# THE EAST AND WEST STEAMSHIP COMP ANY, GEORGE TOWN, MADRAS v. S. K. RAMALINGAM CHETTIAR

- **Citation:** [1960] 3 S.C.R. 820
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 88 of 1956
- **Bench:** P. B. Gajendragadkar, Ic N. W Anchoo, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-east-and-west-steamship-comp-any-george-town-madras-v-s-k-ramalingam-1899
- **Pages:** 22

## Headnote

Carrier of goods by sea-Loss or damage, meanmg of-Liability
of carrier-Delivery of goods-Time for-The Indian Carriage of
Goods Act, r925 (XXVI of r925), Schedule, Art III, para: 6, cl. 3.
The appellant in the first case (C. A. No. 88/56) and the respondents in the other two cases (C. As. Nos. gr & 92 of 1958)
were shipping companies carrying goods by sea from one port to
another. They carried goods of the opposite parties by ships to
their places of destination but failed to deliver the whole of the
goods consigned. In the suits brought by the owners of the
goods for compensation the main question related to the interpretatibn of the 3rd clause of para. 6 of Art. III in the Schedule
to the Indian Carriage of Goods by Sea Act, 1925 (XXVI of 1925)
which runs thus:-
"In any event the carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is
brought within one year after the delivery of the goods or the
date when the goods should have been delivered ".
In the first case the Madras High Court expressed the opinion
that the above clause did not provide for the extinction of the
consignor's right to claim compensation but merely prescribed a
rule of limitation. It also held that the term in the bill of Jading
requiring that the claim for compensation should be made within
one month from the date of arrival of the vessel was repugnant
to Rule 8 to Art. III of the Schedule and was void. The Bombay
High Court held that Art. III(6) dealt with all cases of loss or
damage whether the loss or damage was caused by the deterioration of the goods or by their non-.delivery and further that the
words " the loss or damage " included any loss or damage caused
to the consignee in respect of his claim for compensation from the
shipping company. It also held that the goods should have been
delivered as soon as they were landed.
On appeal by special
leave:
Held, that the word "loss" in cl. 3, para. 6 of Art. III in
the schedule to the Indian Carriage of Goods Act, 1925, meant
and included any loss caused to a shipper or consignee by reason
of the inability of the ship or the carrier to deliver part or whole
of the goods, to whatever reason such failure might be due.
Spens and another v. The Union Marine Insurance Co. Ltd.,
3 Common Pleas 427, .\iistinguished.
·•
--
3 S.C.R.
SUPREME COURT REPORTS
821
Sandeman & Sons v. Tyzack and Brllnfoot Steamship Co. Ltd.,
[1913] A. C. 680, referred to.
The words "discharged from liability" were intended to
mean and did mean that the liability had totally disappeared and
not only that the remedy as regards the liability had disappeared.
The date when the goods should have been delivered for the
purpose of cl. 3, para. 6 of Art. III of the Act was the date
when the ship by which the gooas were carried left the port of
delivery.
The stipulation in the bill of lading requiring claim for
compensation being made within one month from the date of
arrival of the ship was null and void.

## Text

_Characters 0–39,564 of 49,797. This is a partial read: ask again with offset=39564 for what follows._

May 3.
820
SUPREME COURT REPORTS
[1960]
THE EAST AND WEST STEAMSHIP COMP ANY,
GEORGE TOWN, MADRAS
v.
S. K. RAMALINGAM CHETTIAR.
(And connected appeal)
( P. B. GAJENDRAGADKAR, IC N. W ANCHOO and
K. c. DAS GUPTA, JJ.)
Carrier of goods by sea-Loss or damage, meanmg of-Liability
of carrier-Delivery of goods-Time for-The Indian Carriage of
Goods Act, r925 (XXVI of r925), Schedule, Art III, para: 6, cl. 3.
The appellant in the first case (C. A. No. 88/56) and the respondents in the other two cases (C. As. Nos. gr & 92 of 1958)
were shipping companies carrying goods by sea from one port to
another. They carried goods of the opposite parties by ships to
their places of destination but failed to deliver the whole of the
goods consigned. In the suits brought by the owners of the
goods for compensation the main question related to the interpretatibn of the 3rd clause of para. 6 of Art. III in the Schedule
to the Indian Carriage of Goods by Sea Act, 1925 (XXVI of 1925)
which runs thus:-
"In any event the carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is
brought within one year after the delivery of the goods or the
date when the goods should have been delivered ".
In the first case the Madras High Court expressed the opinion
that the above clause did not provide for the extinction of the
consignor's right to claim compensation but merely prescribed a
rule of limitation. It also held that the term in the bill of Jading
requiring that the claim for compensation should be made within
one month from the date of arrival of the vessel was repugnant
to Rule 8 to Art. III of the Schedule and was void. The Bombay
High Court held that Art. III(6) dealt with all cases of loss or
damage whether the loss or damage was caused by the deterioration of the goods or by their non-.delivery and further that the
words " the loss or damage " included any loss or damage caused
to the consignee in respect of his claim for compensation from the
shipping company. It also held that the goods should have been
delivered as soon as they were landed.
On appeal by special
leave:
Held, that the word "loss" in cl. 3, para. 6 of Art. III in
the schedule to the Indian Carriage of Goods Act, 1925, meant
and included any loss caused to a shipper or consignee by reason
of the inability of the ship or the carrier to deliver part or whole
of the goods, to whatever reason such failure might be due.
Spens and another v. The Union Marine Insurance Co. Ltd.,
3 Common Pleas 427, .\iistinguished.
·•
--
3 S.C.R.
SUPREME COURT REPORTS
821
Sandeman & Sons v. Tyzack and Brllnfoot Steamship Co. Ltd.,
[1913] A. C. 680, referred to.
The words "discharged from liability" were intended to
mean and did mean that the liability had totally disappeared and
not only that the remedy as regards the liability had disappeared.
The date when the goods should have been delivered for the
purpose of cl. 3, para. 6 of Art. III of the Act was the date
when the ship by which the gooas were carried left the port of
delivery.
The stipulation in the bill of lading requiring claim for
compensation being made within one month from the date of
arrival of the ship was null and void.
CIVIL APPELLATE JURISDICTION:
Civil
Appeal
No. 88 of 1956.
Appeal by special leave from the judgment and
decree dated February 11, 1954, of the Madras High
Court in Civil Revision Petition No. 921 of 1952,
arising out of the judgment and decree dated November 2, 1951, of the Court of Small Causes, Madras, in
Suit No. 4076 of 1950 (N. T. A. No. 113 of 1951).
With
Civil Appeals Nos. 91 and 92 of 1958.
Appeals by special leave from the judgment and
decree dated March 10, 1955, of the Bombay High
Court in Appeals Nos. 66/X and 67/X of 1954, arising
out of the judgment and decree dated February 15,
1954, of the said High Court in Suits Nos. 1693 of
1949 and 105 of 1950, respectively.
B. Sen, S. N. Mukherjee and B. N. Ghosh, for the
appellant (in C. A. No. 88 of 1956).
C.R. Pattabhiraman and Ganapathy Iyer, for respondent (in C. A. No. 88 of 1956).
C. K. Daphtary, Solicitor-General of India, S. N.
Andley, J.B. Dadachanji and Rameshwar Nath; for the
appellants (In C. As. Nos. 91 and 92 of 1958).
G.
Gopalakrishnan, for the respondent (In C. A.
No. 91/58).
A. V. Viswanatha Sastri and G. Gopalakrishnan, for
the respondent (In C. A. No. 92 of 58).
1960. May 3. The Judgment of the Court was
delivered by
107
Ea•I <!> WeS't
S~eamship Co.
v.
Ramglin gam
Ch~tt1a•
z960
East & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
822
SUPREME COURT REPORTS
[1960]
. Das Gl'PTA·, J.-These three appeals-Civil Appeal
No. 88of1956, Civ;J Appeal No. 91of1958 and Civil
Appeal No. 92of1958, of which one is from a decision
of the High Court of Madras and the other two from
decisions of the High Court of Bombay raise sori1e
common questions of general importance to carriers
of goods by sea and of shippers as regards tbe 3rd
clause of paragraph 6 of Art. III in the Schedule of
the Carriage of Goods by Sea Act (hereinafter called
"the Act"). T.his clause provides that "in any event
the carrier and the shipper shall be discharged from
all liability in respect of loss or damage unless a suit
is brought within one year after the delivery of the
goods or the date when the goods should have been
delivered". In all the three appeals before us the
carriers' main defence to claims of compensation by
the owners of the goods was based on this clause and
the courts had to consider whether this defence was
available to the carrier.
The appeal from the Madras High Court was in
respect of a consignment of 90 bundles of brass circles
which were consigned to the respondent at Madras
from Bombay to Madras per S. S. Fakira, a Steamer
belonging to the East and West Steamship Co. The
Ship arrived in Madras on August 1, 1948, and 78 out
of the 90 bundles were delivered on August 25, 1948,
to the appellant through his clearing agent, the second
respondent. Five more bundles were delivered on
September 25, 1948.
After some correspondence between the Shipping Company and the first respondent
regarding the seven bundles not delivered the appellant company repudiated finally the respondent's claim
on March 24, 1950. The first respondent brought the
present suit on June 27, 1950, claiming Rs. 1,023-5-0 as
compensation-Rs. 974-13-0 for the value of the
undelivered goods and Rs. 48-8-0 as the profit of which
he had been deprived. The claim for this amount of
profit was given up at the Trial. The appellant's
defence was: (1) that the suit having been filed beyond
the period prescribed in cl. 6 of Art. 3 of the Act ;
(2) that the suit was also barred as no claim had been
made within the period of one month from the date of
'
...
•
3 S.C.R.
SUPREME COURT REPORTS
823
arrival of the vessel as stipulated in the bill of lading
and (3) that the goods were insufficiently packed and
therefore carrier was not liable for the alleged loss.
The learned Judge of the Small Causes Court who
tried the suit as also the Judge who heard the matter
on a new trial application held that the plaintiff's right
to claim compensation was extinguished before the
date of the suit.
As regards the second defence based on the stipulation in the bill of lading that notice has to be given
within one month the Trial Court held that this term
in the bill of lading was void and of no effect. The
learned Judges who heard the new trial application
disagreed with this and accepted the defence on this
point also. In the result they dismissed the new trial
application and confirmed the order of dismissal made
by the learned Trial ,Judge. Against this order the
High Court of Madras was moved by the plaintiffs
under s. 115 of the Code of Civil Procedure. The
learned Judge held that the term in the bill of lading
as regards one month's notice was repugnant to Rule 8
to Art. III of the Schedule to the Act and was void. He
was also of opinion that the date.of the final repudiation of liability by the Shipping Company as regards the
short delivery or non-delivery is the date "when the
goods should have been delivered" within the meaning
of the 3rd clause of the 6th paragraph of Art. III and
so whether this clause provided for extinction of a
right or only prescribed a rule oflimitation, the defence
based on this clause of the Act could not succeed.
He
expressed his own opinion, however, that this clause
did not provide for extinction of the right but merely
prescribed a rule of limitation. In view of his conclusions he set aside the decision of the lower courts and
remanded the suit for further disposal to the trial
court. After remand the trial court on May 4, 1954,
decreed the suit for a sum of Rs. 974-13-0.
Against
that decree no steps were taken by the Shipping Company. It was after that date that the Shipping
Company applied for and obtained from this Court
special leave to appeal on October 11, 1954. It has to
be noticed that as the decree made in the suit has
become final and unassailable, this appeal is really vf
East & West·
Steamship Co.
\(,
Ramalingam
Chettiar
Das Gupta].:
l?ast & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
824
SUPREME COURT REPORTS
[1960]
academic interest. In view however of the fact that
the main question of law raised, viz., as regards the
scope and interpretation of the 3rd Clause of para. 6 of
Art. III of the Schedule to the Act is being raised
before us in the other two appeals from the Bombay
High Court also we have heard the counsel for both
sides in this appeal in full.
Of the two appeals from Bombay-the one Civil
Appeal No. 92 of 1958 is in respect of some consignments at Bombay by S. S. Tweedsmuir Park, S. S.
Finnamore Hill and S. S. Ismalia-all vessels belonging to the first defendant, the British India Steam
Navigation Company Ltd.
S. S. Tweedsmuir and
S. S. Finnamore Hill arrived in the port of Bombay
on or about September 10, 1948, and steamer Ismalia
arrived in Bombay on September 6, 1948. The vessels
discharged their cargoes alongside on to the docks
belonging to the Trustees of the Port of Bombay. The
plaintiffs took delivery of the goods packed in bags
which bore their distinctive and identifying marks,
but were unable to obtain delivery of 164 bags out of
the consignment sent by Ismalia, 869 bags out of the
consignment sent by Finnamore and 1,657 bags out of
the consignment sent by Tweedsmuir Park. The suit
was brought on a claim of Rs. 1,10,323·8-0 as compensation for the bags not delivered. The Trustees of the
Port of Bombay were also made defendants. We are
no longer concerned with them as after the suit was
dismissed by the Trial Judge against both the defendants the plaintiffs did not prefer any appeal against
the order of dismissal as against the Trustees.
The main defence of the first defendant, the Shipping
Company, was that the company was discharged from
all liability in ,respect of the loss or damage alleged in
the plaint by reason of the provisions of the Act inasmuch as the suit had not been brought within one
year of the date ''when the goods should have been
delivered". Another defence was that the company was
not liable as no notice within 3 days after discharge
and before goods were removed from the quay or
ship's side or place of discharge had been given and so
in view of Clause 20 of the bill of lading the company
w<i.s free from all liability. The trial judge held that
-
,.._;-
-
•
3 S.C.R. SUPREME COURT REPORTS
825
in view of the fact that S.S. Finnamore Hill completed
discharging her cargo on 19th September, 1948, S.S.
Ismalia completed discharging her cargo on 25th
September, 1948, and S.S. Tweedsmuir Park completed
discharging her cargo on 2.7th September, 1948, the
suit was clearly not brought " within one year" from
the date" when the goods should have been delivered".
He held therefore that the defendants were discharged
from all liability by reason of the provisions of the
Act.
Accordingly he dismissed the suit. In appeal
from this order of dismissal the plaintiffs contended
that Art. III (6) did not deal with cases of loss or
damage arising from non-delivery of goods ; in the
alternative it was contended that the expression " loss
or damage " in Art. III (6) must be limited to the loss
or damage to the goods themselves and if the goods
have not been lost this clause had no application. The
learned judges of the High Court rejected both these
contentions. They were of opinion that Art. III (6)
deals with all cases of loss or damage whether the
loss or damage is caused by the deterioration of the
goods or is caused by the non-delivery of the goods
and further that " the loss or damage" as used was
used by the Legislature to include any loss or damage
caused to shipper or consignee in respect of which he
claims compensation from the shipping company. The
learned judges also held that so far as the shipping
company was concerned the delivery of goods is given
or ought to be given as .soon as the goods are landed
and therefore in this case the goods with regard to
the three ships having been cleared on September 19,
1948, September 25, 1948, and September 27, 1948,
respectively. These were the dates on which the goods
"should have been delivered" for the purposes of the
application of the 3rd clause of paragraph 6 of Art. III.
Accordingly agreeing with the Trial Judge that the
liability of the shipping company was discharged and
the suit was not maintainable they dismissed the
appeal.
The other appeal from the Bombay High Court;
viz., Civil Appeal No. 91 of 1958 is in respect of a
consignment of 6,000 bags of cocoanut from Cochin
and 4,733 bags of copra and cocoa.nuts from Badagara
IQ60
East & West
Steamship Co.
v.
RamalintJam
Chettiar
Das Gupta].
East & West
Steamship Co.
v.
Ramalingam
Cheftiar
Das Gupta].
826
SUPl'tEME COURT REPORTS
[1960]
consigned to the plaintiffs for carriage to Bombay by
the steamer "Bharatjal" belonging to the appellant,
the Bharat Lines Ltd. The steamer arrived in Bombay
Port some time in the middle of September, 1948. The
plaintiffs however failed to obtain delivery of 596 bags
from the Badagara consignment and 470 bags from
the Cochin consignment. They brought the suit on
December 5, 1949, against the shipping company, the
Bharat Lines Ltd., and also against the Trustees of
the Port of Bombay on a claim of Rs. 1,05,726-1-6 on
which Rs. 45,725-7-5 appear to have been claimed as
compensation in respect of the bags not delivered and
the remainder as compensation for damage to the goods
in the bags of which delivery was taken.
We are no
longer concerned with the second defendant, the Trustees of the Port of Bombay, as after the suit was dismissed by the Trial Court the plaintiffs did not pursue
the claim against them.
The main defence of the first defendant, the shipping
company, was that the suit was barred "by reason of
the Indian Carriage of Goods by Sea Act". It was
also urged that the suit was not maintainable as under
the terms of the bill of lading the plaintiffs were
.bound to notify· to the defendants their .ilaim in writing about the alleged non-delivery within one month
from the date of the arrival of the vessel which the
plaintiffs had failed to do. It appears to have been
conceded before the Trial Judge in the Bombay High
Court that the suit had not been filed within one year
after the delivery of the goods or the date on which
the goods should have been delivered. The plaintiffs'
counsel also appears to have conceded that cl. 6 of
Art. III applied to the case. The learned Judge therefore held that the first defendant had been discharged
from all liability in respect of the loss or damage
alleged in the plaint and dismissed the suit. It appears
however that in the appeal from this order of dismissal .the plaintiffs urged that Art. III (6) of the Act did
not apply to the facts of the case and also the date on
which the ·goods should have been delivered should be
construed to mean the date "when the loss was finally
ascertained " and the shipping company was in a
position to finally declare that they were or were not
--
'
3 S.C.R. SUPREME COURT REPORTS
827
in a position to deliver the goods in question.
In
dismissing the appeal the learned judges of the High
Court who heard the appeal did not give any separate
reasons but stated that the appeal was being dismissed
on the same ground as given in their judgment in
Appeal No. 66 of 1954. This is the judgment from
which Civil Appeal No. 92 of 1958 of this Court bas
been preferred.
From what has been said above it is clear as we
have already indicated that the main questions in this
appeal are as regards the interpretation of the 3rd
Clause of paragraph 6 of Art. Ill in the .Schedule to
the Act.
The first and the most important of these questions
is as regards the meaning of the word "loss" as used
in the said clause.
Does it mean only such loss as
occurs when one says "the goods have been lost" or
does it include also such loss as is sustained by the
owners of the goods-whether the shipper or the consignee-when the carrier fails to deliver the whole or
part of the cargo shipped? The second question that
arises for consideration is whether this clause only
prescribes a rule of limitation or also provides for the
extinction of the right to compensation after a certain
period of time.
The next question is as regards
the ascertainment of the date on which the goods not
delivered "should have been delivered" for the purposes of this clause.
Apart from these questions as
regards the interpretation of the 3rd clause of paragraph 6 of Art. III, it will be necessary to consider
also whether the requirement in the bill of lading as
regards the time within which the notice of claim
"must be made in order that the carrier may be responsible is void as being against the 8th paragraph of
Art. III.
·
As has been mentioned in the preamable to the Act
it was passed to give effect to the recommendation of
the International Conference of Maritime Law at
Brussels in October, 1922. The circumstances which
led to the holding of the conference and were responsible for the recommendations have been stated by
Scrutton on Charter Parties, 15th Edition, at p. 439, in
these words:-
•
East & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
East&.· West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
828
SUPREME COURT REPORT~
[l!l60)
"In recent years, as the terms of bills of lading
became more diverse, the need for standardisation
became more and more insistent and an increasing
demand was made on the part of importers and exporters for the imposition by legislation, on the
lines of the American Harter Act or the Australian
Sea Carriage of Goods Act, 1904, or the Canadian
Water Carriage of Goods Act, 1910, of certain minimum liabilities on sea-carriers who issued bills of
lading."
x
x
x
" The movement in favour of legislation finally
resulted in the decision of the delegates at the Diplomatic Conference on Maritime Law held at Brussels in October, 1922, to recommend to their respective Governments the adoption of the Hague Rules
i:.-_
with slight modifications as a basis of legislation."
Jt is this recommenda.tion which has been referred
to in the preamble to the Indian Act. It is important
to mention that apart from our own country, U. K.,
Australia, Canada, Ceylon, Newfoundland, New Zealand as well as Belgium, France and U. S. A. have
given statutory effect-wholly or partially to the Hague
l{ules. This international character of the provisions
'
of law as incorporated in the articles to the schedule
to the Act makes it incumbent upon us to pay more
than usual attention to the normal grammatical sense
of the words and to guard ourselves against being
influenced by similar words in other acts of our
Legislature.
It is helpful to remember in this connection the
caution uttered by Lord Atkin in Stag Line Ltd. v.
<
Foscold (1) about the importance of giving words in
these rules their plain meaning, and not to colour one's
interpretation by considering whether a meaning
otherwise plain should be avoided if it alters the previous law. After stating that this caution would be well
founded if the Act merely purported to codify the
law, he went on to observe:-
·I"""
" But if this is the canon of construction in
regard to a codifying Act, still more does it apply
to an Act like the present which is not intended
•
(t) [1932] A.C. 328,
--
-
3 S.C.R. SUPREME COURT REPORTS
8!W
to codify the English law, but is the result (as expressed in the Act) of an international conference
intended to unify certain rules relating to bills of
lading.
It will be remembered that the Act only
applies to contracts of carriage of goods outwards
from ports of the United Kingdom; and the rules
will often have to be interpreted in the courts of the
foreign consignees. For the purpose of uniformity
it is therefore important that the courts should apply
themselves to the consideration only of the words
used without any predilection for the former law ... ".
The House of Lords was in that case interpreting
certain provisions of the English Carriage of Goods by
Sea Act, 1924. Our own Act applies to contracts of
carriage of goods outwards from the ports of India.
Section 2 states that the rules set out in the Schedule
8hall have effect in relation to and in connection with
the carriage of goods by sea in ships carrying goods
from any port in India to any other port whether in
or outside India. Though in the appeals before us we
are concerned with only contracts of carriage of goods
from -0ne Indian port to another Indian port, it is
necessary to remember that these rules will often have
to be interpreted in the courts of the foreign consignees. That is an additional reason why we should
be careful not to attach to the words used in the rules
set out in the Schedule to the Act anything more or
less than their normal meaning consistent with the
context in which they appear and consistent with the
scheme of the legislation.
Art. III of the Schedule with which we are specially
concerned in the present case purports to mention the
responsibilities and liabilities of the carriers. The first
paragraph lays down the responsibilities and liabilities
of the carrier in the matter of making ships seaworthy,
properly manning, equipping and supplying the ship
and making the holds and the different parts of the ship
where goods are carried fit and safe for their reception,
carriage and preservation. The second paragraph
places on the carrier the duty of properly and carefully
loading, handling, stowing, carrying, keeping, caring
for and discharging the goods, subject to Art. IV. The
3rd paragraph provides for the issue of a bill of la,ding
~oS
1960
East & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
I960
East & West
Steamship Co.
v.
Ramalingam
Ckettiat'
Dus Gupta].
830
SUPREME COURT REPORTS
[1960]
to the shipper of the goods showing among other
things the identifying marks, the number of packages
or pieces or the quantity or weight as also the apparent
order and condition of the goods.
Paragraph 4 provides that the bill oflading shall be the prima facie
evidence of the receipt by the carrier of the goods as
described in accordance with paragraph 3.
The fifth
paragraph provides that the shipper shall be deemed
to have guaranteed to the carrier the accuracy as
regards the details of marks, number, quantity and
weight as furnished by him. It provides further that
the shipper shall indemnify the carrier against all loss,
damages and expenses arising or resulting from such
inaccuracies. Then comes paragraph 6, the whole of
which it is proper to set out :-
" Unless notice of loss or damage and the general
nature of such loss or damage be given in writing to
the carrier or his agent at the port of discharge
before or at the time of the removal of the goods
into the custody of the person entitled to delivery
thereof under the contract of carriage, or if the loss
or damage be not apparent, within three days, such
removal shall be prima facie evidence of the delivery
by the carrier of the goods as described in the bill
of lading. "
"The notice in writing need not be given if the
state of the goods has at the time of their receipt
been the subject of joint survey or inspection. "
"In any event the carrier and the ship shall be
discharged from all liability in respect of loss or
damage unless suit is brought within one year after
the delivery of the goods or the date when the goods
should have been delivered."
"In the case of any actual or apprehended loss or
damage, the carrier and the receiver shall give all
reasonable facilities to each other for inspecting and
tallying the goods. "
The seventh paragraph contains provisions as
regards issue of a shipped bill oflading.
The eighth paragraph is in these words:-
" Any clause, covenant or agreement in a contract
of carriage relieving the carrier or the ship from
liability for loss or damage to or in connection with
,.......,..,
3 S.C.R.
SUPREME COURT REPORTS
831
goods arising from negligence, fault or failure in the
duties and obligations provided in this article or
lessening such liability otherwise than as provided
in these Rules, shall be null and void and of no
effect.
A benefit of insurance or similar clause shall be
deemed to be a clause relieving the carrier from
liability."
It has to be noticed that before providing in the 6th
paragraph an immunity to the carrier from "all liability in respect of loss or damage" in certain circumstances the Legislature had in the earlier paragraphs
laid on the carrier· the duty of making the ships seaworthy, properly manning, equipping and supplying
the ship, and making the holds and.all other parts of the
ship fit and safe for the reception, carriage and preservation of the goods; properly and carefully loading,
handling, stowing, carrying, keeping and caring for
and discharging the goods carried and provided that
ordinarily the bill of lading should show the . quantity
or weight of the goods or the number of packages or
pieces. "Loss or damage" which paragraph 6 speaks
of should therefore reasonably be taken to have reference to such loss or damage which may result from
the carrier not performing some or all of the duties
which had been mentioned earlier. One of those
duties is to discharge the goods carried in accordance
with the quantity or weight or the number of packages
or pieces as mentioned in the bill of lading. The
shipper and the consignee of goods are more concerned
with the duty of the carrier to discharge the goods in
proper order and condition and in full than anything
else. Indeed the other duties cast on the carriers so
far as the owners of the goods are concerned, are
really incidental to this duty of discharging the goods
in full and in good order and condition. When in
the context of the previous paragraphs of Art. III
the 6th paragraph seeks to provide an immunity to
the carrier "from all liability in respect of loss or
damage " after a certain time,· it is reasonable to
think that it is loss or damage to the owner of the
goods, be he shipper or the consignee, which is also
meant, in addition to the " loss of the goods ", When
East & West
Steamship Co.
v.
Ramalingain
Chettiar
Das Gupta J.
East & West
Steamship Co.
v.
Ramalingam
Chettiaf'
Das Gupta j.
832
SUPREME COURT REPORTS
[1960)
the goods themselves are lost, e.g., by being jettisoned,
or by being destroyed by fire or by theft, there will be
failure to discharge the goods in full and loss to the
owner of the goods will occur.
Even where the goods
are not lost the carrier may fail to discharge the goods
in full or not in proper order and there also loss will
occur to the owner of the goods. In such a case, even
though there may not have been "loss of the goods"
the goods are lost to the owner. The word "loss" as
used in paragraph 6 is in our opinion intended to mean
and include every kind of loss to the owner of the
goods-whether it is the whole of the consignment
which is not delivered or part of· the consignment
which is not delivered and whether such non-delivery
of the whole or part is due to the goods being totally
lost or merely lost to the owner by such fact of nondelivery there is in our opinion "loss " within the
meaning of the word as used in paragraph 6.
It is worth noting in this connection that while
paragraph 5 makes it clear that loss there means loss
to the carrier a·nd paragraph 6 speaks of loss or
damage to or in connection with the goods, the Legislature has in the 6th paragraph of this Article left the
words "loss or damage " unqualified. The object of
the rule however being to give immunity to the carriers
and the shippers from claims of compensation made
by the owners of the goods in respect of loss sustained
by them, it will be unreasonable to read the word
"loss" in that paragraph as restricted to only loss
"of the goods". When the object of this particular
paragraph and the setting of this paragraph in the
Article after the previous paragraphs are considered
there remains no doubt whatsoever that the learned
judges of the Bombay High Court were right in their
conclusion that the loss or damage in this paragraph
is a wide expression used by the Legislature to include
any loss or damage caused to shipper or consignee in
respect of which he makes a grievance and in respect
of which he claims compensation from the shipping
·company.
The argument that loss due to failure to deliver the
goods is not covered by this clause is merely to be
mentfoned to deserve rejection. The very use of the
/
·~
..
\.
-
-
3 S.C.R. SUPl-tEME COURT REPORTS
833
words "the date on which the goods should have
been delivered" clearly contemplates a case where the
goods have not been delivered. The clause gives the
owner of the goods one year's time to bring the suitthe year to be calculated from the date of the delivery
of the goods where the goods have been delivered and
from the date when the goods should have been delivered where all or some of the goods have not been
delivered. The fact that the first clause of the 6th
paragraph speaks of removal of the goods may be an
argument for thinking as the Bombay High Court
thought that that clause has no application· when
goods are not delivered. It may be mentioned that
some authorities (See Carver's Carriage of Goods by
Sea, 10th Edition, p. 191) have suggested that the
first clause of this paragraph appears to have little
meaning. That is a matter which need not engage
our attention. It is sufficient to mention that the fact
that the rule of evidence provided in the first clause
of the paragraph may have no application to cases of
non-delivery is wholly irrelevant in deciding whether
the third clause applies to cases of non-delivery. As
we have already said the date when the goods should
have been delivered necessarily contemplates a case
where loss has arisen because goods have ·not been
delivered.
Reliance was sought to be placed on behalf of the
appellants in the two Bombay appeals on Spens v.
The Union Marine Insurance Go. Ltd. (1).
What had
happened in that case was that cotton belonging to
different owners was shipped in bales specifically
marked, including 43 bales belonging to the plaintiffs.
In the course of the voyage the ship was wrecked ; all
the cotton was more or less damaged, some of it was
lost, some was so damaged that it had to be sold
before reaching the port and marks on a very large
number of the bales were so obliterated by sea water
that none of the cotton that was lost or sold and only
a portion of what was carried to the port could be
identified as belonging to any particular consignment.
The plaintiffs had insured the goods with the defendant company against the usual risks. The question
{I) (I868) L.R. 3 C.P. 427.
East & West
Steamship Co.
v.
Ramalingam
Ghettiar
Das Gupta .f.
:c960
East & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta].
834
SUPREME COURT REPORTS
[1960]
arose whether there was a total loss of a part of each
owner's cotton or whether there was a total loss of the
plaintiffs' consignment. The court held that it could
not be said that there was an actual total loss of the
plaintiffs' consignment nor a constructive total loss of
these, that the principle of proportion applied in cases
of general average or jettison where it is not known
whose goods are sacrificed should be properly applied
to cases of thi8 nature where because of the bales of
different shippers being undistinguishable by reason
of the action of the sea and without the fault of the
respective owners it becomes impossible to ascertain
to whom the goods actually lost belonged.
This case it has to be noticed had to consider in
view of the special terms of an insurance policy,
whether there was a total or partial loss for the purposes of claims under the policy and the argument
that there was a total loss within the meaning of the
policy because it was impossible for the ship-owner to
deliver the plaintiffs' own bales of cotton to them was
rejected. This case is of no assistance in the interpretation of the word " loss " in the Articles of the
Schedule.
In cases of such mixture of cargo of different owners
it was pointed out by Lord Moulton in Sandeman &
Sons v. Tyzack and Branfoot Steamship Go. Ltd.(')
which was cited · by the learned Solicitor-General
himself:
"It may well be that they could assert the position of joint owners in the mixed cargo, and as such
take action against any person who sought to get
possession of it or convert it to his own use. But
it does not follow that the ship-owners would have
performed their contract of carriage. Their duty is
to deliver the goods entrusted to them for carriage,
and they do not perform that duty if all that the
consignee obtains is a right to claim as tenant in
common a mixture of those goods with the goods
of other people. No doubt, if such a right is of
some value, and the consignee avails himself of it,
the shipowners are entitled to credit for whatever
value the goods possessed if they were delivered
(I) (1913] A,C, 680, 697,
,. ... )•f
3 S.C.R. SUPREME COURT REPORTS
835
mixed up with some extraneous substance which
lessened their value or compelled the consignee to
go to expense in separating it out."
There is nothing however to justify the conclusion
that the consignee is bound to avail himself of the
right to claim as tenant in common. The breach of
contract remains and the claim for compensation for
such breach is in no way affected. Neither authority
nor principle therefore supports the contention of the
learned Solicitor-General that where the goods are
in existence but cannot be delivered because they have
been mixed up with the cargo of other owners there
has been -no " loss " within the meaning of the third
clause of the 6th paragraph of Art. III.
On the first question, therefore, we have come to
the conclusion that the word "loss " in the third
clause of the 6th paragraph of Art. III to the Act
means and includes any loss caused to a shipper or a
consignee by reason of the inability of the ship or the
carrier to deliver part or whole of the goods, to whatever reason such failure may be due.
On the next question whether this clause prescribes
only a rule of limitation or provides for the e,xtinction of a right to compensation, it will be observed
that the Bombay High°Court has not discussed it at
all, apparently because on the facts of the case before it,
it~would have mattered little whether the provision was
one of limitation or of extinction of right. The question is however of some importance in the facts of the
Madras Case. For if the provision is one of limitation there would be some scope for argument in the
facts of that case that the period was extended by
acknowledgments of liability within the meaning of
Art. 19 of the Limitation Act. The question we have
to decide is whether in saying that the ship or the
carrier will be "discharged from liability", only the
remedy of the shipper or the consignee was being
barred or the right was also being terminated. It is
useful to remember in this connection the international character of these rules, as has been already emphasised above. Rules of limitation are likely to vary
from country to country. Provi8ions for extension of
periods prescribed for limitation would similarly vary.
1960
East & West
Steamship Co.
v.
Ramalingam
Chettiar
Das Gupta ].
East OS. West
Steamship Co.
v.
Ram1lingam
Chethar
Das Gupt• J.
836
SUPR.EME COURT REPORTS
[1960]
We should be slow therefore to put on the word " discharged from liability " an interpretation which would
produce results varying in different countries and
thus keeping the position uncertain for both the
shipper and the shipowner. Quite apart from this
consideration, however, we think that the ordinary
grammatical sense of "discharged from~ liability "
does not connote " freed from the remedy as regards
liability" but are more apt to mean a total extinction
of the liability following upon an extinction of the
right. We find it difficult to draw any reasonable
distinction between the words "absolved from liability"
and "discharged from liability " and think that these
words " discharged from liability " were intended to
mean and do mean that the liability has totally
disappeared and not only that the remedy as regards
the liability has disappeared. We are unable to agree
with the learned Judge of the Madras High Court that
these words merely mean that " that even though the
right may inhere in the person who is entitled to the
benefits, still the liability in the opposite party is
discharged by the impossibility of enforcement." The
distinction between the extinction of a right and the
extinction of a remedy for the enforcement of that
right, though fine, is of great importance. The
Legislature could not but have been conscious of this
distinction when using the words " discharged from
all liability " in an article purporting to prescribe
rights and immunities of the shipowners. The words
are apt to express an intention of total extinction of
the liability and should, specially in view of the international character of the legislation, be construed in
that sense. It is hardly necessary to add that once
the liability is extinguished under this clause, there is
no scope of any acknowledgment of liability thereafter.
This brings us to the question as to how the date
"when the goods should have been delivered" should
be calculated. References were made at the Bar to
some of the numerous decisions in the different courts
in India as regards the interpretation of somewhat
similar words in Art. 31 of the Limitation Act in
respect. of suits for recovery of compensation for
-
-
\
3 S.C.R.
SUPREME COURT REPORTS
837
non-delivery. Indeed the learned Judge in the Madras
High Court himself has based his conclusion on this
question on the view of law he had earlier expressed
as regards Art. 31 of the Limitation Act that the
starting point of limitation there is the final repudiation of the liability by the company. With great
respect to the learned Judge, we are of opinion that
the cases as regards the ascertainment of the date
when the goods " ought to be delivered " as used in
Art. 31 of the Limitation Act are of no assistance for
our present purpose. Most, if not all of the cases
which have considered the question of the ascertainment of the date when the goods "ought to be delivered" for the purpose of Art. 31 deal with cases of
transport by Railways where no date has been or can
be specified in the contract for carriage.