Ratnavel Pandian, J.
1. The plaintiff in O.S. No. 1 of 1970 on the file of the Court of the Subordinate Judge, Tuticorin, who failed therein, is the appellant. The suit was filed by it for recovery of a sum of Rs. 30,357.44 with interest and costs alleged to be due from the respondent-defendant company on the following grounds: The defendant is a firm carrying goods by sea and owning a ship named 'Lucky'. The defendant received on board the said ship S.S. Lucky at the port of Bangkok (Thailand) a consignment of 91,600 bags of Thai white rice, special mixture 60% broken packed in single new H.C. gunny bags of uniform size, each bag weighing 99.711 kgs. average net, agreeing to deliver the same in good order and condition to the consignee to order of the President of India, at the Port of Tuticorin. The defendant issued a clean bill of lading dated 22nd November, 1968. The freight for the said consignment was duly paid. The Under-Secretary to the Government of India, representing the President of India, has endorsed the bill of lading to the plaintiff, the Food Corporation of India, Tuticorin. Thus, the plaintiff is the holder in due course of the said bill of lading and entitled to the goods. The ship arrived at the Port of Tuticorin on 6th December, 1968, commenced discharge on the same day and completed the discharge on 17th December, 1968. While proceeding to take delivery of the cargo of 91,600 bags of rice, the plaintiff's clearing agents at Tuticorin, viz., Messrs. A.M. Ahmed and Company found that the ship had landed 90,653 bags in sound condition and that 850 bags were in a slack cut-torn condition. 97 bags had been, lost over-board. The plaintiff did not claim anything in respect of the said 97 bags. The plaintiff's clearing agents, by their letter dated 18th December, 1968, made a provisional claim for slackage to the defendant's agent at Tuticorin and requested them to survey the goods. After repeated reminders, the defendant's agents at Tuticorin held a survey of the said 850 bags in slack/cut/torn condition in the presence of the plaintiff's clearing agents, as per which there was slackage of 41 metric tonnes, 180 kgs. and 550 grams of rice and that 176 bags were sweepings, whose weight was fixed at 13 metric tonnes, 95 kgs. and 804 grams. Thus in all there was a net shortage of 27 metric tonnes, 220 kgs. and 746 grams of rice. The invoice value of this quantity of rice at U.S. Dollars 146.50 per metric tonne net (C and F) comes to 3987.84 U.S. Dollars. Rs. 29,908-80, and the insurance charges at 1 to 11/2 of the C and F value comes to Rs. 448.64, the total coming to Rs. 30,357.44. On 8th February, 1959, a final claim was made, followed by letters dated 4th March, 1969, 28th March, 1969, 8th April, 1969 and 14th May, 1969, to which the defendant and its agents have raised untenable contentions and have thus denied the plaintiff's claim. In spite of the plaintiff's reply dated 4th August, 1969, the defendant failed to settle the claim. Then the plaintiff issued the suit notice on 5th November, 1969. According to the plaintiff, the defendant was bound to deliver the consignment in good order and condition, but on the other hand the defendant, its agent and its servants failed to exercise due care and diligence in respect of the consignment by failing to make the parts of the ship fit and safe for reception, carriage and preservation and also by failing to exercise due care and diligence in. loading, handling, carrying keeping or caring for the said goods. Therefore, the defendant is liable to pay the plaintiff the value of the short.
2. The defendant filed a written statement contending as follows:
A consignment of rice was sent from Bangkok and the defendant's agents issued a bill of lading. But it is not correct that each bag weighing 99.711 kgs. was loaded in the steamer. The particulars of goods were mentioned as furnished by the shipper. In fact, steamer companies like the defendant never weigh the goods at the time of shipment and the particulars are furnished only by the shipper. Clause 2 of the bill of lading itself mentions that 'the contents, quality, quantity, weight numbers and value unknown'--The plaintiff is therefore put to strict proof of the actual weight of each bag loaded in the steamer. The plaintiff is also put to strict proof that it is the holder of the bill of lading, entitled to make the claim under it. The plaintiff's agents wanted the goods to be delivered direct from the steamer, and they themselves attended to the stevedore work. They took delivery of all the 91,600 bags from the steamer. While taking the goods from the steamer for loading into the boats, which was done by M/s. A. M. Ahmed and Company, 850 bags were torn and the said fact was noted in the boat-notes issued at the time of delivery into the boats from the steamer. The boat-notes also mention that the ship is not responsible for the tearing of such bags, which have been signed by the plaintiff's agents. No slack bags have been mentioned in the boat-notes. Thus, all the quantity contracted to be carried by the steamer has been taken delivery of by the plaintiff through their agent M/s. Ahmed and Company. The plaintiffs agent did not ask for any survey immediately after the tearing was seen; nor did they ask for weighment in the ship at the time of delivery or after the boat landed in the port. It was only long afterwards the plaintiff's agent sent the letter, dated 18th December, 1968, but they had not produced any bag at all for survey. Even on 4th January, 1969, they did not produce any bag. It was only on 14th January, 1969 the goods were allowed to be surveyed. There was no reminder as alleged. The delay, if any, is due to the plaintiff's agents. The survey was made of the goods shown and the certificate was issued without prejudice. Since the goods were handled by the plaintiff's agents while loading into the boats, the deficiency, if any, was only due to their conduct. The plaintiff is put to strict proof of the value of the goods. The defendant is not liable for any damages. They are also excessive. As per Clause 5 of the bill of Jading the steamer is not liable after the goods are freed from the ship's tackle. No notice of claim was given within three days of delivery as per term No. 31 of the bill of lading. So, the plaintiff is not entitled to claim any damages. The suit should be dismissed with costs.
3. The plaintiff filed a reply statement contending that the bags were torn even when they were in the ship's holds, that 850 bags were slack and torn in the ship itself, that the remarks in the boat-notes that the ship was not responsible for the torn and slack, was protested by the plaintiff's clearing agents by their letter dated 13th December, 1968, that such a note was not made in the outturn reports and therefore the master of the ship should be held to have accepted the plaintiff's contention that the bags were torn in the ship itself, that it is not practicable to weigh the cargo in the ship and it is usual and customary to survey them on the shore, that since the discharge itself was over only by 18th December, 1968, the provisional claim was made in time by the plaintiff's agents the next day and that therefore the suit should be decreed as prayed for. The plaintiff has also mentioned in this reply statement that it has in fact tried to minimise the shortage by giving credit to the sweepings of 39 bags, but this fact has been misunderstood by the defendants. The plaintiff has in this reply statement tried to meet each and every contention made by the defendant in their written statement. We will discuss about them at the relevant portion of our judgment.
The following issues were framed by the trial Court:
1. Whether the plaintiff is the holder of the bill of lading entitled to make a claim with reference to the same?
2. What is the quantity shipped under the bill of lading in view of Clause 2 that contents, quality, quantity, weight, numbers and value unknown?
3. Whether the claim for short delivery is sustainable in view of the fact that the plaintiffs have taken overside delivery of the whole quantity?
4. Whether the plaintiff is entitled to make a claim in view of the plaintiff's agents signing boat-cotes that steamer is not responsible for torn bags?
5. Whether there has been any short delivery?
6. Whether notice of short delivery was given within 3 days of delivery and if not, whether the suit for damages is maintainable?
7. Whether the shortage, if any, arose during voyage in steamer or from the steamer to the shore or at shore after delivery?
8. Whether the plaintiff is entitled to any damages and if so, how much?
9. To what relief, if any, is the plaintiff entitled?
4. The plaintiff examined P.Ws. 1 to 3 and marked Exhibits A-1 to A-43 and the defendant examined D.W. 1 and marked Exhibits B-1 to B-55. The learned Principal Subordinate Judge found that 91,600 bags were shipped, that the average net weight of each bag would be 99,711 kgs. but all the bags would not have been uniform in weight, i.e., some bags might have weighed 2 or 3 kgs. less while some might have weighed 2 or 3 kgs. more than the average weight, that as the notice of claim was not given within the time as specified in the bill of lading, the suit for damages was not maintainable, that there was no short delivery at all, that even if there was any shortage, it did not arise during the voyage in the steamer, but must have occurred subsequent to the plaintiff's agents A. M. Ahmed and Company took delivery from the steamer, that the claim for short delivery is not at all sustainable as the plaintiff's agents took over side delivery of the whole quantity consigned, and that the plaintiff would not be entitled to damages in view of the fact that A. M. Ahmed and Company had voluntarily signed in the boat-notes with the remarks 'ship not responsible'. After a detailed consideration of the contentions on both sides, the lower Court, however, held on issuc-1 that the plaintiff's suit could not be dismissed on the ground that there was no valid assignment of the bill of lading, in other words that the plaintiff was a holder in due course. On the basis of the above findings on the other issues the suit was dismissed with costs.
5. Mr. C. Rangaswami Iyongar, learned Counsel for the appellant would confine his arguments only on two grounds. Firstly, he would contend that the finding of the lower Court that the suit for damages is not maintainable as the notice of claim was not given within the time specified in the bill of lading, is totally incorrect and the trial Judge, has misconstrued Rule 31 of the bill of lading without properly applying his mind to the facts of the case. The second contention attacking the judgment of the trial Court is that the shortage was caused by the defendant and therefore the trial Court should have held that the defendant-respondent was responsible.
6. Coming to the first point his contentions are that the notice of claim as contemplated in the bill of lading was well within the time and that the trial Judge has misconstrued it. It is the admitted case that the defendant's ship arrived at Tuticorin on 6th December 1968. The plaintiff. Food Corporation of India, by its letter Exhibit B-1 dated 5th December, 1968, requested the defendant to deliver the cargo or consignment without the original bill of lading, undertaking to produce the any within one month from the date. The plaintiff's agents Messrs. A. M. Ahmed and Company wrote a letter dated 5th December, 1968 under Exhibit A-50 to the defendant, stating that they were producing the letter of guarantee under Exhibit B-1 and requesting for over-side delivery. The defendant seceded to the request of the plaintiff's agents and ordered for over-side delivery. The cargo was delivered into the boats of the defendant from 7th December, 1968 to 17th December 1968. The boat-notes Exhibits B-2 to B-48 were prepared then and there at the time of the discharge. Exhibit A-3 dated 17th December, 1968 is the statement of facts signed by the representative of the receiver's agents, the master of the ship and the representative of the steamer's agents. The plaintiff preferred a provisional claim for damages under Exhibit A-7 dated 18th December, 1968, the original of which is Exhibit A-51. By this letter Exhibit A-51, the plaintiff's agent viz., A. M. Ahmed and Company stated that the vessel had landed some slack and torn bags which were kept separately in the transit sheds at the port and that those bags would, be produced for survey with the sweepings (bags) and that the actual number of bags to be surveyed at the time of survey would be intimated to him shortly. By this letter, he informed the defendant that after the survey, they would submit their claim, bills for the shortages etc., and requested the defendant in the mean while to treat this letter as their provisional claim. The defendant would urge that as the damage was apparent, the plaintiff ought to have given notices at least within three days of the completion of every day's delivery. For their contention, they would rely on Rule 31 of Exhibit A-1, the bill of lading which rule reads as follows:
The vessel or carrier shall not be liable for any claim unless the notice thereof be in writing to the carrier or its agent at the place of delivery before or at the, time of removal of the goods from the custody of the vessel or carrier, or, if the loss or damage is not apparent within 3 days of the delivery, or, in the event of non-delivery Within 30 days after the day on which the goods should have been delivered at the port of discharge and unless written claim with particulars be likewise presented within 30 days after the presentation of the notice herein provided for. If written notice of claim and claim are not so given, the vessel and/or carrier shall be considered prejudiced thereby and the claim waived and such waiver may be pleaded in and shall constitute a defence to any suit or proceedings that may be brought against the vessel and/or carrier in an action for the Said claim. The notice in writing need not be given if the state of the goods has, before or at the time of their delivery been the Subject of joint survey or inspection in which case proper notation of loss or damage made On the certificate or similar document shall constitute the notice herein required.
As no such notice was given as required by the abovesaid provisions of Rule 31 of Exhibit A-1, it should be held that notice of claim has not been given according to rules and hence the plaintiff has waived its claim. The survey in this case was held, as seen from Exhibit B-49, on 19th December, 1968, i.e., two days after the completion of the discharge of the entire cargo. The survey report reads that the surveyor, at the request of Messrs. J. M. Baxi and Company, Tuticorin (representative of the steamship company) had found on inspection that all the hatches were properly pattened down and they have certified that the quantity of rice discharged by S. S. Lucky amounts to 9,120 tons, equivalent to 9,266 tonnes. The plaintiff would complain that 91,600 bags of rice in good condition were consigned in the ship at Bangkok and all the bags should have been delivered to him in good condition, at Tuticorin; but the defendant had delivered in good condition all the bags except 850 bags which were in torn condition. It is true that it is not the case of the plaintiff that at the time of taking delivery of the goods, the damages were not apparent and therefore the plaintiff, according to the defendant, should have brought to the notice of the defendant's agents then, and there about the damages while taking delivery of the cargo and the notice of claim must have been given to the carrier before delivery or as and when the goods were removed and delivered into the lighters of the plaintiff's agent A. M. Ahmed and Company. Contrary to this, the plaintiff has kept quiet for a considerable length of time and given notice of claim one day after the entire delivery was completed. Therefore, it is contended by the defendant that the plaintiff has failed to comply with the provisions of Rule 31 of Exhibit A-1 by giving notice within three days of the completion, of every day's delivery, and therefore the claim of the plaintiff should be held as bad in law. P.W.1 who is the Manager of Baxi and Company, which is the defendant's agent, would depose that the notice of claim must have been given then and there. His evidence is that if there was any defect in the bags as being slack or torn the complaint should have been brought to the notice of the captain of the ship forthwith so that he could, take suitable action. The trial Court, under the erroneous construction of the word 'notice', without properly applying its mind to the facts of the case, has held that there was no proper notice within the meaning of Rule 31 of Exhibit A.-1. It may be noted that no form of notice is prescribed. Giving notice would mean 'informing the other party against whom one lays a claim the substance of the material on which he is going to lay his claim'. If we examine Exhibits B-2 to B-48 which are the boat-notes, it can be seen that the representative of the consignee has signed as well as the Chief Officer of the ship. In all these boat-notes, the number of bags delivered and the number of bags found torn are all mentioned. In other words, the details of damages are mentioned in each and every boat-note. Every boat-note is followed by a tally sheet, wherein also the damages are mentioned. In all these boat-notes, the words 'ship not responsible' are written, which in turn are carried over into the tally sheets of J. M. Baxi and Company, the steamship agents and stevedores. Thus, it is clear that the defendant's agents were put on notice even by the boat-notes and the tally sheets that certain bags were found torn. Therefore, it is clear that the substance of the material on which now the claim is made has been intimated to the defendant, who thereby got knowledge of the substance of the damages. It is seen that not only the defendants were put or. notice about the damages found apparent on the bags, but the defendants have also repeated the same by stating 'ship not responsible'.
Therefore, the contention of the defendant that he was not put on notice within three days is not correct on the facts of the case. For the foregoing reasons, we hold that the finding of the trial Court that the suit is not maintainable on the ground that no notice of short delivery was given within three days of delivery, is totally incorrect. It may also be pointed out here that it is not disputed that on the very next day the plaintiff laid their complaint and made their provisional claim. As the discharge of the goods from the ship to the lighters and the transshipment to the transit sheds constitute a continuous process, it may not be possible to send notice in the sense in which the defendants interpret the conditions, as the total damages could be ascertained only after the completion of the discharge of the entire goods. However, as we have found that in this particular case, the defendants were put on notice about the damage to the goods in the boat-notes themselves, we are of the view that the claim made by the plaintiff is well within time.
7. Learned Counsel for the plaintiff would go one step further and say that the conditions enumerated in the bill of lading are repugnant to the Indian Carriage of Goods Act and so it should be ignored as non est. Be that as it may, even leaving apart that contention, we have to see whether there was any notice at all in its wider sense. In fact, for all practical purposes, Exhibit A-7 could be taken as notice, though not within the strict sense of the condition enumerated in the bill of lading, for the reasons stated above, viz., that the apparent damages were brought to the notice of the ship-owner who had been thereby given the opportunity of protesting against the claim for damages, as seen from Exhibits B-2 to B-48. For the above reasons, we hold that the trial Court had gone wrong in its finding on issue-6. Instead we hold that the suit is not bad for want of proper notice.
8. The next and the most important question for our consideration is whether the defendants are responsible for the shortages that have occurred. The defendant is the ship-owner owning the ship S. S. Lucky, 91,600 bags of Rahai White Rice shipped at Bangkok (Thailand) to be delivered at Tuticorin Port. As we have mentioned above, the ship arrived at Tuticorin with the cargo on 6th December, 1968. Exhibit A-1 dated 22nd November, 1968 is the bill of lading admittedly issued by the defendant. The goods were delivered to A. M. Ahmed and Company, the plaintiff's agents at the ship itself. It may be noted here that in Tuticorin Port the ship is anchored about 7 or 8 miles interior in the sea and the goods are to be transshipped three miles. A.M. Ahmed and, Company, the plaintiff's agents agreed and arranged to receive the bags and load the same in the lighters or boats and bring them to, the shore. All these 91,600 bags were discharged to the, plaintiff's agents from 7th December, 1968 to 17th December, 1968 A. M. directly from the ship. The case of the plaintiff is that about 850 bags of rice were found torn and slack and the net deficiency on survey conducted on 14th January, 1969 was found to be 27 metric tonnes, 220 kgs. and 746 grams of rice, and that this deficiency was there even before the ship discharged the cargo and therefore the defendant is liable to pay the damages. Contrary to this, the defendant would urge that there was no such deficiency and the 850 bags were not slack or torn before delivery. According to them, the entire cargo shipped at Bangkok was brought to Tuticorin and there was no deficiency at all during the transport and that the deficiency if any must have occurred subsequent to the delivery to the plaintiff's agents or while the plaintiff's agents carried the goods from the ship to the port sheds which are at a distance of 7 or 8 miles. It may be noted that at the request of the plaintiff's agent, the over-side delivery was ordered and the plaintiff's agents engaged their own men to lift the bags from the ship on their responsibility and deliver them into the lighters, bring them to the shore and stack them at the port sheds. It is seen from the evidence that about 12 bags could be tied at one time with ropes and lifted by slings from the ship and placed in the lighters. Therefore, the moment the agents took the bags and put them into the slings, the delivery of these bags put on the slings is completed. Therefore, we are of the view that if any damage had happened during the period of transshipment of the goods undertaken by the plaintiff's agents, the defendant cannot be said to be liable therefor. If at all the defendant could be held liable for any damages, that could be only before the actual delivery of the goods by the ship-owner is effected. As the plaintiff's agents have undertaken to handle the goods, it could be safely concluded that any damages occurring during the discharge of the goods by the plaintiff's agents would be only at the risk of the plaintiff and the defendant would have nothing to do with it. Since the plaintiff's agents who handled the goods, have not come forward with any case that the bags were found slack or torn in the ship itself, before they were removed from the ship by them, it is not open to them now to say that the defendant is responsible for the loss. Here, the boat-notes followed by the contemporaneous documents viz., the tally sheets, would assume importance as in each and every boat-note it is mentioned 'ship not responsible'. A question may arise as to whether the loss of rice complained of or damages occurred during the transit or not. It is not the case of the plaintiff, nor has any evidence been let in to indicate, that the shortage would have occurred during the voyage of the ship. In the written statement, the defendants have stated that the cargo carried by the ship from Bangkok to Tuticorin were only the goods covered under Exhibit A-1 and nothing else. After the delivery of the goods, it is the case of the plaintiff that its agents swept the ship and got 139 bags of rice. If so much rice had fallen down on. account of the tearing of the bags, it stands to reason that at the time when the bags were removed by the slings from the ship to the lighters aside the ship, a lot of rice would have fallen, into the sea due to the improper handling of the bags while being removed. Admittedly, the defendant has neither loaded nor unloaded the goods. It is clear that there was an intermediary agency between the period of delivery from the ship and the transshipment of the goods into the lighters, that intermediary agency being the stevedores who are none other than the agents of the plaintiffs. On. the instant case, instead of allowing the ship-owners themselves to transship the goods, the plaintiff's agents have taken up the responsibility of transshipping the goods by undertaking the operation of stevedoring. It cannot be disputed that at the time when it was specifically mentioned in Exhibits B-2 to B-48 'ship not responsible', no protest was raised by the plaintiff. During the trial of the case, the plaintiff would put forth a defence that it give a letter of complaint under Exhibit A-10 to the master of the ship. Admittedly, he did not get any acknowledgment from the master for the receipt of the original of Exhibit A-10. Exhibit A-10 is said to have been, dated 13th December, 1968 wherein it is said to have been complained that the defendant was responsible for the slack-age, though the defendant has made an endorsement that the ship was not responsible. It is seen that much argument was advanced in the trial Court about this document. Here too. P.W. 3 would say that he served the original of Exhibit A-10 on the ship officer. But we are unable to accept his evidence for the reason that no acknowledgment has been taken from the ship-owner, nor has document Exhibit A-10 been referred to in the subsequent correspondence. As Exhibit A-10 is dated 13th December, 1968 even assuming that it has been served on. him, there can be no doubt that it should have been served long after the boat-notes were written and. delivery was completed. The defendant's case is that no such notice was served on them. Therefore, we agree with the trial Court that the plaintiff has not proved the service of the original of Exhibit A-10 on the owner of the ship. Exhibit A-2 is a discharging out-turn report. This document is signed by the consignee's representative, the agent's supervisor and the chief officer of S.S. Lucky. This document would show that 91,600 bags were manifested and the same quantity has been discharged as per boat-notes and the number of bags in dispute was 'nil', and the number of bags short or excess was also 'nil'. Further, in the ''remarks' column, it is found that 137 bags were obtained on sweepings, 97 bags were lost over board and 180 bags were found torn. Notwithstanding the said remarks, it may be noted that no dispute has been raised regarding the shortage of goods. As we have mentioned earlier, Exhibit B-49, the survey report, mentions about the condition of the goods previous to and after the delivery. It says that on inspection it was observed that all hatches were properly pattered down. The survey report was issued by the Port Officer of Tuticorin Port P.W. 2 is the clerk under the clearing agents and he would admit in the cross-examination that they under Exhibit A-50 asked the defendants for over-side delivery order and their representative viz. Pushpam (P.W.3) supervised the discharge of the goods from the ship. According to him, the Port Officer also supervised. He would say that the layers were in good condition and that the Supervisor told him that at the time when the goods were transshipped from the ship, the bags were found torn. When specifically asked as to whether they made any endorsement that they received the goods under protest at the time when it was noted in the boat-notes that the ship was not responsible, he would answer in the negative. The cumulative effect of all these things would go to show that the damage had occurred only due to the improper handling of the goods by the plaintiff's agents. It may not be out of context to mention here that the plaintiffs themselves have admitted in their reply statement thus:
The 33 bags of shed sweepings were spillings that fell down during the clearance of the sound bags. In facts the said 39 bags of shed sweepings need not have been given credit to at all for the total deficiency in the weight of the goods delivered, for they were only the spillings from the sound bags which have been fully taken, into account as per the bill of lading weight. The plaintiffs gesture in crediting the said sweepings also with a view to minimise the shortages is entirely misunderstood by the defendants.
This averment in the reply statement of the plaintiff would unambiguously go to show that the goods were not handled properly by the plaintiff's agents. For the above reasons, we have no hesitation to hold that the defendants cannot be held responsible for the shortages that have occurred in this case.
9. As regards the other issues, we have no reason to differ from the findings given by the trial Court.
10. In the result, the appeal is dismissed and the decree and judgment of the lower Court are confirmed. Under the peculiar circumstances of the case, we award no costs in this appeal.