INDIA EVERBRIGHT SHIPPING And TRADING CO. vs Shaw Wallace and Co. Ltd.

THE complainant M/s. Indian Everbright Shipping and Trading Company is an exporter exporting various goods to different countries. M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE) entered into an agreement with the complainant for the purpose of exporting fresh frozen buffalo meat and in furtherance of it opened a Letter of Credit as per which the buffalo meat and mutton cracas were to be delivered at Fujairah Port. THE complainant made the first shipment of fresh frozen meat weighing 22.540. MT of the value of US $ 11,670.21. In this respect the 1st opposite party M/s. Shaw Wallace & Co. Ltd., of which the 2nd opposite party is the principal Company, approached the complainant for transporting the cargo by it by sea from the Port of Madras to the Port of Fujairah (UAE). THE complainant handed over the cargo to the 1st opposite party for shipment to Fujairah and the 1st opposite party issued a Bill of Lading which contained the details of the cargo, i.e., 528 cartons of fresh frozen buffalo meat weighing gross at 11,088 Kgs. Now the case of the complainant is that while so the complainant was shocked to receive a fax message on 4.10.1992 from M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE), the consignee who are the importers, stating that the cargo shipped through the 1st opposite party was lying at Dubai for clearance instead of Fujairah; on enquiry, the 1st opposite party informed the complainant that due to the non-calling of the vessel at Fujairah the cargo was unloaded at Dubai; the 1st opposite party had misled the complainant stating that the cargo would be offloaded at Fujairah Port knowing that there was no calling of the vessel at Fujairah Port and issuing a Bill of Lading mentioning the discharge Port as Fujairah; by offloading the container at Dubai instead of Fujairah the opposite parties have clearly cheated the complainant and also the consignee; such offloading of the consignment at Dubai was against the terms of the Bill of Lading and also against the clear instructions of the consignee M/s. Al Ahli Gen. Trading Co. (Ltd.), Fujairah (UAE); the complainant wrote a letter dated 23.10.1992 to the 1st opposite party stating that if they allowed the goods for inspection at Dubai they would be doing so at their own risk and their such action would be totally against the terms of the Bill of Lading and if inspite of that they did it they would be held responsible for all the losses the complainant would suffer on account of it; in that letter, the complainant have also written that by offloading the goods at Dubai, the 1st opposite party had put the complainant as well as the consignee into a lot of difficulties resulting in loss of reputation to the complainant; due to all this act of the 1st opposite party, only one-fourth of the cargo was delivered to the consignee; since the full cargo had not been delivered to them, the consignee had cancelled all the pending orders held by them with the complainant; due to the said deficiency in service on the part of the opposite parties, the complainant had been put to lot of difficulties. On these allegations, the complaint has been filed claiming damages under different heads such as value of the goods in 528 cartons, freight charges, loss due to cancellation of contract, and mental agony, all totalling to Rs. 10,30,180/-.

THE two opposite parties have filed written versions in which similar contentions have been raised. THE opposite parties submit that as per the terms of the Bill of Lading, the opposite parties could use various modes of transporting and it was not necessary that the ship to which the cargo was entrusted should go through a particular route, but it should finally discharge the cargo at the Port of Fujairah (UAE). Clause 20 of the Bill of Lading gave liberty to the opposite parties to use various modes of transport and transport the cargo through any Port. THE complainant was aware that as per the terms of the carriage of goods, the cargo was to be taken by one or more vessels and the transhipment was also to be allowed for the cargo. It was only on this condition the cargo was accepted by the opposite parties for carriage. THE opposite parties were at liberty to choose various modes of transport to deliver the goods at the Port of destination and there was no embargo put on the carrier that the consignment should not be offloaded at Dubai enroute Fujairah. THEre was no assurance given to the complainant that the cargo would be taken to the Port of destination without touching Dubai. THE cargo which had been loaded in the vessel m.v. Tiger was taken to the transhipment point viz., Colombo and from there it was taken by another vessel viz., m.v. Trade Fast which arrived at Dubai on 8.9.1992, and there the cargo was put in storage in the consignee''s warehouse before being transported to the ultimate Port of destination viz., Fujairah. However, at the Port of Dubai, as a trade custom and practice, the legal authorities took samples of the cargo and a joint survey was also held. According to the Dubai Health Authorities, except two consignments of veal legs and chunks, rest of the items were found to contain bacterial infection which necessitated rejection. Accordingly, an order was passed by the Dubai Health Authorities that out of 7 items of consignment except the said two items the other items were to be destroyed. THE opposite parties further submit that the consignment would have reached the destination but for the fitness certificate issued by the Dubai Health Authorities. THE opposite parties had the liberty to discharge and store the cargo at any of the intermediary ports and the fact that the cargo was discharged at Dubai cannot be a ground for claiming damages against the opposite parties. THEre was no mis-declaration or breach of contract on the part of the opposite parties. It is not correct to say that the opposite parties had no intention of taking the cargo to Fujairah. If the local health authorities at Dubai examined the goods and came to the conclusion that some of the items were unfit for human consumption and they had to be destroyed, the complainant should blame itself for the bad quality of the goods. THE opposite parties have not misled the complainant in any manner. THEre was no wrong delivery or wrong handling of the goods by the opposite parties. THErefore, the opposite parties are not liable to pay any amount to the complainant. The points that arise for consideration are: 1. Whether there was any fault or deficiency in service on the part of the opposite parties? 2. If so, what relief, if any, can be granted to the complainant?

Points 1 & 2: According to the complainant due to non-calling of the vessel in which the cargo was carried at Fujairah, the opposite party had offloaded the cargo at the Dubai Port itself and the complainant had been fradulently mis-informed that the cargo would be delivered at Fujairah Port. This is denied by the opposite party. Their case is that in the usual course of transport by the ship, the cargo was offloaded for transhipment at Dubai and while so due to the action taken by the Health Authorities there, out of 7 consignments, only 2 could be delivered to the consignee and therefore there was no deficiency on the part of the opposite parties. There is nothing on record to indicate that there was any such thing as non-calling of the vessel at Fujairah. On the other hand, the opposite parties to establish their case, reply on Clause 20 of the Bill of Lading, Ex. B2. Their case is that as per the terms of the Bill of Lading they could transport consignment by any ship or ships and choose their own route and they could have transhipment and it was for the purpose of transhipment at Dubai Port the consignment was offloaded and stored in the warehouse of the consignee there. Clause 20 of the Bill of Lading Ex. B2 an extract of which has been filed by the opposite party for the convenient reference reads as follows: Clause-20 : Methods and Rules of Transportation: (i) The carrier, may at any time and without notice to the merchant- (a) Use any means of transport or storage whatsoever; (b) Transfer the goods from one conveyance to another including transhipping or carrying the same on another vessel than the vessel named overleaf or any other means of transport whatsoever; (c) Proceed by any route in his discretion (whether or not the nearest or most direct or customery or advertised route) and proceed to or stay at any place or port whatsoever, once or more often and in any order; (d) Load and unload the goods at any place or port (whether or not any such port is named overleaf as the port of loading or the port of discharge) and store the goods at any such place or port; (e) Comply with any orders or recommendations given by any Government or authority or any person or body acting or purporting to act as or on behalf of such Government or authority or having under the terms of the insurance on the conveyance employed by the carrier, the rights to give orders or directions. (ii) The liberties set out in Sub-clause (i) may be invoked by the carrier for any purpose whatsoever including undergoing repairs, towing or being towed, adjusting instruments, dry- docking and assisting vessels in all situations and anything done in accordance with Sub-clause (i) for any delay arising therefrom, shall be deemed to be within the contractual carriage and shall not be a deviation".

A reading of this clause particularly Sub-clause I (d) and (e) clearly shows that the carrier could have the right to unload the goods at any port other than the port of discharge and store the goods at such port and comply with any order or recommendation of any Government or Authority. Now, the definite case of the opposite party is that they unloaded the goods at Dubai for the purpose of transhipment as it is the practice of carrying the goods from Dubai to Fujairah through barges. It is their further case that the consignment thus unloaded were stored in the consignee''s warehouse. Therefore the opposite party carrier cannot be found fault with having unloaded the goods at Dubai, If the Health Authorities there, on suspicion wanted to inspect the consignments, and did so and found that excepting 2 consignments, the rest of the 5 consignments contained bacterial infection which necessitated rejection, the opposite party could not help it. It is not disputed that the Health Authorities found that the 5 consignments contained bacterial infection that necessitated rejection. In this context, it would be relevant to refer to the averment in Para 9 of the complaint stating that the complainant by his letter dated 23.10.1992 called upon the opposite party to release the goods to the consignee within 3 days of the receipt of the communication without carrying of any inspection at Dubai Port. This gives rise to much suspicion that the complainants knew that 5 consignments were unfit for human consumption. The complainant would not even allege that due to any fault of the opposite party carrier any defects in the goods had occurred. From all these it would manifestly appear that there was no deficiency in service on the part of the opposite parties and it should be only because of the fault of the complainant Company itself the entire consignments could not be delivered to the consignee.

IN view of the above finding, the opposite parties have not incurred any liability to the complainant and as such no question of payment of any compensation or damages arises. In the result, therefore, the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed.