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Maistry Rajabhai NaraIn of Cutch Vs. Haji Karim Mamood of Bombay Through His Recognised Agent Hussan Iyood Sait - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1918)35MLJ189
AppellantMaistry Rajabhai NaraIn of Cutch
RespondentHaji Karim Mamood of Bombay Through His Recognised Agent Hussan Iyood Sait
Cases ReferredStrang Steel & Co. v. A. Scott
Excerpt:
.....mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - code, to try the suit so far as it referred to general average as well. he has clearly submitted to the jurisdiction of the british court. code the objection as to jurisdiction could not be urged before us without showing that there was a failure of justice......for the price of the bundles short-delivered or in the alternative, for what is due to him on a 'general average' account.2. the objection as to jurisdiction was taken in the first court but it was overruled and a decree was passed against the first defendant for the refund of the excess freight and for money due as 'general average contribution.' the 1st defendant has appealed to us and has again raised before us this question of jurisdiction.3. the plaint as 1 read it combines 3 claims based on three different causes of action; the first, for the refund of freight, based on the fact that it was illegally collected from the plaintiff and this took place in calicut; the second for the price of goods short-delivered which according to the centrist in the charter-party were to be.....
Judgment:

Krishnan, J.

1. The question raised before us in Second Appeal is one of jurisdiction. The facts necessary to be stated for the decision are these. The plaintiff chartered a vessel named ' Ganga Patharath' belonging to the 1st defendant to sail from Cutch to Basra and there to take on board 700 bundles of dates and to discharge the same at Calicut. This charter-party was entered into at Cutch the 1st defendant being a resident of that place and a subject of the State of Cutch. 2nd defendant is the tindal or the master of the ship. The ship sailed to Basra and took on board 651 bundles of date but on her voyage to Calicut she met with rough weather in the Arabian sea and to save her and the cargo the master had to jettison 165 bundles of dates. On her subsequent arrival in Calicut the master refused delivery of any of the plaintiff's goods till the freight for the whole consignment was paid and the plaintiff thereupon paid it under protest and took delivery of the remaining bundles. He has now sued in the Calicut Court for the return of the excess freight collected and for the price of the bundles short-delivered or in the alternative, for what is due to him on a 'General Average' account.

2. The objection as to jurisdiction was taken in the first court but it was overruled and a decree was passed against the first defendant for the refund of the excess freight and for money due as 'General average contribution.' The 1st defendant has appealed to us and has again raised before us this question of jurisdiction.

3. The plaint as 1 read it combines 3 claims based on three different causes of action; the first, for the refund of freight, based on the fact that it was illegally collected from the plaintiff and this took place in Calicut; the second for the price of goods short-delivered which according to the centrist in the Charter-party were to be delivered in Calicut and the third, in the alternative, a claim for ' General average' if the court found that the goods were properly jettisoned. The case of action for the first arose wholly in Calicut and for the second, in part in Calicut, as that was the place of performance. It is clear that as regards these two causes of action the Calicut Court had jurisdiction but as to the cause of action for the 3rd claim the learner pleader for the appellant bate argued that no part of it arose in Calicut. It is therefore necessary to see what exactly is the plaintiff's cause of action for his claim for general average. It is now settled that the term ' cause of action' as used in Section 20, C.P. Code means the whole bundle of material facts which it is necessary for a plaintiff to allege and prove to entitle him to succeed. To sustain the plaintiff's claim in the present ease it was necessary to establish that his goods were properly on board ship, that they were properly jettisoned to avert a danger which threatened the whole adventure and that as a result the ship and cargo against which contribution is claimed were saved from damage or destruction. As laid down by Bovil, C.J., 'the whole law on the subject is founded on the principle that the loss to the individual whose goods are sacrificed for the benefit of the rest is to be compensated according to the loss sustained on the one hand and the benefit derived on the other.' See Fletcher v. Alexander (1868) L.R. 3 C.P. 375. To decide the extent of such sacrifice and the amount of contribution properly claimable, the voyage must have been completed or must have been definitely brought to an end at another port. See Carver on Carriage by Sea, Section 416. Before the claim for contribution can arise the ship and cargo must have been brought to safety in port for as observed by Bovil, C.J., in the case above cited, p. 383, the time of jettisoning cannot be taken as the time when the value of the goods is to be ascertained because the whole adventure may afterwards be brought to an end by the total loss of the ship and cargo when there can be no contribution at all. To complete therefore the cause of action for 'general average' it is necessary to allege that the voyage has ended and the ship or the goods against which it is claimed has been brought to safety in port. In fact it was held in White-cross Wire Go. v. Savill (1882) 8 Q.B.D. 653 that a maritime adventure is not at an end till all the goods are delivered. At any rate it is clear that it cannot be ended till the ship reaches its destination or if the voyage be abandoned, some other place of safety. Appellant's Vakil relied on the observations of the Privy Council in Strang Steel & Co. v. A. Scott & Co. I.L.R. (1889) Cal. 302 viz., 'In jettison the rights of those entitled to contribution, and the corresponding obligations of the contributors, have their origin in the fact of a common danger which threatens to destroy the property of them all; and these rights and obligations are mutually perfected whenever the goods of some of the shippers have been advisedly sacrificed and the property of the others has been thereby preserved' and argued that as soon as the particular peril which necessitated the sacrifice passed away the cause of action for contribution was complete. But it seems to me that it cannot be predicated that the property of the others has been preserved till the maritime adventure has come to an end. Their Lordships' observations are therefore not against the view I am taking. If there are several general average acts during the same voyage the principal is to make each owner of a sacrificed interest contribute to all the sacrifices in whatever order of time, they may have occurred. See Carver, Section 417. This can hardly be correct if the right to contribution regarding any one sacrifice is to be taken to be complete as soon as the particular peril is past. I am therefore of opinion that the fact that the voyage safely came to an end is a part of plaintiff's cause of action for general average and as that took place in Calicut the Calicut Court had jurisdiction under Section 20, C.P. Code, to try the suit so far as it referred to general average as well.

4. The learned Vakil for the appellant raised a further objection to jurisdiction on the ground that his client was a foreign, subject residing in Cutch and not in British India and that the vessel itself against which the claim was made was a foreign ship.

5. This objection is not valid, as a municipal court is entitled to exercise jurisdiction over a non-resident foreigner where the cause of action arises within its jurisdiction. The question whether its decree could be enforced against him in the foreign state is a question for disposal for the courts of that state. If the 1st defendant did not wish to be bound by the decree he should not have appeared and pleaded to the cause and appealed and filed a Second Appeal as he has done; he has clearly submitted to the jurisdiction of the British Court. This objection must also be overruled.

6. It may be mentioned that the respondent urged that under Section 21 of the C.P. Code the objection as to jurisdiction could not be urged before us without showing that there was a failure of justice. In the view I am taking it is not necessary to discuss the scope of this section.

7. No objection has been urged on the merits. The Second Appeal therefore fails and is dismissed with costs.

Phillips, J.

8. I agree. Plaintiff's cause of action against the ship-owner with whom he contracted is primarily the non-delivery of the goods contracted to be delivered, and it is only in order to meet the defence of 'jettison' set up that he has to rely on the doctrine of 'general average' according to which the ship-owner is still liable to contribute to the loss sustained although to a limited extent. In this view at least a part of plaintiff's cause of action arose at Calicut and the suit was rightly filed in the court there.


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