Case: ESSAR SHIPPING LTD Vs. THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA

the damage was yet to be assessed, an endorsement was given by the Master of the vessel after the vessel was in the Docks for two days even after being loaded.(l) The damage to the loader, according to the evidence led by the defendants-respondent was to the tune of Rs.24.04 lakhs."22. There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons: ship’s high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]19. At the outset, an important feature of the matter must be noted. The accident in the present matter had evoked attention and the Government of India had appointed a Committee to examine various aspects of the accident and fix responsibility. The Committee consisted of four persons having technical expertise and knowledge in the field. Said Committee found that no specific responsibility could be fixed due to the dynamic situation prevailing at the time of accident and that it was occasioned, as a result of combination of five factors named by the Committee. Every single factor was gone into and at the end of its discussion the Committee had found that individual responsibility could not be assigned in the matter.20. We may now deal with some of the technical terms which have been used in the present matter by the witnesses and the Committee. We have been given to understand that a vessel in which cargo is yet to be loaded, being lighter in weight, can pose problems for effective navigation in high seas. In order to stabilize the vessel certain amount of weight is added which then helps in letting part of the vessel to be under the surface of the water and thereby lend stability. The weight for such purpose could be in any form but normally there are tanks which are filled with water and the weight of such filled water affords stability to the vessel when no cargo is loaded. Adding of such weight is calleda vessel. However, before the loading operations begin, the vessel is required to pump out the water from such tanks and this process is calledThe portion of the vessel which is below the water surface is normally referred to asof the vessel. The larger the draft, the more stable the vessel. As a result ofthe weight of the vessel gets considerably reduced and consequently theof the vessel, namely, the portion below the surface of the water also gets reduced. Resultantly, the surface above the level of the water would get increased and in windy conditions such larger surface of the vessel above water may have impact on navigation. Further, it is common case that Haldia Port proper is not directly touching the sea and from the place where river Hooghli meets the sea, the water is arrested by employing locks. The journey of the vessel from the locks to the berthing area of the docks is through the water so arrested and is to be undertaken under the express guidance of an authorised officer.There is one more issue as well, namely, whether the Master of the vessel was told by the Berthing Master to drop the anchor and whether there was any time lag in relaying such instruction by the Master of the vessel which made it further difficult for the Berthing Master. The Division Bench has relied upon this aspect while assessing the fact situation on record but the evidence in that behalf is not clear. In his answer as regards factors which caused the accident, the Berthing Master gave two reasons:high board i.e. the area above the water surface and the impact of the wind. However, he did not name, delay in regard to anchoring as one of the reasons. The Committee, consisting of experts in the field had also examined witnesses and considered the entire material before it whereafter it arrived at its conclusion. Said Committee also did not put this factor of delay in anchoring the vessel to be one of the reasons. The Division Bench, therefore, ought not to have taken into account said aspect while considering the matter.23. If the emerging facts, as set out earlier are considered, two crucial aspects that emerge are (a) non-intimation on part of the Master of the Vessel about the fact that the vessel had deballasted while at the locks and (b) failure on part of the Berthing Master to apprise himself of the draft of the vessel though he was obliged to check that part. All the other factors were either natural factors, such as the level of the water in the impounded dock or intensity of the wind or were the factors over which neither the Master of the vessel nor the Berthing Master had any direct control. The factors like lack of communication, as was sought to be projected by the plaintiff-appellant, between the tugs and the Berthing Master or the location of the coal loader on the Southern tip of the Jetty or the berthing area could be contributing factors but at the core of the matter were aforesaid two features. Each of those two features are relied upon by either side to put the liability on the opposite side. To make the appellant liable, question would be whether non-intimation of said fact by the Master of the vessel, as indicated above, was so singularly crucial as to justify putting the entire blame on the appellant. We cannot disregard the fact that it was part of the duty of the Berthing Master to check the draft of the vessel before he took over the control of the vessel. Under the bye- laws the vessel had to be under the control of the officer of the Port or the Berthing Master. The Berthing Master was not a new comer or an inexperienced person. He had to his credit the experience of having navigated vessels from the locks to the dock area on at least 1500 previous occasions. If the intensity of the wind was 24 knots when he took over the control of the vessel, it was all the more reason for him to be more careful in checking the draft before assuming control over the vessel. As an officer employed and authorised by the Port, he was having greater knowledge than anyone else how the vessel had to be navigated from the locks to the dock area. We must also give due regard to the facts that a Committee of four experts in the field was appointed by the Government of India to look into the matter and fix the responsibility; that the Committee had recorded statements of all the concerned persons including the Master of the vessel, Berthing Master and all other concerned officials; and that after thorough enquiry the Committee found that the factors which were responsible for the accident were beyond the control of anyone. 24. Considering the entirety of the matter, we find that the assessment of all the relevant factors were duly considered by the Committee in correct perspective and it cannot be concluded that the acts of commission or omission on part of the Master of the vessel alone, were responsible for and resulted in causing the damage to the coal loader. He may be held responsible to a certain extent for his non-intimation as stated above, but the failure on part of the Berthing Master in doing what was expected of him and other factors were also responsible. The conclusion arrived at by the Committee in the circumstances, which weighed with the Single Judge, in our view, is the correct perspective from which the matter is required to be considered. In our assessment, the view taken by the trial court was, therefore, just and correct and that of the Division Bench was erroneous.25. Before we conclude we must deal with the case relied upon by Mr. Tripathi, learned Senior Advocate for the respondent. What was in issue in that case was the alleged negligence of a licensed pilot. What we have found is that it was combination of all factors as concluded by the Committee and the matter could not be put at the level of negligence on part of any individual simplicitor. We, therefore, do not find said case or the discussion therein to be of any relevance in so far as the present matter is concerned. In the assessment that we have made, it would also not be necessary to go into the questions as to the extent of damage to the coal loader and whether the amount as claimed by the defendant-respondent was correctly arrived at and assessed or the interest had to be at the level of 12% or at any lesser rate.