K.S. Abdul Sattar and Another Vs. Issak Adam and Another - Court Judgment

1. The carriers by sea, who are the defendants accepted goods for carriage by sea from Bombay to the port of Sharjah, the scheduled voyage being of ten days. The ship received aboard, unmanifested goods resulting in seizure and detention of the ship at Bombay by the Customs Authorities. Therefore, the ship did not leave the port of embarkation. Consequently, the goods were not delivered at the port of destination. Rule 6 of Art. III of the Indian Carriage of Goods by Sea Act, hereinafter referred to as 'the Act', lays down that the carrier and the ship shall be discharged from all liability in respect of loss or darnage, unless suit is brought within one year after delivery of the goods or the date when the goods 'should have been delivered'. What, in the circumstances of this case, is the date on which the goods 'should have been delivered'? This is the question arising in this suit.

2. The plaintiff 1 exporter and importer of chemicals and machinery, carrying on business in India and the plaintiff 2, a Corporation incorporated under the laws of United Arab Emirates, seek to recover from the defendants who are, respectively, the owner and the captain of the motor vessel MSV, Issaki, a sum of Rs. 1,60,358.13 paise as damages representing the value of the quantity of Hydrochloric Acid which the vessel failed to deliver at the port of Sharjah in accordance with the contract of carriage.

3. It should be stated, at the outset, that the defendants have not filed written-statements, though they were served in 1975. The defendant 1 is represented by Attorneys M/s. Gordhandas and Fozdar who are present with their Counsel. The defendant No. 2 has not appeared at all. Since there is no written-statement by the defendants, I see no impediment in proceeding under the provisions of O. VIII, R.5 of the Civil P.C. to make a decree as prayed. However, Mrs. Gupta, learned Counsel for the defendant 1 urged that having regard to R. 6 of Art. III to the Schedule to the Act, this suit ought to have been instituted within one year from the date when the goods 'should have been delivered' to the plaintiffs at the port of Sharjah in United Arab Amirates. This was not done. It is, therefore, urged that the suit is instituted beyond the period of limitation laid down in the above rule. Consequently, according to the above rule, the defendants are discharged from all liability in respect of loss of or damage to the goods. I have heard Counsel on this question.

4. The following facts are admitted :

Pursuant to the contract dt. 14th Nov., 1973 entered into by the defendant 1 with the plaintiff, the consignment of 161 Metric Tonnes of Hydrochloric Acid was loaded in the defendants' vessel for carriage to Sharjah. When the vessel was about to sail from Bombay on 4th Dec., 1973, the Inspector of Customs Rummaging Preventive Department, New Customs House, Bombay, found that the vessel carried unmanifested cargo and, therefore, seized the vessel. The cargo remained in the vessel at Bombay. On 4th Mar., 1974, pursuant to the order of the Assistant Collector of Customs, on the application of Yunnus Issak, tandel of the vessel, the defendants were permitted to discharge the cargo at Bombay upon payment of wharfage and demurrage. The claim in the suit represents the value of 91 Metric Tonnes of Hydrochloric Acid which were never returned to the plaintiffs and other charges like wharfage, demurrage and so on, to which a detailed reference is not necessary. The vessel scheduled to sail on 4th Dec., 1973, should have reached Sharjah on or about 14th Dec., 1973. The present suit was instituted on 11th Nov., 1975, two years after the date on which the vessel was scheduled to arrive at Sharjah.

5. In view of insistent demand by different commercial interests for uniformity among all Maritime Countries in the definition of the liabilities and risks attached to the carriers of goods by sea and as a result of decisions at several International Conferences, a Code of Rules defining liabilities and responsibilities of carriers by sea was drawn up by the International Law Association at the Hague. The Rules in the Schedule to the Act follow the agreements at the International Conferences on Maritime Law held in Brussels in 1922 and 1923 and the English Act on the subject (Statement of Objects and Reasons).

6. By S. 2 of the Act, the rules set out in the Schedule apply in connection with the carriage of goods by sea from any port in India to any other port, whether in or outside India. Article III is captioned 'Responsibilities and Liabilities' of the carriers. By the definition in Cl. (a) of Art I, 'Carrier' includes the owner of the vessel. 'Ship' means any vessel used for the carriage of goods by sea. It is not disputed that the defendant 1 is the carrier and the vessel M.S.V. Issaki is the ship as defined in the Act. The removal of goods into the custody of the person entitled to delivery thereof under the contract of Carriage shall be prima facie evidence of the delivery by the carrier of the goods as defined in the bill of lading, unless notice of loss or oamage is given as required by R. 6 of Art. III. (Rule 6, Art. III -- Schedule to the Act). But, in any event, the carrier and the ship shall be discharged from all liability in respect of loss of or damage to the goods unless suit is brought 'within one year after delivery of the goods or the date when the goods should have been delivered'. (Rule 6 Art. III --Schedule to the Act).

7. In the case of a ship which reaches theport of destination, determination of the dateon which the goods 'should have beendelivered' is not difficult, As held by theSupreme Court, such date is the date whenthe ship carrying the goods has left the portat which delivery was to be made. East andWest Steamship Co. Georgetown, Madras v.S. K. Ramalingam Chettiar, : [1960]3SCR820 . American Export Isbrandtsen Lines Inc

8. But the determination of the date on which the goods 'should have been delivered' by a ship which did not leave the port of embarkation but discharged the goods at that port presents some difficulty. Such is the present case. There is no question of institution of the suit within one year after the 'delivery of the goods', for, the goods were never delivered at Sharjah. The question then is, whether the suit has been instituted within one year after the date when the goods 'should have been delivered'. This immediately raises the question : What, in the circumstances of this case, was the date when the goods 'should have been delivered'? The vessel was seized on 4-12-1973 and on the application of the defendants dt, 16th Jan., 1974, the cargo was discharged at ' Bombay on 4th Mar., 1974. The vessel should have ordinarily reached the port of Sharjah within ten days which means that the ship should have reached the port of Sharjah by 14th Dec., 1973. But, the defendants accepted the unmanifested goods on the ship thereby making themselves liable for action by the Customs Authorities. But for this act of the defendants the ship should have reached Sharjah on 14th Dec., 1973.

9. The word 'should' is the past tense of 'shall'. Its meaning is determined by the context in which it is used. It is often used to express some obligation as in the sentence 'you should have been careful'. When one says 'if it should happen' the word expresses a condition. Sometimes it expresses a tentative suggestion (The Pocket Oxford Dictionary.) as in 'I should like to disagree'. But I am dealing with a statute defining rights and liabilities of carriers. The obligation of the carrier to deliver goods is the subject of legislation. The phrase 'should have been' used in the context of this legislation suggests the point of time, when the ship was due to arrive at Sharjah. The phrase 'should have been delivered' has been used to indicate the date when the goods were 'due' to be delivered at Sharjah. On the admitted facts, the ship was due to arrive at Sharjah around 14th Dec., 1973. This is the date on which the goods were 'due' to be delivered.

10. In these circumstances, the date on which the goods should have been delivered at Sharjah was the date on which the vessel was scheduled to reach Sharjah. It is undisputed that the vessel should have arrived at Sharjah by 14th Dec., 1973.

11. It is clear, therefore, that the suit instituted more than one year after the goods should have been delivered is clearly beyond the period of time stipulated by R. 6 of Art III of the Schedule to the Act. The failure to institute this suit within the prescribed time, entails the consequence provided therein. Therefore, the defendants are discharged from all liability in respect of loss or damage :

Rule 6, Art. III - Schedule to the Act.

6. xxx xxx xxxxxx xxx xxxIn any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. xxx xxx xxx

12. For these reasons, the suit is dismissed with costs.

13. Suit dismissed.