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

2. The suit in question came to be filed under the following circumstances. A consignment of tin plates was shipped for the plaintiff at New York in the ship belonging to the 1st defendant under a clean bill of lading, to be delivered at Cochin. It consisted of 15 skids of tin plates of gross weight 39, 100 lbs. At New York, the goods were shipped in s. s. "Exminister" (Flying Cloud) but at Colombo they were transshipped to another ship s. s. "Azumasan Maru". That ship arrived at Cochin on September 1, 1967, and left the port on September 7, 1967. But the goods were not delivered to the plaintiff. They had been mixed up with other goods and they were not discovered for quite a long time. On May 9, 1968, the second defendant conducted a survey at quay side. Another survey was conducted by the 2nd defendant at the plaintiffs godown on June 4, 1968. The survey disclosed that there was short delivery of 4.349 metric tons of tin plates and that the tin plates weighing 11, 182 metric tons were rusty and damaged. Only 1.932 metric tons of tin plates were in sound condition. The delivery of the available goods was given to the plaintiff on May 9, 1968. The suit was filed on May 24, 1969. Between May 9, 1969 of May 23, 1969, the Court was closed for summer vacation.

Reasoning: 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).