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Maistry Rajabhai NaraIn of Cutch Vs. Haji Karim Mahomed of Bombay Through His Recognized Agent, Hussan Iyood Sait - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in47Ind.Cas.708
AppellantMaistry Rajabhai NaraIn of Cutch
RespondentHaji Karim Mahomed of Bombay Through His Recognized Agent, Hussan Iyood Sait
Cases ReferredSteel & Co. v. A. Scott
Excerpt:
.....of--carriage by sea--short delivery, damages for--freight illegally collected, suit for return of--general average contribution, claim for--jurisdiction--peril to crew and cargo--jettison--principles governing general average--municipal courts, jurisdiction of, over foreigners. - - 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, civil procedure 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. 6. it may be mentioned that the respondent urged that under section 21 of the civil procedure code the objection as to..........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 1st 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 i 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 contract 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 Patharatb ' 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. The charter-party was entered into at Cutch, the 1st defendant being a resident of that place and a subject of the State of Cutch. Second 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 1st 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 I 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 contract 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 cause of action for the first arose wholly in Calicut and for the second, in part in Caliout, as that was the place of performance. It is dear 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 learned Pleader for the appellant had argued that no part of it arose in Calicut. It is, there-fore, 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, Civil Procedure 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 case, 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 (1863) 3 C.P. 375 : 18 L.T. 432. 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 a safety in port for as observed by Bovil, C.J., in the ease above cited, page 383 Page of (1868) C.P 3 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 .in 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, had been brought to safety in port. In fact it was held in Whitecross Wire Co. v. Savill (1882) 8 Q.B.D. 653 : 43 W.R. 588 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. x Appellant's Vakil relied on the observations of the Privy Counoil in Strang, Steel & Co. v. A. Scott & Co. 17 C. 362 : 5 Sar. P.C.J. 338 : 8 Ind. Dec.780, 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 principle 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, Civil Procedure 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 Civil Procedure 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 td 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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