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PETITIONER: THE EAST AND WEST STEAMSHIP COMPANY,GEORGE TOWN, MADRAS

       Vs.

RESPONDENT: S.   K. RAMALINGAM CHETTIAR.(And connected appeal)

DATE OF JUDGMENT: 03/05/1960

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1960 AIR 1058  CITATOR INFO :  R          1972 SC1405  (57)  RF         1972 SC1935  (11)

ACT: Carrier of goods by sea-Loss or damage, meaning of-Liability of carrier-Delivery of goods-Time for-The Indian Carriage of Goods Act, 1925 (XXVI Of 1925), Schedule, Art III, Para.  6, cl. 3.

HEADNOTE: The  appellant in the first case (C.  A. No. 88/56) and  the respondents in the other two cases (C.  As.  Nos. 91 & 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 interpretation 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 lading 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. 111(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.  If  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

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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 Mayine Insurance Co. Ltd.,  3 Common Pleas 427, distinguished, 821 Sandeman  & Sons v. Tyzack and Branfoot 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 goods 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.

JUDGMENT: 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.   B. 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 107 822  DAS  GUPTA, J.-These three appeals-Civil Appeal No.  88  of 1956, Civil Appeal No. 91 of 1958 and Civil Appeal No. 92 of 1958,  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 some common questions of general importance  to carriers of goods by sea and of shippers as regards the  3rd clause  of paragraph 6 of Art.  III in the Schedule  of  the Carriage  of Goods by Sea Act (hereinafter called " the  Act ").   This 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

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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 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  of limitation,  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

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become final and unassailable, this appeal is really of 824 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 was free from all liability.  The trial judge held that 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 27th 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

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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.  Ill.   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 coconut from Cochin and 4,733 bags  of  copra and coconuts from Badagara 826 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  claim 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 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 has been preferred. From what has been said above it is clear as we have already

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indicated  that  the main questions in this  appeal  are  as regards the interpretation of the 3rd Clause of paragraph  6 of Art.  III 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  as certainment  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. 111, 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:- 828  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 with slight modifications as  a  basis  of legislation." It is this recommendation 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 Rules.  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 State 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:-

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"  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 (1)  [1932] A.C. 328. 829 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 shall 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 one 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 lading 830 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 of  lading 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,

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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  reason-able facilities  to  each other for inspecting and  tallying  the goods. The  seventh paragraph contains provisions as regards  issue of a shipped bill of lading. 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 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 832 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

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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 and 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 mentioned  to deserve rejection.  The very use of the 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 suit the 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  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 Co. 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

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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 (1)  (1868) L.R. 3 C.P. 427. 834 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 this 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  Co.  Ltd. (1) 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 (1)  [1913] A.C. 680, 697. 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.

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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 extinction 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 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.   Provisions  for extension   of  periods  prescribes  for  limitation   would similarly vary,. 836 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

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interpretation  of somewhat similar words in Art. 31 of  the Limitation   Act  in  respect  of  suits  for  recovery   of compensation for 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.   We  cannot  however ignore  the  fact  that  the conditions  of  carriage of goods by  ship  are  essentially different from contracts of carriage of goods by Railways in one respect, viz., that whereas in contracts of carriage  of goods by Railways there is ordinarily no knowledge as to  by which  particular train the goods will be despatched nor  is there  any  undertaking  by the  Railways  as  regards  such trains,  there  is ordinarily in contracts  of  carriage  of goods by sea   distinct  arrangement that the goods will  be shipped   by a particular vessel.Whether the bill of  lading in  the  older form beginning with the words  "  shipped  on board  the........ or in the form more recently employed  by some shipping companies, beginning with the words " Received for  shipment by......... (See Scrutton on Charter  Parties, 15th  Edition, p. 10) the name of the vessel  is  ordinarily indicated  in  the bill of lading itself.  The duty  of  the carrier under the contract of carriage is to carry the goods by  a  particular ship and then to deliver the same  on  the arrival  of the ship at the port.  The manner in  which  the delivery will take place will depend on the particular terms of  the  bill  of lading and on the custom of  the  port  of destination.  But whether the delivery has to be made to the consignee  at  the ship’s side or is made on the  quay  side there  can  be little doubt that the carrier’s  duty  is  to start  the delivery of goods as soon as the ship arrives  at the 109 838 port of destination and to complete the delivery before  the ship leaves the port.  In a particular case the carrier  may not do his duty.  That cannot however alter the fact of  the existence  of his duty to complete the delivery between  the arrival  of  the ship at the port and the departure  of  the ship from the port.  If as regards any particular goods this duty  remains unperformed at the time when the  ship  leaves the port there can be no escape from the conclusion that the point  of time when the ship leaves the port is  the  latest point of time by which the goods should have been delivered. On the records of both the Bombay appeals we find the  bills of lading for these carriages of contract.  Paragraph 10  of the  bill of lading in Civil Appeal No. 92 of 1948  contains the terms as regards the discharge of cargo in these words:- "  10.  Discharge of goods: The goods may be  discharged  as soon  as the ship is ready to unload and as fast as  she  is able,  continuously  day and night.   Sundays  and  holidays included, and if the consignee fails to take delivery of his goods  immediately the ship is ready to discharge  then  the

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company shall be at liberty to land the said goods on to the wharf  or  quay or into warehouse, or discharge  into  hulk, lazaretto  or  craft  or any other  suitable  place  without notice and the goods may be stored.....................  The company  shall have the option of making delivery  of  goods either over the ship’s side or from lighter or store ship of hulk  or custom house or warehouse or dock or wharf or  quay at  consignee’s risk.  In all cases the company’s  liability is  to cease as soon as the goods are lifted from and  leave the ship’s desk". In the Civil Appeal No. 91 of 1958 the terms of delivery are in paragraph 15 and is in these words: " 15.  The company is to have the option of delivering these goods  or any part thereof, into receiving ship or board  or craft or landing them at the risk and expense of the shipper or  consignee  as  per scale of charges to be  seen  at  the Agents Offices........" In  these  appeals we are not concerned with  the  facts  of these terms of delivery of contract except that they 839 show  that it is clearly understood between the  parties  to the  contract  that  delivery  is to  commence  as  soon  as possible  after  the arrival of ship at port  and  completed before the ship leaves the port.  Indeed even if there  were not  definite  terms in the bill of lading  as  regards  the delivery it would follow necessarily from the very nature of the carriage of goods by ship that the delivery of the cargo carried  by the ship should be made between the date of  the arrival  at the port and its departure from the  port.   For our  present purpose it is unnecessary to  consider  whether delivery to the dock authority in any of there cases was  or would have been equivalent to the delivery to the consignee. That  would depend upon the custom of the port of  discharge or  on statutory provisions or express stipulations  in  the bill  of lading.  But whether the delivery is to be made  to the  consignee or to anybody else on his behalf the duty  of the  ship’s  master  is to start the  delivery  as  soon  as possible  after  the  ship’s  arrival at  the  port  and  to complete  it  before the date of departure  from  the  port. Before  the  ship  has actually left, the  port  it  is  not possible  to say that the time when delivery should be  made has  expired.  Once however the vessel has left the port  it cannot  but  be common ground between the  carrier  and  the consignee that the time when delivery should have been  made is over.  It is this point of time, viz., the time when  the ship  leaves the port, which in our opinion should be  taken as  the time when the delivery should have been  made.   The fact  that after this point of time  correspondence  started between the carrier and the consignee as regards the failure to  deliver  and  at  a later  point  of  time  the  carrier communicates  his  inability to deliver cannot  affect  this question.   Nor  can the ultimate repudiation of  any  claim that may be made by the shipper or the consignee affect  the ascertainment  of the date when the goods should  have  been delivered.   The arrival at port of the vessel by which  the goods have been contracted to be carried being known and the departure being equally an ascertainable thing and the  duty of  the carrier being necessarily to complete  the  delivery before  leaving  the port, the date ’by which  the  delivery should have been made is 840 already  a  fixed point of time  and  later  correspondence, claims or repudiation thereof can in no way change it. We  have therefore come to the conclusion that  whatever  be the  proper  mode of ascertaining the date when  delivery  "

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ought  to  be  made" under Art. 31 of  the  Limitation  Act- whether  that  be the reasonable time for  delivery  in  the circumstances   of   the  case  or  the  date   when   after correspondence  the  carrier  intimates  its  inability   to deliver or the date of the final repudiation of the claim on a claim for compensation having been made or in the case  of part delivery the date when the bulk of the consignment  was delivered   the  date  when  the  goods  should  have   been delivered  for  the purpose of the third clause of  the  6th paragraph of Art.  III of the Act is the date when the  ship by  which the goods were contracted to be carried  has  left the port at which delivery was to be made. Applying  the above clause to the facts of the cases  before us it is obvious that these suits for compensation were  not maintainable.  It is hardly necessary therefore to  consider the additional defence raised in all the three suits by  the shipping  companies, viz., that the claim  for  compensation not  having  been made within thirty days from the  date  of arrival  of the vessel in accordance with the terms  of  the bill  of  lading no compensation is  payable.   The  learned Judges  of the Bombay High Court did not think it  necessary to  consider this additional defence as they  accepted  ,the defence  based on the third clause of the 6th para.graph  of Art.  III which has been discussed above.  The learned Judge in  the  Madras  High Court had  however  to  consider  this additional  defence in view of his conclusions  against  the shipping  company  on the other defence.  He held  that  the stipulation  in  the  bill of lading that if  no  claim  for compensation  is  made within thirty days from the  date  of arrival of the ship the shipping company will not be  liable for  compensation is void as it offends against para.  8  of Art.  111.   The relevant portion of this  paragraph  is  in these words:- 8.   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 841 with 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." It  cannot be seriously disputed that the stipulation  under consideration does directly offend against the provisions of the  8th  paragraph.  For it seeks at least to "  lessen  ", otherwise  than  provided in the rules in the  Schedule  the liability of the ship or carrier for loss or damage to goods or  in  connection  with  goods caused  by  the  failure  to deliver.  This stipulation requiring claim for  compensation being made within one month from the date of arrival of  the ship is therefore null and void. Though  the  additional  defence  raised  by  the   shipping companies must therefore fail, the main defence, as we  have already  found,  succeeds.  None of the suits  were  brought within a year from the date when the ship carrying the goods left the port of discharge.  We therefore dismiss with costs the  Civil  Appeals Nos. 91 and 92 of 1958 and  confirm  the order  of dismissal made by the Bombay High Court.  One  set of hearing costs will have to be paid. Civil  Appeal No. 88 of 1956 is infructuous because  of  the fact,  as already indicated, that after the order of  remand now appealed from was made by the Madras High Court the suit was heard in the Small Causes Court and a decree was  passed and  that  decree has become final.   We  therefore  dismiss Civil  Appeal  No. 88 of 1956, as already  ordered  by  this Court  when giving leave to appeal; the appellant  will  pay

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the costs of the appeal to the respondent.                              Appeals dismissed. 842