M. Natesan, J.
1. This appeal under the Letters Patent has been preferred, on leave granted by Venkatadri, J., who, in second appeal, reversing the decision of the Courts below, upheld the claim of the plaintiffs for a sum of Rs. 3,774-31 the value of goods not delivered.
2. The brief facts of the case, on which the rights and liabilities of the parties will have to be considered, are these. The first plaintiff is a clearing and forwarding agent at Madras for the second plaintiff, a firm of merchants at Sivakasi and the reference hereafter as the plaintiff's, will be of the second plaintiff. The plaintiff's are the consignee of goods from Tokyo, Japan, of ten cases of red phosperous, amorphous, bearing marks P.K.J., 1 to 10 numbers and described as 10 wooden cases of KDK brand. On the arrival of the ship, s.s. Azumasan Maru at Madras the plaintiff submitted their import application, Exhibit A-15, and the Port Trust authorities offered to deliver them ten cases of P.K.J. bearing Nos. 4 and 9, and 8 other cases with different numbers but all bearing brand marks J.C.I. There is evidence that J.C.I. brand is of an inferior variety, KDK brand costing Rs. 3-12-0 per lb., J.C.I, brand being priced at Rs. 3 per lb. only. One hundred and twenty cases under the main mark P.K.J. had been unloaded. There were five consignees including the plaintiffs, and four had taken delivery of goods. The plaintiffs refused to take delivery of the goods tendered as not in accordance with the bill of lading. The Port Trust authorities, the appellant before us, issued them only what is called the A certificate, though the plaintiffs required of them in the circumstances a B certificate. On the evidence, it was clear that the plaintiffs were the consignees of P.K.J. 1 to 10, KDK brand. The bill of lading (Exhibit A-20) the import manifest (Exhibit B-5), the invoice (Exhibit A-1), the insurance papers, all refer to the plaintiffs as the consignees of the goods, P.K.J. 1-10 of KDK brand made in Japan. It may also be stated that the plaintiffs had paid the customs duty as on KDK brand, and the customs authorities would not permit them to remove cases of J.C.I. brand. There is also evidence to show that on the plaintiff's refusal to take delivery of the goods insisting upon the issue of a B certificate, the steamer agents were not agreeable, when required by the Port Trust, to the issue of B certificate, as, according to them, the goods had been correctly landed. It was in those circumstances that the plaintiffs preferred the claim impleading the steamer agents also as party defendants. The Court of first instance rejected the plaintiffs' claim, and the plaintiffs, finding that, on the facts as disclosed in the trial Court, the steamer agents would not at all be liable, did not make them parties in the further appeals by them. The stand taken by the Port Trust authorities was that they were bound to deliver the cargo only according to the main marks, in terms of which they tallied and unloaded the cargo, and that they were not concerned with any particular brand of the goods. In that view, on the failure of the plaintiffs to clear the goods according to law, they sold the goods in public auction.
3. The Court of first instance and the Court on appeal therefrom, while holding that the Port Trust authorities were the agents of the consignee for the purpose of taking delivery of the consignments and that their responsibility was over as soon as they were in a position to deliver to the consignee the goods as received from the ship held that a mistake should have occurred even at the time of loading of the goods at Japan, and that, if at all, the consignor would be responsible The Courts below also were of the view that the Port Trust need confine itself to the leading marks only and it was not necessary for the Port Trust authorities to tally the goods landed by reference to their brand. On behalf of the plaintiffs it was contended that the bill of lading was prima facie evidence of the loading of the goods covered by the bill of lading and that the goods consigned to the plaintiffs as per the bill of lading being P.K.J. 1-10, KDK brand the prima facie evidence as to the consignment of such goods had not been displaced. It was contended that the mere fact that the Port Trust authorities were content with tallying with the main marks would not absolve them from liability for the consignment as loaded, if their practice was not in conformity with the legal requirements and the duty imposed on the Port Trust.
4. Now, under the Madras Port Trust Act (II of 1905), the Board, by which it is meant the Trustees of the Port of Madras appointed under the Act, are empowered to undertake the duty of receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises, and of landing, shipping or transhipping passengers and. goods between vessels in the port and the wharves, piers, quays or docks in possession of the Board. The power to this effect is provided in Section 39(1)-(a) and (b) of the Act. Clause (3) of Section 39 is an important provision and it runs thus:
The Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the Central Government.
After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt shall have been given or to the master or the owner of the vessel from which the goods have been landed or transhipped.
Section 40 of the Act provides
(1) The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act and subject also in the case of goods received for carriage by railway to the provisions of the Indian Railways Act, 1890, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words 'in the absence of any special contract' in Section 152 of the last-mentioned Act. Provided that, till the receipt mentioned in Sub-section (3) of Section 39 is given by the Board, the goods shall be at the risk of the owner.
(2) The Board shall not be in any Way responsible for loss of or damage to goods of which it has taken charge, unless notice of such loss or damage shall have been given within one month of the date of the receipt given for the goods under Sub-section (3) of Section 39.
5. There is no dispute before us about the practice at the port that the cargo from the ship is first taken charge of by the Port Trust and subsequently, only the Port Trust delivers the goods to the respective consignees. But learned Counsel for the Port Trust, Mr. V.V. Raghavan, contended that the view of the Courts below and of the learned Judge (Venkatadri J.), that the Port Trust was an agent of the consignee in taking delivery of the goods from the shipping company based on the decisions of this Court in Great Eastern Shipping Co., Ltd. v. Govindasamy I.L.R. (1957) Mad. 840, and Great Eastern Shipping Co. v. Md. Samullah Saheb & Co. : AIR1959Mad367 , cannot be maintained, after the unreported judgment of the Supreme Court in Trustees of the Port of Madras v. K.P.V. Sheik Mohammed Rowther & Co. C.A. Nos. 187 to 191 of 1 962, on appeals from this Court. The two decisions of this Court are cases arising out of claims for short delivery, and this Court took the view that, in view of the latter clause of Sub-section (3) of Section 39 above referred to when the goods are landed and left with the Port Trust, the legal effect was as if the shipping company had delivered the goods to the consignee, the port Trust being the agent of the consignee for the said purpose. The appeals in the Supreme Court arose out of writ petitions filed in this Court, where the validity of the levy of charges to be paid by the matters, owners or agents of vessels in respect of Port Trust labour requisitioned and supplied but not fully or properly utilised arose for consideration. While considering the jural relationship between the several parties in respect of carriage of goods by sea, Raghubar Dayal, J., delivering the judgment of the Court made the following observations:
There is no doubt that the ship-owner is the bailee of the shipper, the consignor, and that he is responsible for the delivery of the goods to the consignee or a transferee according to the terms of the bill of lading. This duty the ship-owner discharges only when he has delivered the goods to the consignee or such person Who would be entitled to take delivery in accordance with the endorsements on the bill of lading. Delivery to the Board is not delivery to the consignee or such person, both because the delivery is to be on the presentation of the bill of lading and because the Act contains no provision which Would constitute the Board an agent of the consignee for the purpose of taking delivery of the goods.
6. Referring to Section 39 Sub-section (3), it is observed:
Sub-section (3) of Section 39 of the Act empowers the Board to take charge of the goods for the purpose of performing certain services which do not include the taking delivery of the goods from the ship-owner. It is true that on the Board's taking charge of the goods and giving a receipt about it to the ship-owner the master or the owner of the vessel is absolved from liability for any loss or damage which may occur to the goods which had been landed, but this provision by itself does not suffice to convert the receiving of the goods by the Board after they had been landed by the ship-owner to the Board's taking delivery of those goods on behalf of the consignee
7. Proceeding further his Lordship observes:
Section 40 speaks of the responsibility of the Board for the loss, destruction or deterioration of the goods of which it has taken charge as a bailee under Sections 151, 152 and 161 of the Indian Contract Act. Section 148 of the Contract Act states that a bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, When the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to Whom they are delivered is called the bailee. It is clear, therefore, that when the Board takes charge of the goods from the ship-owner, the ship-owner is the bailor and the Board is the bailee and the Board's responsibility for the goods thereafter is that of a bailee. The Board does not get the goods from the consignee. It cannot be bailee of the consignee. It can be the agent of the consignee only if so appointed, which is not alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and not as a bailee.
Holding that the landing of the goods by the ship-owner on the quay and placing them in charge of the Board does not amount to delivering them to the consignee, even though it absolves the master of the ship from further responsibility for the loss or damage to the goods, the Supreme Court observes thus:
The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses Where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer agent, Which is usually an endorsement on the bill of lading, and the quay be considered a part of the ship.
8. We do not see how these observations of the Supreme Court can help the Port Trust in the context of the present case. It was not argued before us that even if the consignment had been correctly landed from the ship, the consignee had no cause of action against the Port Trust for failure to deliver the proper goods. The Port Trust as a bailee must be deemed to have undertaken to deliver the goods according to the directions of the ship-owner from whom the goods had been taken charge of, and statutorily the ship-owner got an absolute discharge on taking the receipt provided for under Section 39 Sub-section (3) of the Act. It would not, therefore, be open to the Port Trust to contend that the consignee had no cause of action against them for non-delivery of goods which they had taken charge of. Far from the view of the Supreme Court that the Port Trust is not an agent of the consignee when the goods are delivered by the ship-owner helping the Port Trust, in our view, in a case like the present, it only emphases the liability of the Port Trust. Now.
The ship-owner remains liable under his contract until he has made delivery to a person entitled thereto. A delivery to a wharfinger or to a dock authority is not, in itself, sufficient unless the contract provides for such delivery, or unless there is a custom to that effect. (Halsbury's Laws of England, third edition Volume XXXV), page 450, paragraph 639).
9. (Halsbury's Laws of England, third edition (volume XXXV), page 450, paragraph 639)
10. Ordinarily, it is the ship-owner's duty to get the cargo out of the holds and to deliver it to the consignee, while it is the duty of the consignee to take delivery of it. The extent of their respective obligations in any particular case is, in the absence of any special contract, regulated by the custom, if any, of the port of discharge. Under the decision of the Supreme Court above referred to, delivery which a consignee is entitled to is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery. The quay is considered to be a part of the ship. If that be the real position, the tally sheets become matters of internal-checking between the ship-owner and the Port Trust, as bailor and bailee, and the consignee is not concerned with the correctness of the same. If the quay is also a part of the ship and the Port Trust is only a bailee bound to deliver according to the bill of lading, it would be no answer to contend that the delivery can only be according to the tally sheets and not according to the bill of lading, the delivery being against the bill of lading. In this view, it is unnecessary to consider what is the scope of the tallying operations.
11. However, as the main argument in the case turned round the scope and effect of the tally sheet and the operations of the tallying resulting in the preparation of the tally sheet, we shall address ourselves to that also. The question for consideration is whether, if a receipt has been given under Section 39 Sub-section (3) of the Act with reference to any consignment, it would amount to an acquittance or discharge of the ship-owner and of the landing of the cargo as per the related bill of lading. The contention on behalf of the Port Trust is that the tally sheet guarantees only the landing of the goods as per the main marks and that the only inference that could be made is the landing of the goods as per the main marks shown in the tally sheets. It is argued that it did not follow that the goods according to their brands or subsidiary marks shown in the bill of lading had in fact been landed. But the point is not what the Port Trust has chosen to record but what is their legal duty and what are their obligations to the consignee when they land the goods and give an acquittance to the ship-owner. Under Section 39(3), once a receipt is given that a particular consignment had been taken charge, a complete discharge is given to the ship-owner. Section 39 refers to taking charge of goods. It does not limit the description of the goods by their leading marks only.
12. In Carver on Carriage by Sea, Volume II (eleventh edition) at page 903. paragraph 1092, leading marks are thus defined:
The term 'leading marks' means marks necessary to the correct identification of the goods. It may include quality marks where the actual goods that a consignee is to receive cannot be identified except by reference to such marks. It will not include marks that are not essential to the description and identification of the goods in a commercial sense.
13. In the instant case, when there is more than one brand of the goods in question and the goods of the plaintiffs cannot be identified except by reference to the brand (KDK) the brand shown on the cases Would also be leading marks. It is nobody's case that the packages were not distinctly, correctly and permanently marked for the purpose of identification. In Carver On Carriage by Sea, book I, volume II, at page 71, paragraph 80, the position is thus stated;
But Where the marks inserted in the bill of lading convey a meaning as to the character of the goods, and are therefore essential to the identity of the goods, and it is on the faith of those marks that an indorsee takes up the bill of lading under a contract of sale, the person signing the bill will be estopped by Section 3(of the Bills of Lading Act, 1855) from proving that goods with those marks were not shipped under the bill.
Apart from any question of estoppel the insertion of such marks in the bill of lading is prima facie evidence of the shipment of goods so marked, and prima facie, the ship-owner Will be liable if he fails to deliver goods so marked. The fact that the marks are quality marks does not affect the position if they are necessary to the correct identification of the goods. But the ship-owner may be able to rely on a condition as to correct marking.
14. Clause 3 of Article III of the schedule to the Indian Carriage of Goods by Sea Act (XXVI of 1925) relating to the bills of lading provides:
After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall on demand of the shipper, issue to the shipper a bill of lading showing among other things-
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or covering in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;
(b) Either the number of packages or pieces, or the quantity, or Weight, the case may be, as furnished in writing by the shipper;
(c) The apparent order and condition of the goods:
Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable grounds for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
15. Clause 4 of Article III provides
Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a)(b) and (c).
16. The Indian Bills of Lading Act (IX of 1856) provides by Section 3
Every bill of lading in the hands of a consignee or endorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of Such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actua-notice at the time of receiving the same that the goods had not in fact been laden on board:
Provided that the master or other person so signing may exonerate himself, in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims.
17. The bill of lading generally is prima facie evidence against the ship-owner of the shipment on board of the goods acknowledged under the bill of lading to have been shipped. As noticed in the foot note at page 70, Article 20 in Sir Thomas Edward Scrutton, Charterparties and Bills of Lading (sixteenth edition):
The evidence to displace the bill of lading must show not merely that the goods may not have been shipped, but that they were not; Smith v. Bedouin Steam Navigation Company L.R. (1896) A.C. 70, but this may be shown by conclusive evidence that after receipt by the ship-owner none of the goods Were lost or stolen and that he has delivered all that he received.
The statement in the bill of lading is not to be displaced merely by a consideration of the balance of probabilities.
18. On the above principles, It must be held, to start with, that the consignment bearing marks P.K.J. 1 to 10, KDK brand as shown in the bill of lading had been loaded at the port of origin. Now with reference to the consignment in question, the Port Trust has given a receipt as provided for in Section 39(3). If the shipowner is bound by the contents of the bill of lading, as his bailee the Port Trust would. equally be bound. It may be that the Port Trust has not, while making the tally, verified the brands that were being unloaded. But that does not stand in the way of the ship-owner getting a discharge for the consignment under the bill of lading. It is admitted that the master of the vessel prepares a manifest, which is a list of the cargo in the vessel taken charge of from different consignors. It is intended for the customs officials and a copy is given to the port authorities. It is admitted by D.W. 1 the section master of the Port Trust, that the manifest will be available with the Port Trust, when the goods are landed. It describes the articles which are to be landed from the ship. It describes the number of bill of lading, the main mark, the number of them and the brand. The relevant manifest in this case is Exhibit B-5. It does show the description as KDK brand with PKJ marks 1 to 10. The witness would say that the goods are not tallied with reference to the manifest because of loss of time and that the manifest is consulted after a month or two for accounting purposes. He deposes further that it is not possible for the clerks to note the number and description of the goods at the time of tallying. According to him, it is not the practice to verify whether all the goods which ought to have been landed have been landed or not. Whatever the steamer agents give to them, they take.
19. As the consignee need not be there when the cargo is discharged and the duty of landing has been undertaken by the Port Trust, we shall first examine the procedure followed by the Port Trust in dealing with import cargo. D.W. 1 speaks to it in a way. Learned Counsel for the Port Trust submits that the discharge of the cargo proceeds at such fast pace that it would be practically impossible to note down the subsidiary marks. So far as the tally is concerned, the submission is that the two lists are prepared of the goods discharged, one by the representative of the master of the vessel and another by the representative of the Port Trust. It is stated that these two lists are tallied, and the respective representatives, the clerk of the Port Trust and the clerk of the steamer-agents, sign the list in acknowledgment of that correctness of the entries therein. It is admitted that this list is the receipt provided for under Section 39(3) of the Madras Port Trust Act. We are unable to accept the the tally contemplated is with a similar list of the discharge of the cargo recorded by the representative of the master. To tally is to see that two things agree or correspond, and if it is a checking it must be with something which is presumed to be correct. Chambers' Twentieth Century Dictionary describes a tally clerk as a checker of ship's cargo against a list. The Port Trust Manual of Instructions which though not on the record has been referred to without objection and is only a clearer exposition of what is deposed to by D.W. 1 gives an idea as to how tallying is carried on. As cargo is being landed, the Port Trust tally checker has to note on the document known as the tally sheet, which is the receipt prescribed by the local Government under Section 39(3) of the Act, the marks (if legible), description and condition of each package, and in the case of packages bearing numbers or several different marks, the correct number or mark must be very carefully and clearly recorded. If this is not possible, the packages should be tallied under various. Should any discrepancy as to marks or numbers of packages be detected between the tally maintained by the tally checker and the alleged contents of any boat, etc., he will immediately bring the matter to the notice of the section master or the assistant section master under whom he may be employed at the time. The steamer-agents also tally cargo as it is being landed. But this is independent of the tally taken by the trust and is in their own interests. The Manual also provides for check on tally. The section master or the assistant section master on duty should make frequent inspections to see that tally checkers are at their posts and that their tallies are useful and made independently of boat notes and of steamer agents' tallies. The tally sheet prepared by the Port Trust clerk is done in duplicate and signed by the Port Trust tally checker and the steamer agents' representative. The duplicate copy is handed over to the steamer-agents representative on the spot and this duplicate thus handed over constitutes the receipt under Section 39(3) of the Act.
20. From the above, it is clear that the tally being of the cargo landed into the custody of the Port Trust, it must contain sufficient record of the marks and description as are apparent for purposes of identification. If the Port Trust gives a receipt in a general way as in this case, for 120 cases of P.K.J. without specifying the brands which are also part of the markings of the consignment, they do so at their own risk. The consequence of the grant of the receipt under Section 39(3) is to acknowledge receipt of the cargo in question. The bill of lading is prima facie proof of the loading of the cargo and the receipt issued is the acquittance to the ship-owner of the discharge of the cargo. In Halsbury's Laws of England (Volume 35), Simonds edition) at page 456, Paragraph 645, the rule relating to sorting of different consignments is stated thus:
Where the cargo is composed of goods consigned to different consignees, it is the duty of the ship-owner to deliver to each his proper goods. Thus, where goods of the same description are shipped under different bills of lading, the ship-owner must appropriate the correct quantity to be delivered under each bill of lading; and if the various consignments are distinguished by different marks, he-must sort them accordingly.
21. Where the Port Trust undertakes the duty of getting the consignments discharged from the ship, it takes the responsibility when it gives acquittance to the ship-owner of due discharge of the cargo. That markings as regards the brand are an essential part of the description of the goods cannot be doubted. In Parsons v. New Zealand-Shipping Company L.R. (1901) 1 Q.B. 548, it is observed:
If I purchase cases of champagne identified by marks A.B.C. what answer is it when I claim my goods so marked and identified, to say that the goods tendered, which are marked XYZ are of the same value in the market, or even of greater value than those marked A.B.C.? For the above reasons I think that the marks of identification in this case were of materiality to the plaintiff, and that the tender Was not a good tender.
22. The Port Trust in this case must, on the facts found, be held to have had landed the consignment of the plaintiffs as described in the bill of lading but failed to tender the same when required by the consignee. It is needless to speculate as to what has happened to the particular goods. It maybe that negligently they had been delivered to one or other of the four other consignees. The possibility is there of the goods bearing the particular brand being landed elsewhere or over carried. But it is not open to the Port Trust to put forward any such plea. In fact, the plaintiffs had asked of the Port Trust to issue to them what is known as the B certificate, i.e. the certificate that the packages in question had not come into the custody of the Port Trust. If such a certificate had been granted to them the plaintiffs could proceed against the ship-owners or the consignors as they may be advised. On the contrary, the Port Trust issued the A certificate. The A form certificate is issued, when the goods enquired for had been traced and pointed out. The plaintiffs when enquiring specifically referred to the goods as described in their bill of lading referring to the brand KDK. Exhibit B-2 the certificate issued, clearly shows that the goods had been traced, admitting thereby that they have been landed. The Port Trust in fact addressed the steamer agents-Vide Exhibit B-3, whether they could issue the B certificate in the circumstances; but the steamer agents replied in Exhibit B-4 that they would not be agreeable to the issue of B certificate, pleading that the goods were correctly landed, obviously taking advantage of the fact that the receipt had been issued to them in respect of the consignment in question. In fact, the Port Trust authorities had subsequently sent the out-turn statement, Exhibit B-II, wherein it had been shown that ten cases covered by the bill of lading in favour of the plaintiffs under the manifest line 124 were lying with the Port Trust. In view of the issue of the A certificate, the Port Trust would be precluded from saying that the steamer agents had not landed the consignments with the particular brand.
23. The contention that there are practical difficulties in tallying goods as per the manifest or recording discharge referring in the tally sheet the marks or description of the goods as apparent on the packages is neither here nor there. The Manual contains full and complete instructions for proper tally. If, as learned Counsel states from the Bar, cases of error are few, it is well and good. But the duty of the Port Trust to see to the proper and due landing of the consignments, the consignees not being on the scene, cannot be over emphasised. The duty of the Port Trust to land goods from the steamer to verify and make a record of the goods so received with reference to the identifying marks on the goods and to deliver the goods to the consignees being clear, it must be held in this case that they have failed in their duty. If in fact the Port Trust had not taken delivery of the particular consignment, there was negligence in their preparing the tally sheet and thereby disabling themselves from issuing to the plaintiffs the B certificate. If in fact they had received the goods, they failed In not duly tendering the goods to the plaintiffs. It follows that the decree of this Court in second appeal making the Port Trust authorities liable to the plaintiffs for the value of the goods in question has to stand.
24. The appeal, therefore, fails and is dismissed with costs.