STATE OF KERALA v. MALABAR STEAMSHIP CO. LTD. — 1970 DIGILAW 88 (KER)

Judgment :- 1. This case turns on the true construction of the third clause of Para.6 of Article III of the Schedule to the Indian Carriage of Goods by Sea Act, 1925, hereinafter referred to as the Clause. The Clause says: "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." The question is whether in respect of each of the two causes of action mentioned, namely, loss and damage, the Clause furnishes two starting points for the period of one year within which suit must be brought if the liability and therefore the corresponding right are not to be extinguished. It would be strange if it did without specifying which of the two starting points is to be chosen, the earlier or the latter. And we do not think that it does although a contrary view seems to have been taken by a learned single judge of this Court in State of Kerala v. New Dholaru Steamships Ltd. 1969 KLT. 84. That, like the present was a case of failure on the part of the carrier to deliver part of a consignment, short delivery as it is commonly called such failure whether it relates to the whole or part only, is, of course, loss within the meaning of the Clause [See E. & W.S. Co. v. SKRC. AIR. 1960 SC. 1058, if authority were necessary] and it was held that there were two starting points for the period of one year which the Clause gives before killing the cause of action, namely, the latest date on which any part of the consignment was delivered and the date when the goods should have been delivered. The later of the two dates was chosen on the principle that the courts lean towards what could keep alive rather than kill a right-even a killer ought not to be denied the attribute of mercy. 2. With respect we take the view that the Clause provides only one starting point in respect of each of the two causes of action, the date when the goods should have been delivered in the case of loss, and the delivery of the goods in the case of damage. 2. With respect we take the view that the Clause provides only one starting point in respect of each of the two causes of action, the date when the goods should have been delivered in the case of loss, and the delivery of the goods in the case of damage. To arrive at its true meaning the Clause has to be read reddendo singula singulis, and, when so read, what it says is, "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after the delivery of the goods in the case of damage or the date when the goods should have been delivered in the case of loss." What has been delivered could only have been damaged, not lost. And the date when the goods should have been delivered marks the birth of a cause of action, for loss, not for damage. 3. Even in a case of short delivery as distinguished from an entire failure to deliver, the claim is in respect of the lost goods, and, ex hypothesi, so far as those goods are concerned there has been no delivery so as to attract the words, "the delivery of the goods" occurring in the Clause; and so only the second of the two starting points, namely, " the date when the goods should have been delivered" can be attracted. That some of the goods, not the lost goods (although forming part of the same consignment as the lost goods) have been delivered is irrelevant. The claim is in respect of the lost goods and not in respect of those other goods. The words, "the goods" appearing in the Clause obviously refer to the goods in respect of which claim is made, and, as we have already said, so far as the lost goods are concerned ex hypothesi there is no delivery of those goods. 4. Turning next to the second of the two causes of action, namely, damage, it is equally obvious that damage can come to light, and a claim made in respect thereof only after the goods have been delivered, not until then. 4. Turning next to the second of the two causes of action, namely, damage, it is equally obvious that damage can come to light, and a claim made in respect thereof only after the goods have been delivered, not until then. There can be no such claim when the goods have not been delivered there can only be a claim for loss and the date when the goods should have been delivered can have no bearing on such a claim. Therefore, it is clear that so far as damage is concerned only the first of the two starting points, namely, "the delivery of the goods", not the second,'namely, "the date when the goods should have been delivered" can apply. 5. We might also observe that it could hardly be the purpose of the Clause to discourage a carrier from trying to trace lost goods and deliver them if found, on peril of giving a fresh lease of one year for a claim against him in respect of goods forming part of the same consignment and still to be found. And what would happen if part of the goods are found and delivered more than a year after the date when they should have been delivered, or more than a year after a previous delivery? Would that furnish a starting point for a claim in respect of goods still remaining to be delivered, thus penalising the carrier for his honesty? 6. As we have already said, the present case is a case of short delivery, the short delivery being in respect of a consignment of mild steel rods shipped from Calcutta to Cochin. It is not disputed that if, as we are holding, the starting point for the period of one year mentioned in the Clause is the date when the goods should have been delivered, then, on the plaint as it stands, the court below was right in dismissing the plaintiff-appellant's suit, the Clause having operated to extinguish the cause of action, not merely, as the court seems to have mistakenly thought, to bar the remedy. 7. In the nature of things there could not have been nor is it the case that there was a stipulation as to when the goods should be delivered at Cochin. 7. In the nature of things there could not have been nor is it the case that there was a stipulation as to when the goods should be delivered at Cochin. Therefore, the date on which the ship left Cochin after touching there to discharge the goods is the date when the goods should have been delivered see E. and W. S. Co. v. S. K. R. C. AIR. 1960 SC. 1058. That date was the 13th of August 1960. The suit was brought only on the 4th September 1961 more than a year later and it follows that the Clause bad operated meanwhile to extinguish the plaintiff's cause of action. Neither the circumstance that the ship touched at Cochin again on the 29th August, 1960 leaving it on the 31st August (even so the suit was brought only more than a year after the departure) nor that a part of the consignment (not of course the lost part in respect of which the suit was brought) was delivered as late as 7th September 1960 can alter the position. 8. In the course of the hearing it was stated on behalf of the plaintiff that, subsequent to the arrival of the ship at Cochin, there was an agreement by which a later date, within one year of the institution of the suit, was fixed for the delivery of the goods. An application, CMP. No. 1539 of 1970, has been filed seeking an amendment of the plaint in an attempt to make out such a case. But, even accepting at its face value everything said in this application, it makes out no such case. All that is made out is that the person authorised to take delivery on behalf of the plaintiff made enquiries of the manager of the local office of the defendant carrier and was assured that attempts were being made to trace the undelivered goods and that they would be delivered on being found. Surely this does not mean that by mutual consent the date when the goods should have been delivered was changed. We see no point in allowing an application which will serve no purpose, and, accordingly, we dismiss the application. 9. We dismiss the appeal with costs. Dismissed.