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Devessy Pathaj Kathavala by Power Holder, Anandaji Malsi Vs. the New Bombay Steamships, Ltd., by their Agents Messrs. Kerwar and Co. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Contract
CourtChennai
Decided On
Reported in(1932)63MLJ736
AppellantDevessy Pathaj Kathavala by Power Holder, Anandaji Malsi
RespondentThe New Bombay Steamships, Ltd., by their Agents Messrs. Kerwar and Co.
Cases ReferredLebeau v. General Steam Navigation Company
Excerpt:
.....to be the contents of the bags delivered by the plaintiff to the defendant are mentioned, yet the bill of lading contains the statement 'weight, contents and value, when shipped, are unknown,'and that delivery by the company of packages 'externally in good condition as received shall be conclusive evidence of the delivery of the full weight and contents' and that the defendant was not liable. on behalf of the respondent the learned counsel who appeared for the company drew my attention to the mate's receipt as well as to the contents of the bill of lading. the mate's receipt only stated that so many bags were received which were 'said to contain' particular grains, and there were the conditions in the bill of lading already mentioned by me, namely,'the nature of the contents unknown,..........in the defendant's steamer 's. section indira'. the allegation is that the plaintiff sent 157 bags of grains of different kinds by the said steamer from bombay to cochin and that when delivery was made at cochin there was a shortage of 2 bags of oorid and 3 bags of long dhal. in the place of the above the defendant offered 5 bags of onions. the plaintiffs declined to accept the same, and accordingly filed a suit to recover the price of 2 bags of oorid and 3 bags of long dhal. the plea of the defendant was that though in the bill of lading, in the margin the names of the particular grains said to be the contents of the bags delivered by the plaintiff to the defendant are mentioned, yet the bill of lading contains the statement ' weight, contents and value, when shipped, are unknown,'.....
Judgment:

Anantakrishna Aiyar, J.

1. The plaintiff is the petitioner in this Civil Revision Petition. He was the plaintiff in S.C.S. No. 80 of 1927 on the file of the Court of the Subordinate Judge of Cochin, the defendant being the firm of B.M.V. Kini Brothers, agents of the Bombay Steamships, Limited. The plaintiff sued the defendant to recover the price of 5 bags of certain grains, which, he alleged, formed part of a consignment which he shipped from Bombay to Cochin in the defendant's Steamer 'S. Section Indira'. The allegation is that the plaintiff sent 157 bags of grains of different kinds by the said Steamer from Bombay to Cochin and that when delivery was made at Cochin there was a shortage of 2 bags of oorid and 3 bags of long dhal. In the place of the above the defendant offered 5 bags of onions. The plaintiffs declined to accept the same, and accordingly filed a suit to recover the price of 2 bags of oorid and 3 bags of long dhal. The plea of the defendant was that though in the bill of lading, in the margin the names of the particular grains said to be the contents of the bags delivered by the plaintiff to the defendant are mentioned, yet the bill of lading contains the statement ' weight, contents and value, when shipped, are unknown,' and that delivery by the company of packages 'externally in good condition as received shall be conclusive evidence of the delivery of the full weight and contents' and that the defendant was not liable. The learned Judge who tried the suit came to the conclusion that the five bags in question contained the marks of the plaintiff. In the mate's receipt (which was granted to the plaintiff when the goods were taken into the ship along with the boat-note and after the same were accepted by the person who took charge of the same) mention was made that the consignment is ' said to be ' of particular grains. In exchange for the mate's receipt, a bill of lading was given to the plaintiff in the usual course, and, as already remarked, in the margin of the bill of lading there is a description of the number of bags and of the particular grain which the bags were said to contain. 'Being of opinion that the company was not conclusively bound by the mention in the margin of the bill of lading of the particular kinds of grains the bags were said to contain, and that the company was discharged of its obligations by delivery to the plaintiff of the total number of bags containing the initials (marks) of the plaintiff, the learned Subordinate Judge dismissed the plaintiff's suit. The plaintiff has preferred the present Civil Revision Petition.

2. On plaintiff's behalf his learned advocate drew my attention to the Import Manifest and the Outturn Report which have been exhibited as Exs. C and D in this case and he emphasised upon the duty that the Master of the ship was under to give to the harbour authorities, a correct description of the goods landed in any particular harbour. It was argued that having regard to the description of the goods in Exs. C and D it must be taken that the goods that were actually carried from Bombay to Cochin were goods of the description mentioned in the margin of the bill of lading. He also contended that there must be a specific finding on the question whether the five bags in dispute were the identical bags that were shipped by the plaintiff at Bombay. On behalf of the respondent the learned Counsel who appeared for the company drew my attention to the mate's receipt as well as to the contents of the bill of lading. The mate's receipt only stated that so many bags were received which were 'said to contain' particular grains, and there were the conditions in the bill of lading already mentioned by me, namely,' the nature of the contents unknown, 'and,' delivery by company of packages externally in good condition shall be conclusive evidence of the delivery of the full contents'. The learned Counsel also strongly relied on the circumstance that the learned Judge has found that those five bags contained the plaintiff's marks under which the consignment was shipped by the plaintiff.

3. It seems to me that one thing is clear, that the company was bound to deliver the exact bags that were shipped at Bombay, subject of course to the conditions and exceptions contained in the bill of lading, and that the company was not entitled to take advantage of any misdescription of the goods with a view to withhold from the plaintiff the exact bags that. were actually shipped by the plaintiff. If, for example, the description of the bags was that they contained grains of an inferior quality but it was proved that the grains contained in the bags were of a superior quality, it is not open to the company to say that they would deliver to the plaintiff only grains of an inferior quality. In fact, subject to the exceptions and conditions mentioned in the bill of lading relating to loss by perils of the sea, etc., the company is bound to deliver the identical bags that were shipped at Bombay by the plaintiff to be carried to Cochin. The argument that was advanced on behalf of the petitioner is, that both in the boat-note (which however has not been produced in this case) and in the bill of lading itself, there is a specification in the margin of the number of bags shipped and of the contents of the same (the names of the particular grains which the bags contained being specified there) and therefore the onus is upon the defendant company to prove that those descriptions were wrong. It is clear that the marginal notes to the bill of lading did not mention ' onions,' and the five bags in question offered to the plaintiff at Cochin were bags which contained 'onions'. What then is the effect of the specification in the margin of a bill of lading of the description of the goods, which, according to the merchant, truly represented the quality and quantity of the goods that were shipped, when considered along with the clause in the bill of lading, namely, 'the contents, weights and value unknown, etc.' This question came up for consideration before this Court in the case reported in The British Steam Navigation Company, Ltd. v. Krishnaswami Aiyar (1920) 62 I.C. 709. There the receipt that was granted to the shipper contained the words ' said to contain' such and such goods. There was also the other usual clause, namely, 'contents and weight unknown'. On those facts the learned Judge who tried the suit on the Original Side of this Court came to the conclusion that the company was bound to deliver the goods specified in the circumstances. That decision, however, was reversed by a Bench of this Court consisting of Sir John Wallis, C.J. and Krishnan, J. The learned Judges held that such questions had been decided in England and that the real meaning to be attached to such shipping documents was that the shipping company was not prepared to accept the description given by the merchant, and that for their purpose of determining the freight due to them they were prepared to accept the classification and the weight mentioned by the merchant. After referring to the course of business in such matters, namely, that the shipper takes a boat-note, delivers the goods to some person in charge on the ship and gets a mate's receipt for the goods, and then in exchange for the same gets a bill of lading from the agent or the Master of the ship in the usual course, the learned Judges made the following observation:

Reliance was placed upon the mate's receipts and the bill of lading as shifting the burden on to the defendant company. The mate's receipts expressly say 'said to be' so many bags. When the shipping company takes care to give a receipt of that sort so that it may not be vised as an admission against them as to the number of bags received by them, it seems to me that there is no justification for using it as making out a prima facie case as to the number of bags actually put on board.

4. There the question was as regards the weight and the number of bags, - not, as in the present case before me, as regards the contents. But the same remark as regards the words 'weight not known' occurring in such bills of lading would also apply, in my opinion, to the other portion of the bill of lading, namely, 'contents not known'. A similar question arose for decision in New Chinese Antimony Company, Ltd. v. Ocean Steamship Company, Ltd. (1917) 2 K.B. 664 The action was there tried by Sankey, J. - as he then was - and he held that the shipowner was liable. On appeal the Court of Appeal reversed that decision and took occasion to remark as what would be the exact significance in law of such a condition occurring in a bill of lading. Viscount Reading, Chief Justice, at page 669 observed as follows:

I think that the true effect of this bill of lading is that the words 'weight unknown' have the effect of a statement by the ship-owners' agent that he has received a quantity of ore which the shippers' representative says weighs 937 tons but which he does not accept as being of that weight, the weight being unknown to him, and that he does not accept the weight of 937 tons except for the purpose of calculating freight and for that purpose only.

5. Then the remarks of Brett, J., in Lebeau v. General Steam Navigation Company (1872) L.R. 8 C.P. 88 are quoted, which seem to be apposite for the present case. This is what that learned Judge said in the case in Lebeau v. General Steam Navigation Company (1872) L.R. 8 C.P. 88:

When a closed case is offered to him with a representation as to the nature of its contents on the bill of lading he may accept it without alteration of the bill of lading; but if he alters the bill of lading by inserting a statement that the contents are unknown, it is clear, as a matter of business, and it seems from the American cases, to be the law, that he thereby declines to accept the declaration of the shipper; he says in effect, 'I accept this case as it appears on the outside; I know nothing about the inside, and will be bound by no statement in reference to it'. It appears to me that this completely does away with the statement made by the shipper with respect to the nature of the goods, and both parties must then be taken to agree to the bill of lading in the modified form by which there is no binding statement as to the contents of the package.

6. Scrutton, L.J., put the following illustration at page 673:

Suppose a box, described as a 'box of jewels,' were' deposited for safe custody at a bank, and a receipt were given for it in the words 'received, contents unknown,' there would be no evidence of the receipt of any jewellery.

7. Having regard to the well-recognised interpretation which these and similar words occurring ordinarily in bills of lading have received, I think that the description in the bill of lading in question in the margin that the bags contained grains of particular description is not conclusively binding on the defendant. No doubt the defendant is bound (subject to the exceptions and conditions mentioned in the bill of lading) to deliver at Cochin the bags that were handed to him by the plaintiff at Bombay. As regards the identity of the bags, one of the defendant's witnesses gave evidence to the effect that the five bags in question contained the marks of the plaintiff. He was not cross-examined with reference to that point, and the learned Judge states that the bags in question had plaintiff's marks on them and that in the absence of any other suggestion the bags in question should be taken to be among the bags that were tendered to the defendant at Bombay.

8. For the foregoing reasons I think that the judgment of the learned Judge is not shown to be incorrect, and the Civil Revision Petition is dismissed with costs.


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