Judgment:
The Court
1. The plaintiff has instituted this suit on 11th January, 1988 for cancellation of annexure--'A' to the plaint, which is an undated noticeissued by the defendant to the plaintiff holding the plaintiff responsible for damaging its coal-loader and requiring the plaintiff to accept liability in that respect and for the payment of the cost of repairs. The annexure 'A' contained an endorsement, also undated, made by the master of the vessel belonging to the plaintiff, accepting liability, 'without prejudice to the extent of only loader being put In working order on turn-key basis'.
2. The facts of this case in short are that M.V. 'Chennal-Nermal' an Indian Ship, owned by the South Indian Shipping Corporation Ltd. Madras under charter to the Poompuhar Shipping Corporation Ltd. arrived in Haldia from Sandheads on 27th August, 1987 for loading coal from the Coal-Berth within the Haldia Dock Complex. The vessel was placed in the locks, and the berthing master boarded the vessel In the lock and proceeded to Coal-Berth with the assistance of two tugs. The wind speed was 24 knots and arrival draft of the vessel was reported by the master as 8 meters. The master deballasted the vessel at the time of approaching Haldia lead in Jetty for ingress into the dock system, and continued to do so In the docks, and in the process reduced the draft of the vessel. During passage to berth, stern of the vessel came in contact with the southern end of the Coal-Berth and the counter of the vessel touched No. 1 ship-leader also referred to as the coal-leader, parked in the area. The ship-leader was consequently damaged, rendering it out of commission. The defendant issued the same notice to the plaintiff, three times and was satisfied with the third endorsement by the master, which is annexure 'A' to the plaint, and in the left-hand corner of the notice the master of the vessel endorsed, that he accepted liability without prejudice to the extent of repair of the damaged coal-loader, and the vessel was allowed to leave Haldia Dock on 1st September, 1987.
3. According to the defendant, the draft on arrival of the vessel at the dock-complex was reported as 8 metres and the master continued de ballasting in the locks and the draft was reduced to 5.5. metres. The master did not declare this reduction of draft to the berthing-master the boarded the vessel at the locks. The water level Inside the dock was 5.0 metre because of high tide against normal state of around 4.5 metres. It was contended by counsel for the defendant with great force that the reason for the accident was excessive de ballasting the master of the vessel and consequent reduction of draft dangerously below what the draft should have been in those conditions coupled with non-disclosure of the draft by the master to the berthing-master. The master did not take into account that natural conditions existent on that day did not warrant a light draft. The vessel was constantly blown towards the berth, which could not be checked, and as a result the vessel made contact with the coal-loader which was damaged to the extent of being put out-of-order. The other cause for the accident according to the defendant was due to the negligent navigation by the master and wrongful Instance by him for parking the vessel alongside the No. 1 coal-leader which was parked at the southern and instant of its location at the centre. It was submitted on behalf of the defendant, that under section 31(2) of (The) Indian Ports Act, 1908 the plaintiff was liable to pay the repairing costs of the coal-loader which had been damaged, despite the fact that the berthing-master was on board the vessel. The master of the vessel it was contended was all along in control of his vessel,the berthing master was only on beard in an advisory capacity and therefore, when the Incident occured, the master had the command of the vessel and under section 116 of (The) Major Port Trusts Act, 1963, the owners were in law bound to pay for the damages caused by the vessel to the property of the defendant. Other than the endorsement by the master of the vessel, by way of acceptance of libaility for the damages, the plaintiff was earlier agreeable to furnish a bank-guarantee and secure the costs of repairs if the defendant was found liable. It was not however, acceptable to the defendant as It was possible to ascertain the damage. The counter claim of the defendant. It was submitted, was the amount which had been claimed by the repairers, and pursuant to an award in an arbitration proceeding between the defendant and the repairers that amount had already been paid by the defendant to the repairers. The defendant contended that there was no question of any duress or coercion by the defendant nor any particulars were set out in the plaint in that respect. Section 65 of (The) Major Port Trusts Act, 1963 it was submitted specifically provided that unless the provisions of section 116 were complied with no clearance would be given to the vessel to leave port. In support of his submissions counsel for the defendant cited and relied on decisions reported in : AIR1974Cal393 ; AIR (1952) SC 280; : [1967]1SCR331 .
4. According to the plaintiff, during the berthing operation, the berthing-master was on board and he was In control and charge of the vessel and that it was due to his negligence that the Incident occurred and the No. 1 coal-loader belonging to the defendant was damaged. The acceptance of liability as contained in the endorsement in the left-hand corner of the notice, contended the plaintiff had been obtained by the defendant from the master of the vessel by threats, coercion and duress. In its additional written-statement, the plaintiff set out the circumstances of the case, and elaborated on the allegations of negligence of the berthing-master which had been mentioned in the plaint. It was alleged that the system of communication between the tugs and the berthing-master directing the tugs in assisting the berthing manoeuvre was out-dated and inadequate; the dreoger and the coal-loader had been placed in a manner which impaired the manoeuvres in berthing the vessel; the berthing-master neglected to read or ascertain the draft immediately upon boarding the vessel which he was bound to do and the direction by the berthing-master to drop the anchor was obeyed by the master after a short delay and in the process a more severe accident which would have involved the dredger or the berth was averted. It was argued by counsel for the plaintiff, that from the evidence adduced by the witnesses on behalf of the defendant it was clear, that the berthing-master was in charge, and conducted the movement, of the vessel as soon as the vessel entered the dock-area, and that admittedly he had failed to ascertain the draft immediately on boarding the vessel. It was argued that the defendant Instead of adopting the procedure laid down in section 116 of (The) Major Port Trusts Act 1963, had wrongfully and upon threats of detaining the vessel in the dock complex obtained the endorsement of acceptance of liability by the plaintiff. The reason for agreeing to furnish the bank-guarantee by the plaintiff submitted counsel for the plaintiff was not because the plaintiff had admitted any liability, but to reasonably secure the defendant, if upon enquiry the plaintiff should befound to be responsible for the damage (sic). As far as the counter-claim was concerned it was submitted on behalf of the plaintiff that there was no award in respect to the damage to the coal-loader, nor was the plaintiff Intimated, at any point of time, as to the extent of the alleged damage or the repairs that were, sought to be or had been effected by the defendant, and In those circumstances, the plaintiff could not be made to anything towards the damages as claimed by the defendant In its counter claim. In support of the submissions made on behalf of the plaintiff, counsel cited and relied on the decisions reported in 72 CWN 1; (1953) 2 A1I.ER 1231: AIR (1990) Bom. 230; : AIR1988All309 ; : AIR1982Ori158 and also an unreported Judgment of this court:
5. The Ministry of Surface Transport (Port wing) on 20th October 1987, set up a Committee which included senior officials of both the plaintiff and the defendant who were technically qualified and experienced to appreciate the circumstances of the incident, to enquire as to the damage to the coal-loader in Haldia Dock Complex and fix responsibility. The Committee consisted of the Principal Officer, Maerchantile Marine Department, Calcuttta; Director (Mechanical), Ministry of Surface Transport, New Delhi; Director (Technical), Poompuhar Shipping Corporation of India Limited, Madras; and Director (Marine Departmenl), Calcutta Port Trust, Calcutta. The Committee submitted it report on 6th January, 1988. In its report, the Committee considered different aspects of the incident and proposed preventive measures, but found that, 'The accident took place due to unfortunate combination of certain unusual factors put together for which no individual responsibility can be assigned.'
6. Clause 16 of the By-Laws of The Port of Calcutta makes it mandatory that there shall be no movement within the docks of any sea-going vessel, 'unless she is in the charge of a duly authorised officer of the Commissioners'. Similar mandatory provision has been made in section 31(1) of the Indian Ports Act, 1908. Clause 20 of the By Laws, has stipulated in no uncertain terms, that The Master of owner shall obey every lawful direction of, and act in full cooperation with, all duly authorised officers of the Commissioners for the purpose of mooring or unmooring, moving or removing a sea-going vessel......' It would therefore appear that the master'scommand of the vessel must necessarily be in obeyance during the berthing process, when the vessel was 'in the charge of' the berthing-master, and the berthing-master was responsible for guiding the vessel to its berth. This was because special expertise was necessary to manouvre the vessel within the Dock Complex, and the berthing-master was the person duly authorised by the defendant for that purpose. Therefore, the master, was required to obey his directions and instructions. There was no scope for the hearthing-master being advised by anyone or holding any discussion with the master. Every movement and manouvre of the vessel was the decision of the berthing-master and the entire berthing process depended on his expertise, decisions and assessment of situation.
7. The master had deballasted even within the dock-complex and consequently the draft had been appreciably reduced which probably made the vessel lighter and therefore more uncontrolable with a windforce of 24 knots. It was customary and Indeed expedient that the master ought to havedisclosed the correct draft to the berthing-master immediately after he came on board. The master omitted to do so. The berthing-master ought to have checked and ascertained the correct draft because movements and manouvres of the vessel for berthing would very much depend on it. The berthing-master had not done so. Immediately upon the berthing master camming on board, he assumes charge of the vessel for berthing it, and if the master did not appraise him of the draft of the vessel then surely it was for him to ascertain it since, according to the defendant, the draft was so Important that had the berthing master known the correct draft the accident would not have occured. It has not been the case of the defendant that the berthing-master, if he was do Inclined, could not ascertain the draft at the time, when he went on board or anytime thereafter, or that he had attempted to ascertain and he was prevented or any impediment was created by anyone in his so doing. It does not appear that the berthing-master made any complaint In this respect against the master either during or immediately after berthing. Non-disclosure of the draft by the master, was, it would appear to me, an afterthought and in the circumstances fails to attach any liability on the plaintiff.
8. The coal-loader, admittedly was parked at the southern end of the berth instead of its usual location, at the centre, There is no evidence that this fact was considered by the berthing master or if considered what precautionary measures he had taken in those somewhat difficult weather conditions. His instruction to drop the anchor would reasonably create doubt that he was at all conscious of the strong windforce at 24 knots blowing at an angle gave rise to considerable pressure on after part of the vessel and because of the superstructure the vessel could very well crash into dredger or the berth. In fact by not dropping the anchor when he had directed to do so, the master has averted a major accident which would have caused very serious damage to the dredger, the berth and the vessel. In his evidence, the berthing-master did say that he had been berthing vessels in Haldla Docks for a number of years but there is no evidence as to whether he had any formal training in coping with the circumstances which were prevalent on the day of the accident. It is possible. In view of the several Impedlements In the dock and the strong wind-force the berthing-master could have postponed the exercise. I can well appreciate the observation by the Enquiry Committee, 'Port officers entrusted with handling of ships should be given suitable training for manouvrlng vessels under varying weather and harbour condition.'
9. During the berthing process the berthing-master had two tugs at his disposal for the purpose of assisting in berthing the vessel. The system of communication between the berthing-master, the tugs and wharf it would appear from the evidence were archaic to the extent of the directions Issued by the berthing-master not being heard by the gugs, the singnals made by the berthing-master not being received by the tugs due to low visibility and there being almost no contact between the berthing-master the tugs and the wharf. According to the defendant the existing system of communication between the berthing-master and the tugs and the berthingmaster and the wharf was an ageold established system. To say the least, It is reckless of the defendant to continue with an antiquated system which obviously doesnot and cannot serve the purpose, and the tugs are in fact rendered quite superfluous in the circumstances.
10. Section 31(2) of The Indian Ports Act, 1908 in definite terms stipulates that 'the owners or master of a vessel..... shall be answerablefor any loss or damage caused by the vessel or by any fault of the nevlgation of the vessel.....' According to the interpretation sought to be givento the sub-section, by counsel for the defendant, it would appear that the word 'answerable' was used to mean liable, and as if the two words were interchangeable. The legislators in their wisdom preferred that the owner of the vessel in those circumstances should be given the opportunity to answer in relation to the incident and not made liable without any hearing. No doubt, upon very careful constderatton of the justice of the matter, they chose to use the word 'answerable' and not liable, which they very well could have, had they thought it appropriate. The contention of the defendant, forcefully argued by its counsel, that the owner of the vessel which caused any damage to any property of the defendant must accept liability for the incident and undertake to pay for all repairs in respect to such damage, would appear to me to have swept away many an 'its' and 'buts', which on proper consideration would render the contention into a sail out of which all the wind has been taken out.
11. Section 65 of The Major Port Trusts Act, 1963 envisaged a notice by the defendant to an officer reponsible for granting port clearance indicating the amount chargeable In respect to any damage referred to in section 116 of the Act, and not to grant port clearance to the vessel 'until the amount so chargeable or due has been paid or, as the case may be, the damage and cost have been realised.' This court has not been enlightened as to what steps, if any, were taken by the defendant In complinace with section 65 of the Act. The notice which the defendant issued was the undated notice which is annexure 'A' to the plaint. In fact there were three such notices. One dated 27th August, 1987 bearing an endorsement by the master of the vessel not accepting liability for the accident. The other is dated 30th August, 1987, also bearing an enforsement signed by the master of the vessel, accepting liability 'under protest without prejudice to owners/against contention for right of defence.' annexure 'A' to the plaint contains an endorsement also signed by the master of the vessel accepting liability 'without prejudice to the extent of only loader being put in working condition on turn key basis'. The defendant was not satisfied with the first two endorsements. The third and final endorsement met with their requirements, whatever they were, and the vessel was allowed to sail out of the Haldla Dock Complex on 1st September, 1987. There was specific provision in section 116 of the Act as to the procedure which the defendant ought to follow in those circumstances. In his arguments, counsel for the defendant condescendingly remarked that the plaintiff should consider themselves fortunate that the defendant did not take recourse to section 116 of the Act, as that would have further delayed the release of the vessel. May be the plaintiff should be greatful to the defendant for such small mercies, I wouldn't know. What Interests me, is the attitude of a Governmental authority after it has deliberately disregarded the provision of lawand chosen to adopt Its own procedure in dealing with vessels using the post. It would be appropriate to consider section 116 of the Major Port Trusts Act, 1963, since the precise procedure to be adopted by the defendant in these circumstances* has been clearly and succintly set out :
'116. Recovery of value of damage to properly of Board..... If throughthe negligence of any person having the guidance or command of any vessel, or of any of the mariners or persons employed on such vessel, any damage If cause to any dock, Wharf, quay, mooring, stage, jetty, pier, or other work in the possession of the Board, (or any moveable property belonging to any Board) the amount of such damage shall, on the application of the Board be recoverable, to gelher with the cost of such recovery, by distress and sale under a Magistrate's warrant, of a sufficient portion of the boats, masts, spares, ropes, cables, anchors, or stores belinglng to such vessel : Provided that no Magistrate shall issue such warrant until the Master of vessel has been duly summonged to appear before him and, if he appears, until he has been heard, and provided also that no such warrant shall Issue If the vessel was at the time under the orders of a duly authorised employee of the Board and the damage caused was attributable to the order act or improper omission of such employee.'
I am inclined to believe, that the defendant obtained the endorsement from the master because of the provisions contained in section 116 of The Major Port Trust Act 1963. Given the opportunity, which in law the plaintiff was indeed entitled to, the defendant apprehended the truth would be out, and the negligence and laches of its officers and employees would come to light and they would be answerable to the defendant and the defendant would be without a defence. There, they adopted the short-cut method, quite unwarranted in law, highhanded and anerous. I am surprised, that even after the report of the Enquiry Committee, the officers who were responsible for berthing the vessel M.V. 'Chennal Nermat' were not required by the defendant authorities to explain their actions and conduct in the matter. The accident had occured on 27th August 1987 and the vessel was allowed to leave port on 1st September 1987. There was more than sufficient time for the defendant to take recourse in accordance with the provisions contained in section 116, as they were bound to do.
12. In his arguments counsel for the defendant submitted that the repairs had been completed at a much lesser amount by a different repairer and such money had also been paid by the defendant, and that the defendant was entitled to recover such amount from the plaintiff. As regards the counter claim as made by the defendant, it does not appear that the plaintiff was at all intimated, at the time when the damage was caused to be surveyed by the defendant, or at the time when the repairs were affected. The defendant has failed to prove that the amount claimed, had infact been spent by the defendant for effecting the repairs of damages which had been caused as a result of the contact with the plaintiffs vessel.
13. For reasons, I hold that during the process of berthing the vessel was under the guidance and in the change of the berthing master, who was a duly authorised employee of the defendant, and that the accident occureddue to the lack of proper care and Inadequate expertise of the berthing-master coupled with the archaic communication system which was both inaudible and unseeable by the berthing master as also the tugs, then prevalent in the Haldla Dock Complex. The defendant wrongfully gave a go by to the procedure laid down in section 116 of The Major Port Trust Act 1963 and mala fide obtained the endorsement from the master in acceptance of liability for the damage. Therefore there shall be a decree in terms of prayers (a) and (b) of the plaint.
The defendant was unable to prove the counter-claim. In any event counter claim by the defendant is rendered superfluous, since I have found that the accident occured not because of deballasting of the vessel and the nondisclosure of the draft by the master, but because of the various impediments and ineffective communication system in the doc-complex and lack of expertise and failure to take the necessary precautions by the berthing-master.
Each party shall bear its own costs.
14. Decreed in terms of Prayes