SAWHNEY BROTHERS vs AMERICAN PRESIDENT LINES LTD

THE complainant M/s. Sawhney Brothers despatched in August, 1991 certain consignment of Ready Made Garments (blouses) to importer M/s. Ivory International, Miami, U.S.A. The consignee was South East Bank N.A., Miami, Florida, U.S.A. The Bank was to deliver the goods to the importer on presentation of Bills of Lading and other documents. U.S. S 623 were payable as freight by the importer at destination to the carrier American President Lines Ltd. (for short APL) on acceptance of the cosignnment. According to the complainant, the importer M/s. ivory International could not take delivery from the respondent carrier APL because of the embargo imposed by the Government of U.S.A. on import of blouses. In consequence, the carrier concelled the order for import, and refused to take deli very from the consignee Bank.

ACCORDING to the complainant the importer, at the instance of the shipper, had instructed the carrier APL to put the cargo in customs bonded warehouse at Miami till further instructions. According to the complainant he further enquired from the carrier APL the demurrage payable to the customs bonded warehouse and undertook to make payment for the demurrage in rupees in India. However, he received no reply from the respondent carrier. Because the Opposite Party APL failed to respondent to enquiry regarding demurrage the Complainant presumed that the consignment ''must have been delivered to unauthorised person without collecting the original documents lying with the consignee Bank, i.e. South East Bank N.A...''

IN February, 1992 the complainant filed the complaint before this Commission claiming U.S. $ 80,498.00 as per details below : (i) For value of consignment U.S.S 45,920.00 (ii) Interest (a) 24% p.a. from 10.10.91 to 10.11.91 with quarterly rest U.S.S 13,213.00 U.S.S 59,133.00 (iii) Compensation on U.S. $ 59,133.00 @ 36.13% based on G.P. average of the year 1990 -1991 -1992 U.S. $21,365.00 Total : U.S. $ 80,498.00 We have heard the parties at length and also gone through the records including the written arguments of the complainant M/s. Sawhney Brothers.

SUBSEQUENT to the filing of the complaint the complainant on 11th January, 1993 directed the carrier APL to deliver the consignment to M/s. N.F.G. Ltd. of Canada who was reported to have agreed to take out the garments provided all demurrages incurred on the shipment were paid by the complainant in Delhi. The goods were to be delivered by the 15th February, 1993. According to the complainant, the respondent Carrier APL failed to carry out these instructions. The Opposite Party carrier has repudiated the complaint lodged against him. He has stated that the said cargo was in his custody and is held by the APL carrier at their container freight station Econocaribe Consolidators, Miami, Florida and that storage charges have accrued thereon. The O.P. carrier has categorically averred that no one has presented to it a duly negotiated Bill of Lading nor has any third party picked up this cargo and that the cargo ''remains in the possession of the American President Lines''.

THE respondent O.P. had also submitted in its rejoinder of 15th February 1993 that the said letter of 11th January, 1993 instructing the carrier to deliver the goods to a party of Canada was never received by the O.P. Carrier; that all the communications in the past from the complainant petitioner had been sent by hand delivery as well as by registered post A.D. and this solitary important communication is reported to have been sent under postal certificate.

WE fail to appreciate how and on what basis the complainant had assumed that the O.P. carrier had delivered the goods to an unauthorised person without collecting the original documents lying with the consignee Bank. Apart from the fact that the O.P. has categorically denied having made delivery of the goods in this manner, such a delivery could not have been made because of the embargo of imports of the appeal in question imposed by the U.S.A. custom authorities. It is also not clear as to how the complainant could presume that payment for the demurrage could be made in rupees in Delhi when the demurrage had accrued in U.S.A. In view of the facts stated above and especially that the goods are still in the custody of the O.P. carrier, who is entitled to receive his freight as well as the demurrage on the consignment, there is no merit in the complaint. The same is dismissed. The complainant shall pay a sum of Rs. 5,000/ - as costs to the O.P. carrier. Complaint dismissed.