port on 27-3-1980. The plaintiff approached the Port Authorities through their clearing agent, for delivery of their consignment. Port Authorities delivered 2 reels on 12-4-1980 and another 3 reels on 18-4-1980. Port Authorities then issued Ext. A10 certificate to the plaintiff stating that the remaining 33 reels had not been landed. The plaintiff as Per Ext. All communication claimed compensation for the loss of the 33 reels of newsprint from the 2nddefendant, the agent of the 1st defendant. The 2nd defendant informed the plaintiff as per Ext. A12 that 33 reels of newsprint were seen landed without marks and that they were lying at the wharf. They wanted the plaintiff to take delivery of those reels against the reels due to them plaintiff directed their clearing agents to verify those reels and to ascertain whether those reels belonged to them. The clearing agent after verification reported to the plaintiff that those reels of newsprint are ordinary and not glazed newsprint belonging to the plaintiff and that they were badly damaged. In view of this report, the plaintiff refused to take delivery of the aforesaid 33 reels and as per Ext. A13 letter insisted for compensation for loss of the reels. After some correspondence, the plaintiff agreed to take delivery of the 13 reels which were lying in the wharf without prejudice to the claim of the plaintiff to claim difference in value of the paper based on quality as damages. The plaintiff also informed the 2nd defendant that in order to take delivery of the reels a sum of Rs. 22,000/- had been paid to the Port Trust as demurrage in respect of 33 reels. The agent of the plaintiff demanded this amount in order to enable them to get released of the reels but the 2nd defendant refused to make the payment. Thereupon the plaintiff made payment of Rs. 24,225.75 to the Port Trust and got release of 33 reels. Surveyors appointed by the plaintiff made a survey and they found that the 33 reels delivered to the plaintiff were ordinary newsprint reels which were damaged at varying degrees. The surveyor collected Rs. 210/- as fee, and issued a certificate. The plaintiff alleged that the value of 33 reels of ordinary newsprint was Rs. 51,762.88 whereas the value of 33 reels of glazed newsprint reels was Rs. 68,650.54 and estimated the loss sustained by them on account of the non-delivery of the consignment of glazed newsprint at Rs. 16,887.66. The plaintiff alleged that they suffered a loss of Rs. 1615.63 on account of damaged condition of the reels delivered to them and also claimed Rs. 24,225.76 paid by them as demmurage and a sum of Rs. 210/- as survey charges as additional loss incurred by them. Thus the plaintiff claimed a total amount ofRs. 42,939.05 and sought recovery of the said amount from defendants 1 and 2 and also from the 4th defendant, the insurer of the goods.
4. In the written statement filed by the 1st defendant they contended that the plaintiff was not a party to the contract of carriage and hence there was no privity of contract between the plaintiff and the 1st defendant. They also averred that the plaintiff was not an endorsee of the bill of lading and they are not entitled to sue the 1 st defendant for damages. They contended that they were not aware of the quality or quantity of the cargo entrusted with them for carriage and that the description of the cargo furnished by the consignor was merely entered in the bill of lading. They also denied the plaint allegation that the cargo was glazed newsprint and that the 1st defendant failed to deliver the 33 reels of newsprint belonging to the plaintiff. They averred that the entire cargo received on board the ship was delivered to the Port Authorities who were acting as bailees of the consignees or endorsees. By virtue of statutory provisions and also by virtue of the terms of carriage, the responsibility of the 1st defendant ceased at the moment the consignment was delivered to the Port Authorities and the 1st defendant had no more liability after the discharge of the cargo. They also averred that the consignee or endorsee has no right to refuse to take delivery of the cargo offered to them under the pretext that the cargo offered does not tally with the marks noted in the bill of lading and that the unnecessary detention of the cargo at the Port's ware-house in the circumstances, was due to the misbehaviour of the plaintiff. In the circumstances, the 1st defendant was in no way liable for payment of the transit dues. They also contended that the outturn statement of the Port Trust clearly indicated that there was no short landing. They alleged that the 2nd defendant informed the clearing agents of the plaintiff that 33 reels of newsprint was lying at the wharf shed waiting delivery to them. They took all reasonable care in carrying, keeping and delivering the cargo and the packing cover if missed at the discharge port, it was solely due to insufficiency of packing, by virtue of theterms of the contract of affreightment it was the duty of the shipper to provide packing to the cargo, and in the circumstances, the 1st defendant was not responsible for the improper or insufficient packing or liable for any damages on that score.
5. In the written statement filed by the 2nd defendant they contended that they were only agents of the 1st defendant and they were not responsible for the damages caused to the plaintiff and the suit against them has therefore to be dismissed. They also contended that the allegation that 19.728 tonnes of glazed newsprint was transported in the vessel 'Lok Vinay' was not true, that on arrival of the above vessel the 2nd defendant, acting as agent of the 1st defendant took all steps for clearing the materials from the Port, that there were 38 reels of newsprint paper of which only five were bearing marks of the consignor that the clearing agent took delivery of those 5 reels and managed to get a short landing certificate on the allegation that the remaining 33 reels did not belong to them that when the plaintiff informed the 2nd defendant about the short delivery, the 2nd defendant informed the plaintiff that the remaining 33 reels belonged to them were lying in the wharf shed and that they could take delivery of those reels, but the plaintiff was not inclined to take delivery of the some since the reels did not bear any mark of the consignor. The above said 33 reels were part of the plaintiffs consignment and the refusal of the plaintiff to take delivery of the same for a long time was unjustified and the plaintiff was solely responsible for the accumulation of huge amount as transit dues. The plaintiffs allegation that those reels were lying in a damaged condition was also denied. In the circumstances, according to them the suit was liable to be dismissed.
6. On a consideration of documentary and oral evidence in the case the Court below came to the conclusion that the plaintiff was entitled to recover a sum of Rs. 42939.05 as damages from the 1st defendant. It was also held that the 4th defendant was liable to pay the decretal sum to the plaintiff as Insurer and that the plaintiff was not entitled to anydecree against defendants 2 and 3.
7. In this appeal, learned counsel for the appellant challenged the finding of the Court below. Learned counsel submitted that (1) the plaintiff had no title to the goods and they are only allottees, (2) it was the 3rd defendant State Trading Corporation in the suit which entrusted the goods to the 1st defendant and they are answerable only to State Trading Corporation, (3) what was entrusted to the 1st defendant was delivered and it was not glazed newsprint but was ordinary newsprint, (4) since the claim in the plaint was made on the basis of difference in quality the Court below went wrong in granting a decree on the basis of the difference in quantity and (5) in view of the recitals contained in Ext. A5 and the provisions of Article III, Rule (2) and Article IV, sub-clause (2) of Indian Carriages of Goods by Sea Act the carrier is not liable for any deficiency in quality or quantity.
8. Ext. A5 bill of lading reads as follows;--
'Shipped in apparent good order and condition FINNPAP on the Ship 'LOK VINAY' now laying in the port of HAMINA marked and numbered as per margin (weight, measures, brand, contents, quality and value unknown) to be conveyed by the above ship and or any ship or ships substituted therefor or to which transhipment may be made during the course of the voyage with liberty in addition to and/or unrestricted by any liberty otherwise expressed or implied in this Bill of Lading to touch or stay at or return to any port or ports whether on or outside the route at any time and/or in any order and/or for any purpose any such port or ports at whatever time and/or in whatever ordef and/or for whatever purpose visited being included in the present voyage and/or contract covered this Bill of Lading and to be delivered subject to the terms and conditions hereof at the Port of COCHIN or so near thereto as she may safely get (whether the shipowner's liability shall cease), and to be there transshipped for delivery into order or assigns. Freight charges and primage as per margin to be paid at HELSINKI.' Marks are given as follows : '0831/0874/33, STC/ PPMA/200/CHMANIPAL VIA COCHIN A/C MANIPAL PRINTERS MADE IN FINLAND GROSS838 MM, 43122, 431126, 431129, 431146-431147, 431551-431581.'
The description of the goods is given as follows:
'Particlars declared by Shipper
38 RLS WHITE PRINT PAPER 19728 27, 22 CBM, (FXCL. LAID MARK PAPER) WHICH CONTAINS MECH. WOOD PULP AMOUNT. TO NOT LESS THAN 70% OF FIBRE CONT. SHOULD BE 60 GRS PER SQ. M. GLAZED NEWSPRINT.
At the bottm of Ext. A5, it is stated:
'Notify : The State Trading Corporation of India Ltd., Newsprint and Journals Division, Chandralok Building 36 Janpath, New Delhi 110011.'
On the basis of those details in Ext. A5, learned consel for the appellant contended that the State Trading Corporation is the consignee and therefore the plaintiff is not competent to sue the appellant for damages. Learned counsel submitted that Ext. A5 would only indicate that the State Trading Corporation of India is the consignee and that the plaintiff is only an allottee. Learned counsel submitted that Ext. A5 had not been endorsed in favour of the plaintiff, and that there was no privity of contract between the carrier or allottee. In this connection, learned counsel invited my attention to the evidence of P. W. 1. In the course of cross-examination, P.W. 5 stated that the sale in favour of the plaintiff was on high seas and that at the time of shipment the plaintiff was not the owner. Reliance was also placed on the evidence of P.W. 1 that the original insurance was also in the name of the State Trading Corporation and that the plaintiff received the bill lading only after the arrival of the ship at Cochin Port. He also drew my attention to the evidence of P.W. I that delivery order was obtained without producing the bill of lading but by producing the indentity bond executed by the State Trading Corporation. Learned counsel for the respondent, however contended that according to the Rules only the State Trading Corporation could place orders fornewsprints to the foreign customers, that really the plaintiff is the consignee, that there is sufficient indication in Ext. A5 bill of lading itself to substantiate this position and that the State Trading Corporation only acted as the agent of the plaintiff. Learned counsel also invited my attention to Ext. A2 invoice dated 10-I-I980 issued by FINNPAP. He contended that there also after mentioning the address of the State Trading Corporation, the customer's name and address are shown as Manipal Printers and Publishers Pvt. Ltd. Manipal. In Ext. A2 mark of the goods is given as STC/FPMA/200/CH, MINIPAL VIA COCHIN/A/C MINIPAL PRINTERS MADE IN FINLAND/GROSE WEIGHT and below that, quality of the goods is shown 'WHITE PRINT PAPER (EXCL, LALL MARK PAPER) WHICH CONTAINS MECH, WOOLPULP AMNT, TO NOT LESS THAN 70% OF FIBRE CONT. SHOULD BE 60 GRS 81 Sq. M. GLAZED NEWSPRINT.' Learned counsel for the respondent also placed great reliance on the marks given in Ext. A5 twice. IN answer to this, counsel for the appellant amended that mention of plaintiffs name in the column relating to mark has no bearing on the question as to who is the consignee it was done because the State State Trading Corporation has to distribute cargo to its several customers and the incorporation of the names of these parties in the marks was intended to facilitate the discharge of cargo to the intended customers. Learned counsel for the appellant pointed out that if really the plaintiff was the consignee, the State Trading Corporation would not have executed the indemnity bond for the purpose of delivery of the goods. The Court below has considered this aspect in paragraph 12 of its judment. The lower Court held that the suit by the plaintiff is not one for damages for breach of contract and is virually a suit in tort and that being the position, the only question to be considered is whether the plaintiff is the owner of the newsprint reels in question. The Court below held that if the plaintiff is the owner the suit is maintainable. As indicated above, it has come out in evidence thet on 4-3-1980 while the consignment was on board and the vessel wasin high sea, the 3rd defendant sold the newsprint as per Ext. A6 invoice to the plaintiff. Exts. A7 to A9 would show that the plaintiff paid the price to the 3rd defendant and became the owner of the newsprint reels. The lower Court was of the view that since the plaintiff became owners of news reels they have a cause of action, irrespective of the fact that at the time of shipment they had ownership of the Article.
9. Learned counsel for the appellant submitted that the view taken by the lower Court is not correct. He submitted that in a carriage of cargo by sea, the Court is concerned with the provisions contained in Carriage of Goods (By Sea) Act and the terms of the contract between the parties as disclosed by conditions on the reverse of Ext. A5. Learned counsel for the respondent was not able to place any authority before me which has taken a contrary view. However, counsel for the respondent placed considerable reliance on Ext. A1 dated 20-7-1979 a letter sent by the 3rd defendant to the plaintiff in which it is stated that the 3rd defendant placed order for 33 reels on behalf of the Manipal Printers Private Ltd. It is true that the reference in Ext. A1 is to the suit consignment. Learned counsel submitted that it is clear from Ext. A1 that the 3rd defendant STC was acting only as an agent and that it was on behalf of the plaintiff that the order was placed. Ext. A4 weight specification dated 7-1-1980 issued by the consignor shows the name of the customers as STC and the name of the consignee as Manipal Printers and Publishers Pvt. Ltd., Manipal, the plaintiff in this case. Ext. A10 is a certificate in B Form issued by the Cochin Port Trust stating that the following packages were not handed s.s. Lok Vinay arrived on 20-3-1980 with 33 packages of reels and here also in the columns for account and marks it is stated:
'0831/0874/33 STC/FPMA/200/ CH Manipal Via. Cochin. A/c. Manipal Printers Made in Finland Gross Wt. 838 MM.'
The consignee is shown as M/s. Shri Jhai Narain Trades, Cochin-3, clearing agent of the plaintiff. Ext. All dated 6-6-1980 is a letter addressed by the plaintiff to 2nd defen-dant M/s. Peirce Leslie India Ltd., the local agent of 1st defendant claiming value of consignment shortlanded. Ext. A12 is the reply dated 10-6-1980 sent by 2nd defendant to the plaintiff in which it was stated that 33 reels newsprint had been landed at Cochin Port without mark and were lying at the wharf and directing the plaintiff to depute its representative to examine the bales and to take delivery of the same as soon as possible against shortage. Ext. A13 dated 23-6-1980 is a letter addressed by the plaintiff to the 2nd defendant M/s. Peirce Leslie India Ltd., the agent of the 1st defendant stating that 33 reels mentioned in the letter of 2nd defendant were not of glazed newsprint but were of standard newsprint and that therefore they were not taking delivery of the 33 reels referred to in their letter dated 10-6-1980. Ext. A15 is reply sent by the 2nd defendant to the plaintiff where it was stated 33 reels of newsprint were landed and that the carrier could not be held responsible for any wrong delivery of reels according to marks and numbers and that in the circumstances they were unable to entertain their claim. On the basis of these materials, learned counsel for the respondent strongly contended that the plaintiff was the consignee and that the State Trading Corporation, the 3rd defendant has only acted as agent and that therefore the plaintiff cannot be non-suited on the ground that it is not the consignee.
10. In this connection, learned counsel also invited my attention to the decision of a Division Bench of the Patna High Court in M/s. Dehri Rohtas Light Rly. Co. Ltd. v. East Keshalpur Colliery (AIR 1963 Pat 46). In that case two consignments of coal were booked by defendant No. 1 at Kusunda Railway Station for delivery to defendant No. 2 at Banjari Railway Station. The railway freights were to be paid at the time of delivery at Banjari. The consignment arrived at the destination on 12th November, 1954 but the consignee (Defendant No. 2) refused to take delivery of the same. The question arose as to who is liable for the freight. Dealing with the question the Patna High Court held as follows (at page Patna 48; AIR 1963):
'It is well settled that the person who isprimerily liable for the payment of freight is the consignor and this liability of consignor is to be implied from the fact that he had made over the goods to the carrier for the purpose of being carried to destination and that this liability of the consignor may, in some cases, be even independent of the question of actual ownership of the goods. It follows that the consignee as such is not liable to pay the freight, because oridinarily he is not to be treated as a party to the contract of carriage. But if the facts of the case show that the consigner acted to the knowledge of the carrier as agent only, the person on whose ibehalf he acted as agent is in reality the principal and liable for the freight. Thus, the consignee is liable for the freight, when he has made himself liable by express contract or when he is treated as the undisclosed principal of the consignor or when it is understood between the consignor and the carrier that freight is to be paid by the consignee. In view of these well settled principles, the mere fact that the entry 'to pay' is made in the relevant column of the railway receipt or the forwarding note is not sufficient to show that the consignee was liable to pay the freight. This was the view taken in the decisions of the Patna High Court and the Calcutta High Court, and, if I may say so with respect, this is the correct view'.
Learned counsel for the appellant submitted that the 1st defendant is not a party to Exts. A1, A2 and A4 and the arrangement between the parties inter se cannot have any bearing on the question who is the consignee. He submitted that there was no privity of contract between the owners of the vessel and the plaintiff and as far as the owners of the vessel were concerned, the 3rd defendant, the State Trading Corporation was the consignee for all purposes, and therefore, the 3rd defendant alone could have filed the suit. He submitted that the evidence of P.W. 1 would clearly indicate that the sale in favour of the plaintiff was in the high seas and that at the time of the delivery of the goods to the vessel, the plaintiff had not acquired any title to the goods. Of course there is no evidence as to the stage at which the consideration was paid to the consignors. Though it is clear that theorder was placed for the plaintiff, the plaintiff has not adduced any evidence to establish that they had ownership at the time when the goods were delivered for carriage by sea to the Port of Cochin. The fact that the documents relied on by learned counsel for respondent would indicate that it was intended for the 3rd defendant Corporation is not sufficient to hold that they were the owners of the property. P.W. 1 was definite that they had no title at the time when the goods were delivered to the vessel for carriage by sea and that only at the high seas they acquired title. If there is any material available to show that they had acquired title prior to the delivery it could have been held that really the plaintiff was the owner of the property and that it was the consignee. In the absence of material to indicate acquisition prior to the entrustment of cargo for carriage and in the light of the clear admission by P.W. 1 that the plaintiff acquired title to the property only by a sale in the high seas during the course of voyage, the only conclusion possible is that the consignee was the State Trading Corporation. As indicated earlier, the goods were taken delivery on the basis of an indentity bond furnished by the State Trading Corporation. This would indicate that the S.T.C. was the owner of the cargo. In the circumstances, the contention of learned counsel for the appellant that the plaintiff had no privity of contract with the owners of the vessel has to be upheld. It follows that in the absence of any authorisation by the consignee, the 3rd defendant Corporation and without junction of the 3rd defendant, the plaintiff could not have maintained the suit. The decision of Patna High Court cited by the learned counsel for the respondent related to claim for freight charges, and has no application to the facts of this case. There is no evidence in the case to hold that the owners of the vessel know that S.T.C. is the agent of the plaintiff, though the marks assigned to cargo would indicate that disputed cargo was intended for the plaintiff. That circumstance as indicated above, is not sufficient to hold that the plaintiff is competent to file the suit.
11. The next contention raised by learned counsel for the appellant is that what wasdelivered was not glazed newsprint but ordinary newsprint. He contended that though the claim was made on the basis of difference in quality, viz. only ordinary newsprint was delivered in the place of glazed newsprint that was entrusted for carriage by sea, the lower Court granted a decree not on the basis of the difference in quality but on the basis of difference in weight. Learned counsel for the appellant invited my attention to the particulars given in Ext. A5 bill of lading declared by the shipper. What is stated in Ext. A5 is '38 Rls. white print paper (Excl. laid mark paper) which contains Mech. wood pulp amount to not less than 70% of fibre cont. should be 60 Grs. per Sq. M. glazed newsprint.' On the basis of this, learned counsel submitted that it was only 38 reels white paper that was entrusted and that the description in Ext. A5 would only mean that it contained not less than 70% of fibre content and also 60 Grs. per Sq. M. glazed newsprint. P.W. 1 is the Secretary of the plaintiff-Company and in the course of cross-examination he stated that before refusing to take delivery, they did not conduct any chemical examination of the cargo so as to ascertain the quality. In his evidence he also stated that they based their claim on the difference in the weight of the cargo mentioned in the bill of lading and the actual weight of the cargo delivered to them. Learned counsel for the appellant brought to my notice Exhibit A2 invoice produced by the plaintiff where also the quality is stated as white print paper (Excl. laid mark paper) which contains Mech, woodpulp amount to not less than 70% of Fibre cent, should be 60 Grs. per Sq. M. glazed newsprint', which is similar to what is mentioned in Ext. A5. Exhibit A6 is invoice dated 4-3-1980 given by the 3rd defendant to the plaintiff. In that invoice what is stated in the column for particulars of shipment is '38 reels of white unglazed newsprint of standard 33 finish quality'. On the basis of these documents, learned counsel for appellant submitted that what was entrusted was not glazed newsprint, that there was no attempt to ascertain whether quality conforms to the description in Exhibits A2 and A5 and that in the circumstances there was no material to come to the conclusion that what is entrustedis glazed newsprint. In this connection, learned counsel invited my attention to paragraph 8 of the plaint. The plaintiff averred that it was the glazed newsprint that the plaintiff-Company had to get delivery of from defendants 1 and 2, that the said newsprint was of superior quality, that value of the 33 reels standard newsprint that was taken delivery of without prejudice to the plaintiffs right to claim damages, was Rs. 51,762.88, whereas value of 33 reels glazed white newsprint which the plaintiff-Company had to get delivery of Rupees 68,650.54 P. and that 38 reels of glazed newsprint were of bigger size and weighing 19,538 kilos whereas 33 reels of standard newsprint were of smaller size weighing 11,890 kilos. In the plaint the loss is calculated on the basis of difference in quality. No doubt there is an averment in the plaint as regards the difference in weight but the claim is based only on the difference in quality as can be seen from the averments contained in paragraph 8 and 11 of the plaint. The Court below entered a finding in paragraph 6 that the newsprint reels belonged to the plaintiff was of glazed newsprint, but what was delivered was only ordinary newsprint. The Court below was of the view that it is the white glazed newsprint reels covered by Ext. A2 invoice of the original supplier and Ext. A5 bill of lading that was actually sent to the 3rd defendant as per Ext. A6 invoice and that the description 'unglazed newsprint' given in Ext. A6 could be considered only as an obvious mistake. However, the Court below came to the conclusion that there is no evidence relating to the price of unglazed newsprint delivered to the plaintiff and therefore it was not possible to ascertain the probable damage on the basis of difference of price of the glazed newsprint and ordinary newsprint. The Court below then proceeded to rely on the averment in the plaint regarding the quantity. The total weight of the 38 reels is stated as 19.728 metric tonnes, of 19728 Kgs. From this, the Court below found that the average weight of one reel would be 519.158 Kgs, and the weight of the 33 reels at the above rate would come to 17,132.21 Kgs. The Court below relied on Ext. A18 survey report prepared by the 2nd defendant to hold thatthe weight of 33 reels delivered as substitute to the plaintiffs reels was only 11,890 Kgs. From this, the Court below came to the conclusion that the plaintiff got the reels with a shortage of weight to the extent of 5,242.21 Kgs. As per Ext. A6 invoice for 19,728 Kgs. of newsprint papers, the plaintiff paid the price of Rs. 78,517.44, which would work out to Rs. 3.98 per kilogram. On that basis the value of 5,252.27 which was short delivered according to the Court below was fixed at Rs. 20,864/-. After reaching the conclusion, the Court below observed that it was argued that the method adopted by it for ascertaining the menetary loss was not correct, that in a strict view of the matter, the argument could be said to have some force but there must be a way out as in fact the plaintiff had been damnified by the misdelivery and that it is a matter of common knowledge that glazed newsprint would weigh less than unglazed newsprints. Though the Court below fixed the damage at Rs. 20,864/- it decreed only a sum of Rs. 16,887.66 Ps. the amount of damages claimed in the plaint in this regard. The Court below found that it was not possible to ascertain the actual loss without knowing the correct price of glazed newsprint but in the absence of any other methodology to ascertain the damage actually sustained, it had no other option except to choose the course which it adopted for the purpose. It cannot be said that the finding on the basis of difference in weight is beyond the pleading, since difference in weight is specifically pleaded, though damage was calculated in the plaint on the basis of difference in quality. In view of the fact that the Court below has only decreed the amount claimed in the suit, which is much less than the damage arrived at by the Court below on the basis of difference in quantity, I do not think that any prejudice is caused to the defendants on this count. However, I am inclined to hold that there is no conclusive evidence in the case to show that it was glazed newsprint that was entrusted for carriage. Admittedly there was no attempt to subject the cargo released to chemical examination and find out whether it conformed to the description contained inExt. A5 and other documents. While Ext. A6 describes the goods as unglazed newsprint, other documents go only to show that it was white print paper with not less than 70% of the Fibre content and 60 Grs. per Sq. M. glazed newsprint. But that fact may not in any way affect the decree of the Court below if it is otherwise sustainable in view of the fact that it was on the basis of difference in quantity that the damage was awarded.
12. I shall next examine the contention of learned counsel for the appellant that appellant is not liable for damages on the ground of any deficiency in quality or quantity of the cargo discharged. Learned counsel invited my attention to Sub-section (7) of Section 42 of the Major Port Trust Act, 1963, which reads as follows ;
'7. After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transhipped.'
On the basis of this, learned counsel contended that once a receipt was obtained by the owner of the ship from the Port Trust regarding the entrustment of goods or discharge of goods, no further liability would be fastened on the master or owner of the vessel from which the goods were landed or transhipped. The Court below in paragraph 24 of its judgment stated that the defendant did not produce the receipt issued by the Port Authorities under Sub-section (2) of Section 42 of the Trusts Act. The counsel submitted that this observation is incorrect. Ext. B11 is the receipt issued by the Cochin Port Trust to the vessel. Ext. B11 states that 22 reels discharged from the ship and delivered to the party contained the marks in Exts. A2 and A5. Ext. B9 dated 25-7-1980 is a letter addressed by 2nd defendnt the local agent of the 1st defendant to the Wharf Superintendent, Port Trust. That letter was sent in pursuance of the communication sent by the agent of the plaintiff stating that a shortlanding certificate No. 1401 dated 26th May, 1980 was issued for33 reels newsprint shortlanded, in the vessel out of a consignment of 38 reels under marks 'STC/FPMA/200/CH MANIPAL VIA COCHIN'. In that letter the 2nd defendant, 'the agent of the owner of the vessel pointed out that the landing records of the vessel showed that the entire manifested quantity of 10,118 reels were landed at Cochin and that from the Port Tally Sheet No. 3699 of 24th March, 1980 it would be seen that 22 reels under the above marks were landed at Wharf Q1 from Hatch No. II of the vessel 'Lok Vinay'. In the said letter the 2nd defendant expressed surprise as to how the Port could issue a short-landing certificate for 33 reels out of the consignment of 38 reels when they received 22 reels under the above marks and numbers, and he also informed the Port Trust Authorities that they would be responsible for the delivery of 22 reels under the above marks. Ext. B10 is the reply sent by the Traffic Manager, Cochin Port Trust where it is stated that the entire quantity of 10,118 reels manifested the above vessel were landed at wharf of which 10085 reels were to be delivered to various consignees, and the remaining 33 reels were lying in the shed under 'nil' marks. It was also pointed out that during the process of delivery of cargo, marks of some of the reels might have been defaced and that it was clear from the above that the manifested number of reels and the total landed quantity remained the same and hence the department had no objection in releasing these reels under nil marks against the shortage provided the Customs and Steemer Agents agreed. Learned counsel argued that in Ext. B10, the Port Trust Authorities admitted that the entire quantity of 10,118 reels manifested were landed at the wharf and out of that, 10,085 reels were already delivered to various consignees and the remaining 33 reels were lying in the shed under 'Nil' marks. On the basis of these materials, learned counsel for the applicant argued that the entire reels were delivered to the Port Trust.
13. In this connection, learned counsel for the appellant invited my attention to a decision of the Andhra Pradesh High Court in The Shipping Corporation of India Ltd., Bombay v. The Union of India (AIR 1976AP 261). Dealing with the scope and effect of the provisions of Sections 42 and 43 of the Major Port Trusts Act, the Court observed as follows (at page AP 267; AIR 1976):
'Sub-sec. (2) of Section 42 provides for giving a receipt for the goods received, removed, shifted or transported from the ship by the Port Authorities and under Sub-section (7) the person receiving the said receipt is absolved from any further liability for the loss or damage occurring to the goods thereafter. In other words, from the moment the receipt is given, it is the Board that becomes responsible for the loss, destruction or deterioration of the goods and its liability is described to be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act vide Sub-section (1) of Section 43. In this context, we are of the opinion that the notice contemplated by Sub-section (2) of Section 43 should be given a limited meaning in the sense that the notice contemplated therein has to be given to the Board by the shipper/ carrier to whom the receipt has been issued and the object of the said sub-section is to decide and dispose of any objections with respect to the correctness of the receipt issued promptly and immediately after the goods are received by the Port Authorities. We are not prepared to construe the said sub-section as absolving the Board of its liability for loss or destruction altogether vis-a-vis the consignee on account of the shipper/carrier not having given the notice required by the said provision. Obviously, the said receipt is issued soon after the goods are shifted from the ship and the receipt is issued to the master of the ship and he alone will be in a position to raise any objections with receipt to the correctness of the said receipt. Situations may perhaps arise where the Board itself may seek to rectify or modify the contents of the receipts soon after the receipt of goods. The consignee cannot be aware of the date of the shifting of the goods or the date of issue of the receipt to the master of the ship. The Regulation fix a period of five days for giving notice contemplated by the said sub-section. It may not be possible for the consignee, who may be in any part of India, even to know that such a receipt has been given and therefore, we are of the opinion that the said notice has to be given only by theperson who receives the said receipt and not by the consignee and that the non-giving of such notice does not absolve the Board of its liability for any loss or destruction vis-a-vis the consignee.'
The Madras High Court also had occasion to consider the legal effect of the corresponding provisions contained in Sections 39 and 40 of the Madras Port Trusts Act (2 of 1905). The Court said:
'The Port Trust as a bailee must be deemed to have undertaken to deliver the goods according to the directions of the shipowner from whom the goods had been taken charge of, and statutorily the shipowner got an absolute discharge on taking the receipt provided for under Section 39, Sub-section (3) of the Act, It would not, therefore, be open to the Port Trust to contend that the consignee had no cause of action against them for nondelivery of goods which they had taken charge of.'
It follows that once the goods have been delivered from the vessel to the Port Trust and a receipt is issued by the Port Trust is regard to the goods delivered, the owner of the ship is absolved of the liability in regard to the goods so delivered to the Port Trust. No doubt, Ext.A10 was issued by the Deputy Wharf Superintendent, Port Trust to the agent of the plaintiff stating that 33 reels were short landed. But that cannot be obviously correct in view of Ext. B11 receipt issued by the Port Trust. Ext. B8 is the out-turn statement of dutiable cargo issued by the Port Trust, to the Collector of Customs with a copy marked to the 2nd defendant. There, it is stated that 33 reels have been landed in excess. This also would indicate that what is stated in Ext. A10 cannot be correct.
14. In this connection, learned counsel for the appellant pointed out that the Excise Authorities will not permit to import any goods other than the goods described in the bill of lading. Presumably it was to ascertain whether 33 reels answer to the description marks mentioned in the bill of lading, the Customs Authorities detained 33 reels from 10-10-1980 to 13-10-1980 for examination.
Because of delay in taking delivery, and on account of the detention of the goods by Customs Authorities, the Port Trust charged demurrage to the extent of 24,225.76 as can be seen from Ext. A17. The plaint claim includes the demurrage shown in Ext. A17 paid by the plaintiff. Admittedly, plaintiff did not conduct any chemical examination to ascertain whether these 33 reels answer to the description contained in Ext. A5 bill of lading. Ext. B4 is a letter sent by the agent of the plaintiff to the Assistant Collector of Customs. Ext. B4 they stated that they wished to inform the Customs Authorities that 33 reels of newsprint paper referred to by M/s. Peirce Leslie India Ltd. are not without any marks, but under various other marks and that those 33 reels were only ordinary newsprint paper. They also stated therein that those 33 reels of newsprint paper did not belong to their above lot as those 33 reels were not white glazed newsprint and they did not bear their marks and that hence they were advised by the importers Manipal Printers and Publishers Pvt. Ltd., Manipal not to take delivery of those 33 reels of newsprint paper referred to by M/s. Peirce Leslie India Ltd. According to the learned counsel for the appellant, it is this latter addressed to the Customs Authorities, which necessitated chemical examination by them to ascertain whether the goods 33 reels answer to the description of the goods described in Ext. A5 bill of lading. According to the learned counsel, the Customs Authorities must have been satisfied that 33, reels detained by them for chemical examination answered to the description of the cargo in the bill of lading. Bill of lading is issued in acknowledgment of the receipt of the goods mentioned therein. It evidences the terms of the contract of afreightment made between the ship-owner and the shipper. Bill of lading which is a symbol of the goods covered by it is regarded by the custom of merchants as a document of title. The carrier is responsible for the safe carriage and discharge of the goods which carrier agrees to carry.
15. Article III, Rule 2 of the Indian Carriage of Goods by Sea Act, lays down that subject to the provisions of Article IV, the Carrier shall properly and carefully load,handle, stow, carry, keep, care for and discharge the goods carried. Rule 3 states that after receiving the goods into his charge, the carrier or the master or agent of the carrier, shall, on deemed of the shipper, issue to the shipper a bill of lading showing among other things, (a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained in such a manner as should ordinarily remain legible until the end of the voyage; (b) either the number of packages or pieces, or the quantity, or weight as the case may be as furnished in writing by the shipper; and (c) the apparent order and condition of the goods, Proviso to the said Rules lays down that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
15A. Learned counsel for the appellant drew my attention to the bracketed portion in Ext, A5 bill of lading, which reads as follows:--
'(weight, measure, brand, contends, quality and value unknown)'
The learned counsel submitted that the effect of this statement in Ext. A5 bill of lading is that the owner of the vessel does not admit the weight, measure, brand, contends, and quality described by the consignor. Rule 2 of Article IV of the Indian Carriage of Goods by Sea Act enumerates cases where neither the carrier nor the ship shall be responsible for loss or damage. Clause (n) is 'insufficiency of packing, Clause (o) is 'insufficiency or inadequacy of marks' and Clause (p) is 'latent defects not discoverable by due diligence. Learned counsel argued that in the instant case loss or damage arose from insufficiency of packing, insufficiency and inadequacy of marking and latent defects not discoverable by due diligence and that therefore the carrier is hotresponsible for such damage or loss.
16. In this connection, learned counsel for the appellant invited attention to the decision of a Division Bench of this Court in Collis Line Private Ltd. v. New India Assurance Co. Ltd. (AIR 1982 Ker 127). This Court observed (at page 130 of AIR 1982 Ker):
'The carrier must show in the bill of lading not only the lading marks, but also either the number of packages or pieces, or the quantity or weight. This means that if the number is shown he is not bound to account for the weight provided he has so indicated in the bill of lading. Words such as 'Weight and quantity unknown' are common in bills of lading. Their effect is that the bill of lading is not even prima facie evidence of the weight or quantity shipped. See Scrutton on Charter parties, 18th Edn. 1974, p. 426; Carver: Carnage by Sea. Vol. 1, 12th Edn. para 270. (at page 130 of AIR 1982 Ker).
5. The carrier is not bound to state in the bill of lading any mark, number, quantity or weight, the correctness; of which he has reasonable ground to suspect, or which he has had no reasonable means to check. The bill of lading evidence only the apparent order and condition of the goods. If the carrier finds that the goods at the time of shipment were not in apparent good order and condition he is entitled to qualify his statement by a marginal clause to that effect. The expression 'apparent order and condition' refers only to the external condition of the goods at the time of shipment. It is not an admission on the port of the carrier as to the internal condition or quality of the goods.'
17-18. I have already adverted to the statement in Ext, A5 in bracket that 'weight, measure, brand, contents, quality and value unknown'. That would mean that the carrier is not responsible for any reduction in weight or difference in quality. Learned counsel for the appellant pointed out that it was not after verification that the weight was entered in Ext. A5 and in making entries, the carrier only relied on what was stated by the consignor and that in view of the above statement in bracket in Ext. A5, the carrier isnot responsible for loss or damage. The principle laid down in the case of Collis Line Private Ltd.' (supra) supports the contention of learned counsel and it has to be held that the carrier is not liable for the deficiency in weight or difference in quality since Ext. A5 expressly states that the weight, measure, brand contents and quality were unknown. In the circumstances, the finding of the Court below that 1st defendant is liable to pay damages on the basis of shortage of weight or difference in quality cannot be upheld.
19. Learned counsel for the appellant also placed great reliance on the agreement printed on the reverse of Ext. A5, under the heading 'IV DISCHARGE'. Clause (5) of the agreement reads as follows :--
'5. If any consignee has a shortage in the marks and numbers called for by this Bill of lading unclaimed goods of like kind and quality shall at the Carrier's option be deemed to constitute a part of the goods and be accepted by the consignee as good delivery under this Bill of lading.
Clause (8) under the heading 'discharge' reads as follows:
'At all ports in which by the law or the custom of the port there shall exist a Port or Harbour Authority empowered or authorised to receive import cargo, delivery of the goods into the custody of such Port or Harbour Authority shall be a good and effectual discharge and delivery of the goods, and shall be treated as a removal of the goods into the custody of the persons entitled to the delivery thereof under the contract of carriage for all purpose of the Indian Carriage of Goods by Sea Act, 1925.'
Learned counsel for the appellant pointed out that it is on the basis of Clause IV(5) of the Bill of Lading that the agent of the 1st defendant addressed Ext. B3 letter to the plaintiff. According to the learned counsel, in view of the above clause, the consignee was bound to accept 33 reels a constituted part of the goods entrusted to the carrier. In Ext. B6 communication 2nd defendant pointed out that once the cargo is discharged, the responsibility of the carrier was over and that afterthe discharge neither the ship nor her agents had any control over it, nor had they any right to examine it and the responsibility was transferred to Port Authorities. There is considerable force in the contention of the counsel based on the agreement on the reverse of Ext. A5.
20. In this connection, learned counsel for the appellant brought to my notice a decision of a Division Bench of this Court in The New India Assurance Co. Ltd. v. M/s. Splosna Plovba (AIR 1986 Ker 176) where the question of limiting the liability based on Bill of Lading was considered. Bill of Lading in that case also contained clauses similar to those contained in Ext. A5 in this case. The Court observed (at page 181 of AIR 1986 Ker):
'21. In the light of the principles discussed above, it may become necessary to consider whether the carrier has limited his liability in the manner aforesaid. The limitation of liability is based on the Bill of Lading itself. The Court below has referred to Clauses (3) and (7) in the bill of lading (Ext. A3) and considered their effect. The relevant portions of those clauses read:
'3. Responsibility. The carrier shall not be liable for loss or damage to the goods during the period before loading into and after discharge from the vessel however such loss or 'damage arises. Loading commences when the tackle is hooked on the cargo and discharge ends when cargo is taken off ship's tackle. Goods in custody of the carrier or his servants before loading and after discharge whether being forwarded to or from the ship or whether awaiting shipment, landed or stored or put into hulk or craft belonging to the carrier or not, or pending transhipment at any stage of the whole transport, are in such custody at sole risk of the merchant and the carrier shall not be liable for loss or damage arising or resulting from any cause whatsoever.'
7. Loading, Discharge and Delivery of the cargo shall be arranged by the Carrier's agent unless otherwise agreed.
Loading, storing and delivery shall be for the merchant's account.
Loading and discharging may commence without previous notice.'
22. xx xx xx xx xx
23. As with loading, so with discharge, the corresponding obligation at the culmination of the voyage. The discharge of the delivery from the ship takes place at that juncture. This too is a joint operation. Thejointness of the operations is discussed by Lord Isher M. R. in Peterson v. Freebody & Co. (1895) 2 QB 294 at page 297 :
'Whichever word be used, whether it be called a 'discharging' or 'delivery', and whatever be the circumstances of the delivery, one party is to give, and the other is to take, delivery at one and the same time, and by one and the same operation. It follows that both must be present to take their parts in that operation. Those parts are, the ship has to deliver and the consignee to take delivery --where? Each has to act within his own department. The shipowner acts from the deck_o_r some part of his ownjhip, but always on board his ship. The consignee's place is alongside the ship where the thing is to be delivered to him. If the delivery is to be on to another ship, he must be on that ship; if into a barge or lighter, on that barge or lighter; if on to the quay, on the quay. Wherever the delivery is to be, the shipowner, on the one hand, must give delivery. If he merely puts the goods on the rail of his ship, he does not give delivery; that is not enough. If, on the other' hand, the consignee merely stands on the other ship, or on the barge or lighter, or on the quay, and does nothing, he does not take delivery. The shipowner has performed the principal part of his obligation when he has put the goods over the rail of his ship; but I think he must do something more -- he must put the goods in such a position that the consignee can take delivery of them. He must put them so far over the side as that the consignee can begin to act upon them; but the moment the goods are put within the reach of the consignee he must take his part in the operation. At one moment of time the shipowner and the consignee are both acting --the one in giving and the other in takingdelivery; at another moment the joint act isfinished. Where goods are slung, and loweredgradually over the side of the ship into alighter, they cannot all be deposited on thesame spot in the same lighter. It is obvious,therefore, that those on board must help inthe operation of taking delivery by guidingthe thing as it is coming down into thelighter.'
Reference has also been made to Article VII of Schedule to the Indian Carriage of Goods by Sea Act, 1925 which reads as follows:
'Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition reservation or exception as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and handling of goods prior to the loading on and a subsequent to the discharge from the ship on which the goods are carried by sea.'
The above discussion lead's to the following conclusion:
(1) That in a case where the carrier states in the bill of lading that the weight is unknown and the bill of lading mentions number of packages the carrier is no longer responsible for the shortage in weight if there is delivery of the number of packages shown in the bill of Lading; (2) It is open to the carrier to limit his liability in terms of Article VII of Schedule to the Indian Carriage of Goods by Sea Act and such limitations can be incorporated in the Bill of Lading; and (3) The responsibility of the carrier comes to an end when the goods are discharged and delivery is given to the consignee or to the Port Authorities, and a receipt is taken.
21. On an examination of the evidence, bearing in mind the above principles and the relevant provisions contained in the Indian Carriage of Goods by Sea Act, there is no difficulty in coming to the conclusion that the carrier cannot be liable to pay damages based on the reduction in the cargo discharged. The plaintiff was not only to establish that plaintiff was the owner of the cargo to the time of entrustment or that there was privityof contract between the plaintiff and the 1st defendant so as to enable the plaintiff to sue against 1st defendant for damages. No authority has been cited before me to show that the transfer of ownership to the plaintiff on high seas would enable the plaintiff to sue against the 1st defendant without junction of S.T.O. who was the consignee.
22. I shall next consider the question of claim for damages based on payment of demurrage. Learned counsel for the appellant attacked the finding of the lower Court in this regard also. In this connection he invited my attention to Section 73 of the Contract Act. It provides that when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract compensation for any loss or damage caused to him thereby, which naturally arises in the usual course of things from such breach, or which the parties, know, when they made the contract to be likely to result from the breach of it, and that such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. Learned counsel submitted that by no stretch of imagination, it can be said that payment of demurrage was the direct result of any breach by the 1st defendant. He submitted that compensation cannot be given for any remote or indirect loss or damage sustained by reason of breach. The cargo was landed in April, 1980. Parts of cargo were taken delivery of on 12-4-1980 and 18-4-1980. The remaining cargo remained at the wharf till 16-10-1980. The agent of the plaintiff refused to take delivery and this resulted in accumulation of demurrage. Learned counsel also invited my attention to paragraph 7 of the plaint. It is averred in paragraph 7 of the plaint that 2nd defendant by letter dated 10-6-1980 informed the plaintiff that 33 reels newsprint were landed without marks and were lying at the wharf and that the 2nd defendant further wanted the plaintiff to take delivery of the said 33 reels as against the 33 reels bearing plaintiffs clear marks. It was also averred that on receipt of the letter from 2nd defendant, plaintiff-Company wrote to its clearing and forwarding agents to verify and take delivery of the 33reels which were stated to be available for delivery, but the 33 reels available were found to be of ordinary standard newsprint whereas the 33 reels that the plaintiff was to get delivery of as covered by the Bill of Lading were of glazed newsprint definitely superior in quality and the reels were bigger in size each reel weighing more and that this was pointed out to the 2nd defendant by plaintiff in his letter dated 23-6-1980. It was also averred that the 33 reels which were found without marks and number were badly damaged, that the plaintiff again wrote to the 2nd defendant a letter dated 18-7-1980 demanding compensation for the 33 reels of glazed newsprint short landed and consequently non-delivered to the plaintiff. It was admitted in the plaint that the 2nd defendant by letter dated 19-8-1980 insisted that the 33 reels newsprint available without marks etc. should be taken delivery of by the plaintiff against the plaintiff's 33 reels glazed newsprint.
23. Learned counsel for the appellant submitted that it was because the plaintiff refused to take delivery that demurrage was accrued. In this connection, learned counsel invited my attention to a decision of the Allahabad High Court in Niranjan Lal v. Union of India (AIR 1973 All 303). The Court observed as follows (at page 305 of AIR 1973):--
'The consignee has to take delivery of the goods in the condition in which they are found after giving notice to the railway authorities effecting delivery in regard to the condition of the goods and the shortage etc. If there be any and then to sue the Railway administration for shortage or damage as the case may be. The consignee should take delivery of the goods within reasonable time, which normally would be the free time allowed for demurrage and wharfage by railways. Under Rule 192 of the Goods Tarrif No. 31 the consignee is bound to take delivery of the entire consignment even though part of it is found damaged or missing otherwise the goods would be sold by public auction after complying with the provisions of the Indian Railways Act.'
Learned counsel for the appellants arguedthat the plaintiff was not justified in not taking delivery of the goods in spite of notice to the plaintiff and in the circumstances plaintiff was not entitled to get damages in respect of the demurrage paid by him. The vessel arrived at the Cochin Port on 24-3-1980 and left the Port on 27-3-1980 after discharge of the cargo. The total packages of 10118 reels were discharged by the vessel and they were stocked in Cochin wharf. Plaintiff's agent approached for delivery only on 12-4-1980 and they took delivery of two reels on that day. On 18-4-1980 they took delivery of another 3 reels and refused to take delivery of the rest on the ground that they did not contain the marks and that the packets are damaged in various degrees. It appears that there was a strike of Port labourers in the meanwhile. It was only on 16-10-1980 that the plaintiff took delivery of 33 reels. P.W. 2 who was examined on behalf of the plaintiff, deposed in his cross-examination that he was not present when the cargo was discharged from the vessel, that he received the documents from their Principal on 27-2-1980, that they received the bill of lading by the end of March 1980, that he did not see the reels at the Cochin Port and what transpired at Port was known to their clearing agents. According to him, they did not take delivery of the 33 reels offered by the 2nd defendant since it did not bear marks and that it was not of glazed newsprints. He admitted that they did not conduct any chemical test to determine the quality and that they did not go through the bill of lading before they refused to take delivery of 33 reels. He further stated that he did not know whether there is a clause in the bill of lading empowering to claim demurrage. In Ext. B5 letter sent by the Agents of the plaintiff to the plaintiff, reference has been made to a telegram sent by the plaintiff on 16-6-1980 stating that the 2nd defendant informed them about the landing of 33 reels and directed them to contact and arrange their clearing agents to take delivery of the said reels. It was further stated in Ext. B5 that the 33 reels landed were newspaper of bad and damaged quality and that their reels were glazed newsprint. The clearing agents advised the plaintiff not to take delivery of 33 reels and informed them that it would be better to apply for settlement of their claims.
24. D. W. 2 is the Wharf Superintendent. He gave evidence that the cargo will be in the custody of the Port Trust from the date of discharge of the vessel till the date of delivery to the consignee and after discharge there were four days for taking delivery without demurrage. He also stated that if there was any excess cargo 33 days were available for clearance and the cargo of 33 reels involved in this case could have been taken delivery till 26-6-1980 without any demurrage. Counsel for the appellant further submitted that the plaintiff could claim title only on the basis of Ext. A6 and that gives the description of the property as unglazed newsprint. He submitted that in any event, the remedy of the plaintiff was to take delivery of the goods before the expiry of the period but in spite of the free period available to them till 26-6-1980 they did not take delivery and therefore the defendants were not in any way responsible for the demurrage. He also submitted that Ext. A2 would show that there were 38 packages and in view of the conditions specified in the bill of lading, it is not possible to burden the vessel with the liability on the ground of either quality or weight. He added that in Ext. B11 receipt issued by the Cochin Port Trust, there were 22 packages answering to the description of marks and for this reason also the 1 st defendant cannot be saddled with the liability for the demurrage. In Ext. B5 letter it was stated that Mr. Shetty inspected the cargo but according to P.W. 1 it was Unni who saw the cargo. Neither Unni nor Shetty was examined to give evidence in regard to the condition of the cargo.
25. Learned counsel for the respondent submitted that in Ext. A 12 reply sent by the 2nd defendant they had not asserted that the 33 reels in the shed were the goods consigned to them. He also pointed out that in Ext. A13 letter addressed to Peirce Leslie they had stated that the 33 reels mentioned in Ext. A2 letter was not of glazed newsprint, but it was of standard newsprint. He further submitted that it was pointed out therein that packages did not have any marks or any particulars and they were in a damaged condition. Learned counsel for the respondent also submitted that in Ext. A151etterdated 19-8-1980 sent bythe 2nd defendant to the plaintiff, no mention was made about Ext. B11 and the delivery of 22 reels which answered the description of the cargo sent to them. He submitted that the original bill of lading containing endorsement in favour of the plaintiff but the 1st defendant had not produced them. According to him Ext. A5 is clean bill of lading and there were marks and that defendants 1 and 2 could not in the circumstances contend that the packing of the contents was not proper. He also invited my attention to the weight given in Ext. A5. He submitted that Exh. A18 the survey report would show the net weight of 33 reels was only 11,890 and there was a shortage of 5078 K. Gs. in respect of 33 reels. According to the learned counsel, in the circumstances, the plaintiff was fully justified in not taking delivery of the 33 reels. Learned counsel for the respondent also submitted that if the plaintiff had informed them earlier of the delivery of 22 reels answering the description, they could have proceeded against the Port Trust. In this connection he invited my attention to Section 120 of the Major Port Trust Act which says that no suit or other proceedings shall be commenced against a Board until expiration of one month after notice in writing, stating that cargo of action or after six months after the accrual of the cause of action. Six months elapsed and because of the conduct of the defendants, they were disabled from proceeding against the Port Trust. In any event, according to him, there was shortage of 16 reels of the cargo consigned and the total weight of the same would come to 2,452 Kgs. and at the rate of Rs. 4/- per Kilogram, plaintiff has sustained a loss of Rs. 9,728/- on this account and that the plaintiff is entitled to recover this amount in any view of the matter. Learned counsel further submitted that it is the damaged goods that was offered and it was no defence for a claim for demurrage paid to say that plaintiff could have taken delivery of the goods earlier and then claim for damage sustained. In my view, the clearing agent ought to have taken delivery of the goods as was directed by the plaintiff instead of sending Ext. A12 communication to the plaintiff advising them not to take delivery on the ground that they were in a damaged condition. They could have taken delivery of the goods and then claimeddamages. It is only due to the delay in taking delivery that the demurrage was accrued. I have already discussed the obligation of the consignees under such circumstances to take delivery after bringing damage to the notice of the authorities and make a claim for damages later. As a matter of fact, at a later stage, plaintiff got the cargo surveyed and it was on the basis of the survey report that they claimed damages. In the circumstances, the liability for payment of demurrage cannot be fastened on 1st defendant.
26. I have already held that the plaintiff is not entitled to get any damages from the 1st defendant on the ground of deficiency in weight of.the cargo. In the circumstances, it is not possible to fasten the liability on the 1st defendant in regard to survey charges also.
27. 4th defendant, the Insurance Company, has filed a cross appeal stating that the court below has not considered the terms and conditions of Ext. A20 Marine Certificate of Insurance and acted illegally in decreeing the suit as against 4th defendant. No cross appeal would lie in an appeal filed by co-defendants. Nobody appeared also for the cross-appellant. I therefore dismiss the cross appeal without any order as to costs.
In the result, the appeal is allowed and the judgment and decree of the court below as against 1st defendant are set aside. There will be no order as to costs.