TMI Blog1997 (11) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent undertook to deliver the cargo in like good order and condition and at the same quantity to the Ministry of Agriculture, New Delhi, India or their order. The bill of lading is signed by the Master of the vessel. According to the appellants at the port of loading the quantity of the goods into the vessel was determined by electronic machine and also verified by draft. The ship arrived at Tuticorin on 17.09.1981 and discharge of cargo was completed on 20.10.1981. The weight of the cargo unloaded was ascertained by means of draft survey. As per the draft survey a quantity of 220.850 M.T. of bulk Urea was short landed. According to the appellants against the total quantity of 17610.920 M.T. of bulk urea shipped, the ship delivered only 17390.070 M.T. of urea. A draft survey was conducted on behalf of the appellants by J.B. Boda Marine and General Survey Agencies Limited on 20.10.198l and the shortage of 220.850 M.T. of bulk urea was detected. Therefore, the defendants-respondents are bound to make good to the plaintiffs the loss occasioned by the said short delivery. The cost of the short landed quantity was estimated at ₹ 3,95,920 apart from this the freight charges, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well and tidal conditions are far more than at the regular berth. Therefore, they contended that the initial draft survey readings are bound to have been very inaccurate. They also say that the draft survey report of J.B. Boda marine and General Survey Agencies Private Limited, relied upon by the plaintiffs and referred in paragraph 8 of the plaint, is not a reliable or proper record or evidence of the quantity that was brought by the vessel. Therefore, it is submitted that the appellants-plaintiffs are not entitled to the suit claim. 5. On the above pleadings, learned Subordinate Judge, Tuticorin framed ten issues. On the side of the appellants-plaintiffs Exs. P-1 to P-12 were marked and on the side of the respondents-defendants Exs. D-1 and D-2 were marked. One Thiru Pandarinathan was examined as P.W. 1 and none was examined on the side of the defendants. 6. Learned Subordinate Judge, on a consideration of the entire materials placed before him both oral and documentary, dismissed the suit claim particularly on the ground that Ex. A-2 which is the certificate of Inspection furnished by O.C.M., Goods Control Office at Bucharest has not been proved in a manner known to law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified that the vessel completed discharge at 14.30 hours on 20th October, 1981 and that a Joint Inspection of the above vessel was carried out at 14.45 hours on 20th October, 1981 and after she had completed discharge, they are satisfied that holds are swept and there are neither any urea nor any sweepings lying in the holds or on the deck of the above vessel. The Master of the Vessel made a remark as follows: All cargo discharged in very good condition. There is no reference to any shortage in delivery of the goods. Ex. B-2 is the letter dated 20th November, 1981 by the South India Corporation (Agencies) Private Limited addressed to Messrs Galaxy (Tuticorin) Agencies, Tuticorin. 1 with a copy marked to Tuticorin office in acknowledgement of their letter No. SICA/599/81 dated 14.11.1981. In Ex. B-2 letter they pointed out that in view of the fact that the cargo was loaded/discharged by the charterers/Receivers and the vessel had not taken any part in either of the operations, they were unable to entertain any provisional claim. Further more, B/L was signed by the Master for quantity/quality/measurement unknown . A reading of Exhibit B. 1 will show that the entire cargo wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aft survey would indicate the accurate quantity brought and discharged by the vessel. We are unable to accept the said contention. The draft survey can never indicate the accu-rate or correct quantity brought and discharged by the vessel and draft survey reading are subject to in-accurate and fluctuation due to various extraneous factors like, the swell and tidal conditions, density of the water, errors in reading the draft etc. It is a universally acknowledged fact that draft surveys are never accurate and are subject to considerable fluctuations. It is not in dispute that part of the cargo was discharged at Tuticorin anchorage and thereafter the vessel was brought to the regular berth for discharging the balance cargo. Initially draft reading was taken while the vessel was at the anchorage and it is Common knowledge that the anchorage the fluctuations in draft readings due to swell and tidal conditions are for more than at the regular berth. Therefore, as rightly pointed out by the learned Counsel for the respondents that initial draft survey readings are bound to have been very inaccurate. Therefore, the draft Survey report of J.B. Boda Marine and General Survey Agencies Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no ad-mission or acceptance of the weight to the carriers, as declared by the shippers or consignors, as declared by the shippers or consignors. Such an endorsement could not be taken note of as conclusive proof of weight of the goods shipped. The fact that the bags were found torn and in slack condition at the place of destination and delivery will not lead to any inference or proof that a particular weight of goods was supplied at the place of consignment. 14. Learned Counsel for the respondent cited the following judgment reported in M/s. Thakur Shipping Company Limited, Bombay v. Food Corporation of India It was held by Division Bench of this Court Comprising of Natarajan, J. and Sethuraman, J. wherein the learned judges have made a reference to the earlier judgment of this Court in the case of Food Corporation of India v. Property Steamship Company , where a similar question was considered and answered. In that case also the Food Corporation of India entered into a charter party with the steamship company for transport of 91,600 bags of rice from Bankkok to Tuticorin. On arrival of the ship at Tuticorin, the rice bags were unloaded. A portion of the consignment wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979, dated 10.10.1984, Maharajan, J., in C.S. No. 76 of 1967 dated 18.11.1970 and Fakir Mohamed, J., in C.S. No. 380 of 1997 also be usefully referred to in the present context, wherein learned Judges have held that bill of lading is not prima facie evidence when there is disclaimer clause. 17. We shall now advert to the judgment cited by the learned Counsel for the appellants in A.S. No. 165 of 1974, dated 5th August, 1973 comprising of Sethuraman and Balasubrahmanyan, JJ. The above appeal involved an adjudication as to the liability of a ship owner in respect of shortage of delivery of bulk cargo carried in its vessel under the terms of charter party. The lower court granted a decree only as against the shipowner and the suit against the agents was dismissed. The shipowner preferred the above appeal. In this case, the actual mode of hand. It shows that the delivery at the Madras Port was by over side delivery . The evidence discloses that the cargo was unloaded from the ship with coir mats, put in slings and taken from the vessel directly into the Hopper wagons standing alongside the ship. From these wagons the goods were transferred to gunny bags by means of charters and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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