Wednesday, February 18, 2015

Carriage by sea without any proof of contract of carriage? – Court dismisses the Carrier’s suit for freight charges.

(V.M. Syam Kumar, Advocate, Kochi)
What is the evidence required for proving contract of carriage by sea? Can a carrier prefer a claim for freight without producing any document to prove the contract of carriage by sea?
The issue was considered by the Subordinate Judge’s Court Kochi in a suit filed by the carrier. The matter pertained to transportation of goods comprising of ceramic tiles from Kandla to Kochi. Carrier alleged that the freight remained unpaid and amounts were further due towards demurrages and detention charges in Kochi port. Carrier filed the suit arraying the Shipper, the consignee and the seller of the cargo as defendants. Amounts were claimed from them jointly and severally.

During the trial, the carrier could not produce any documents evidencing the contract of carriage leading the learned Judge to conclude that The plaintiff who claims that goods were transported as per the instruction of the defendants, has not produced any evidence to prove the entrustment of the goods.”
The Indian statute on carriage of goods by sea Carriage of Goods by Sea Act, 1925 envisages the said Act 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. Schedule to the said Act lays down the rules relating to bills of lading. No such bill of lading was produced before the Court.
The Judgment was delivered by Judge Mr. P.K. Mohandas and the conclusion arrived at by the learned judge reads as follows:
 “There is no evidence to show that it was the defendants who entrusted the goods with the plaintiff and there was contract between the plaintiff and the defendants. There is no materials to prove the claim of the plaintiff that he has paid the amount to the port operator and the plaintiff is liable to pay the amounts to the Container Corporation of India. A careful reading of the materials on record shows that there is no reliable evidence to show that the defendants are liable to pay the amount claimed in the suit to the plaintiff. The plaintiff has not succeeded in proving their claim and the suit is only to be dismissed.”
Coastal shipping along Indian coast is riddled with mysterious practices. Many a times, cargo is carried without any tangible contractual documents. The above judgment is a strong deprecation of such practice.