Case: American Export Isbrandtsen Lines Inc. &amp; Another Vs. Joe Lopez &amp; Another

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 non-delivery there is in our opinion loss within the meaning of the word as used in Paragraph 6."Proceeding further the Court observed : "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 Court further held that : "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 years 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." (italicized is by us) Proceeding further the Court observed : "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 Paragraph 6 of Article 3." 6. Dealing with the scope of the expression "when the goods should have been delivered" in clause (3) of Paragraph 6, the Court observed :"But whether the delivery has to be made to the consignee at the ships side or is made on the quay side there can be little doubt that the carriers duty is to start the delivery of goods as soon as the ship arrives at the 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." Dealing with the same topic, the Court further observed : "But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships 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." 7. From the passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case of non-delivery of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one year from the date the ship left the port. The cause of action of filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the plaintiff had two causes of action under clause (3) of Paragraph 6, one relating to the loss and another relating to damage. From the language of the clause in question it is not possible to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the port should be taken as the time when delivery should have been made. Any delivery which had not been made by that date comes within the mischief of clause (3) of Paragraph 6. We think that the question of law arising for decision in this case is covered by the ratio of the decision of this Court in The East & West Steamship Companys case (supra).

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]6. Dealing with the scope of the expression "when the goods should have been delivered" in clause (3) of Paragraph 6, the Court observed :"But whether the delivery has to be made to the consignee at the ships side or is made on the quay side there can be little doubt that the carriers duty is to start the delivery of goods as soon as the ship arrives at the 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."Dealing with the same topic, the Court further observed :"But whether the delivery is to be made to the consignee or to anybody else on his behalf the duty of the ships master is to start the delivery as soon as possible after the ships 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."7. From the passages quoted above, it is clear that this Court had come to the conclusion that if by the time ship leaves the port, the goods shipped or any part thereof had not been delivered, it will be a case ofy of the goods on the date when the goods should have been delivered. In that decision this Court has taken the view that the last date for filing the suit for "loss or damage" is one year from the date the ship left the port. The cause of action of filing the suit for "loss or damage" is one. Quite clearly, the claim in respect of short delivery is clearly barred by time. If we are to accept the contention of the plaintiff that his claim in respect of the damage caused to the goods delivered to him arose only on the date when the goods were delivered to him, then it means that the plaintiff had two causes of action under clause (3) of Paragraph 6, one relating to the loss and another relating to damage. From the language of the clause in question it is not possible to accept that contention. As observed by this Court in the decision referred to above the time when the ship leaves the port should be taken as the time when delivery should have been made. Any delivery which had not been made by that date comes within the mischief of clause (3) of Paragraph 6. We think that the question of law arising for decision in this case is covered by the ratio of the decision of this Court in The East & West Steamship Companys case (supra).