GIRISH CHANDRA GUPTA, J. ( 1 ) THE subject matter of challenge in each of the writ petitions out of which the present appeals arise is a resolution of the Board of Trustees for the Port of Calcutta dated 21-10-1982 by which it was inter alia resolved that rent on cargo transported in containers may be recovered from the Marine Account of the Steamer Agent from the 16th day from the date of landing of the containers up to and inclusive of the date of Destuffing, it destuffing is not done within the free time of 15 days. The steamer agents contend that they are not liable for the rent in case of delay in destuffing the containers beyond 15 days and that resolution to realise the rent from the Marine Account of the steamer agent with effect from the 16th day of landing in case the containers are not destuffed is without authority, arbitrary, capricious and void. The writ petition filed by M/s. Seahorse Shipping and Ship Management and others (hereinafter referred to as Seahorse for brevity) was heard by S. C. Sen, J. (as His Lordship then was ). His Lordship upheld the contention of the writ petitioners and allowed the writ petition. Being aggrieved the Port Trust has come up in appeal. Another writ petition filed by United Liner Agencies of India Ltd. (hereinafter referred to as United Liner for brevity) and the third writ petition filed by Integrated Marketing Private Ltd. (hereinafter referred to as Integrated for brevity) were heard by U. C. Banerjee, J. (as His Lordship then was ). His Lordship did not agree with the contention of the writ petitioners and therefore dismissed the writ petitions. Being aggrieved the steamer agents namely United Liner and Integrated have preferred appeals. All these appeals were heard in close succession. In each of the cases the undisputed factual position is that the destuffing of the containers was delayed beyond the free time of 15 days and as a result the Port Trust has debited and/or proposed to debit the Marine Account of each of the writ petitioners with the amount of rent on cargo for the delayed destuffing of the containers. ( 2 ) FOR proper appreciation of the case it would be useful to set out the Resolution dated 21-10-1982 adopted by the Port Trust:- extract from the proceedings of the Trustees 11th Meeting held on the 21/10/198211. Subject : Rent on cargo in containers. The Trustees by their Resolution No. 41 dated 22-2-1982 decided to allow three days rent-free period to Importers for clearance of cargo carried in containers, provided the containers are destuffed within 15 days from the date of landing. This was done on the basis of the recommendation made by the Operations Committee. 2. It has been represented by the Trade that distuffing of containers is not under their control and their charges to be imposed by CPT for delay in destuffing, if any, would be recovered from the Shipping Companies Container Operators. The matter has been examined by the Traffic Manager and he has recommended that rent on containers be recovered as follows :- (i) The date of destuffing may continue to be treated as the date of landing of the cargo contained in the containers and rent on such cargo may be recovered in terms of S. 6 (A) of the Trustees' Scale of Rates. In other words, in all cases whether destuffing be done within the free time of 15 days or thereafter, the consignee should always be given the benefit of 3 clear working days after the date of destuffing of the containers, after which rent, if any, may be realised from the consignee. (ii) Rent on cargo transported in containers may be recovered from the Marine Account of the Steamer Agents from the 16th day from the date of landing of the containers up to and inclusive of the date of destuffing, if destuffing is not done within the free time of 15 days. (iii) As regards Nepal cargo contained in containers, the existing facilities i. e. 7 clear working days as rent free period after the date of destuffing may continue to be allowed to the consignee. (iv) As regards hazardous cargo contained in containers, rent may be recovered under S. 19 of the Trustees' Scale of Rates irrespective of the date of destuffing. (iv) As regards hazardous cargo contained in containers, rent may be recovered under S. 19 of the Trustees' Scale of Rates irrespective of the date of destuffing. It may, however, be suggested that rent on such cargo from the date of landing of the container up to the date previous to the date of destuffing may be recovered from the Marine Account of the Steamer Agents and that rent on the same may be recovered from the Importer from the date of destuffing up to the date of delivery. 3. Financial Adviser and Chief Accounts Officer have concurred in the recommendations made by Traffic Manager. 4. The sanction of the Trustees is requested to the proposal of Traffic Manager, as indicated above. Shri S. K. Sen mentioned that he had raised certain points in a letter which he had just sent to Chairman. It was agreed that the proposal, as presented to the Trustees, should be sanctioned. The points raised by Shri Sen would examined and placed before the Trustees at a subsequent meetings. " ( 3 ) SUBSEQUENTLY considering the recommendations made by Shri S. K. Sen Regional Director, Shipping Corporation of India Ltd, Calcutta the free time of 15 days was increased to 21 days by the Resolution No. 424 dated 27-12-1982. The said Resolution reads as follows :-resolved that the 15 days time allowed to shipping Companies Containers Operators for destuffing containers carrying import cargo be increased to 21 days. " ( 4 ) WE shall now examine the reasons assigned by Sen, J. for upholding the contention of the writ petitioners as also the submissions made by the learned counsel appearing on either side seeking to uphold and reject the finding of the learned trial Judge. ( 5 ) THE decision in the case of M/s. Seahorse Shipping and Shipmanagement Pvt. Ltd. v. The Board of Trustees for the Port of Calcutta reported in AIR 1989 Cal 212 where Sen, J. in paragraphs 8, 9 and 10 held as follows :-8. On behalf of the petitioners, reliance has been placed on certain provisions of India-Pakistan-Bangladesh-tariff which is annexure A' to the affidavit of Vilas Waman Katra affirmed on 13/11/1986. 1. 4. Definitions carrier carrier includes the owner of the charterer of the vessel who enters into a contract of carriage with a shipper. On behalf of the petitioners, reliance has been placed on certain provisions of India-Pakistan-Bangladesh-tariff which is annexure A' to the affidavit of Vilas Waman Katra affirmed on 13/11/1986. 1. 4. Definitions carrier carrier includes the owner of the charterer of the vessel who enters into a contract of carriage with a shipper. , merchant includes the Shipper, holder of the Bill of Lading, consignee, receiver of the Goods any person owning or entitled to possession of the Goods or of the Bill of Lading, and any one acting on behalf of any such person. Container denotes an item load of goods, the Merchant being responsible for packing and unpacking the container. FCL/fcl (Full Container Load)denotes a Container load of goods, the Merchant being responsible for packing and unpacking the container. (1) LCL/lcl (Less than Container Load) denotes Goods in any quantity intended for carriage in a container, the Carrier being responsible for packing and unpacking the container the cost of which being recoverable from the Merehant by way of the LCL Service Charge. FCL/lcl denotes a shipment of Goods which the Merchant is responsible for packing into the container and the Carrier. , (1) is responsible for unpacking the container, the cost of unpacking being recoverable from the Merchant by way of the LCL Service Charges. LCL/fcc denotes a Shipment of Goods which the Carrier (1) is responsible for packing into the container, the cost of which being recoverable from the Merchant by way of the LCL Service Charges and the Merchant is responsible for unpacking the container. "9. THE case of the petitioner that the contaier in this case were FCL containers has not been disputed by the respondents. In that event, liability to destuff these containers is of the Merchant and not the Carrier"10. Therefore, the petitioners as Steamer Agent or the Agent of the Carrier could not be saddled with the responsibility for destuffing such containers. Under these circumstances, it is difficult to see how the Port Authority can lawfully levy any charge on the carrier or its agent for delay in packing or unpacking the containers. " ( 6 ) MR. Sarkar learned counsel appearing for Seahorse has placed strong reliance on the India-Pakistan-Bangladesh-tariff which has been quoted above in support of his contention that destuffing of the container is not the obligation of the Steamer Agents. Mr. " ( 6 ) MR. Sarkar learned counsel appearing for Seahorse has placed strong reliance on the India-Pakistan-Bangladesh-tariff which has been quoted above in support of his contention that destuffing of the container is not the obligation of the Steamer Agents. Mr. Roy Chowdhury, on the other hand, appearing on behalf of the appellant Port Trust has contended that this so-called tariff was never acted upon by the Port Trust authorities. We are unable to place any credence on this tariff for the following reasons:- (A) This tariff was disclosed by the writ petitioner in its affideavit-in-reply so that the Port Trust had no occasion to deal with the same. (b) It appears as a matter of fact that on 10-1-1985 the vessel MV-Stein Hoft carrying the subject containers arrived at the Port of Calcutta and discharged the containers on 11-1-1985. The writ petitioner by its letter dated 3-5-1985 sought permission of the Port Trust Authorities to destuff the cargo. The relevant portion of the letter dated 3-5-1985 is as follows:-SUBJECT 15 containers arrived Calcutta on M. V. Stein Hoft Imp. Rot. No. 6/85 on 11/01/1985. The consignees' representative has been visiting us on several occasions and it appears from our discussion that there is some payment problem between their sellers and themselves. At this point of time with nearly four months having passed, we are not too sure as to when this party will take delivery of this cargo. As heavy ground rent is being incurred which will finally be debited to our account, we request your permission to kindly permit us to destuff all the 15 containers and place in D' NSD 1st floor. " (c) If destuffing of the container was the liability of the consignee as has been contended by Mr. Sarkar and in case the tariff relied upon by him was in force where was the occasion for Seahorse to seek permission to destuff the containers? (d) The letter dated 3-5-1985 addressed by Seahorse does not refer to the tariff relied upon by Mr. Sarkar. (e) It is an admitted position that the permission was granted by the Port Trust and the destuffing was completed by Seahorse on 22-5-1985 as would appear from paragraph 11 of the writ petition. (d) The letter dated 3-5-1985 addressed by Seahorse does not refer to the tariff relied upon by Mr. Sarkar. (e) It is an admitted position that the permission was granted by the Port Trust and the destuffing was completed by Seahorse on 22-5-1985 as would appear from paragraph 11 of the writ petition. ( 7 ) FOR the reasons aforesaid we are unable to uphold the finding of the learned Trial Judge that the Steamer Agent or the agent of the carrier could not be saddled with the responsibility for destuffing such containers". ( 8 ) IN this case admitted position is that the consignee did not turn up to take delivery of the goods. According to the resolution dated 21-10-1982 the Port Trust has held the Steamer Agents liable for rent upto the date of destuffing. The Port Trust treated the owner of the goods to be liable for rent which accrued after the destuffing of the containers and realised protanto satisfaction of its claim from out of the sale proceeds of the goods. The rent from the date of discharge of the goods till the date of destuffing is sought to be recovered from the Steamer Agents. The learned trial Judge upheld the contention of the writ petitioner that it is not liable for such rent on the basis of the following further reasons :-50. In my judgment the Steamer Agent cannot be made liable for the storage charge of the cargo. A Steamer Agent, unless there is a specific contract to the contrary cannot remove the cargo from the port area, it can be removed either by the consignor or the consignee or the shipper. Clearing Agents may be engaged by a consignee for removal of cargo which has been brought on his account to the port area. Similarly Forwarding Agents may also be engaged by a consignor for despatch of cargo from the port area, such agents may be treated as agents of the consignor or consignee, as the case may be, with authority to remove cargo. But a Steamer Agent, who is an agent of the owner of the vessel into which the cargo has to be loaded, has no authority by virtue of his being a Steamer Agent to remove the cargo from the port area. The Port Authority cannot reasonably and lawfully levy a charge upon such an agent. But a Steamer Agent, who is an agent of the owner of the vessel into which the cargo has to be loaded, has no authority by virtue of his being a Steamer Agent to remove the cargo from the port area. The Port Authority cannot reasonably and lawfully levy a charge upon such an agent. Such a charge will be arbitrary and will amount to unreasonable restriction on a Steamer Agents right to carry on trade. "51. It is not necessary to express any opinion about the consequence that may follow if the Steamer Agent fails to destuff goods which have arrived in containers. In this particular case, the goods came in a container which is a F. C. L. , container (Full Load Container ). The entire load of goods contained in such a container was meant for a single consignee. Therefore, it was not the responsibility of the petitioner as Steamer Agent to destuff such containers. " ( 9 ) WE are unable to agree with the learned trial Judge that the Steamer Agent cannot remove the cargo from the Port area. It is this supposed inability of the Steamer Agent which has weighed with the learned trial Judge for the conclusion that the Steamer Agent is not liable for the rent which accrued on the cargo prior to destuffing of the containers. It is clear from the letter dated 3-5-1985 noticed above that the Steamer Agent was awaiting arrival of the consignee to take delivery of the goods and it is for this reason that the Steamer Agent delayed the destuffing of the containers. If the Steamer Agent is not entitled to remove the cargo, in case the consignee does not turn up it follows that the carrier is not answerable to the shipper or the consignee for the cargo in the event of unreasonable delay or failure on the part of the consignee to take delivery. If we were to agree with the finding of the learned trial Judge we have also to proceed on the supposition that the discharge of the goods in the Port is on behalf of the consignee and the carrier thereafter is no longer liable for the goods. This, in our view, is not a correct conclusion. If we were to agree with the finding of the learned trial Judge we have also to proceed on the supposition that the discharge of the goods in the Port is on behalf of the consignee and the carrier thereafter is no longer liable for the goods. This, in our view, is not a correct conclusion. Neither is the discharge of the goods in Port is deemed to be delivery of goods to the Port on behalf of the consignee nor is the carrier absolved of its liability once the goods are discharged in the custody of the Port. The carrier continues to be liable to the shipper or the consignee until the goods are actually delivered. The position as between the carrier and the Port Trust is that of a bailor and a bailee. The carrier is the bailor and the Port Trust is the bailee. If any authority is needed for this proposition, we may refer to the case of Trustees of the Port of Madras v. K. P. V. Seikh Md. , reported in 1963 Suppl. (2) SCR 915 at pages 940 and 941 where their Lordships held as follows : -. . . . . . . . . . . . . . . It is clear therefore that when the Board takes charge of the goods from the ship-owner, the ship-owner is the bailor and the Board is the bailee, and the Board's responsibility for the goods thereafter is that of a bailee. The Board does not get the goods from the consignee. It cannot be the bailee of the consignee. It can be the agent of the consignee only if so appointed which is not alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and not as a bailee. The provisions of Ss. 39 and 40, therefore, further supportthe contention that the Board takes charge of the goods on behalf of the ship-owner and not on behalf of the consignee and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship. ". . . . . . . . . . . . . . . . . . . . . . ". . . . . . . . . . . . . . . . . . . . . . THE responsibility of the carrier for the goods does not cease merely by the technical discharge of the goods from the ship but continues up to their delivery in accordance with the terms of the bill of lading. " ( 10 ) WE may now also refer to Carver's British Shipping Laws 11th Edition in which paragraphs 1015 and 1025 lay down inter alia as follows :-1015. Failure of consignee to receive cargo : ship's right to land it. If the consignee of the goods does not appear to claim and receive them, the master may land and warehouse them, or take such other steps as may be proper for their protection. And the consignee will be liable for any wharfage or other expenses properly incurred in doing so. "1025. . . . . . . . . . . . . . . . . . . And the same rule applies when the consignee fails to take delivery in proper time. If the cargo is ready to be delivered it is the duty of the consignee to come and take it, and if he does not come within the agreed time, or within a reasonable time, where no fixed period is allowed, the shipowner is improperly saddled with the care of the goods. He may therefore terminate his responsibility as carrier by warehousing them, and after doing so he becomes, subject to the statute as to warehousing responsible as a warehousman only. When once the consignee is in mora, by delaying to take may the goods beyond a reasonable time, the obligation of the carrier becomes that of an ordinary bailee being confined to taking proper care of the goods as a warehouseman : he ceases to be liable in case of accident. " ( 11 ) REFERING to the resolution dated 21-10-1982. Mr. Sarkar has contended that if the date of defaulting is to be stated as the date of landing of the cargo then Port has no authority to charge rent in respect of the cargo not landed in other words, goods are not deemed to have been landed until the destuffing is done. This argument of Mr. Mr. Sarkar has contended that if the date of defaulting is to be stated as the date of landing of the cargo then Port has no authority to charge rent in respect of the cargo not landed in other words, goods are not deemed to have been landed until the destuffing is done. This argument of Mr. Sarkar cannot be upheld because the destuffing of the container has been treated to be the date of landing so that the free time for the consignee to take delivery of the goods may commence. It is not that prior to destuffing of the goods the Port has not rendered any service. Port has in fact rendered service to the Steamer Agent or the carrier from the date of discharge of the goods and therefore the Port is entitled to levy charges on the cargo which remained on the premises of the Port. ( 12 ) MR. Sarkar then relied on the case of Board of Trustees of Port of Bombay v. Jai Hind Oil Mills Company reported in (1987) 1 SCC 648 : ( AIR 1987 SC 622 ) relevant portion whereof is as follows : -. . . . . . . . . . . . . . . . . . . DEMURRAGE charges are levied in order to ensure quick clearance of the cargo from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. " ( 13 ) ON the basis of the aforesaid Mr. Sarkar submitted that the object of charging demurrage is to ensure quick clearance of cargo. He submitted that in the event the Steamer Agent is made to pay the demurrage charges, the object of levying demurrage itself will be lost. In our view, this submission is without any substance because the demurrage paid by the carrier on the Steamer Agent can always be realised by the Steamer Agent from the consignee of the goods. He submitted that in the event the Steamer Agent is made to pay the demurrage charges, the object of levying demurrage itself will be lost. In our view, this submission is without any substance because the demurrage paid by the carrier on the Steamer Agent can always be realised by the Steamer Agent from the consignee of the goods. In the event the consignee does not turn up to take delivery of the goods in that case the Steamer Agent or the carrier will have a lien on the goods and such lien may be registered with the Port authorities under Section 60 of the Major Port Trust Act, 1963. ( 14 ) MR. Sarkar then relied upon the case of Trustees of the Port of Madras v. M/s. K. P. V. Sheikh Mohd. Rawther and Co. reported in AIR 1995 SC 1922 . This was a case where the claim of Port authorities arose due to the fact that the goods were not cleared by the Customs authority after the delivery orders had been issued by the Steamer Agent. When the claim for demurrage arose after the charge of goods had been taken over by the Board the question of the Steamer Agent being liable for such demurrage does not arise. To be precise that was a case where the claim for charges arose after the Board took over charge of the goods and after the Steamer Agent had signed the delivery orders whereas in the case before us the claim for demurrage arose before the goods are deemed to have been taken over by the Port Trust and before the Steamer Agent issued the delivery orders. It may be noticed that under the subject resolution cargo is deemed to have been landed upon destuffing of the containers. Therefore, this case does not lend any assistance in deciding the case in hand. ( 15 ) MR. Sarkar then relied on the case of Board of Trustees of the Port of Bombay v. Srivanesh Knitters reported in (1999) 7 SCC 359 : ( AIR 1999 SC 2947 ). This was a case where the question before their Lordships was whether the Port Trust has a general lien for its dues over the present or future consignments imported by the importer which was answered in the affirmative. This was a case where the question before their Lordships was whether the Port Trust has a general lien for its dues over the present or future consignments imported by the importer which was answered in the affirmative. This case, in our view, does not lend any assistance in deciding the case in hand. ( 16 ) MR. Sarkar referred to Sections 59, 60, 61, 62 and 63 of the Major Port Trust Act, 1963 and contended that the Port Trust has a lien for its rates and has a consequent authority to sell the goods for realisation of its claim in the event the rates are not paid. He contended that the Port Trust is fully armed with the provision of law to secure its dues and there is no reason why the carrier should be made liable for the rent on the cargo. In our view the rent which has been claimed from the Steamer Agent in this case is due to default on the part of the Steamer Agent to destuff the containers within the stipulated time. If the Steamer agent is diligent it will take steps to have the goods destuffed within the stipulated time and in case he does so he does not become liable for any rent on the cargo. If the Steamer Agent chooses to delay the destuffing of the goods either because the consignee has not turned up or for any other reason attributable to it the Steamer Agent is clearly liable for the rent. When the carrier is made liable for the rent its interest has been secured by the provisions of S. 60 of Major Port Trust Act, which provides that the Steamer Agent may give notice of its lien for charges which would be recovered either from the consignee or from the sale of goods in the event the consignee does not turn up. There is therefore no illogicality in making the Steamer Agent liable for the rent till the date of destuffing of the goods. ( 17 ) MR. Arijit Banerjee appearing in support of the appeal preferred by United Liner has largely relied on the same cases. There is therefore no illogicality in making the Steamer Agent liable for the rent till the date of destuffing of the goods. ( 17 ) MR. Arijit Banerjee appearing in support of the appeal preferred by United Liner has largely relied on the same cases. He has further relied on the case of Sun Exports Corporation v. Board of Trustees of the Port of Bombay, reported in AIR 1998 SC 92 for the proposition that demurrage and other charges to the Port would lie on the party who is obliged to remove the goods from the warehouse but failed to do so. This was a case where the question arose as to who is liable to Port authorities as between the opener of the letter of credit and the holder of the licence for import. It is in this context that their Lordships held that the party obliged to remove the goods is liable to pay the Port charges. This case has no manner of application to the case in hand. We have already rejected the contention that the Steamer Agent is not entitled to remove the goods from the Port area. Sometimes it may become his duty to warehouse the goods. ( 18 ) MR. Abhrajit Mitra appearing for Integrated merely adopted the submissions of Mr. Arijit Banerjee. ( 19 ) AT this stage it would be appropriate to notice the reasoning given by Banerjee. J for dismissing the writ petitions filed by United Liner and Integrated the relevant portion whereof is as follows :-discharge and shipment of containers containing cargo from and into the vessel are done by Steamer Agents and the Port authorities become the statutory bailee after the destuffing of the cargo from the containers and not prior thereto and it is at this stage that the consignees come into picture. The consignees therefore have had no role to discharge prior to destuffing of the containerised cargo. Destuffing of the containerised cargo is a function to be discharged by shipping agents or slot charterers. The delay involved cannot be attributed to that of the consignee. As such, primary responsibility is with the shipping agents and slot charters. Incidentally, by the letter dated 19-11-1984 the petitioner did not in any way dispute the liability but requested the recovery of such rent from the consignees. The delay involved cannot be attributed to that of the consignee. As such, primary responsibility is with the shipping agents and slot charters. Incidentally, by the letter dated 19-11-1984 the petitioner did not in any way dispute the liability but requested the recovery of such rent from the consignees. In the view I have taken as to the stage from where the consignee's liability commencees. I need not deal with the matter in detail. Suffice it to say that the consignee's liability begins on the landing of the goods i. e. after destuffing of the containers. The Board has amply clarified the situation that in any event if the destuffing could not be made within the free period of 30 days by reason of failure on the part of the Port Trust to provide necessary equipment of such destuffing the board would consider waiving of the rent even after the expiry of the free period. The Board having the power to impose the fee and in accordance with the schedule of rates approved by the appropriate authority, the question of interference with the imposition would not arise. In any event, the record notes of the discussions unmistakably go to show that all concerned including the shipping agents and slot charterers approved of the new system under which the slot charterers would be bound to the Port Trust of Port charges relating to landing, shipment, stuffing destuffing and ground rent on the containers. In that view of the matter, I am unable to accept the contention of the writ petitioners that there is no liability to pay for the rent on containerised cargo after the normal free period of 21 days since made 30 days. " ( 20 ) WE agree with the finding of the learned Trial Judge except that in the event the destuffing of the container is delayed due to any reason attributable to the consignee of the goods in that event the carrier or the Steamer Agent would be entitled to realise the Port charges from the consignee and for that reason it would be entitled to give notice of its lien to the Port authority under S. 60 of the Major Port Trust Act. ( 21 ) CONSIDERING the view that we have taken the First Miscellaneous Appeal being No. F. M. A. 77 of 1996 preferred by the Board of Trustees for the Port of Calcutta is allowed. ( 22 ) THE first Miscellaneous Appeal being No. 772 of 1988 preferred by United Liner and the First Miscellaneous Appeal being No. 725 of 1987 preferred by Integrated Marketing Private ltd. are dismissed. ( 23 ) THERE will be no order as to costs. ( 24 ) IT is made clear that in the event Seahorse has recovered the sum of Rs. 5 lakhs from the Board of Trustees for the Port of Calcutta pursuant to the order passed by the learned Trial Judge it shall refund the same within 2 weeks. In view of the result indicated above all the writ petition are dismissed. ( 25 ) ASHOK KUMAR MATHUR, C. J. :- I agree. ( 26 ) LET the bank Guarantee be encashed by the Port Trust. ( 27 ) PRAYER for stay of operation of this order made by the learned Counsel for the respondent in F. M. A. 77/96 considered and rejected. ( 28 ) IF urgent xerox certified copy of this judgment and is applied for the same may be made available to the applicant upon compliance of all the formalities. Order accordingly.