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Vij Sales Corporation Vs. Lufthansa, German Airlines - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 1194 of 1978
Judge
Reported inILR1981Delhi749
ActsCarriage by Air Act, 1972 - Rule 29
AppellantVij Sales Corporation
RespondentLufthansa, German Airlines
Advocates: C.L. Choudhry and; H.L. Tikku, Advs
Cases ReferredEast and West Steamship Co. v. S.K. Ramalingam Chettiar
Excerpt:
.....event, the carrier and the ship should be treated as discharged from all liability in respect of loss or damage unless suit was brought within one year after the delivery of the goods or the date when the goods should have been delivered. ; the word 'loss or damage' in para 6 to article 3 of the schedule to carriage of goods by sea act have reference to the shipper and the consignee and not to the goods. in the former case non-delivery, mis-delivery, loss or destruction are all covered. in any of these events the shipper or consigned suffers loss or damage. however, in a case where the loss or damage has reference to the goods or consignment, they have to be construed as loss, destruction and damage to the goods themselves. in others words it should be shown that the goods are either..........(15) on the face of it thereforee the present case could not be treated as of destruction, loss or damage to the cargo, within the implication of these terms under rule 18. instead the case as set up by the plaintiff is of unauthorised delivery to a wrong person. in other words it is contended that the case should be treated as one of non-delivery to the rightful person. non-delivery has to be treated as non-delivery as per instructions or directions given. where the instructions are not carried out, it does not matter to him whether the carrier had delivered the goods to x or y other than the named consignee. in the circumstances it is urged that it follows that a case of mis-delivery is well within the expression non-delivery. reliance in this regard was placed upon.....
Judgment:

D.R. Khanna, J.

(1) On 31-7-1976, the plaintiff firm through its agent M/s. Continental Carriers, New Delhi, booked a consignment of readymade goods of the value of Rs. 1,48,200 with the defendant airlines turn carriage to London under Airway Bill No. 220-5673 9174. The documents thereof were negotiated through the State Bank of India, Foreign Exchange Department, New Delhi, for collection by their counter-part in London from M/s R. K. Fashions Ltd. London who was the consignee. The consignment reached London on 4-8-1976, but was not got released by M/s.R. K. Fashions Ltd. For this default, the defendant demanded storage charges as demurrage to the extent of Rs. 48,838.45 p., and this the plaintiff was obliged to pay in order to protect the goods. According to the defendant, however, on the arrival of the consignment In London, the documents were passed to M/s.Express Enterprises, nominated clearing agents of M/s. R. K. Fashions Ltd. for clearance of the custom formalities pending receipt of bank's delivery order. The consignment was cleared by the custom on 25-8-1976, and was removed 'to a bounded warehouse. Thereafter it incurred demurrage as the bank's delivery order was not forthcoming. In replication the plaintiff has denied that the consignment was so handed over to bounded warehouse on 25-8-1976 as demurrage in that case of that warehouse would have been much less than the charges of the air-port warehouse, which the defendant had charged at the rate of 25.26 per day, while calculating the amount of Rs. 48,838.45 p. In this way, the plaintiff stated that it was over-charged.

(2) According to the defendant, the plaintiff's agent M/s Continental Carriers later by a letter dated 18-10-76, instructed the defendant to deliver the consignment to M/s. R.-K. Fashions Ltd. by deleting the intermediary banker's name. However, M/s. R. K. Fashions Ltd. still did not take the consig'nment as they were unable to pay demurrage charges which had in the meanwhile accrued.

(3) On 22-4-1977, the plaintiff's agent M[s. Continental Carriers then informed the defendant to deliver the consignment to new consignee M/s.Kay Imports & Exports, London. The defendant then by a letter dated 20-5-1977, informed Mis. Continental Carriers that the ship merit was delivered tO clearing agents M/s. Express Enterprises with information to M/s. Kay Imports & Exports.

(4) According to the plaintiff, enquiries later revealed that M/s. Express Enterprises were not the agents of M/s. Kay Imports & Exports, and the delivery was not taken for and on behalf of this latter concern. Rather M/s. Express Enterprises informed M]s. Kay Imports & Exports by a letter dated 28-5-1977 that the consignment was then held in bounded warehouse on the instructions of the previous consignee M/s. R. K. Fashions Ltd., and a release note from this concern was required in case it had to be delivered to M/s. Kay Imports & Exports.

(5) The plaintiffs agent M/s. Continental Carriers informed the defendant by a letter dated 30-6-1977 that the consignment had not been delivered to M/s. Kay Imports & Exports, and further that M]s. Express Enterprises were not the agents of that concern. The defendant acknowledged this letter, and informed that necessary investigation was being made. Later, however, the defendant sent a latter dated 8-8-1977 to M/s. Continental Carriers that the consignment was released to consignee's agents M/s. Express Enterprises for delivery to bounded warehouse.

(6) This was protested by M/s. Continental Carriers, and it was stated that the consignment was not delivered to M/s. Kay Imports & Exports, though this concern approached the defendant's London Office for that purpose, &d; instead was banded over on 5-5-1977 to M/s. Express Enterprises who were the agents' of the previous consignee M/s. R. K. Fashions Ltd.

(7) In this way, the plaintiff alleged that the defendant unauthorisedly and wrongfully delivered the consignment to M/s. Express Enterprises, the agents of M]s. R. K. Fashion Ltd., al' though they had already informed the defendant that the consignment be delivered to M]s. Kay Imports & Exports. The latter as such repudiated their liability to pay the amount of Rs. 1,48,200, i.e. the price of the goods. The plaintiff having thus suffered loss to that extent by wrongful delivery of the goods to M/s. R. K. Fashions Ltd. by the defendant, brought the present suit on 20-11-1978 for its recovery. Interest at the rate of 18 per cent per annum from May, 1977 to 9-11-1978 totalling Rs 39,569.40 p. was also added up.

(8) The defendant apart from contesting that any negligence or carelessness was committed by it, or that the consignment was wrongly and unlawfully delivered took a preliminary objection that the suit was barred by limitation by rule 29 of the first schedule, as also by rule 30 of the second schedule to the Carriage by Air Act, 1972.

(9) Consequently the following issue which has been treated as preliminary issue, was framed : 'Whether the suit is within time?'

(10) The provisions contained in rule 29 of the first schedule and rule 30 of the second schedule to the Carriage by Air Act, 1972 are similar and they are to the following effect : 'The right of damages shall be extinguished if an action is not brought within two years reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.' Rule 30 in addition provides that the method of calculating the period of limitation has to be determined by the law of the Court seized of the case.

(11) The circumstances under which a carrier is liable for damage are enumerated in rule 18(1) of the respective schedules which are as under :

'THE carrier is' liable for damage sustained in the. event of the destruction or loss of, or the damage to, any registered luggage or any good's, if the occurrence which caused the damage' so sustained took place during the carriage by air'

Sub-rule 2 next elaborates that the term 'carnage by air' within its meaning comprises the period during which the luggage or cargo is in charge of the carrier whether in an aerodrome or on board in aircraft, or, in the case of a landing outside an aerodrome in any place whatsoever.

(12) Rule 19 in each schedule speaks of liability for damage occasioned by delay in the carriage by ail of passengers, luggage or goods. There are nex:t provisions in what circumstances a carrier may not be liable or what is the effect of contributory negligence and what are the limits up to which damages can be awarded. They are not relevant for the present controversy.

(13) There is little doubt that in case rule 29 of the first schedule and rule 30 of the second schedule of the Carriage by Air Act, 1972 are attracted, the present suit has to be treated as barred by time. It was admittedly instituted more than two year after the landing of the aircraft, carrying the consignment in dispute, in London on 4-8-1976.

(14) The question arises whether the present case can be treated' as one falling under rule 18 of each of the schedules as aforesaid. The liability for damage arises under these provisions if there has been place destruction or loss of of damage to the goods. Further it should be shown that any of these events took place during the carriage by air of the goods as defined by sub- rule 2. Admittedly there was no destruction of the consignment in the present case. It was also not lost in the plain meaning of the word loss', as it could not be said that they were not forthcoming for delivery at the destination or that their whereabouts were not known. It is also next not the case of any of the parties that any damage was caused to the consignment in transit.

(15) On the face of it thereforee the present case could not be treated as of destruction, loss or damage to the cargo, within the implication of these terms under rule 18. Instead the case as set up by the plaintiff is of unauthorised delivery to a wrong person. In other words it is contended that the case should be treated as one of non-delivery to the rightful person. Non-delivery has to be treated as non-delivery as per instructions or directions given. Where the instructions are not carried out, it does not matter to him whether the carrier had delivered the goods to X or Y other than the named consignee. In the circumstances it is urged that it follows that a case of mis-delivery is well within the expression non-delivery. Reliance in this regard was placed upon Abdulrahiman Beary v. Abudulkhadar Berry, : AIR1962Ker56

(16) From the side of the defendant on the other hand reliance has been placed upon the Supreme Court decision in the case, of East and West Steamship Co. v. S.K. Ramalingam Chettiar : [1960]3SCR820 . It was held in that case while interpreting the provisions of the Carriage of Goods by Sea Act, 1925 that the word loss' in the third clause of 6th paragraph of Article Iii in the schedule to the Act meant and included any loss caused to a shipper or a consignee by reason of the inability of the ship or the carrier to deliver part or whole of the goods, to whatever reason such failure may be due. This decision was subsequently followed in another decision of the Supreme Court in the case of American Export Isbrandtsen Lines Inc. V. Joe Lopez and another : AIR1972SC1405

(17) Have carefully perused both these decisions of the Supreme Court. The relevant provision of the schedule of the Carriage of Goods by Sea Act, 1925 which came up for interpretation was to the following effect :

'IN 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 the delivery of the goods or the date when the goods should have been delivered.'

It was noted that the words loss or damage' were unqualified and they had the implication of loss' or damage suffered on any count by the shipper or the consignee. The same was held not referable to the goods. Thus in para 18 of the former decision the learned Judges specifically took note that while paragraph 8 spoke of loss or damage to or in connection with the goods, the Legislature had in 6th paragraph of the Article left the words loss or damage' unqualified. Had thereforee words 'to or in connection with the goods' been incorporated in para 6 as well after the words loss or damage', the learned Judges seem would not have treated them as 'unqualified' which was so in their absence.

(18) Thus the words loss or damage' in para 6 to Article 3 of the schedule to Carriage of Goods by Sea Act have reference to the shipper and the consignee and not to the goods. In the former case non-delivery, mis-delivery, loss or destruction are all covered. In any of these events the shipper or consignee suffers loss or damage. However in a case where the loss or damage has reference to the goods or consignment, they have to be construed as loss, destruction and damage to the goods themselves. In other words it should be shown that the goods are either lost, destroyed, partly .or wholly, or damaged in transit. Where none of these is shown to have happened, and the goods are not delivered or mis-delivered, the case cannot be treated as of loss, destruction or damage 'to or in connection with the goods'.

(19) Now in the present case rule 18 to the schedules to the Carriage by Air Act 1972 is not all' embracing when it speaks of 'destruction or loss of, or of damage to'. They have been made referable to 'any registered luggage or any cargo'. In other words desitruction, loss or damage must be to the goods and not to the air carrier or the consignee. This circumstance alone distinguishes the provisions under the Carriage by Air Act 1972 from those contained in the Carriage of Goods by Sea Act 1925. As already observed above, the distinction was taken note of in para 18 of the Supreme Court decision in the case of East and West Steamship Co. (supra).

(20) The present being thus not a case of destruction, loss or damage to the goods cannot be held as covered by rule 29 of the first schedule and rule 30 of the second schedule of the Carriage by Air Act 1972. It having been brought within three years of the booking of the consignment must be held to be within time under Articles 10 and Ii of the Limitation Act.

(21) Having come to this conclusion I need not go into the other controversy agitated before me whether the schedules to the Carriage by Air Act were in fact applicable to the present case, and whether this enactment was confined to High Contracting Parties, and if so, the defendant could be treated as office of them. There is, however, no matter of doubt that so far as the term 'carnage by air' occurring in rule 18(1) of the. two schedules to the Carriage by Air Act, 1972, is concerned, it is broad enough to cover loss or damage occurring when the consignment is kept in aerodrome and in case of landing outside aerodrome in any place whatsoever.

(22) In view of the discussion above, the issue is decided against the defendant, and the suit is treated as instituted within the period of limitation. The plaintiff will be entitled to cost which is assessed at Rs. 500.00


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