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Kassim and Ismael (India) Ltd. Vs. Great Eastern Shipping Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberSuit No. 3924 of 1953
Judge
Reported inAIR1960Cal320
AppellantKassim and Ismael (India) Ltd.
RespondentGreat Eastern Shipping Co. Ltd.
Appellant AdvocateAjit Roy Mukherji, Adv.
Respondent AdvocateS. Mukherji, Adv.
Cases ReferredKhiki Kaisha v. Bantham S. S. Co. Ltd.
Excerpt:
- .....of 24 hours, sundays and bengal chamber of commerce holidays excepted. consignee to he given 24 hours' notice of the vessel's time of arrival, whether in port or not, time to count from the expiry of the notice period or when the vessel is ready to discharge, whichever is later. if any demurrage is incurred at discharging port, consignee to pay for the same at the rate of rs. 2,000/- per running day to be paid day by day as incurred or pro rata tor any portion of a day used. despatch payable to consignee to be at the rate of rs. 1,000/- per running day saved or pro rata for portion of day. notice of readiness to discharge be served on the following party: messrs. kassim and ismael (india) ltd. 24, brabourne road, calcutta-1.' 5. the plaintiff is the endorsee of the bill of lading and.....
Judgment:

A.N. Ray, J.

1. This is a suit for the recovery of Rs. 3,122-9-3. The defendant is a carrier of goods by sea. The defendant accepted for carriage by sea under bill of lading No. 17 dated 22-11-1950, 28,710 Mds. i.e. 1,054 32/49 tons of crushed salt and agreed with the consignor of the said goods Messrs. Varasuki and Co. to carry the said goods from Tuticorin to Calcutta by S. S. Jagrani and to deliver the same to the holder of the bill of lading at Calcutta.

2. On or about 2-12-1950 the said steamer arrived at the port of Calcutta. The relevant notice of readiness for discharge of the cargo was accepted by the plaintiff at 10 a.m. on 4-12-1950 and the time for discharge commenced to count from 10 a.m. on 5-12-1950 in accordance with the aforesaid bill of lading. Under the bill of lading the time allowed to discharge 1,734 1/4 tons i.e. the total quantity of salt carried by the said vessel from Tuticorin to Calcutta, calculated at the rate of 300 tons per 2 hatches per Weather Working Day was 5 days 18 hours 44 minutes. Therefore the period allowed to discharge the cargo of 1,734 1/4 tons of salt expired at 4.44 a.m. on 12-12-1950. Out of the total cargo of 1,734 1/4 tons of salt the plaintiff was the consignee of 1,054 32/49 tons and Messrs. Satnarayan and Co. were the consignees of 679 29/49 tons of salt.

3. The discharge of the aforesaid quantity of 1,734 1/4 tons of salt was completed at 1.30 a.m. on 6-12-1950. The unloading and discharge of the said cargo was therefore completed 5 days 3 hours 14 minutes before the time allowed to discharge the cargo expired and the time saved in discharging the cargo was therefore 5 days 3 hours and 14 minutes of running days. In the circumstances a total sum. of Rs. 5,134-11-0 became due and owing by the defendant to the consignees of the said cargo viz. the plaintiff and the said Messrs. Satnarayan and Co. as and by way of dispatch money in terms of the aforesaid bill of lading.

4. The bill of lading contained inter alia the following terms :

'Consignee shall receive cargo at the minimum rate of 150 tons per hatch Weather Working Day of 24 hours, Sundays and Bengal Chamber of Commerce holidays excepted.

Consignee to he given 24 hours' notice of the vessel's time of arrival, whether in port or not, time to count from the expiry of the notice period or when the vessel is ready to discharge, whichever is later.

If any demurrage is incurred at discharging port, consignee to pay for the same at the rate of Rs. 2,000/- per running day to be paid day by day as incurred or pro rata tor any portion of a day used. Despatch payable to consignee to be at the rate of Rs. 1,000/- per running day saved or pro rata for portion of day.

Notice of readiness to discharge be served on the following party: Messrs. Kassim and Ismael (India) Ltd. 24, Brabourne Road, Calcutta-1.'

5. The plaintiff is the endorsee of the bill of lading and the holder in due course. The plaintiff was and is the owner of goods covered by the bill of lading and was and is entitled to enforce the contract contained in the said bill of lading.

6. The plaintiff states that as the consignee and the holder of the said bill of lading in respect of 1,054 32/49 tons of the said goods, the plaintiff is entitled to a sum of Rs. 3,122-9-3 from the defendant as and by way of the plaintiff's proportionate share of the said despatch money of Rs. 5,134-11-0. This is the plaintiff's case.

7. The defendant in the written statement states that the weight of salt mentioned in the bill of lading amounted to freight tons 1,025 5/14 Cwt. The defendant denies that the notice of readiness for discharge was accepted by the plaintiff at the time or on the date as alleged or that the time for discharge commenced to count from the hour or date as alleged. The notice was in fact delivered to the plaintiff at its said address on 2-12-1950, and the plaintiff commenced unloading on and from 3-12-1950. The defendant statas that the time for discharge commenced to count from 7 a.m. 4-12-1950, in accordance with the terms of the plaintiff's bill of lading and not from the hour alleged by the plaintiff.

8. The defendant further denies the validity or appropriateness of the method adopted for calculating the despatch payable to the plaintiff in respect of the consignment. The defendant states that the time allowed for discharge of the cargo ought to be calculated on the basis of its weight in freight tons and not in English tons. The weight of the total quantity of salt carried by the said vessel being freight tons 1,685 5/14 the time allowed for discharging the same at the rate of 300 tons per 2 hatches was 5 days 14 hours and 45 minutes only. The defendant states that the time allowed for discharging the cargo should have been counted from 7 a.m., 4-12-1950, and not from 10 a.m., 5-12-1950. The period allowed for discharge of the said total cargo of salt expired at 7.45 p.m. on 9-12-1950, and not at the hour or on the date as alleged. The defendant states that the plaintiff and Messrs. Satnarayan and Co. were consignees respectively of freight tons 1,025 5/14 Cwt. and 660 tons of salt.

9. The defendant states that the cargo referred to in the plaint was completely discharged at 1 a.m. on 6-12-1950 and denies that the discharge was completed 5 days 3 hours 14 minutes before time as allowed for discharge.

10. The defendant further states that neither the plaintiff nor Satnarayan and Co. is entitled to claim despatch money at the rate of Rs. 1,000/- per day as mentioned in the bill of lading. The defendant further states that the bill of lading refers to five hatches collectively and this was known to the parties to the contract of carriage as expressed in the bill of lading as well as by the plaintiff at all material times.

11. Under these circumstances the plaintiff is entitled to Rs. 920-2-0 from the defendant. The only issue framed at the trial was : 'What is the amount of despatch money due to the plaintiff?'

12. On behalf of the plaintiff there is oral testimony of Nalin Kumar Sen and of Kassim Abudullah Muhammad. Nalini Kumar Sen is a Senior Officer of India Steamship Company, He gave evidence about payment of dispatch money. He also stated that notice of readiness, had to be accepted by the parties concerned, namely, the shipper or the consignee. He said that the notice of readiness was served with copies, one copy was retained by the shipper and the other copy was given. That copy should be given with the time specified in the charterparty or under the customs of the trade and he endorsed the word 'accepted' and gave the time thereof. That constitutes the acceptance of the notice of readiness. As to office hours he staled that on week days it would be from 10 O'clock in the morning to 4.30 in the afternoon and on Saturdays 10 O'clock in the morning to 12-30 in the afternoon. He was asked whether a distinction could be made between taking delivery of the notice of readiness and accepting the notice of readiness. His answer was that it would be difficult to say. He was also asked if it was stipulated in the bill of lading that the consignee was entitled to dispatch money at the rate of Rs. 1,000/-per day and it transpired that the cargo was carried in two hatches and the ship had five hatches, what dispatch money would the consignee be entitled to. His answer was that the consignee would be paid according to the terms of the agreement. He was asked as to what method was followed in calculating dispatch money, namely, freight ton or dead weight ton and his answer was that the calculation was according to dead weight ton. He said that the freight ton was used as a unit of measurement of freight and he stated that it could be 50 Cwt. or 120 Cwt. He also stated that for all purposes apart from calculating freight English ton was used as a unit. The witness was asked if notice of readiness was given by word of mouth and the witness stated that if notice of readiness was given orally it would be followed by necessary document within the time limit. He was asked that if there were two or more consignees how would the dispatch money be paid. He stated that sometimes one consignee represented others and he would deal with the shipping company, take the money and pay the money to other consignees. He was asked if there was no such arrangement what would happen and the witness stated that different consignees concerned would settle their account separately with the shipping company.

13. Kassim Abdullah Muhammad stated that the letter dated 2-12-1950 was received at the plaintiff's office at 1.15 p.m. after office hours and he in fact got the letter on Monday morning and immediately wrote on the 4th December stating that the letter could not be accepted because it had come after office hours.

14. On behalf of the defendant Shambhu Narain Chowdhury, Officer-in-charge of Import and Export Department, gave evidence and he stated that two shipments, one of Kassim Ismail and the other of Satnarayan and Co. of salt were loaded in two hatches. He stated that the notice was sent to the plaintiff and the plaintiff received the same on 2nd December and the plaintiff commenced discharge on 3rd December. He further stated that the ratio was 28 Mds. to a ton. He stated that Rs. 1,000/- should be divided amongst the 5 hatches. He admitted that the notice of readiness or willingness alleged to be served on Satnarayan and Co. was not disclosed in the suit and he could not say as to why it was not disclosed. The witness stated that Satnarayan and Co. accepted Rs. 592-6-0.

15. As to the documentary evidence the defendants by letter dated 2-12-1950 informed the plaintiff that the vessel had arrived in the morning at No. 7 Calcutta jetty and would be ready to deliver salt overside from that evening for which the plaintiff would make necessary arrangements for discharge of salt. The plaintiff by letter dated 4-12-1950 stated that since the letter was delivered after office hours on Saturday the same could not be accepted as notice of readiness and hence the same was accepted as at 10 a.m. on 4-12-1950 and accordingly lay time commenced to count from 10 a.m. on Tuesday 5-12-1950 in terms of the charterparty. The plaintiff asked the defendant to confirm the same. There is no reply by the defendant. I cannot accept the suggestion of the defendant that the plaintiff's letter need not have been answered. Clearly there was a duty to answer the letter. On 23-12-1950 the plaintiff sent the demand letter for dispatch money calculated at Rs. 1,000/ per day. On 6-2-1951 the defendant replied to the plaintiff's letter stating that the clauses attached to the bill of lading would show that the dispatch money was payable at Rs. 200/-per hatch per day and not Rs. 1,000/- per hatch per day. The defendant on that calculation stated that the plaintiff was entitled to Rs. 920-2-0.

16. The principal question in the suit is as to what is the amount of dispatch money due to the plaintiff. Counsel for the defendant contended that the question was to be looked at from three aspects. First, how much time was allowed for discharge of cargo. Secondly, from what time and on what date and hours did time begin to run. Thirdly, at what rate should payment be made.

17. As to the first point counsel for the defendant contended that ton should mean freight ton since freight was calculated in the bill of lading on the basis of 28 maunds to a ton. The plaintiff's contention is that ton should be calculated not on the basis of tonnage calculated for freight but on the actual ratio between a ton and a maund.

18. Counsel for the plaintiff contended that for payment of freight a ton has been calculated in the bill of lading at specified number of maunds higher than the actual ratio between a ton and a maund. According to the plaintiff's contention a ton being calculated at 27.22 maunds the time allowed to the plaintiff for discharge of cargo is 5 days 18 hours 44 minutes. According to the defendant's contention the time allowed is 5 days 14 hours 45 minutes on the basis of a ton being equal to 28 maunds. The difference is 4 hours less 1 minute. In my opinion the plaintiff's contention is correct that a ton should be calculated on the basis of actual ratio between a ton and a maund and not on the basis of tonnage for purposes of freight, which is an arbitrary unit of measurement.

19. As to the question from what time and from what date and hour time will begin counsel for the defendant contended first that there was no necessity for a written notice and secondly, that time should be counted from 4-12-1950. Reliance was placed on a decision reported in Kawasaki Kisen Kabu-Khiki Kaisha v. Bantham S. S. Co. Ltd., (1938) 1 KB 805 at p. 814, and the observations in Carver on Carriage of Goods by Sea 10th Edition at page 690. I am unable to accept the contention that there was no necessity for a written notice, for the bill of lading stipulates that a notice should be given. It was also contended by the defendant that the plaintiff started discharging the consignments on the 3rd December and therefore the plaintiff could not take recourse to the notice for purposes of calculation ot time. I am of opinion that it is irrelevant whether the plaintiff commenced discharging the cargo earlier than accepting the notice. The contract between the parties is that a notice should be given and further that time should count from the expiry of the notice period or when the vessel is ready to discharge, whichever is later.

20. On a consideration of the evidence I am of the opinion that the notice though sent to the plaintiff on Saturday 2-12-1950 after 1 p.m. it was not accepted by the plaintiff till the 4th December at 10 a.m. The plaintiff wrote a letter on 4-12-1950 notifying that the notice of readiness was accepted on 4-12-1950 at 10 a.m. and therefore lay time should commence to count from 10 a.m. of 5-12-1950. The plaintiff asked the defendant to confirm the same. The defendant did not challenge or controvert the plaintiff's contention and even if the defendant did so it would not, in my opinion, have changed the position. The mere delivery of the notice at the plaintiff's office on Saturday outside the office hours does not, in my opinion, impute notice to the plaintiff. The office is closed for work after 1 p.m. oh Saturday. I, therefore, hold that the notice of readiness is accepted by the plaintiff on Monday the 4th December at 10 a.m, and that the plaintiff's contention is correct.

21. The third question is as to the rate at which the dispatch money is payable. The plaintiff's contention is that the plaintiff is entitled to be paid at the rate of Rs. 1,000/- per day. The defendant's contention is that inasmuch as the vessel had five hatches the sum of Rs. 1,000/- per day is to be split up into the number of hatches and therefore the plaintiff is entitled to be paid at the rate of Rs. 200/- per hatch per day. I am unable to accept the defendant's contention. I am of opinion that the contract clearly stipulates that the rate is Rs. 1,000/- per day. It would be making a different contract between the parties to pay Rs. 200/- per day instead of Rs. 1,000/- per day.

22. The relevant clause in the bill of lading is that if any demurrage is incurred consignees are to pay for the same at the rate of Rs. 2,000/- per running day. Similarly dispatch is payable to consignee at the rate of Rs. 1,000/- per running day. If there are a number of bills of lading each stipulating for a fixed number of lay days and a fixed sum for demurrage or each incorporating such stipulation from a charterparty can the shipowner proceed against each of the consignees or endorsees and recover the whole amount from each? The opinion of Scrutton in his book on Charterparty and Bills of Lading 16th Edition at page 375 is that if there is a separate contract expressed in each bill of lading, so many lay days for discharge and so much per day for demurrage, it is very difficult to see any escape from the liability of each and every holder or from the consignee for the whole amount. Similarly, each holder of bill of lading is entitled to the amount of the dispatch money mentioned in the bill of lading.

23. I am of opinion that the relevant clause according to its natural and normal construction is that each consignee and each holder of bill of lading is entitled to be paid Rs. 1,000/- per running day as he would have been equally liable to pay Rs. 2,000/- per running day for demurrage. I therefore hold that the plaintiff is entitled to succeed. There will be a decree in favour of the plaintiff for Rs. 3,122-9-3. Interest in judgment at 6 per cent and costs.


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