N.S. Ramaswami, J.
1.The plaintiff's are the appellants. These two appeals arise out of the suits which were disposed of by a common judgment. Two different parties imported; certain quantities of Polythylene Resins Film Grade F. 822, from the Port of Kobe in Japan to the Port of Madras. The goods were carried by the vessel 'State of Andhra' owned by the Shipping Corporation of India which was made the second defendant in the two suits. The first defendant in both the suits is the Port Trust, Madras. The goods have been insured by one and the same Company, viz., the Calcutta Insurance Limited, which figures as the second plaintiff in both the suits. (The first plaintiff in the two suits is the respective consignee of the goods.)
2. The vessel arrived at Madras Port on 4th October, 1968. When the cargo was discharged it was found that some bags were torn and the contents falling out. Even the tally sheets issued by the Port Trust, to which the Shipping Corporation of India is a party, went to show that the damage to the goods had occurred even before the cargo had been discharged. Even so, the plaintiffs impleaded the Port Trust, perhaps by way of abundant caution. The Court below has held that the Port Trust was not at all responsible for the damage to the goods as the damage had occurred even before the goods were landed. That finding is not now in dispute.
3. The case of the plaintiffs had been that the damage to the goods had been caused due to the negligence and misconduct in the part of the ship-owner, viz., the second defendant in the suits. The defence is that the damage is not due to any negligence or misconduct on the part of the ship-owner or its agents and men, but due to insufficiency of packing and perils of the sea. The Court below accepted that defence and dismissed the suits. Hence the appeals by the plaintiffs.
4. It is now common ground that in the two consignments involved in the two suits, on the whole, 1540 bags of Polythylene Resins Film grade were carried from the Port of Kobe in Japan to Madras Port. The ship-owner issued a clean bill of lading. It is also an admitted fact that out of 1540 bags, 140 bags had been totally lost due to damage, and in respect of eleven other bags, the damage was to an extent of 10 per cent. of the value thereof. There is now no dispute about the plaintiffs' valuation of the damage to the goods. The controversy is only regarding the question whether, the damage to the goods was due to negligence or misconduct on the part of the ship-owner or its agents and men or due to insufficiency of packing or perils of the sea.
5. It is common ground that all the bags had been packed in Polythylene inner cover and 6 ply Kraft paper as outer cover. The first question is whether this packing is insufficient as contemplated under the relevant provision. Under Article IV of the Schedule to the Carriage of Goods by Sea Act, neither the carrier nor the ship must be held responsible for the loss or damage arising or resulting from insufficiency of packing. But it is an. exception which must be proved by the ship-owner. That position is not disputed before me.
6. On behalf of the plaintiffs (Appellants) one of the contentions is that the ship-owner having issued clean bills of lading-with regard to the consignments, it is estopped from contending--that the damage was due to insufficiency of packing. In this connection, the decision of the Supreme Court in Ellerman & Bucknall Ltd. v. Misrimal : AIR1966SC1892 . is relied on. Dealing with the question of estoppel, the Supreme Court observed:
What is the real scope and legal effect of the statement in the bill of lading that the goods were shipped in good order and condition? We have already noticed that a bill of lading with such a statement, which does not contain any further reservation or qualification, is known as a clean bill of lading. The said words are affirmation of a fact. It is an admission creating an estoppel as between the ship-owners and an endorsee who, on the faith of that admission, has become endorsee for value of the bill of lading. The shipowners are estopped from denying that the goods had packages which were not in good order and condition. The estoppel applies only where the bad condition is discernible on a reasonable examination of the containers, having, regard to their contents.
In the present case, the contention on behalf of the appellants is that if the goods were insufficiently packed, that fact would have been discernible on a reasonable examination of the packages, and the ship-owner, having issued a clean bill of lading, is now estopped from contending that the bags were insufficiently packed.
7. However, on behalf of the second defendant, the contention is that insufficiency of packing is not a matter which is discernible on reasonable examination and only when the packages are either torn or rashed or otherwise damaged, the question of estoppel would arise. But this contention appears to be not acceptable. In Silver v. Ocean Steamship Company (1930) 1 K.B.416. the position has been summarised by the majority of the Judges thus:
A ship-owner who signs a bill of lading for goods ' shipped in apparent good order and condition' is estopped as against the holder of the bill of lading from alleging that the goods, in respect of matters externally visible on areasonable examination, were not in good condition when shipped, and is further estopped from alleging that by reason of the particular nature and shape of the containers in which the goods are placed, damage to the goods; has been caused by ' insufficiency of packing ' within Article 4, Rule 2 of the Schedule to the Carriage of Goods by Sea Act, 1924, where the nature and shape of the containers were a parent on the shipment of the goods.
In that case, the plea of the ship-owner-was that the rashes as well as certain minute pinholes which were noticed when the goods were landed were not discernible at the time of issuing the bill of lading and that therefore there was no question of estoppel. But, it was held that in respect of rashes found on the packages, the shipowner was clearly estopped because of the clean bill of lading issued by it. In respect of minute pinholes which could not be discerned on reasonable examination, estoppel would not apply.
8. In the present case, it is not anybody's version that there was actually any defect in the packing. All that is stated is that it was insufficiently packed. The ship-owner knew what the commodity that was accepted for transit was. The fact whether the goods had been sufficiently packed or not, is a matter which could have been found out. on reasonable examination.
9. However, even assuming that the second defendant in this case is not estopped from putting forth the plea of insufficient packing, still the question remains whether there is acceptable, evidence to show that the goods suffered from insufficiency of packing. The second defendant itself did not lead any evidence on this point. On behalf of the plaintiffs, the surveyor who estimated damages to the goods gave evidence to the effect that polythylene resins film grade are usually packed only in the manner in which the suit goods had been packed. He however conceded that he has no personal knowledge as to how exactly this commodity has to be packed. Whatever his evidence be, the question is whether the second defendant has proved the plea of insufficiency of packing as the cause for the damage to the goods. Bhaskaran (D.W. 1) is the only witness examined on behalf of the defendants, but he had been examined by the first defendant, viz., the Port Trust, Madras, to show that there was no damage to the bags after they were landed. From this witness it has been elicited that the packing of the goods in this case was flimsy. His competency to speak to such a fact has been questioned by the plaintiffs, in cross-examination. That apart, his evidence is vague and I do not believe that it deserves acceptance. It is not stated by anyone as to what exactly is the proper packing for polythylene resins film grade. As already seen, all the 1540 bags had been packed with two packing materials, one being a polythylene bag which was inside and the other being 6 ply kraft paper bag which was the outer cover. The learned trial Judge has opined that, considering the nature of the commodity, this packing cannot be said to be sufficient. I am afraid, he has been influenced by the fact that the outer cover is termed as paper and perhaps, the learned Judge thought that a paper bag is not expected to stand a sea voyage. But, it must be remembered that the commodity had an inner cover which was a polythylene bag and the outer cover, though called a paper bag, is 6 ply kraft paper bag. I do not believe that there is any acceptable evidence in this case to show that this packing is insufficient to stand a sea voyage from Japan to Madras.
10. The learned Counsel for the second defendant contended that the very fact that Only a small percentage of the total number of bags were found damaged would go to show that the damage could not have been due to any negligence of misconduct on the part of the shipowner, but it was only due to insufficiency of packing. I fail to appreciate this argument. I think the fact that only a small percentage of the bags were found damaged, is a factor against the contention of the second defendant, viz., that the goods were insufficiently packed. I am of the view that if the goods had not been sufficiently packed, the damage would have been to a larger number of bags as, admittedly all the bags had been similarly packed.
11. The only other point for consideration is whether the damage to the goods can be said to be due to perils of the sea as contended by the second defendant. Regarding this aspect, Exhibit B-1 the protest note made by the Master of the Ship, is the only evidence relied on. Under the Commercial Documents Evidence Act, 1969, the statement contained in the protest note can be presumed to be accurate. It is prima facie, evidence, but, I am of the view that taking the protest note as it stands, it is impossible to hold that the damage to the goods was due to perils of the sea as contemplated under Clause (c) of Article 4, Rule 2 of the Schedule to the Carriage of Goods by Sea Act. All that the Master has stated in Exhibit B-1 is that the vessel experienced bad weather and heavy rains. As a result of that, the vessel was said to have been rolling and pitching and there were heavy seas on deck, necessitating restriction of ventilation. The Master has added that because of the above circumstances, he feared possible damage to the vessel and/or cargo. It is to be noted that the rolling and pitching etc., were only due to bad weather and heavy rains, which necessitated restriction of ventilation. It is nobody's case that restriction of ventilation had anything to do with the damage to the goods in this case. The, commodity is not a perishable one and the fact that there, was restriction of ventilation has nothing to do with the damage to the bags which were found torn. Bad weather and heavy rains are not matters which are extraordinary in a sea voyage. In Union of India v. Cheyanna Compania Naviera : (1974)1MLJ1 . in a similar case, I have held that heavy weather cannot be equated to perils of the sea or act of God, because that is only a normal incident of sea voyage.
12. In Astle's Shipowner's Cargo Liabilities and Immunities (III Edition) at page 65, the following passage occurs:
On the other hand the vessel may have encountered bad weather conditions not of an abnormal nature, but that whilst meeting those conditions a freak sea causing the vessel to list or lurch abnormally may be experienced. Proof of such an encounter, being something of a nature not normally to be anticipated might well provide an answer to a claim for cargo loss or damage. The answer to any such problem might be summarised as one of commonsense, bearing in mind the obligations imposed upon the carrier by the Act; for example, the North Atlantic in winter is notorious for severe weather, and any plea that the vessel experienced a wholesale would be no answer to a claim for cargo damage unless it were proved that there was no other contributory cause such as breakdown in stowage which should have been such as to withstand such conditions.
The same author, at pages 143 and 144, points out that in spite of the North Atlantic winter being notorious for severe weather, the plea that the vessel experienced a wholesale would be no answer to a claim for cargo damage unless it be proved that there was no other contributory cause such as breakdown in stowage which could have been such as to withstand such conditions.
13. First of all, in this case, as already seen mere bad weather and heavy rains cannot be considered to be perils of the sea as contemplated in the statute, as they are not abnormalities in a fairly long sea voyage. Even if the vessel suffered perils of the sea, the second defendant has not shown that perils of the sea were the cause for the damage. In Exhibit B-1, the protest note, all that is stated is that the Master feared possible damage to the vessel and the cargo. Even if the vessel had suffered perils of the sea as contemplated in law, such perils of the sea have not been connected with the carnage to the goods.
14. There is absolutely no evidence from the second defendant regarding the nature of the stowage of the goods. What happened to the stowage of the goods, after the alleged bad weather is not known. That is a fact which is in the exclusive knowledge of the second defendant. It is for the second defendant to adduce the necessary evidence on that aspect. Therefore, there is no knowing whether the stowage had been proper and whether it had not given way during the voyage. Under all these circumstances, I am not prepared to accept the finding of the Court below that the damage to the goods is as a result of perils of the sea. I have already stated that the defence of insufficiency of packing has also not been made out by the second defendant. Under such circumstances, it is not unreasonable to infer that the damage to the goods is due to the negligence on the part of the second defendant or its agents and men, especially when it is not now disputed that the damage to the goods occurred during the sea voyage.
15. The appeals are therefore allowed and both the suits are decreed for the amounts claimed, with interest at six per cent. per annum from the. date of the plaint till the date of realisation. However under the circumstances of the case, I direct the parties to bear their, respective costs in this Court as well as in the Court below.