1. The plaintiffs in this case are the Hukumchand Jute Mills, Ltd., sellers of shipped goods under a special contract for sale. The first defendants are their buyers, the Anglo-Oriental Bag Co., Ltd. The second defendants are the Calcutta agents of the owners of the steamship known as the 'MARHATTA'. The third defendants are Messrs. Broekle-bank, owners of the 'MARHATTA'.
2. It is not disputed that the plaintiffs are the unpaid vendors of these goods. The 1st defendants do not contest the suit. They are said to be in insolvent circumstances. Defendants 1 and 2 put in a joint written statement. In my opinion, the decision in this case before me is concluded by the judgment of the Court of appeal in Nippon Yusen Kaisha v. Mahaliram Ranjeedas : AIR1931Cal269 . The pleadings between the parties in that case and in the case before me now were almost identical. In Nippon Yusen Kaisha v. Mahaliram Ranjeedas, Nippon Yusen Kaisha v. Mahaliram Ranjeedas : AIR1931Cal269 the Court of appeal, as I understand from their judgment, held that an unpaid vendor of goods shipped on board a steamship who holds the Mate's receipt for the said goods, with the benefit also of a charge clause in his contract of sale, has not only a right against the defaulting purchaser, but also a right in damages against the ship-owner on the basis of an action for conversion or trespass, where the shipowner refuses to re-deliver the goods in recognition of the unpaid vendor's charge, always provided that the ship-owner has notice of the said charge before delivery at the port of destination of the goods and, even if the ship-owner has issued bills of lading at the request of the purchasers in regard to the goods, which bills of lading have already been negotiated.
3. I find as a fact here that the ship-owners through their agents had due notice of the plaintiffs' charge. An attempt was made, as I understood the arguments on behalf of the ship-owners, to invoke a protective right in the property of the goods after shipment involving them in a deed of hypothecation favour of a Bank, the said deed having been executed by the purchasers, and the Bank having negotiated the bills of lading together with other documents relating to the shipment prior to the notice to the ship-owners of the unpaid vendor's charge. Such a hypothecation, in my view, would convey no better title to the mortgagee than the mortgagor possessed himself, and as to the negotiation of the documents and its legal effect, this point was never pleaded and I therefore decline to consider it. There will be therefore judgment against the first defendants for the price of the goods and in the alternative judgment in the form of damages on the same basis against the third defendants. This is the best I can do with regard to the exact nature of damages as no evidence was tendered in relation to any other damage of a special nature. This judgment carries with it costs against defendants 1 and 3. The logical effect of my judgment is that the agents of the steamship owners must be dismissed from the action and no costs can be obtained against them.