K. Bhaskaran, J.
1. The only point that calls for determination in this second appeal relates to the nature and extent of the liability of a carrier for short delivery in terms of weight in a case in which the number of bags and weight noted in the Bills of Lading are qualified by the notation (rubber stamp seal), 'Weight declared by the shippers, but not checked.'
2. The plaintiff was the consignee in respect of 2000 bags of sugar purchased by him through his commission agent, P. W. 2, from a Sugar Factory at Kakkinada and shipped from Vizagapatam in 'S.S. Janani' belonging to the defendant Steam Ship Company, under Exts. P-1, P-1(a), P-1(b) and P-2, Bills of Lading, which showed the weight of each bag to be 101 Kgs. The plaintiff's forwarding and, clearing agent, P. W. 1, at the time of delivery at Cochin found that there was shortage of contents in 40 bags, and on survey being done at his instance, it was revealed that the shortage came to 1002 Kgs., and a shortage certificate to that effect was issued by the local agents of the defendant Steam Ship Company. The plaintiffs suit is one for recovery of the value of the slackage by way of damages from the defendant.
3. P. W. 2 in his evidence deposed that he had caused the bags to be weighed at the factory and that the weight was found to be as mentioned in the Bills of Lading. He also stated that he had checked the weigh; of certain bags taken at random from the whole lot at the time when they were kept in the shed belonging to the shipping agents and found it to be correct. Believing this evidence of P. W. 2, and taking the view that the shipping company was bound by the statement in the Bills of Lading in regard to weight, the trial court decreed the suit. The view taken by the first appellate court was that P. W. 2's evidence that he had found the weight correct could not be accepted as conclusive as the possibility of shortage occuring during the transit of the goods from Kakkinada to Vizagapatam when the consignment was not accompanied by the agents of the plaintiff or the defendant could not be ruled out. The first appellate court further held that the weight noted in the Bills of Lading was subject to the endorsement incorporated by the rubber stamp seal, 'Weight declared by the shippers, but not checked', and as such, the weight noted in the Bills of Lading cannot be treated as prima facie evidence against the carrier so as to shift the burden of proof on the question of initial weight from the shippers to the carrier.
4. Sri T. L. Viswanatha Iyer, the learned counsel for the appellant, argues that the provisions contained in Article III, Rule 3 of the Rules relating to tie Bills of Lading as contained in the schedule to the Indian Carriage of Goods by Sea Act, 1925, make it obligatory on the part of the ship owner to note the loading marks, the number of packages and the weight of the goods in the Biil of Lading; and the carrier, in this case, having noted the weight in Exts. P-1, P-1(a), P-1(b) and P-2, 'Bills of Lading, cannot be heard to say that the onus to prove the initial burden is on the shippers. Rule 3 of Article III referred to above reads as follows:--
'3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper bill of lading showing among other things--
(a) The loading 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 on 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 prices, or the quantity or weight, as the case may be as furnished in writing by the shipper;
(c) The apparent order and condition of the goods;
Provided 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 had reasonable grounds for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.' From the proviso to the Rule quoted above it is evident that the carrier is at liberty to contract out of the liability with respect to loading marks, number, quantity or weight, if he had reasonable ground for suspecting that what has been noted by the shippers does not accurately represent the particulars of the goods actually received or he has had no reasonable means of checking the goods with reference to the particulars noted in the Bills of Lading. It is in this background that the implication of the notation 'Weight declared by the shippers, but not checked', introduced in the Bill of Lading by rubber stamp seal, becomes relevant for consideration in this case.
5. I will now refer to some of the decisions cited before me in support of the respective contentions advanced by the parties. In Subramania Chetty v. British Indian Steam Navigation Co. Ltd., AIR 1923 Mad 523 (1), the view taken was:
'Burden is on the plaintiff to prove shortage where the bill of lading expressly says 'weight contents and value when shipped unknown'.'
It was held by a Division Bench of the Madras High Court in Haji Shakoor Gani Sait v. B. I. S. N. Co. Ltd., Madras, AIR 1927 Mad 671 that--
'............the clause in the Bill of Lading relating to re-shipment or re-exportation did not cover only the re-shipment or re-exportation in the course of the voyage covered by the Bill of Lading but also extended to goods which had been previously re-shipped or re-exported and hence the shipping company was protected.'
The learned counsel for the appellant places reliance on the decision of R. M. Datta, J. of the Calcutta High Court in Union Carbide India Ltd. v. layanti Shipping Co. (P) Ltd., (1970) 74 Cal WN 5 to press the contention that the Bill of Lading is Prima facie evidence of the weight of the goods shipped. In that case considered by the Calcutta High Court the first plaintiff had shipped on board the defendant's vessel & s. 'Krishna layanti' a consignment of 499 paper bags of Indian Polythyelene weighing 12735 Kgs. from Bombay Port to Calcutta Port. When the discharge of the cargo was completed on arrival at Calcutta Port, out of the consignment 52 bags of Polythyelene weight 1300 Kgs. were not delivered. In respect of the goods delivered, there was a shortage to the extent of 607 Kgs. of Polythylene, and out of the goods delivered, a portion weighing 293 Kgs. was found to be in a damaged and deteriorated condition. The defendant shipping company admitted the Bill of Lading, but sought to protect itself by relying on the various terms contained therein. The number, packages and the gross weight were noted in the Bill of Lading. It was further mentioned therein that the freight was payable in Bombay and that the goods were shipped in apparent good order and condition on board the said vessel. It has to be noticed here that the gross weight noted was under the heading 'said to weigh.' The observation in paragraph 18 of the judgment, at page 10, is as follows:--
'It follows, therefore, that the bill of lading in suit is prima facie evidence of the booking of 499 paper bags of Indian Polyethylene weighing 12735 Kgs, gross.'
It has, however, to be noted that this was a case in which the written statement contained a clear admission on the part of the defendant (ship owner) that the goods (polyethylene) and the quantity as mentioned in the Bill of Lading were correctly loaded on board the ship. In that case though the weight noted in the Bill of Lading was in a limited sense qualified by the heading 'said to weigh' under which it (weight) was noted, there was no specific disclaimer as to the weight shown. These peculiar features were pointed out in the said judgment itself to distinguish the observations of A. N. Roy, I. in Pannalal Kishanlal v. O. S. Kaisha, (1966) 70 Cal WN 307 in which after having considered rather elaborately the well-known decisions in Henry Smith & Co. v. Bedoudin Steam Navigation Co., (1896 AC 70); Compania Naviera Vawonzada v. Churchill or SI, (1906) 1 KB 237; Mclean and Hope v. Fleming, (1871) LR 2 SC & Div 128; New Chinese Antimony Co. Ltd. v. Ocean Steamship Co. Ltd., (1917) 2 KB 664; Jessel v. Bath (1867) LR 2 Ex 267 and Att. Gen. of Ceylon v. Scindia Steam Navigation Co. Ltd., (1962) AC 60, in paragraph 27, at page 317, it has been held as follows :--
'............It is essentially a question of bargain or contract between the parties. In the present case I am of opinion that there is specific disclaimer as to number. Taking into consideration the principles to which I have referred and the decision on which counsel relied and which were cited at the Bar the proposition is that a bill of lading disclaiming liability as to number of quantity is first not conclusive against the shipowner and secondly it does not offer any prima facie evidence and has no probative value. I am therefore of opinion that the bill of lading does not amount to prima facie evidence.' The plaintiff in Pannalal's case referred to above was the endorsee of a Bill of Lading. Out of the consignment of 215 bags of Damar Batu shipped from the port of Bangkok on board the ship 's. s. Bangkok Maru', the plaintiff received only 74 bags and there was a shortage of 141 bags for which the Commissioners for the Port of Calcutta had issued a short certificate. The Bill of Lading in that case contained the following words:-- 'Shipped on board by the shipper hereinafter named, the goods or packages said to contain goods hereinafter mentioned, in apparent good order and condition.'
Across the particulars set out in the Bill of Lading there was a notation:
'Ship not responsible for cover torn, short of weight and/or any condition of contents.' The distinction between the case, reported in (1966) 70 Cal WN 307 on the one hand and (1970) 74 Cal WN 5 on the other is fairly clear. In the latter case, as has been pointed out by R. N. Datta, J., in the written statement there was an admission that the goods (Polyethylene) and the quantity and the weight mentioned in the Bill of Lading were correctly loaded on board the ship, whereas there is no such specific admission in the former case. In the present case the weight noted in the Bill of Lading is subject to the notation 'Weight declared by the shippers, but not checked', and that is indicative of the disclaimer of responsibility and liability on the part of the carrier. The learned counsel for the appellant also seeks to rely on the decision of Basheer Ahmed Sayeed, J. in Home Insurance Co. v. Ramnath & Co., AIR 1955 Mad 602, wherein construing the clause 'shipper's risk' it was held as follows :--
'In my view, the clause in question does not imply that in cases of total loss or nondelivery of the entire goods there is a total exemption from liability of the carriers.
The term 'shipper's risk' should only mean such loss and such damage that might arise consequent upon the goods being put on the deck which of course will have to be proved by the shipping company. The loss must be related to the goods being shipped on the deck- Therefore, in my view, defendant 1 must be held liable to the plaintiff for the value of the goods as decreed by the lower Court. The clause that the goods are shipped on deck at the owner's risk will not be of any avail to defendant 1, in a case where the goods are totally lost and never delivered'.
It may however be noted that in the same judgment it has been observed earlier that there could certainly be no doubt that any carrier can contract himself out of his liability by entering into specific terms and conditions with the shippers of the goods. But in such a case, it will depend upon what exactly is the significance and scope of the contract which has been entered into between the shipping company and the shipper of the goods. The intention of the contracting parties in the resent case can be gathered by construing reasonably the implications of the notation 'Weight declared by the shippers, but not checked'. It is very clear that the shipping company did not want to acknowledge the correctness of the weight shown in the Bill of Lading, or risk any liability arising out of the weight noted in the Bill of Lading.
6. Sri K. A. Nayar, the learned counsel for the respondent, has brought to my notice the following passage at page 60 of Scrutton on Charterparties and Bills of Lading (Seventeenth Edition):
'The master or broker cannot bind the owner or principal by signing bills of lading for goods that were never shipped at all; but the bill of lading is prima facie evidence that they were shipped, and the burden of disproving it lies on the owner. But where the statement of the amount or quantity of the goods in the bill of lading is qualified by such words as 'Weight or quantity unknown', the bill of lading is not even prima facie evidence against the shipowner of the amount or quantity shipped, and the onus is on the cargo-owner of proving what in fact was shipped'
In the instant case, even though the bills of lading evidenced by Exts. P-1 series and P-2 mentioned the quantity of sugar, it was subject to the further condition that the carrier had not accepted it when the endorsement on the bill of lading is 'Weight declared by the shippers, but not checked'. In the light of the decision which holds that it is open to the carrier to contract out of his liability, I am of the view that the first appellate Court was correct in holding that the plaintiff did not succeed in establishing that the weight of the goods shipped was actually as noted in the relevant bill of lading. No presumption as was sought to be raised by the learned counsel for the appellant arises merely on the ground that certain quantity has been mentioned in the Bill of Lading, when what has been noted is qualified by the further statement that the 'Weight was declared by the shippers, but not checked' by the carrier. In other words, it indicates that though the shipper declared the weight of the sugar that was shipped, the shipper did not take the trouble of satisfying the carrier that the weight mentioned in the Bill of Lading was correct. It is therefore, clear that the carrier could not have been held responsible for the shortage when there is no acceptable proof that the actual weight of the 40 bags concerned was as noted in the Bill of Lading at the time of the shipment.
7. In this view the second appeal is without merit, arid is therefore dismissed; but in the circumstances of the case I direct the parties to bear their respective costs.