JUDGMENT : 1. This suit has been filed for recovery of a sum of US $ 140720 with interest thereon at 18% per annum from the date of filing of the suit (09.10.2012) till the date of payment and for costs. 2. The plaintiff is a carrier and is a wholly owned subsidiary of M/s. Mediterranean Shipping Company. It carries on its business in India among other places at Chennai, through its branch office. The plaintiff’s business is one of carriage of goods by sea. The plaintiff, in the course of its business, had agreed to receive from the second defendant, which is a freight forwarder, a container bearing No.MEDU1969583 said to contain 300 X 20 kg fiber drums weighing about 7076.37 kg of bulk drugs manufactured by the third defendant for carriage and delivery to the consignee, viz M/s. Apotex Inc in Ontario, Canada. The second defendant is a freight forwarder, which forwards goods of various exporters to the liners/ship operator for carriage and delivery to various consignees situate across the globe. The second defendant acting as the freight forwarder of the third defendant packed the container bearing No.MEDU1969583 of bulk drugs for carriage and delivery to the consignee at Ontario, Canada. For the purposes of said carriage the goods (packed in the container) from Chennai to Ontario, Canada are to be loaded on board the vessel MV Sky Apollo for initial carriage from Chennai to Colombo and thereafter from Colombo to Ontario, Canada. It is stated that the Port at Colombo is used as a consolidation port/hub port from Chennai, i.e., various Containers from Chennai port and other ports are consolidated and loaded on board various vessels for onward carriage from Colombo. The facilities of the Hub port or consolidation port is utilized by the ship operators, when there are no vessels sailing from Chennai port to Ontario, Canada. 3. For the purposes of transporting the goods through ship to Foreign Ports the container in question has to be brought to the terminal operated by the first defendant and the first defendant takes charge of the container as bailee of the goods/custodians and they in turn, as per the directions of the forwarder and the liner, loads the container into a container ship nominated for voyage. 4. According to the plaintiff, the container with the goods, viz. 4. According to the plaintiff, the container with the goods, viz. bulk drugs bearing No.MEDU1969583 was sent to the container terminal building manned by the first defendant and the same was delivered at the container terminal building on 02.07.2011. The first defendant issued a receipt which in the business parlance is called the Equipment Inter-Exchange Receipt. By issuing the said receipt the first defendant, viz. Chennai Container Terminal Pvt Ltd., acknowledges the receipt of the container with seals in intact. It is the duty of the first defendant to load the cargo/container on to the ship nominated for the said purpose. Upon delivery of the container with the container terminal corporation viz., the first defendant, the plaintiff has filed its Export General Manifest with the Customs Department on 06.07.2011. The Export General Manifest is a statutory declaration, which is required from every ship that leaves the Indian waters with the intention of carrying cargo to Ports outside India. The Export General Manifest is to ensure that all the goods which leave the territorial waters of India are duly accounted for, for the purposes of payment of customs duty. An officer of the first defendant, viz. the vessel planner is entrusted with the job of planning the loading of the ship and he prepares the load plan giving the location for each and every container to be loaded on to the ship, according to the weight of the container. The job of the vessel planner is to ensure equal distribution of the weight all over the ship. The vessel planner of the first defendant is required to send the load plan to the plaintiff based on which the plaintiff issues the Bill of Lading to the second defendant, viz. the forwarder. 5. According to the plaintiff, the vessel planner issued a load plan indicating the place where the container, viz. MEDU1969583 is to be placed on board to the ship MV sky Apollo. Upon receipt of the load plan, the plaintiff issued the Bill of Lading acknowledging the loading of the container in the ship. The vessel sailed to colombo on 07.07.2011 at about 1.30 a.m., the final load list was sent by the first defendant to the plaintiff at 1.50 a.m. on 07.07.2011. Upon receipt of the load plan, the plaintiff issued the Bill of Lading acknowledging the loading of the container in the ship. The vessel sailed to colombo on 07.07.2011 at about 1.30 a.m., the final load list was sent by the first defendant to the plaintiff at 1.50 a.m. on 07.07.2011. However, when the vessel reached colombo, it was found that the container which is claimed to have been loaded as per the final loan plan issued at 1.50 a.m. on 07.07.2011 was not found in the vessel. It is also claimed that the vessel, which left the Port of Chennai on 07.07.2011 reached at Colombo Port on 08.07.2011. The Port Authorities at Colombo brought to the notice of the plaintiff that the container MEDU1969583 was not found on the vessel. The plaintiff sent an e-mail to the first defendant on 10.07.2011 informing it about the missing container. The first defendant upon receipt of the e-mail from the plaintiff lodged a police complaint with Harbour Police Station, Chennai on 21.07.2011, admitting the receipt of the container at its Container terminal on 02.07.2011 and the complaint was made on the basis that the container went missing from the container terminal, which is admittedly operated by the first defendant. The plaintiff would also plead that the container terminal in the Chennai Port is manned by the first defendant alone and being a protected area others cannot have access to the terminal building. The plaintiff would also plead that in order to get hold of the missing container, it enquired with the various freight container stations in Chennai as well as in the Hub Port of Singapore to rule out the possibility of the container having been loaded in a different ship. The said enquiry proved futile and the container was not found either at other container stations in Chennai or at the Hub Port of Singapore. In the meantime, the third defendant, who is the consignee of the goods sued the plaintiff in Canada for recovery of 2,90,400 US $ being the value of the goods. Upon receipt of the summons in the claim filed in Canada, the plaintiff came forward with the above suit originally for an indemnity pending the result of the suit in Court File No.T-1301-12 on the file of the Canadian Federal Court. Upon receipt of the summons in the claim filed in Canada, the plaintiff came forward with the above suit originally for an indemnity pending the result of the suit in Court File No.T-1301-12 on the file of the Canadian Federal Court. It is also averred that the suit filed by the third defendant against the plaintiff in the Canadian Federal Court, was settled by the plaintiff and the plaintiff had parted with a sum of US $ 90,000/- and got the proceedings at Canada terminated. After such termination the plaintiff filed an application in Application No.6677 of 2014 seeking to convert the suit into one for recovery of money for a sum of 1,40,720 US $. The suit claim essentially consists of the money that was paid by the plaintiff to the third defendant and the costs of the suit at Canada. 6. The sum and substance of the claim of the plaintiff is that the first defendant as a person in-charge of the container terminal is liable for loss of the container with the cargo. The amendment sought for by the plaintiff is allowed by this Court on 13.11.2014. 7. The first defendant alone contested the suit. According to the first defendant it cannot be held liable for the loss of the container inasmuch as the plaintiff had issued a Bill of Lading on 07.07.2011 admitting the fact that the container was loaded to the vessel by the first defendant. While admitting the receipt of the container on 02.07.2011, the first defendant would contend that the container in question was in fact loaded on board the vessel MV Sky Apollo in the presence of the Chief Officer of the ship and it is only after the containers are actually placed on board the ship, according to the load plan, the load plan was signed by the Chief Officer of the vessel in question. The fact that the Chief Officer of the vessel MV Sky Apollo had signed the load plan would amount to confirmation of the fact that the container has been placed at the particular location as shown in the load plan of the ship. The fact that the Chief Officer of the vessel MV Sky Apollo had signed the load plan would amount to confirmation of the fact that the container has been placed at the particular location as shown in the load plan of the ship. Therefore, according to the first defendant, the signing of the load plan by the Chief Officer of the ship and the issuance of Bill of Lading by the plaintiff would amount to acknowledgement of the fact that the container has been placed on board the ship. Therefore, the first defendant, who admittedly was in custody of the container between the time when the container was brought to the terminal and the time it was loaded on the ship, cannot be held liable for loss of the container. The first defendant would also claim that the filing of the Export General Manifest by the plaintiff with the Customs Department would show that the goods were actually loaded on to the ship and the ship left Indian waters on 07.07.2011. The first defendant would further contend that the search conducted in the terminal of the first defendant would establish that the container was not short-shipped at Chennai, but was in fact shipped on board the plaintiff's vessel. Therefore, according to the first defendant, it cannot be held liable for the loss of the container. It is also contended that an established container line like the plaintiff could not have issued a Bill of Lading on the assumption that the container would have been loaded on board the vessel by the first defendant. The fact that the Chief Officer of the ship MV Sky Apollo had signed the load plan would belie the contention of the plaintiff that the Bill of Lading was issued on the assumption that the container would have been loaded on to the ship by the first defendant as per the load plan issued at 11.20 p.m. on 06.07.2011. The lodging of the Police complaint, according to the first defendant was in the usual course of business with a view to satisfy a regular customer like the plaintiff. The first defendant also denied the quantum of the claim which is quantified at US $ 1,46,720. 8. The third defendant filed a separate written statement, but no relief is claimed against the third defendant in the suit. 9. The first defendant also denied the quantum of the claim which is quantified at US $ 1,46,720. 8. The third defendant filed a separate written statement, but no relief is claimed against the third defendant in the suit. 9. On the above pleadings, the following issues were framed by this Court for determination of the suit: 1. Whether the first defendant admitted custody of container MEDU 1969583, from the plaintiff by issuing equipment inter-exchange receipt dated 02.07.2011? 2. Whether the first defendant as the operator of the container terminal was incharge of loading the container MEDU1969583 on board the vessel MV SKY APOLLO on 07.07.2011? 3. Whether the first defendant confirmed the loading of the container on board the vessel MV SKY APOLLO by issuing email dated 07.07.2011 to the plaintiff? 4. Whether the vessel MV SKY APOLLO discharged cargo at any other port before going to the port of Colombo on 08.07.2011? 5. Whether the non availability of the container MEDU1969583 on the vessel at the port of Colombo on 08.07.2011 was due to non loading of the container by the first defendant on the vessel 07.07.2011? 6. Whether the loss of container MEDU1969583 is attributable to the first defendant? 7. Whether the first defendant is bound to compensate the plainttiff due to loss of the container MEDU 1969583? 8. Whether the first defendant is liable to indemnify the plaintiff for the amount of US $ 1,40,720 i.e. the amount paid and costs incurred by the plaintiff to settle the third defendant in suit No. Court File No.T-1301-12, on the file of the Federal Court of Canada? 9. To what other relief is the plaintiff entitled to? 10. On the side of the plaintiff one A.Umai Balan, Power of Attorney holder of the plaintiff was examined as P.W.1. On the side of the first defendant Mr. M.S.Shakul Hameed, Manager of the Operations Department of the first defendant Company, examined as D.W.1. The plaintiff produced Exhibits P1 to P24 and the first defendant produced Ex.D1. 11. I have heard Mr.P.Giridharan, learned counsel appearing for M/s.V.Aravamudan and P.Giridharan for the plaintiff, Mr.S.Raghunathan, learned counsel appearing for the first defendant and Mr.O.R.Santhana Krishnan, learned counsel appearing for the third defendant. Issue No.1: 12. This issue relates to the acknowledgement of receipt of the container bearing No. MEDU1969583 by the first defendant. 11. I have heard Mr.P.Giridharan, learned counsel appearing for M/s.V.Aravamudan and P.Giridharan for the plaintiff, Mr.S.Raghunathan, learned counsel appearing for the first defendant and Mr.O.R.Santhana Krishnan, learned counsel appearing for the third defendant. Issue No.1: 12. This issue relates to the acknowledgement of receipt of the container bearing No. MEDU1969583 by the first defendant. The fact that the first defendant was put in custody of the said container on 02.07.2011 is not in dispute. Ex.P2, which is the Equipment Inter Exchange Receipt issued by the first defendant would show that the container bearing No.MEDU1969583, was delivered at the container terminal manned by the first defendant in the vehicle bearing Registration No.TN32B6421 on 02.07.2011. Ex.P2 would also show that the container has been placed at Tier 4 Row F Bay 23 of lane 20. The Export Generate Manifest filed by the plaintiff Ex.P3 on 06.07.2011 would also show that the container was placed in the hands of the first defendant for despatch to Ontario via Colombo. The vessel load plan, which is forwarded by the vessel planner of the first defendant company to the Regional Office (Planning) of the plaintiff on 06.07.2011 at 1.43 p.m. would show that the container bearing MEDU1969583 is to be stored at the slot bearing No.130312 of the ship MV Sky Apollo. The receipt of the said email is acknowledged by the plaintiff’s Regional Office at 3.28 p.m. on 06.07.2011, as seen from the email communication between 05.07.2011 and 07.07.2011 marked as Ex.P4. The final load list of the vessel MV Sky Apollo is forwarded to the Regional Office (Planning) of the plaintiff as well as the Head of Operations of the plaintiff at Chennai, at 1.50 a.m. on 07.07.2011. The same is evidenced by email of Mr.P.Ramakrishnan, vessel planner (operation) of the first defendant. These documents would clinchingly show that the container bearing No. MEDU1969583 was in fact entrusted to the first defendant on 02.07.2011 for being loaded on to the ship to be sent to Ontario, Canada via Colombo. The fact that the container was in fact delivered to the first defendant is also acknowledged by the first defendant under Ex.P9 dated 21.07.2011, viz. the Police complaint made by the first defendant with the Harbour Police. It is also seen that the First Information Report has been lodged by the police on the basis of the said complaint. The fact that the container was in fact delivered to the first defendant is also acknowledged by the first defendant under Ex.P9 dated 21.07.2011, viz. the Police complaint made by the first defendant with the Harbour Police. It is also seen that the First Information Report has been lodged by the police on the basis of the said complaint. Therefore, the evidence available on record puts the factum of entrustment of the container bearing No. MEDU1969583 in the hands of the first defendant beyond doubt. Hence, Issue No.1 is answered against the first defendant and in favour of the plaintiff. Issue Nos.2 and 3: 13. The fact that the container bearing No. MEDU1969583 was delivered to the first defendant by the transporter on 02.07.2011 has been held to have been proved. The email correspondence between 05.07.2011 and 07.07.2011, which has been marked as Ex.P4 is not disputed. The first of the email in the series marked as Ex.P4 has emanated from the first defendant at 1.43 p.m. on 05.07.2011. The said email reads as follows: “Attached the pre edi file for the subject vessel. Kindly check and revert asap.” The following is the reply e-mail sent by the Regional Office (planning) of the plaintiff at 3.28 p.m. on the same day: “Looks ok However please shift cargo forwarded to reduce trim” 14. Thereafter, a final load plan was sent by the vessel planner operations of the first defendant at 1.50 a.m. on 07.07.2011. It is not in dispute that the ship sailed out of the Chennai Port at 1.30 a.m. on 07.07.2011. It is the contention of the first defendant that the final load plan of the vessel has been signed by the Chief Officer of MV Sky Apollo and the said document was marked as Ex.P5. The same has been signed by the chief Officer of the vessel at 11.00 p.m. on 06.07.2011. As per the said load plan the container in question, viz. MEDU1969583 is to be stored at slot No.010184. But in the load plan that is attached to the email issued at 1.50 a.m. on 07.07.2011, the subject container is shown to have been placed at slot No.130312. As per the said load plan the container in question, viz. MEDU1969583 is to be stored at slot No.010184. But in the load plan that is attached to the email issued at 1.50 a.m. on 07.07.2011, the subject container is shown to have been placed at slot No.130312. This documentary evidence would show that the container bearing No. MEDU1969583 was in the custody of the first defendant between 02.07.2011 and 07.07.2011, when the first defendant issued the loading plan for the vessel MV Sky Apollo evidencing the fact that a particular slot has been set apart for loading the said container in the said vessel. The first defendant has also not denied the issuance of the load plan for the vessel. The correctness of the contents of emails marked as Ex.P4 series are not in dispute. Therefore, I conclude that the first defendant, as the operator of the container terminal at Chennai Port, was in-charge of loading the container bearing No. MEDU1969583 on board the vessel MV Sky Apollo on 07.07.2011. The final load list which is sent by email at 1.50 a.m. on 07.07.2011 shows that the container bearing No. MEDU1969583 was in fact loaded at vessel's slot No.130312. Though, this is in variance with the loading plan issued by the first defendant on 06.07.2011, the fact that the first defendant had confirmed loading of the container on board the vessel MV Sky Apollo cannot be disputed. Hence, issues 2 and 3 are answered to the effect that the first defendant, as the container terminal operator was in-charge of loading the container MEDU1969583 on board the vessel MV Sky Apollo on 07.07.2011 and that it had confirmed the loading of the container on board the said vessel by its email dated 07.07.2011 to the plaintiff. Issue Nos.4, 5 and 6: 15. It is admitted case of the contesting parties that the vessel MV Sky Apollo left the Port of Chennai at 1.30 a.m. on 07.07.2011 and its next port of call was Colombo. It is not in dispute that the vessel sailed directly from Chennai to Colombo Port. Therefore, there is no possibility of the vessel having discharged any cargo at any other port. It is not in dispute that the vessel sailed directly from Chennai to Colombo Port. Therefore, there is no possibility of the vessel having discharged any cargo at any other port. It is seen from the email dated 09.07.2011 issued by the Port at Colombo that the container MEDU1969583 was not discharged from Bay Number 130312 of MV Sky Apollo and the same has been confirmed by Deck Controller of ship. This is evidenced by Ex.P7 a series of emails. The first email was sent at 7.04 a.m. on 09.07.2011, wherein it is stated that the container was not found at Bay Number 130312 of the vessel MV Sky Apollo. It is followed up by another email issued at 4.28 p.m. on 09.07.2011, which reads as follows: “All the discharging is complete but above container was not found yet” 16. The person in-charge of operations of the plaintiff at Colombo sent an email to the plaintiff at Chennai at 5.14 p.m. on 09.07.2011, wherein he informs the plaintiff's officers at Chennai that the container bearing No. MEDU1969583 is missing on board the vessel MV Sky Apollo, which was berthed at Colombo on the said date. The fact that the next port of call for the vessel MV Sky Apollo, after it left the Chennai Port was only Colombo is not in dispute, the documentary evidence available in the form of Ex.P7 email would show the container was not on board in ship, when it reached Colombo. Of course the first defendant would contend that the non-availability of the container cannot be said to be due to non loading of the container at Chennai port. To a pointed query by the Court on this aspect, Mr. S.Raghunathan, learned counsel appearing for the first defendant would submit that the first defendant cannot be expected to know what happened to the container after it was loaded on the vessel. It is not the case of either of the parties that the container was pushed off the ship during voyage, considering the size of the container and weight of the container the same cannot have happened. It is not the case of either of the parties that the container was pushed off the ship during voyage, considering the size of the container and weight of the container the same cannot have happened. Therefore, issue No.4 is answered to the effect that the ship MV SKY Apollo did not discharge any cargo at any other Port before reaching the Port of Colombo on 08.07.2011, after having left at Chennai port on 07.07.2011 at 1.30 a.m. The non availability of the container in the ship at Colombo could only be attributed to the non loading of the same at Chennai Port. 17. Insofar as the Issue No.6 is concerned the answer has to be in the affirmative. The fact that the container was put in custody of the first defendant on 02.07.2011 is not in dispute. The fact that the container was not in the vessel when it reached Colombo is also not in dispute. The only defence the first defendant would press hard is the fact that the Chief Officer of the ship MV Sky Apollo has signed the loading plan thereby acknowledging the loading of the container on to the ship. The issuance of Bill of Lading by the plaintiff on 07.07.2011, according to Mr. S.Raghunathan, learned counsel appearing for the first defendant would conclusively prove that the container has been loaded on to the ship. Mr. S.Raghunathan, learned counsel appearing for the first defendant would contend that by issuing a Bill of Lading the liner/ship operator acknowledges the factum of loading of the goods on to the vessel. Therefore, according to him, once a Bill of Lading is issued that amounts to conclusive proof of the fact that the container was loaded on to the ship and the plaintiff cannot turn around to contend that Bill of Lading was issued on the basis of the load plan issued by the first defendant. 18. Per Contra, Mr. P.Giridharan, learned counsel appearing for the plaintiff would contend that considering the volume and number of containers that are loaded on to a particular ship, a physical verification of each and every container is impossible. 18. Per Contra, Mr. P.Giridharan, learned counsel appearing for the plaintiff would contend that considering the volume and number of containers that are loaded on to a particular ship, a physical verification of each and every container is impossible. By relying upon the loading plan, Mr.P.Giridharan, learned counsel would submit that almost 977 containers of various sizes were to be loaded on the ship MV Sky Apollo which departed from Chennai Port on 07.07.2011, a physical verification the factum of loading of each and every container is therefore not possible considering the limited time during which the ship is berthed at the terminal. Therefore, according to him, the Bill of Lading was issued solely on the basis of the final vessel loading plan issued by the first defendant at 1.50 am, on 07.07.2011, 20 minutes after the ship left the Port at Chennai. According to Mr.P.Giridharan, the fact that the subject container was not loaded on to the ship came to light only when it's absence was discovered at Colombo. 19. Mr.P.Giridharan, learned counsel appearing for the plaintiff, would also point out that the 'pre edi file' sent along with the email dated 05.07.2011 shows the container in question has been assigned slot No.010184. The load plan that is signed by the Chief Officer of the vessel MV Sky Apollo, marked as Ex.P5 would show that the position of the container as at Bay No.010184. The annexure to the load plan, viz. Ex.P5 would show that the container was assigned the slot 010184 even at about 10.17 p.m. on 06.07.2011. It is the said load plan that is signed by the Chief Officer of the vessel MV Sky Apollo. However, in the final load list sent at 1.50 am on 07.07.2011 by the vessel planner of the first defendant the subject container is shown to be located at slot No.130312 at 1.23 a.m. on 07.07.2011. Therefore, there has been a change in the location of the container and this final load list has not been acknowledged by any person on board the ship MV Sky Apollo. Of course Mr.S.Raghunathan would rely upon the acknowledgement of the Chief Officer of MV Sky Apollo in Ex.P5 and contend that the factum of loading should be presumed. The acknowledgement contained in Ex.P5 is with regard to the receipt of the load plan at best. Of course Mr.S.Raghunathan would rely upon the acknowledgement of the Chief Officer of MV Sky Apollo in Ex.P5 and contend that the factum of loading should be presumed. The acknowledgement contained in Ex.P5 is with regard to the receipt of the load plan at best. The same has been signed by the Chief Officer of the vessel at 11.00p.m. on 06.07.2011. Therefore the same cannot be taken as an acknowledgement of the fact that the container was actually loaded on to the vessel. There is no acknowledgement of the actual loading on to the ship by any person connected with the Vessel MV Sky Apollo. Faced with such difficulty Mr. S. Raghunathan, learned counsel would rely upon the issuance of Bill of Lading by the plaintiff on 07.07.2011. The Bill of Lading which was marked as Ex.P6 has been issued by the plaintiff on 07.07.2011. This according to Mr.Raghunathan would be the conclusive proof of the fact that the container has been loaded on to the ship MV Sky Apollo. In answer to the said contention of Mr.Raghunathan, Mr.P.Giridharan, learned counsel appearing for the plaintiff would point out that Ex.P6 Bill of Lading has been issued solely on the basis of Ex.P4. According to him, the statement of the vessel planner of the defendant contained in Ex.P4 is taken as correct and Bill of Lading is issued on the assumption that Ex.P4 reflects the true position of the cargo in the ship. Mr.P.Giridharan, learned counsel appearing for the plaintiff would also reiterate the fact that the there are about 900 and odd containers loaded on to the ship and a physical verification of each and every container is impossible. Faced with such insurmountable task the plaintiff has necessarily relied upon the representation of the first defendant which holds a monopoly for loading containers from the terminal on to the ship. 20. Mr.P.Giridharan, learned counsel would also point out the container terminal is a protected area and the access to it is restricted therefore once the container has been delivered to the first defendant and the first defendant claims that it has been loaded on to a particular vessel the plaintiff has no other option but to believe the version of the first defendant and on the basis of such belief, it had issued a Ex.P6, the Bill of Lading. Mr.P.Giridharan, learned counsel would also take me through the Police complaint lodged by the first defendant on 21.07.2011. Pursuant to the complaint made by the plaintiff regarding the loss of the container, Referring to the contents of the Police complaint, which has been marked as Ex.P9, the learned counsel would contend that the first defendant cannot now contend that it has in fact loaded the container on to the vessel. The Equipment Inter-Exchange Receipt has been issued by the first defendant on 02.07.2011. This document evidences the entrustment of the container, with seals intact, with the first defendant. But however, in the police complaint dated 21.07.2011, the first defendant which is possessed of expertise in dealing with the container would claim that the transporter of the container bearing No. MEDU1969583 claims to have delivered the container with them on 02.07.2011 and on verification, the said container was not found in the terminal. This complaint was given almost after 10 days after the report of loss by the plaintiff. The first defendant does not take a stand that the container was actually loaded on the ship viz. MV Sky Apollo in the said complaint. Based on the said complaint a first information report has been registered by the police. There are also various correspondences between the plaintiff and the first defendant during September and October 2011. By a letter dated 09.09.2011, which is marked as Ex.P12, the first defendant would write to the plaintiff stating that it is aware of the fact that the cargo was not discharged at Colombo. It is also stated that the first defendant has lodged the police complaint and the police were in the process of investigation, the first defendant would go further and advise the plaintiff to lodge a claim with the insurer. This letter marked as Ex.P9 is in response to the letter of the plaintiff dated 14.09.2011 marked as Ex.P11, wherein the plaintiff has pointed out that the consignee has made a claim against them by filing a suit for recovery of US $ 2,60,000/-. Again on 25.10.2011, the first defendant has addressed a letter to the plaintiff which has been marked Ex.P15. Even in the said letter the first defendant does not claim that the container was actually loaded on the ship, therefore, it is not liable for the loss. Again on 25.10.2011, the first defendant has addressed a letter to the plaintiff which has been marked Ex.P15. Even in the said letter the first defendant does not claim that the container was actually loaded on the ship, therefore, it is not liable for the loss. Instead the first defendant would state as follows in the said letter: “Please note we exercise all necessary precaution and due diligence while handling the containers. This unfortunate incident has occurred inspite of best efforts and cannot be attributed to any negligence on our part nor was it intentional. In these circumstances, we cannot be held responsible for the incident and shall be claimed as transit loss with your insurers.” 21. Therefore, between 10.07.2011 and 25.10.2011, the first defendant never chose to take a stand that it had loaded the container on to the vessel MV Sky Apollo on 07.07.2011 itself. On the other hand in the police complaint an attempt was made by the first defendant to blame the transporter of the container and in the letter dated 25.10.2011, the first defendant admits the loss of the container but would however, claim no negligence could be attributed to it. Its only after the plaintiff makes a claim first defendant wakes up from slumber on 22.12.2011 to inform the plaintiff that it had got no evidence of the container having been loaded on board the vessel. Here again the first defendant would take shelter under the fact that the plaintiff has issued a Bill of Lading on 07.07.2011. Therefore, as rightly contended by Mr.P.Giridharan, the first defendant having accepted the loss of the container choose to turn around and claim that it cannot be held responsible for the loss, in view of the fact that the plaintiff had issued a Bill of Lading on 07.07.2011. The fact that the first defendant had the opportunity to deny any liability pointing out that the container has been actually loaded on to the ship cannot be brushed aside. The conduct of the first defendant between 10.07.2011 and 22.12.2011 assumes importance. The conduct which was conciliatory till the plaintiff lodged a claim became adversarial on 22.12.2011. In the light of my findings of Issue Nos.4 and 5, Issue No.6 is answered in favour of the plaintiff and against the first defendant, concluding that it is the first defendant which is responsible for loss of the container MEDU1969583. The conduct which was conciliatory till the plaintiff lodged a claim became adversarial on 22.12.2011. In the light of my findings of Issue Nos.4 and 5, Issue No.6 is answered in favour of the plaintiff and against the first defendant, concluding that it is the first defendant which is responsible for loss of the container MEDU1969583. Issue Nos.7 and 8: 22. Mr. S. Raghunathan, learned counsel appearing for the first defendant would buttress his submission that once the carrier issues a Bill of Lading, it alone is liable for the loss of the goods. Since, according to him, the issuance of a Bill of Lading by the carrier would amount to acknowledgement of the loading of the carrier on to the ship. For this purpose, he relied upon a judgment of Division Bench of this Court in The Madras Port Trust, by the Chairman v K.P.A.T. Annamalai Nadar and another reported in AIR 1968 Madras 42, in the said judgment the Division Bench has considered the effect of Bill of Lading. While holding that a Bill of Lading is generally a prima facie evidence against the ship owner of the shipment on board of an acknowledgement of the goods covered under the Bill of Lading, the Division Bench also took note of the foot note at page 70, and Art. XX in Sir Thomas Edward Scrutton's Charter Parties and Bills of Lading, 16th Edn, which reads as follows: “The evidence to displace the Bill of Lading must show not merely that the goods may not have been shipped, but that they were not; Smith v. Bedouin Stream Navigation Co., 1896 AC 70 , 79, but it may be shown by conclusive evidence that after receipt by the ship-owner none of the goods were lost or stolen that he has delivered all that he received. The statement in the Bill of Lading is not to be displaced merely by a consideration of the balance of probabilities.” 23. The Division Bench further went on to hold that where the Port Trust undertakes the duty of getting consignments discharged from the ship, it takes the responsibility when it gives acquittance to the ship-owner of due discharge of the cargo. The Division Bench further went on to hold that where the Port Trust undertakes the duty of getting consignments discharged from the ship, it takes the responsibility when it gives acquittance to the ship-owner of due discharge of the cargo. The Division Bench further observed that the Port Trust in the said case must, on facts found, be held to have landed the consignment of the plaintiffs as described in the Bill of Lading but failed to tender the same when required by the consignee. Ultimately, the Division Bench concluded that the Port Trust is liable for the goods lost. 24. The law laid down by the Division Bench is to the effect that even though a Bill of Lading issued by the ship owner is a prima facie proof for having accepted the fact that the goods were loaded on to the ship the same can be dislodged by cogent evidence to show that the goods were never lodged on to the ship. As seen from the observations of the Division Bench, it is clear that the presumption regarding the effect of the Bill of Lading is a rebut table presumption. 25. Mr. P.Giridharan, learned counsel appearing for the plaintiff would contend that the facts established in this case would lead to the presumption being dislodged by the plaintiff. He would submit that the Bill of Lading was issued on the basis of the final load plan annexed to Ex.P4. It is seen from the email correspondence, viz. Ex.P4, that the final load plan was sent to the plaintiff’s Regional Office at 1.50 am on 07.07.2011, whereas the ship in question had sailed out of the port of Chennai even at 1.30 am. Therefore, the plaintiff did not have the opportunity of a physical verification of the loading of the container in the ship. From Ex.P4 it could be seen that about 977 containers of various size were loaded on to the ship between 06.07.2011 and 07.07.2011. It is also seen that each of the containers are assigned a particular slot. 26. According to Mr.P.Giridharan, learned counsel appearing for the plaintiff it is humanly impossible to verify the factum of loading of each and every container within the limited time that is available for loading of the ship considering the scheduled departure of the ship. It is also seen that each of the containers are assigned a particular slot. 26. According to Mr.P.Giridharan, learned counsel appearing for the plaintiff it is humanly impossible to verify the factum of loading of each and every container within the limited time that is available for loading of the ship considering the scheduled departure of the ship. Mr.P.Giridharan would place reliance on the circumstances, which are almost admitted, to the effect the ship in question sailed out of port of Chennai at 1.30 a.m. on 07.07.2011 and its next port of call is only at Colombo. Admittedly, the container was not available on board the ship when it was discharged in full at Colombo. Therefore, according to Mr.P.Giridharan, the only possibility is that the container was not loaded in the ship at Chennai Port itself. He would also invite my attention to the contents of the Police complaint which was filed by the first defendant on 21.07.2011, wherein it is not claimed that the container was loaded on to the ship. Pointing out the conduct of the first defendant between 10.07.2011, viz. the date on which the loss of the container was brought to the notice of the first defendant and 22.12.2011, i.e. date on which the first defendant for the first time claimed that it has got the evidence to show that the container was loaded on to the ship, Mr.Giridharan would vehemently contend that the defence taken by the first defendant that it had in fact loaded the container on to the ship, viz. MV Sky Apollo on 07.07.2011 before its departure from Chennai Port is only an afterthought. 27. From the evidence on record, it is seen that the claim of the first defendant that the container in question was in fact loaded on to the ship is itself doubtful. Mr.Raghunathan, learned counsel would however claim that even after knowledge of the loss of the container the plaintiff gone ahead and filed the Export Manifest without amending it, this would show that the plaintiff had in fact conceded the loading of the container on to the ship. 28. Mr.Raghunathan, learned counsel would however claim that even after knowledge of the loss of the container the plaintiff gone ahead and filed the Export Manifest without amending it, this would show that the plaintiff had in fact conceded the loading of the container on to the ship. 28. Per Contra, Mr.P.Giridharan, learned counsel appearing for the plaintiff would rely upon the Handling of the Cargo in Custom Area Regulation which defines a Customs Cargo Service Provider as a person responsible for receipt, storage, delivery and dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in Section 45 of the Act. He relies upon Regulation No.6 (1) (i) which makes the service provider to be responsible for the safety and security of import and export goods under its custody. These regulations, according to Mr.Giridharan, make the first defendant the custodian of the goods while they remained within the customs area. It is not in dispute that the first defendant's container terminal is an area notified as customs area and it is a protected one. Mr.P.Giridharan would also rely upon the Division Bench Judgment of this Court in Sanco Trans Ltd v. The Customs, Excise and Service Tax Appellate Tribunal and Ors, reported in (2017) 4 MLJ 257 , wherein the Division bench had an occasion to consider the effect of the regulations. 29. In the light of above Judicial pronouncements and in the light of oral and documentary evidence available in this case in the form of emails which are not disputed, I conclude that the container in question was not loaded in the ship and was lost when it was in the custody of the first defendant. The presumption of loading created by the fact that the plaintiff had issued a Bill of Lading stood discharged by the conduct of the first defendant itself. Therefore, I conclude that the loss occurred when the container was in the custody of the first defendant. Hence, the first defendant is bound to compensate the plaintiff for the loss of the container. 30. Once it is found that the container MEDU1969583 has been lost, while it was in-charge of the first defendant and the loss is attributable to the first defendant, it is trite position of law the first defendant is liable to compensate the plaintiff for the loss. 30. Once it is found that the container MEDU1969583 has been lost, while it was in-charge of the first defendant and the loss is attributable to the first defendant, it is trite position of law the first defendant is liable to compensate the plaintiff for the loss. The plaintiff has produced Ex.P21, which is a settlement memo filed before the Federal Court, Canada, under which it is seen that the plaintiff has paid US $ 90,000/- in full quit of the claim of Apotex (Inc), viz. the consignee and all the claim has been settled out of Court by execution of receipt of release and discharge. It is also seen from the Invoices of M/s.Giovanni F De Sua (Inc) marked as Ex.P23 that the plaintiff has incurred legal costs of 72,760 Canadian dollars to their attorneys in Canada. 31. Mr.Raghunathan, learned counsel would contend that the first defendant had filed an application in Application No.1506 of 2016 seeking production of manual of instructions issued by the plaintiff to its crew member regarding safe loading, unloading the storage of the containers on board their ships. The first defendant had filed a counter to the said application stating that it is not in possession of any such manner. The said application came to be disposed of by this Court with the observation as follows:- “In view of the above, it is applicant/first defendant to establish that, those two documents are relevant for proper adjudication of the case. The non production of those two documents would go against the respondent/ plaintiff and it is for the applicant/first defendant, at the best, to take advantage of the same by asking the Court to draw adverse inference.” 32. Nothing has been placed on record by the first defendant to show the contents of the manual of which production is sought for in the application in Application No.1506 of 2016. Unless the contents of the documents is placed before this Court, this Court cannot decide as to whether the production of it would have gone against the plaintiff. Nothing has been placed on record by the first defendant to show the contents of the manual of which production is sought for in the application in Application No.1506 of 2016. Unless the contents of the documents is placed before this Court, this Court cannot decide as to whether the production of it would have gone against the plaintiff. I do not think any adverse inference could be drawn against the first defendant for non-production of the two documents referred to in the application in Application No.1506 of 2016, in as much as I have concluded that the container was not loaded on to the ship at all by the first defendant at Chennai Port before the ship sailed out of the Chennai Port. 33. The plaintiff has produced evidence to the effect that it had suffered a loss of 1,40,720 US $ due to the loss of container and the first defendant is liable to indemnify the plaintiff towards the said loss. In fine the suit is decreed as prayed for. There will be a decree in favour of the plaintiff directing the first defendant to pay a sum of Rs.1,40,720 US $ with interest thereon at 12% from the date of the suit till the date of decree and 6% thereafter till date of realization. 34. In fine the suit is decreed as prayed for. There will be a decree in favour of the plaintiff, directing the first defendant to pay a sum of 1,40,720 US $ with interest thereon at 12% from the date of suit till date of decree and 6% thereafter till date of realization. The plaintiff would also be entitled to the costs of the suit from the first defendant. The suit against the defendants 2 and 3 stands dismissed.