Dismissed

M/S.Matheson Keells Enterprises Pvt.Ltd. v. National Insurance Co.Ltd.

Kerala HC2 Apr 2013CRP/1288/2003

Case brief

AI extract

What is this about?

In a civil revision petition, the High Court of Kerala held that the Indian Carriage of Goods by Sea Act, 1925, does not apply to bills of lading issued outside India. Consequently, the limitation period under the Act is inapplicable, and the civil suit for damages regarding damaged cargo was maintainable.

What did the court decide?

Revision petition dismissed; Sub Judge directed to expedite trial and dispose of the suit within six months.

M/S.Matheson Keells Enterprises Pvt.Ltd. Vs… — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

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TUESDAY, THE 2ND DAY OF APRIL 2013/12TH CHAITHRA 1935

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CRP.No. 1288 of 2003 (G)

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I.A.312/2003 IN OS.66/2002 of PRINCIPAL SUB COURT,KOCHI .

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REVISION PETITIONER(S): DEFENDANTS

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1. M/S.MATHESON KEELLS ENTERPRISES (PVT) LTD., AGENTS, P.O.BOX NO.561, SUBRAMANIAN ROAD, W/ISLAND, COCHIN 682 003.

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2. PACIFIC INTERNATIONAL (PTE) LTD., REP.BY M/S. MATHESON KEELLS ENTERPRISES (PVT.) LTD., AGENTS, P.O.BOX, NO.561, SUBRAMANIAN ROAD, W/ISLAND, COCHIN 682 003.

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BY ADVS.SRI.V.J.MATHEW SRI.BIJISH B.TOM

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RESPONDENT(S):

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1. NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, AJAY VIHAR, M.G.ROAD, COCHIN 682 016, REP.BY ITS SR.DIVISIONAL MANAGER.

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2. M/S.KANCOR FLAVOURS AND EXTRACTS LTD., KANAKKANKADAVU ROAD, ANGAMALY SOUTH - 683573, ERNAKULAM, REP.BY ITS POWER OF ATTORNEY HOLDER, NATIONAL INSURANCE CO. LTD.

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R1 BY ADV. SRI.K.J.SAJI ISAAC

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2013, THE COURT ON 02/04/2013 PASSED THE FOLLOWING:

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tss

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C.R.

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S.S.SATHEESACHANDRAN,J.

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================================

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C.R.P.No.1288 OF 2003

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Dated this the 2^nd day of April,2013

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ORDER

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Revision petitioners are the defendants in

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a pending suit for damages on the file of Principal Sub Judge, Kochi. Plaintiffs are the respondents.

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Second plaintiff purchased Nigeriyan

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dry split ginger, and entered into a contract for shipping the consignment from Port of Apapa to be delivered at Kochi. Second plaintiff has

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insured the consignment with the first plaintiff insurance company. Defendants had issued bill of lading for shipping the

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consignment. When delivery was taken consignment of 193 bags was found damaged.

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First plaintiff, after survey done, settled

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C.R.P.1288/2003 2

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the claim and thereupon the second plaintiff issued letter of subrogation in favour of first plaintiff. Defendants being the carrier of goods

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are obliged to pay the damages, according to plaintiffs, and the suit was filed to claim damages from them. Defendants in their written statement among other contentions contended that the suit is barred by limitation under Rule 6 of Article III in the schedule of Indian Carriages of Goods by Sea Act, 1925. Cargo was delivered on 12.4.2001 and the claim of damages over the consignment under the suit instituted on 10.6.2002 was barred by limitation, according to defendants.

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Learned Sub Judge repelled the contention raised by defendants that the suit is barred by limitation holding that the bill of lading produced does not contain the essential requirements to hold that the provisions of the Rules under the Indian Carriages of Goods by Sea Act, 1925 were applicable to the shipping of the consignment. Revision is against the order of learned Sub Judge negativing

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the plea of limitation raised over the

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C.R.P.1288/2003 3

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entertainability of suit by defendants.

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Learned counsel for revision petitioners

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assailed the order of learned Sub Judge contending

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that in view of the specific clause covered by 7(2) of the bill of lading over any alleged loss or

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damage occurred during carriage of goods by sea,

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the law applicable is the internal law of the final port of discharge. In the present case that being

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the Port of Cochin the law applicable is the

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'Indian Carriage of Goods by Sea

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Act,1925,hereinafter referred to as the Act, and

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that has not been taken note of by learned Sub Judge in deciding the challenge over

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maintainability of the suit as barred by limitation is the submission of counsel. When the suit has

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been filed one year after the date of delivery of

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the consignment, it is submitted by counsel, the

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carrier and ship are discharged from their

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liability in view of Article III of Rule 6 of Schedule to the Act. Reliance is placed by the

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counsel on National Insurance Company Ltd v. M/s.Navrom Constantza and others (AIR 1988 Calcutta

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C.R.P.1288/2003

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155) in support of the contention raised as above.

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Plaint presented before a wrong court was returned for presentation before the proper court, and by the time it was re-presented period of one

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year has lapsed from the date of delivery of consignment, is the submission of counsel to

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contend that even on that count the suit is barred by limitation.

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Challenges raised over presentation of the plaint before a wrong court, its return, and representation before proper court etc., to determine whether the suit was re-presented within the period of limitation would assume significance and merit only if it is shown that the entertainability of suit is governed by the period of limitation under the special law covered by Rule 6 of Article III in the schedule of the Act. If the period specified under the above Article is shown to be inapplicable then presentation of plaint before wrong court, its return and representation to proper court will have no relevance. So the essential question is whether the period of

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C.R.P.1288/2003 5

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limitation for entertaining the suit is under the Act or Indian Limitation Act, 1965. The Act has been enacted recognising and giving effect to recommendations in the Code of Rules drawn up in 1921 by the International Law Association defining

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the responsibilities and liabilties to which carrier of goods by sea should be subject and also the rights and immunities governing them. Such Code of Rules was formulated in view of the demand

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among the different commercial interest which handles bills of lading for uniformity among all maritime countries in the definition of liabilities and the risk attached to carrier of goods by sea. The Act has undergone certain amendments with which we are not presently concerned of. The short question is whether the period of limitation spelt out under Article III Rule 6 to claim damages from the carrier and the ship in respect of loss or

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damages in the consignment ship has application to the present case.

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The relevant part of the rule forms third

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paragraph in Rule 6 of Article III which alone need

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C.R.P.1288/2003 6

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be taken note of as the rest of the Article and also Rule 6 deal with other aspects. Paragraph 3 of Rule 6 of Article III reads thus:-

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“In any event the carrier

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and the ship shall be discharged from all

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liability in respect of loss or damage unless suit is brought within one year

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after delivery of the goods or the date when the goods

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should have been

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delivered.”

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The above clause does not fix the period of limitation for raising a claim over the loss or damage caused to a consignment from the carrier and ship, but only insulate the carrier and ship with immunity from being vexed with such claim one year after the delivery of goods or the date when the goods should have been delivered. However the applicability of the above clause as rightly noted

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by learned Sub Judge is depended upon

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C.R.P.1288/2003 7

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satisfaction of two conditions mandated under section 4 of the Act. Section 4 of the Act reads

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thus:-

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Statement as to

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application of Rules to be included in bill of lading. Every bill of lading, or similar document of title, issued in India which

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contains or is evidence of any contract to which the rules apply,shall contain an express statement that

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it is to have effect subject to the provisions

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of the said rules as

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applied by this Act.

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Essential requirements are that the bill or similar document of title should be issued from India and it contains express statement that is to have effect subject to the provisions of the Act. Learned counsel for revision petitioners has relied

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on second clause in the proviso added to 7(1) of the terms and conditions of the bill of lading to contend that the Act is applicable. The above proviso reads thus:-

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Special Provisions

(1)...............

Provided.......

(1)...........

(2) where the loss or damage occurred during carriage by sea by the International law of the final Port of discharge (3).......

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(rest not required)

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The bill of lading shows that the port of loading

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is Apapa and port of delivery Cochin. Place and date of issue of bill of lading is 20.2.2001. If

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we go by Section 4 of the Act provisions of the

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Rules under the Act are applicable only to a bill of lading or similar document of title issued in India and, further, such document should contain an express statement that it is to have effect

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C.R.P.1288/2003 9

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subject to the provisions of the Rules under the Act. On both counts the bill of lading in the

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present case do not satisfy mandatory requirements under section 4 of the Act.

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Section 2 of the Act makes it abundantly

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clear that the Rules set out in the Schedule to the

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Act shall have effect only with respect to the carrier of goods by sea in ships from any Port in India to any other port whether in or outside

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India. Where port of loading is outside India the Act has no application. The decision relied by

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counsel for petitioners, namely, National Insurance Co.Ltd (cited supra) to contend that Section 2 of the Act no way bar the applicability of that Act over carriage of goods by sea from any

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port outside to India, cannot be accepted as laying down the correct proposition of law. The

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Apex Court in Shipping Corporation of India Ltd v.

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M/s.Bharat Earth Movers Ltd (AIR 2008 SC 728) has

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unequivocally expressed the view that the Act will have application only when the carriage of goods by sea in ships take place from a port situate within

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C.R.P.1288/2003 10

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India and not from a port outside India. The Apex Court has held thus:-

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“A bare perusal of Section 2 of the Indian Act would

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clearly demonstrate that the

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same applies to the carriage

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of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India would mean that the Indian Act shall apply only when the carriage of goods by sea in ships takes place from a port

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situate within India and not a port outside India.”

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In the above decision Indian Carriage of Goods Act 1925 is referred to, for the sake of convenience, the Indian Act to have consideration with another similar Act, but, of a different country, Japanese Carriage Goods Act 1982, referring it as 'the Japanese Act.'.

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Challenge against the order of learned Sub

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Judge holding that suit is not barred by

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limitation, is devoid of any merit.

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Revision is dismissed directing Sub Judge to expedite the trial of suit, to have its early disposal, at any rate, within a period of six moths from the date of receipt of a copy of this Order.

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S.S.SATHEESACHANDRAN JUDGE

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tpl/-

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M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06

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JUDGMENT

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tpl/-