The defendant No.1, who suffered a decree along with defendant No.2, is the appellant before this Court seeking to reverse the judgment and decree rendered by the Courts below, the present Second Appeal has been filed with the following Substantial Questions of Law:
A.W hat would be the responsibility of a carrier and when does his responsibility ceases, while carrying a FCL/FCL container under shipping terms?
B.Can a carrier be held liable for the negligence of the consignee's agent while destuffing the container on the basis of a different contract made between the consignee and their agents and in which the carrier was not involved?
C.Can a carrier be held liable for damages caued to the cargo in an FCL/FCL container which occurred during de-stuffing of the container after the container was already delivered to the consignee in good order and condition and the said destuffing was done by another party on behalf of the consignee?
D.Is not a carrier discharged from all liabilities when it has delivered the FCL/FCL container as per the Bill of Lading at the discharge port without any damages and with its seals intact?
E.Can any damages which occurred due tot he negligence of the consignee's agent while destuffing a container be fastened upon a carrier?
F. Does the liability of a carrier in a FCL/FCL shipment extend beyond discharge/delivery of the stuffed and sealed container to the consignee at the discharge port/ G.Can it be said that a carrier is liable to destuff an FCL/FCL container and deliver the cargo stuffed in sch FCL/FCL container to the consignee at the discharge port?
H.Can it be said that a contract for affreightment of an FCL/FCL container prior to the shipment or after delivery of the container be fastened upon a carrier.
J.Can a party be made liable for damages to a property not in its custody and that too when the property was handled by another party?
2.The first plaintiff during the course of their business, purchased second-hand textile imported machineries from Sweden to Chennai Port through the appellant/first defendant being the Sea Carrier. The Bill of Lading dated 19.08.1995 makes a specific mention about the payment being prepaid and clean on board. It also makes a mention that any transshipment on the part of the appellant/first defendant is not permissible. The appellant instead of discharging the cargo at Chennai Port, did the same at Mumbai Port. Thereafter, through the rails it was taken to the premises of defendant No.2 for clearance and the plaintiff received the consignement in a damaged condition. Since the goods were found in a ldamaged condition and pursuant to the report of the Surveyor, the suit has been laid for damages.
3.Both the Courts below found that the appellant has acted contrary to the Bill of Lading. It is the appellant company, who engaged the service of the second defendant and thus, it is responsible. Reliance has been made on the evidence of DW1, who deposed on behalf of the appellant in this regard and the version of DW2's was also taken into consideration while granting the relief. The lower Appellate Court while finding no error in the judgment and decree rendered by the trial Court, proceeded to confirm the findings rendered and thus, dismissed the appeal. Challenging the same, the present appeal has been filed.
4.Learned counsel for the appellant would submit that as per the provisions contained under the Major Port Trust Act, 1963 and under
Section 63 of the Customs Act, 1962, the responsibility does not lie with the appellant/defendant No.1. Every activity is controlled and regulated by the Port Trust Authorities. A specific reliance has been made under
Sections 54,55,34 and
7(aa) of the Customs Act, 1962. Learned counsel for the appellant has also relied upon
Section 42 of the Major Port Trust Act, 1963 and contended that it is the Board which exercises transporting, storing or delivering goods brought within its premises. Placing reliance upon the Indian Carriage of Goods by Sea Act, 1925, it is submitted that the suit is barred by limitation.
5.Learned counsel for the respondent /plaintiffs submits that it is the case of acting contrary as found in the bill of lading dated 19.08.1995. Thus, coupled with the evidence of DW1 and DW2 would clearly show that it is the responsibility of the appellant/first defendant and therefore, the provisions of the Customs Act 1962, the Major Port Trusts Act, 1963 and the Indian Carriage of Goods by Sea Act, 1925, do not have any application.
6.Learned counsel for the second defendant would submit that they had duly complied with the decree amount.
7.A perusal of the Bill of Lading dated 19.08.1995 leaves no doubt that no transshipment is allowed. It is also not in dispute that the destination of the goods is Chennai Port Trust. Thus, for the reasons known, the appellant on its own volition, carried the goods to Mumbai Port, when the agreement no longer permits clearance by rails. The appellant/first defendant clearly admits that the discharge port is 'Chennai Port'. He has stated that as per Ex.A6-Bill of Lading, the goods are to be handed over to the plaintiff by the appellant being its duty. There is no reference that such goods can be taken to the rails. It is also acknowledged that Ex.A6 prohibits transshipment. The plaintiff has not been informed about the transport of carrying the goods from Mumbai Port to Chennai Port through rails. The entrustment with the goods by the second defendant being the agent of the first defendant is also accepted.
8.As per the above, it is clear that the defendant No.2 is acted on behalf of the defendant No.1, viz., the appellant. In other words, there is no privity of contract between the plaintiff and the second respondent. Reliance made by the learned counsel for the appellant/defendant No.1, on the Customs Act, 1962, does not help his case, as were not concerned with the authorisation qua a transhipment. On the contrary, it is a case of the violation of Terms of Contract by one party leading to a suit filed for damages based upon it. In the same way, the question of limitation would not arise. When there is no authorisation given to on the part of the appellant, the unilateral exercise undertaken and the goods being damaged, then the responsibility lies on it as rightly found by the Courts below.
9. In such view of the matter, this Court does not find any Substantial Question of Law warranting interference over the concurrent decision of the Courts below in exercising the powers conferred under Section 100 of C.P.C. Accordingly, the Second Appeal fails and the same is dismissed. No costs.