M.K. Shah, J.
1. x x x x x x x x x x x x x x x x x
2. The suit was for damages for short supply of and damage to the cargo for which an amount of Rupees 21,323.33 paise was claimed. It was the plaintiff's case that defendant No. 1 who were the agents of the owners of vessel IS. S. Gloria agreed to carry the said cargo in bags on or about 7-11-1966 from Guanica to India; and the charter-party, In respect thereof was signed by defendant No. I as agents for the owners of the said vessel; and the same was also signed on behalf of the plaintiff, Union of India by the Joint Secretary and Chief Controller of Chartering, Ministry of Transport, for and on behalf of the President of India The said goods were received on or about 14-12-1966 by defendant No. 2, that is owners of the vessel S. S. Gloria at Port Guanica in the form of cargo of 2,00295 bags of Ammonium Sulphate weighing 10014.750 M. T. gross along with 2000 empty bags for safe carriage to India. A bill of lading was issued on the very day at Guanica by the Master of the Vessel along with a signed weight certificate. The vessel arrived at Outer Tuna Buoy of the port of Kandla on 31-1-1967. It berthed at berth No. 3 of the said port. After a fortnight, that is on 16-2-1967, the work of discharging cargo commenced and the same was completed by 22-2-1967. A certificate of completion of discharge-dated 26-2-1967 was issued, along with a statement of facts dated 25-2-1967. As provided in the charterparty agreement, the India Supply Mission, Washington, Mewm Vhisons, Gandhidham were appointed as stevedores by the plaintiff's officers stationed at Kandla and the stevedoring operations were carried out by the said stevedores on behalf of the plaintiff and clearance operations were carried out departmentally between the period from 16-2119~67 to 5-5-1967. Delivery was taken by the plaintiff through the Port and it was the plaintiff's case that, at the time of discharge operations, defective condition of the cargo was noticed, and slack and torn bags, as also ship sweeping bags were found, and it was also found that there was shortage of 2000 empty bags, and these defects were incorporated in the certificate of completion of discharge dated 26-2-19,67. Subsequently, survey was taken and provisional claim for shortage and for damage etc. was lodged with the local shipping agents of the carrier, that is defendant No. 4 by the plaintiff on 27-2-1967, through its office at Kandla dock. The ship survey was arranged only with regard to a part of the cargo by the local shipping agents, that is defendant No. 4 in respect of 3310 bags found slack and torn including 150 empty bags and 60 bags ship sweeping. They, however, failed and neglected to arrange the survey with regard to the remaining cargo which had landed in defective condition and the plaintiff, therefore, through its office at Kandla, arranged an independent survey for 425 bags slack and torn and 620 bags ship sweeping through Master Marine Surveyor, Kandla Port Trust, Gandhidham viz. Capt. D. V. Singh. The clearance was made after this independent survey. Apart from the short delivery of 2000 spare bags which were found, there was non-delivery of 280 empty bags, the same being in very badly deteriorated containers. A claim, therefore, for a total sum of Rs. 21,323.33 paise was lodged with defendant No. 4, vide plaintiff's letters dated 28-9-1967 and 7-2-19,68 and as the claim was not accepted, the suit was filed for recovery of the said amount,
3. It was the defence of the defendants that, in spite of the demand by the Master of the vessel of a written declaration from the plaintiff's office regarding tally of the cargo before commencement of the discharge as per clause 5 of the charter party, no such declaration or tally was done. It was denied that the quantity of Ammonium Sulphate with specific weights mentioned in the plaint was received. As alleged and It was stated, that the bill of lading mentioned shippers' weight with the remarks 'unknown' and the weight certificate dated 14-12-1967 relied upon by the plaintiff was not admitted by the defendants. It was also contended that the suit was barred by limitation and that it was bad for want of necessary parties. Relying on cls. 4 and 5 of the charter-party, it was contended that, as the shippers, that is the plaintiffs, were in cargo of loading, stowing, trimming and discharging of the cargo free of expense and risk to the vessel but under the supervision of the master, and, as before the commencement of discharge, the plaintiff had failed to give notice In writing of the intention to tally the cargo and, as such tally was not taken at the vessel's hatchways, the defendants could not be held liable for any damage or compensation, as claimed. It was also alleged that, in the course of the discharge operations carried out by the stevedores of the plaintiff the Iabourers handled the slings and the bags In a careless, negligent and improper manner by using hooks and though these facts were brought to the notice of the plaintiff and a protest was lodged against the rough and negligent manner in which the discharge operations were being carried out, nothing was done in the matter by the plaintiff; and it was, therefore, submitted that the alleged loss or damage was caused by negligence in handling the discharge operations. In the alternative, it was submitted that the alleged loss and/or damage resulted from perils, dangers and accident of the sea or other navigable water, act of God, act or omission of the shippers or owners of the cargo, their agents or representatives and the defendants were, therefore, not liable.
4. The learned, Judge, on the evidence led before him, though he found that the plaintiffs had proved that they had suffered loss to the extent of Rs. 19,923-33p. Instead of Its 21,3123.33p. As claimed by them, held that the defendant had proved that the suit cargo was damaged by careless and rough handling by the plaintiff's stevedores and that the defendants were not liable for the suit claim. He also held that the plaintiff had failed to prove that the defendants had been negligent in taking care of the cargo while in their custody, causing damage to the suit cargo. He, therefore, dismissed the suit with costs. It is this order of dismissal of the suit by the learned Judge passed on the 20tb Sep., 1911 which is challenged by the appellant Union of India (Original plaintiff) in this first appeal.
5. Before dealing with the oral evidence which Is on record, it would be necessary, first of all, to look at the relevant clauses contained in the charter party agreement which is at Ex 82 Clause 4 of this agreement provides that the cargo shall be loaded, stowed, trimmed and discharged by the charterers free of expense and risk to the Vessel but under the supervision of the Master Rest of the provision contained in this clause is not relevant for our purpose6 Then comes clause 5 which Is the most important clause and which requires to be set out:
'A declaration by the Master or Chief Officer that all cargo shipped has been delivered to the Receivers shall be, and shall be accepted as, conclusive evidence of that fact, unless the Receivers shall before the commencement of the discharge give to the Master notice in writing of their intention to tally the cargo, and unless such tally is in tact taken at the Vessels hatchways, but this clause is in no way to invalidate the conditions stated in clause 36'
We may, therefore, now look Into cl 36, which reads thus-
'Bills of lading to be conclusive evidence against owners as to number of bags shipped and vessel to be responsible for number of bags and contents short delivered of signed Bill of lading quantity.
In the instant case, there Is no dispute that no such notice, as Is contemplated by clause 5, was served by the charterer that - Is -shippers Union of India, before the commencement of discharge on the Master of the ship. It is also an admitted fact that no such tally was in fact taken at the Vessel's hatchways. There is, therefore, no substance in the submission made by Mr. R. A, Mehta for the appellant-Union that, on tally being taken, damage and shortage were found and the defendants were, therefore, liable to make good the same. It has to be borne in mind that the declaration by the Master or the Chief Officer of the vessel to the effect that all cargo shipped has been delivered to the receivers has to be accepted as conclusive evidence of that fact. In the instant case, such a declaration has been made by the Master. Of course, the plaintiff does dispute that there is delivery of goods without any damage or without any shortage. But the plaintiff cannot succeed in such a claim unless, as provided in clause 5, it has. before the commencement of the discharge operations, given a notice in writing to the Master of its intention to tally the cargo and has, In fact, taken such tally at the Vessel's hatchways. It is not the Plaintiff's case that any such notice is contemplated with regard to tally was given before the commencement of the discharge operations or that any such tally was in fact taken at the vessel's hatchways. The plaintiff in its plaint refers to defective condition, damage and shortage being found during the course of discharge operations and refers to the subsequent survey and the claim As admitted by the plaintiff, ship survey was Partly arranged by defendant No. 4 with regard to part of the cargo which landed in defective condition. The plaintiff's office, therefore, arranged for an independent survey with regard to the remaining quantity; and, therefore, the plaintiff would not be entitled to claim any damages. But Mr. Mehta relies on clause 36 and the provision contained in clause 5 which clause is in no way to invalidate the conditions stated in clause 36. As earlier set out, clause 36 provides that bill of lading will be conclusive evidence against owners as to number of bags shipped and vessel to be responsible for number of bags and contents short delivered of signed bill of lading quantity. Now, these two clauses have to be interpreted in a harmonious manner so that no conflict is created. As per clause 36, bill of lading is to be conclusive evidence against the owners as to number of bags shipped and vessel to be responsible for number of bags and contents short delivered of signed, bill of lading quantity. But that does not mean that the charterer is absolved of his obligation under clause 5 under which it is incumbent on him to give notice of tally and to carry out in fact a tally at the vessel's hatchways before the commencement of discharge operations. If he fails to do so, then, the declaration by the master or the Chief Officer that all cargo shipped has been delivered to the Receiver has to be accepted as conclusive evidence. There is, therefore, no conflict between clause 5 and clause 36. But so far as the present case is concerned, even reading clause 36 as over-riding the provisions contained in clause 5 (though there is no warrant for such on interpretation), the plaintiff has failed to prove that conclusiveness attached, to the suit bill of lading so far as the quantity and weight. Of the cargo is, concerned, the bill of lading is at Ex. 84. A glance to the same, win show that the weight shown therein does not appear to have (been) accepted by the Master of the ship. In the column 'Description of packages and goods', there are remarks on the top with the words 'Said to W1. Thus, if the bin of lading records, not the actual quantity and weight accepted by the cargo, but the quantity and weight as stated by the shipper, such a bill of lading qualified by such words as aforesaid, cannot be treated as prima facie evidence against the shipper-owner of the amount or the quantity; and the condition, therefore, in clause 36 does not help the Plaintiff in this case.
6. The settled legal position with regard to liability In such cases is clearly set out in Asiatic Steam Navigation Company Ltd. I v. Jethalal Dharmshi and Company, AIR 19,59 Cal 479. Briefly stated, it is that the initial burden is on the shipper to prove that the goods have been delivered - t fn a damaged condition and the damage occurred while they were in the custody of the carrier. Prima facie it Is for the plaintiff to show that the cargo was damaged or lost during the voyage and it would be thereafter that the onus will shift to the carrier that is - the defendants to bring their case within the exception provided in Art. 4 of the Indian Carriage of Goods by Sea Act, IW& Again, it has to be borne in mind that, in the instant case, the duty of loading,. Unloading, stowing, etc. is expressly cast on the shipper and not the carrier. Of course, a duty is cast on the carrier to show how the consignment was dealt with during the transit as that is the matter within the special knowledge of, the defendants, but, In the instant case the defendants have led such evidence which shows that, not only the goods were in good condition while in transit but that they got damaged because of rough and bad handling at the time of, unloading and discharge operations which were carried out, by the stevedores of the plaintiff.
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10. In our opinion, the evidence on record oral as well as documentary -does show that the, plaintiff did not give any tally notice as required by clause 5 nor did it carry out actual tally at the ship's hatchways and the declaration, there, by the Master would be conclusive proof of delivery of the cargo in good condition and hence their client, for damages will not be sustainable. Again, as the evidence shows, and as is manifest from the correspondence on record, damage to the bags has been caused by the rough handling of the cargo during the discharge operations and there is no evidence or material on record to Warrant a conclusion that the damage was caused, or there was short delivery of the cargo by any negligent act on the part of the carriers in carrying the goods during the voyage.
11. The learned, Judge who had the advantage of marking the demeanour of the witnesses, has relied on the evidence of the defendants' witness Therettu Verghese, Ex. 131, while he was not impressed by the witnesses examined on behalf of the plaintiff. We have been taken through the evidence of these witnesses and we have no reason to differ from the assessment made by the learned Judge with regard to the credibility of these witnesses and, we find that the evidence given by Verghese inspires confidence and is reliable and should be accepted. This witness clearly says that the goods when they arrived by the ship were in perfect condition and that the damage was caused to them by virtue of rough handling during the course of the discharge operations.
12. Our attention was drawn to Everims Compania Naviera v. Union of India, First Appeal No. 192 of 1972 decided by a Division Bench of this Court on 23rd Feb., 1978 (Guj). Here also, clause 5 of the Charter Party came up for interpretation .in a case in which the cargo which arrived from Port of Sofia to Port Okha was unloaded from the ship by the agents of the Union of India and was removed by barges to the port by the agents who had to transport the cargo from the ship which was at a distance of about 3 kilometers from the shore. The defence was that the shortage had occurred during the course of discharge operations carried out by the agents of the Union as the labourers employed by the agents had not handled the bags with care and that hooks had been used and that on account of the negligent handling of cargo, it spilled in the course of the removal from the ship to the shore. The facts further show that during the course of the discharge operations, a complaint was made that the bags were tom and were in slack condition. There also it was an admitted position that no inspection was made before unloading operations were commenced with a view to find out whether there was any shortage of bags or there was any shortage in weight. it is then observed as follows :
'If an inspection had been made before commencing the unloading operations after giving notice to the officers in charge of the ship and an inspection note was prepared with regard to the condition just before the commencement of the discharge operations, the matter would have stood on a different footing. No such procedure has been followed. What is done is that the cargo has been unloaded from the ship to the barges and from the barges to the port by the labourers and the employees of the agents of the Union of India and it is not shown that there was any actual shortage before the cargo was taken over by the agents of the plaintiff for the purpose of discharge operations. If on account of negligence in removing the goods from the ship to the barges and from barges to the port some loss is occasioned, the owners of the ship would not be responsible for the same and no damages can be claimed from them. There is no evidence to show that there was any shortage in the goods delivered to the agents of the plaintiff on the ship for the purpose of transporting and removing the same from the ship to the shore'.
The facts are similar in our case also and, therefore the said observations as well as the observations which follow, will apply with equal force to the instant case and the said observations are -
'As per clause 5, if any tally of goods or survey of goods was to be made on the ship before the commencement of the discharge operations, a notice has to be given to the Master of the ship. If the Master of the ship did not agree to the tally, the tally could have been made in the presence of independent and responsible persons after giving a notice to the officers of the ship and the minutes of the survey could have been recorded. In the present case no such survey was made on the ship. There is no evidence to show that any bags were missing or that there was shortage in any quantity 'before' the discharge operations were commenced'
The following observations appearing later are also significant and they are-
'Now, it has to be established not only that there was a shortage but also that the shortage was attributable to what happened on the ship before the discharge operations were commenced and that the shortage had nothing to do with the removal of the goods from the ship to the shore. If some goods were spilled and lost during removal from the ship to the shore, it would not be the responsibility of the defendants'.
13. Thus, the plaintiff has not able to establish that the loss or shortage occurred because of any negligence on the part of the owners of the vessel in carrying the cargo and the owners of the vessel, therefore, cannot be held liable for the claim made by the plaintiff and the learned Judge, therefore, did not commit any error in dismissing the plaintiff's suit. The appeal must, therefore, fail and the result will be the following order:
14. Appeal dismissed with costs.
15. Appeal dismissed.