Friday, February 27, 2009

From pillar to post – ‘A ship owner’s legal dilemma’ or the Magistrate’s Jurisdiction under Sec.57 of the Indian Ports Act, 1908.

(By Adv. V.M. Syam Kumar ) (Lecturer for Maritime Law, National University for Advanced Legal Studies, Kochi.)
For the shipowner it all stared at 9.AM on a fine October morning at Cochin in the year 1995 when the vessel berthed at the port. Later when she was about to sail off, port alleged that while berthing under pilotage earlier, she had struck an underwater fender at chainage thus causing damage to port property. To compensate she was called on to pay up few lakhs of rupees, which calim was not supported by any reliable independant documents. That the said fender was old, dilapidated and that there was nothing to connect her to the alleged damage, were all pointed out in vain. No independent reliable details were forthcoming from the port. Legal recourse was taken. Her owners moved the High Court, the highest court of the land which after 8 years relegated them to move the local Magistrate under a provision in the more than a century old legislation, Indian Ports Act, 1908. The ship owner moved the Magistrate under Sec. 57 of the said Act. The matter was pending before the Magistrate for more three years. Elaborate evidence was taken. Witnesses examined. Matter argued out for days together. No evidence whatsoever was produced from the side of the port. Not even a scrap of paper to substantiate the claim for lakhs of rupees. Finally the Magistrate delivered the Order that he had no jurisdiction to consider the matter!
Now the ship owner has the unenviable choice to move the High Court again challenging the validity of the Magistrate's Order. The caravan moves on.
Why does this happen is not a matter of concern for me. It’s a question to be considered at a higher plain by better brains. I confine to Sec. 57 of the Act and read it again to understand its scope and ambit hoping to see whether a proper judicial appreicationof the provision could have rendered justice.
That it was drafted in 1908 by a different generation need not antagonize us against the Indian Ports Act. Rather it should be looked upon positively since of late Indian parliament approves dozens of crucial legislations-even though affecting fundemental rights - in a jiffy, without caring to even read through the draft.
Coming back to Indian Ports Act, 1908, relevant clause if Sec. 57 reads as follows:
(1) Ascertainment and recovery of expenses and damages payable under this Act: (1) If any dispute arises as to the sum to be paid in any case as expenses or damages under this Act, it shall be determined by a Magistrate upon application made to him for that purpose by either of the disputing parties.
This section envisages that the Learned Magistrate shall determine the disputed sum payable between the parties. For the said purpose, the Learned Magistrate has under this section, jurisdiction and competence to look into the damage alleged to have been caused. As to who exactly caused the damage may be out of the purview of the inquiry by the Learned Magistrate, but since the Section provides that the sum (financial liability arising from the damage) has to be determined by the Learned Magistrate, in order to arrive at the said sum, the factum of occurrence of the damage, its nature, extent and finally the financial liability arising from the alleged damage are matters which are to be proved before the Learned Magistrate in a proceeding under sec.57. Parties are supposed to assist the Learned Magistrate in this inquiry by producing evidence supporting their respective stands. So as to ascertain the sum in accordance with Sec.57 (1), the Learned Magistrate would confirm the nature of the occurrence and the actual extent of the damage and thereafter, would arrive at the figure, varying or affirming the figure already suggested by one party and disputed by the other.
It follows from the above that the party who alleges that a damage has been caused and who claims a specific amount from the other party after purportedly quantifying the alleged damage, shall produce before the Learned Magistrate, all documents and evidence to substantiate at first, the nature of the damage that has been caused as alleged by them and then they ought to produce before the learned Magistrate relevant details regarding the method and procedure adopted by them to arrive at the amount of damages claimed. The section envisages that the Learned Magistrate will in the course of the inquiry look into this evidence produced by the party alleging damage in the light of the objections from the other side and a final decision will be arrived at as envisaged under Sec. 57 (1).
Once the amount is disputed before the Magistrate invoking Sec. 57 (1) it becomes the responsibility of both parties to substantiate their own respective stands. Port has to produce legally reliable evidence to substantiate the amount claimed by them. Primarily for the said purpose the nature and extent of the damage/loss has to be proved first. Without proving the same the enquiry into the actual amount payable would be a farce. Once the nature and extent is proved, then the monetary value is to be arrived at. It follows that is the nature and extent could not be proved at all by the Port, no liability whatsoever accrues on the other side. We have come a long way from the ancient principle that the King or state can do wrong. The King or state cannot be permitted to raise an arbitrary claim against an individual, whether he is a citizen or a foreigner and abstain when called on to substantiate the same. That could never had been the legislative intention while drafting Sec. 57 (1). It is trite law that reasonable principles have to be read into a statue so as to give it practical and legal efficacy. Merely because Sec. 57 (1) uses the words “If any dispute arises as to the sum to be paid” it does not mean that even in cases where no evidence or material, even a scrap of paper is produced by the Port to prove the correctness of the sum claimed by it, the court has to presuppose that some amount is payable and it can only arrive at the exact sum and cannot lay down that the claim is devoid of any merits and no amount is payable since the Port was no able to substantiate its claim for a single penny much less the lakhs of rupees.
Its justice Holms who said that life of law has not always been logic but experience. Judges ought to breathe life into the dead letters of the statute. Blind and mechanical application of law sends wrong message across the society and compels men to explore extra judicial means to settle their disputes. It does not augur well at all.
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