Skip to content


Nippon Yusen Kaisha Vs. Marienfels - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal438
AppellantNippon Yusen Kaisha
RespondentMarienfels
Excerpt:
- .....jurisdiction of this court, being suit no. 2 of 1932, was filed by the owners of the 'malacca maru,' claiming damages to the extent of 6000 against the owners of the 'marianfels' for damages to their vessel on the occasion of the collision referred to above. the bill was filed, as stated above, on 25th april 1.932, and the answar of the 'marienfels' wa3 filed on 15th june 1932. one of the points taken in the answer of the 'marienfels' was that suit no. 2 of 1932 filed by the 'malacca maru' was out of time, having regard to the provisions of section 8, maritime conven--tions act, 1911 (l and 2 geo. v. c. 57). the section relied upon by the 'marienfels' runs as follows:no action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage.....
Judgment:

C. C. Ghose, Ag. C. J.

1. This appeal arises out of an application made by the plaintiffs in Suit No. 2 of 1932 in the Admiralty Jurisdiction of this Court, and the facts which gave rise to that application, shortly stated, are as follows: It appears that, on 16th March 1930, two steamships, namely, the 'Marienfels,' belonging to the Hansa line, and the 'Malacca Maru,' belonging to the Nippon Yusen Kaisha, were proceeding down the Hooghly and that, at a point named Pukuria Point, where, it is alleged, that the waters are of a shallow character, a collision took place between the 'Marienfels' and the 'Malacca Maru.' The 'Marienfels' was in charge of Mr. King as pilot and the 'Malacca Maru' was in charge of another pilot named Mr. Halford. The collision having taken place on 16th March 1930, the 'Marienfels' alleged that the 'Malacca Maru' was to blame. The 'Malacca Maru,' on the other hand, alleged that the 'Marienfels' was to blame. On 7th May 1930, the owners of the 'Malacca Maru' wrote to the owners of the 'Marienfels' asking for admission of liability for damages. On 9th May 1930, the 'Marienfels' replied denying liability and holding the 'Malacca Maru' responsible for damages caused as the result of the collison. On 15th May 1930, the 'Malacca Maru' suggested that the parties should go to arbitration. On 24th May 1930, the 'Marienfels' stated that their under writers were not prepared to admit liability or to do anything whatsoever until the Marine Court; of Inquiry had been held and had reported. It appears that the Marine Court of Inquiry reported on the matter on 16th November 1930, and it is said that the finding of the Marine Court of Enquiry was not communicated to the parties till some time in June 1931. On 7th July 1931, the 'Marienfels' wrote to the 'Malacca Maru' putting forward their claim for damages to the 'Marienfels' as a result of the collision.

2. On 5th August 1931, the 'Malacca Maru' wrote to the 'Marienfels' stating that the owners of the former did not agree with the findings of the Marine Court Inquiry and suggesting a settlement on the basis that both the vessels were equally to blame and that tooth should pay their own damages. On 10th August '1931 the 'Marienfels' wrote to the 'Malacca Maru' asking for payment of their claim for damages in full. On 18th August 1931, the 'Malacca Maru' refused to admit the claim of the 'Marienfels' for damages and renewed their suggestion that, inasmuch as, in their view, both parties were equally to blame, both sides should pay their own damages. On 20th August 1931, the 'Marienfels' stated in reply to the last communication of the 'Malacca Maru,' that they were not prepared to agree to have the matter disposed of on the basis suggested by the 'Malacca Maru,' that both sides ware to blame and that both aides should pay their own damages and they threatened legal proceedings. On 24th August 1931 the 'Malacca Maru' said that they were referring to their underwriters the question raised by the 'Marienfels.' On 6th November 1931, Dr. Reinhard Reme, representing the re-insurers, wrote to the underwrites of the 'Marienfels' offering settlement but, at the same time, stating that, if the Hansa line took legal proceedings, the owners of the 'Malacca Maru' would put forward a claim for damages. On 12th November 1931, there was a very important letter from the underwriters of the 'Marienfels' to Dr. Reinhard Reme representing the reinsurers of the 'Malacca Maru' and it was in these terms:

With reference to the above, I herewith confirm, with thanks, receipt of your letter of 6th instant. I note from your letter that the insurers of the 'Malacca Maru' did not see their way to accept the offer of compromise made by us. I have informed the Deutsche Dampfschiffa hrts-gesellschaft 'Hansa' of this, who have then given instructions to institute legal proceedings in Calcutta immediately. I thought it appropriate to advise you of this.

3. It appears that nothing further was done and that, ultimately, on 12th March 1932, a bill in the Admiralty Jurisdiction of this Court was filed by the owners of the 'Marienfels,' being Admiralty Suit No. 1 of 1932, in which the owners of the 'Marienfels' claimad recovery of a sum of Rs. 64,870-1-11 as damages caused to the 'Marienfels' by the 'Malacca Maru' during the collision in the river Hoogbly on the data referred to above. The writ of summons, we are informed, was served some time about 23rd March 1932, and thereafter, on 25th April 1932, a second bill in the Admiralty Jurisdiction of this Court, being Suit No. 2 of 1932, was filed by the owners of the 'Malacca Maru,' claiming damages to the extent of 6000 against the owners of the 'Marianfels' for damages to their vessel on the occasion of the collision referred to above. The bill was filed, as stated above, on 25th April 1.932, and the answar of the 'Marienfels' wa3 filed on 15th June 1932. One of the points taken in the answer of the 'Marienfels' was that Suit No. 2 of 1932 filed by the 'Malacca Maru' was out of time, having regard to the provisions of Section 8, Maritime Conven--tions Act, 1911 (l and 2 Geo. V. C. 57). The section relied upon by the 'Marienfels' runs as follows:

No action shall be maintainable to enforce any claim or lien against a vessel or her owners in respect of any damage or loss to another vessel, her cargo or freight, or any property on board her, or damages for loss of life or personal injuries suffered by any person on board her, caused by the fault of the former vessel, whether such vessel be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused or the salvage services were rendered, and an action shall not be maintainable under this Act to enforce any contribution in respect of an overpaid proportion of any damages for loss of life or personal injuries unless proceedings therein are commenced within one year from the date of payment: Provided that any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of Court, extend any such period to such extent and on such conditions as it thinks fit, and shall, if satisfied that there has not during such period been any reasonable opportunity of arresting the defendant vessel within the jurisdiction of the Court, or within the territorial waters of the country to which the plaintiff's ship belongs or in which the plaintiff resides or has his principal place of business, extend any such period to an extent sufficient to give such reasonable opportunity.

4. Thereafter the answer of the 'Marien-fels,' having been filed on the 15th June 1932, a summons was taken out by the 'Malacca Mara,' dated 28th July 1932, giving notice of an application to be brought on Friday, 29th July 1932, on the part of the Nippon Yusen Kaisha for an order that

this Court may be pleased to give them leave in accordance with the provisions of Section 8, Maritime Conventions Act, 1911 to maintain the suit herein by extending the time for the filing of the said suit until some date after the filing of the plaint herein.

5. It appears that, although summons had been taken out on 28th July 1932, the matter, apparently, was not brought on for decision before the learned Judge on the Original Side till 5th December 1932. Lort-Williams, J., who heard the application, went into the matter of the correspondence which had preceded the filing of the said Suit No. 1 of 1932 and finally came to the conclusion that, in the circumstances disclosed, no case had been made out for exercising the discretion referred to in Section 8, Maritime Conventions Act, 1911, in favour of the applicants, the Nippon Yusen Kaisha, and he thereupon dismissed the application. The present appeal is from that order.

6. Before I go into the facts and dispose of this appeal, it may be desirable, at the outset, to state that according to the law, as settled in England, the Court of appeal will not interfere with the Judge's discretion except upon very Strong grounds. Where the Judge has proceeded upon no incorrect principle, the Court of appeal will not and ought: not to interfere with his discretion. See in this connexion The Kashmir (1923) P 85: To the same effect is the decision of Lord Sumner in the case of James Wes-toll (1923) P 94(n), decided on 31st October 1913. Bearing these principles in mind, we have got to consider in this case whether the discretion vested in the learned Judge by the proviso to Section 8, Maritime. Conventions Act, 1911, has been exercised on correct principles and whether there is any justification whatsoever for the Nippon Yusen Kaisha coming to this Court and asking that that discretion should be reviewed and that time should; be extended in the circumstances which have happened. I have set out briefly -almost too briefly-the effect of the correspondence between the parties subsequent to 16th March 1930, when the collision in question took place. It is said that considerable time was wasted by reason of the report of the Marine Court of Inquiry being not made till some time in December 1930, and by the finding of the Marine Court of Inquiry being not made available to the parties-till some time in June 1931.

7. It is well known that the Marine Court of Inquiry is only concerned with the question, whenever there is a case of collision, as to which of the two pilots in charge of the two ships, between which the collision takes place, is to blame. But, be that as it may, there was plenty of time between June 1931 and 15th March 1932, when the time expired according to Section 8, Maritime Conventions Act, 1911, for the Nippon Yusen Kaisha to come to a conclusion, one way or the other, as to whether they should prosecute their claim for damages by filing a suit or bill in the Admiralty Jurisdiction of this Court. It is said however that correspondence went on down to November 1931, and that, in view of that correspondence, it was not considered wise or desirable on behalf of the Nippon Yusen Kaisha to start legal proceedings. Assuming that time was consumed till 12th November 1931, but not admitting that time was profitably consumed, there was plenty of time from 12th November 1931 to 15th March 1932 for the Nippon Yusen Kaisha to put a plaint on the file in the Admiralty Jurisdiction of this Court. It is alleged however that the 'Marien-fels' had tricked the 'Malacca Maru' and the position ultimately in which the 'Malacca Maru' found herself in was that time had expired and they had to come to this Court for extension of time. I regret the observation that the 'Marienfels' had done anything in the nature of a trick. As far as I can see from the correspondence, they had all along repudiated their liability for damages to the 'Malacca Maru,' they had insisted consistently that damages had ensued to the 'Marienfels' by reason of negligent navigation on the part of the 'Malacca Maru'; and that they were taking steps to enforce their claim for damages. The 'Marienfels' had further refused to recognize the justice of any claim to go to arbitration, such as was put forward on behalf of the 'Malacca Maru,' or the justice of the claim put forward on behalf of the 'Malacca Maru' that both sides should be agreeable to dispose of the matter on the basis that both sides were to blame and that both sides should pay their respective damages.

8. The 'Marienfels,' having taken up this attitude consistently, a final intimation was given by the underwriter of the 'Marienfels' that nothing could be done in the matter of adjusting the differences that had arisen between the owners of the two steamships and that the 'Marienfels' were about to take legal proceedings immediately. Now, the word 'immediately' must be considered having regard to the date of the letter and the date of the letter was 12th November 1931. It is further alleged that, although they had said they were going to take legal proceedings immediately, they waited till 12th March 1932, in order to put their plaint on the file. It is impossible to allow the Nippon Yusen Kaisha to make a virtue of the time taken by the 'Marienfels' to put their plaint on the file on 12th March 1932. Supposing the 'Marienfels' had not put in their plaint, then the result either would have been that the 'Malacca Maru' would have to come to Court within the time limited by Section 8, Maritime Conventions Act, 1911, or to waive giving effect altogether to their claim for damages against the Marienfels.'. But it is impossible to allow negligent plaintiffs to turn round and say that, inasmuch as the defendants have been late in coming to Court, although within the statutory period of limitation, extension of time should be allowed to them, namely, to the negligent plaintiffs, in order that they may prosecute their; claim whatsoever. No doubt the widest; discretion has been given to the Court in applications for extension of time under Section 8, Maritime Conventions Act, 1911, but I am not satisfied that the learned Judge on the Original Side has exercised his discretion on wrong principles; nor am I satisfied that the merits of the case are such that we ought to consider it our bounden duty to review the discretion exercised by the learned Judge and come to a different conclusion. It is said further that no prejudice will be caused to the defendants. That is an argument which is always put forward on behalf of a negligent plaintiff whenever there is any application for extension of time either under the provisions of the Indian Limitation Act or under any other statute of limitation. The four months' delay from 12th November 1931 is just as good as four years' delay and there is a very high authority in support of the statement which I have just made.

9. In this view of the matter, taking, into consideration all the circumstances, we do not think there is any substance whatsoever in this present appeal and as such it must be dismissed with costs.

Mallik, J.

10. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //