Samsun Shipping Corporation (Petitioner)
Hossain and Sons and others (Respondents)
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
Judgment dated : October 31 st, 1994
Case Referred To:
Care Shipping Corporation vs. Latin American Shipping Corporation (1983) 1 All ER 1121; British India Steam Navigation Co. Ltd. vs. Sharimughavilas Cashew Industries and others (1990) 3 SCC 481.
Moudud Ahmed, Senior Advocate instructed by Md. Aftab Hossain, Advocate?on?Record ? For the Petitioner.
Rafique?ul Huq, Senior Advocate (Mr. Mahmudul Islam, Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate?on?Record ?For the Respondent No. 1.
Not represented?Respondent Nos. 2?11
Civil Petition for Leave to Appeal No. 675 of 1994
(From the Judgment and Order dated 5.9.94 passed by the High Court Division in Admiralty Suit No. 20 of 1994).
Mustafa Kamal J : The petitioner describing itself as defendant No.3 as a party interested in Admiralty Suit No.20 of 1994 filed an application on 31.8.94 for recording the right or lien exercised by it on the cargo on board MV. Global Traders, which having been rejected by the learned Admiralty Judge by judgment and order dated 5.9.94 the petitioner now seeks leave to appeal from the same.
2. Respondent No.1 as plaintiff filed the aforesaid suit against the defendant ? respondents making the owners and parties interested in the vessel MV Global Trader as defendant No. 3 stating that it imported 14,400 metric tons of cement by opening letter of credit through defendant No. 7 Al Baraka Bank (Bangladesh) Limited favouring defendant No.6 which is the Hongkong supplier of cement. Defendant No. 6 chartered the vessel MV Global Trader, defendant No. 1, under a time charter and shipped the cement and issued bills of lading on behalf of the Master of defendant No. 1. The vessel discharged certain quantity of cement purchased by a sister concern of the plaintiff at Chittagong Port and arrived at Hiron Point Pilot Station within Mongla Port on 13.8.94. On arrival at Chittagong Port the Master of the vessel submitted a Note of Sea Protest alleging that on the way from Singapore to Chittagong the vessel encountered heavy weather in the Andaman Sea and the Bay of Bengal. A continuous joint survey at Chittagong Port showed that a considerable number of bags of cement was damaged owing to ingress of water inside the cargo holds through ventilators/damaged hatch cover, etc. The plaintiff apprehends that the damage to the Mongla?bound cement meant for it self must be more extensive and there will be shortage of cargo also. Upon receiving notice of readiness the plaintiff retired the bills of lading from defendant No. 7 and made all arrangements for taking delivery of the cargo from defendant No. 1. Owing to huge port congestion the Port Authority gave berth allocation for 13.8.94 and a pilot was sent to Hiron Point to guide defendant No. 1 to the berth allocated, but the Master of the vessel defendant No. 2, refused to berth the vessel which is still staying at Hiron Point and the Master is refusing to take berth alleging that the vessel has lien on the cargo for the dues for charter hire and unless the dues are paid the vessel would not proceed to take berth in Mongla Port. It is the plaintiff’s case that it is the holder of clean bills of lading and the defendants can neither claim lien on the cargo nor refuse to deliver the cargo to the plaintiff. It prayed for a decree of mandatory injunction against defendant Nos. 1 and 2 compelling them to discharge the cargo to the plaintiff and for arrest of the vessel.
3. The present petitioner during the pendency of the said Admiralty Suit, filed the application for recording its right of lien on the cargo mainly on the ground that the petitioner was the disponent owner of the vessel MV Global Trader and was therefore a party interested in the suit. Defendant No.6 chartered the vessel and entered into a sub?charter under the Time Charter Party with the petitioner at Singapore on 17.6.94 and accordingly the vessel was delivered to defendant No. 6 on 20.6.94. The charterers were supposed to pay the charter hire for the vessel on the basis of ? ?monthly in advance. Defendant No.6 failed to make payments on due dates and the charter hire amounting to US ST 9,406.25 had become due on 3.9.94. The petitioner also claimed US $ 600,000.00 as loss of business against the vessel’s next employment. The petitioner relied upon the Time Charter Party Clause 18 which bestows on it a lien upon all cargoes and all sub?freights for any amounts due under the Charter. Notice upon defendant No. 6 was duly served on 12.8.94. The petitioner also alleged that under Clause 51 of the Time Charter Party Agreement it has the obligation to authorise the charterers to issue clean original bills of lading marked “Freight Prepaid” against charterer’s “Letter of Indemnity” according to owners PNI Form to be signed by charterers only. It was alleged that defendant No.6 issued “freight prepaid” bills of lading without furnishing the required letter of indemnity and there was collusion between the plaintiff and defendant No.6 and the bills of lading were not clean bills of lading at all.
4. The petition was opposed by the plaintiff?respondent and after hearing both sides the learned Admiralty Judge held that the bills of lading are all clean bills of lading duly signed by defendant No.6 on behalf of the Master of the vessel. These bills of lading do not contain the date of the Charter Party Agreement in the space provided for in the box at page 2 of the bills of lading and therefore condition No. 1 provided on the overleaf of the bills of lading containing that all terms, conditions, etc. of the Charter Party dated as overleaf, are herewith incorporated, has no application. If defendant No.6 has exercised its authority in excess of or in violation of Clause is of the Charter Party Agreement then it is a matter between the charterer and the disponent owners and that cannot prejudice the purchaser and owners of the clean bills of lading. The High Court Division directed defendant No. 1 to deliver 14.400 metric tons of cement to the plaintiff after rejecting the application of the petitioner.
5. Mr. Moudud Ahmed, learned Counsel for the petitioner, submits that even if the date of the Charter Party Agreement was not incorporated in the body of the bills of lading, the experienced consignee, the plaintiff, has the obligation to take all precautions to inquire and comply with all the conditions of carriage of goods by Sea. He has however failed to substantiate his submission by citing any decision in this regard.
6. The Charter Party Agreement having not been incorporated or mentioned in the bills of lading it will be plainly unjust and unlawful to saddle the consignee with any conditions and limitations thereof. Mr. Moudud Ahmed has cited the cases of Care Shipping Corporation vs. Latin American Shipping Corporation (1983) 1 All ER 1121 and the case of British India Steam Navigation Co. Ltd. vs. Shanmughavilas Cashew Industries and others (1990) 3 SCC 481, but ? in the facts and circumstances of the case we do not think that the cited cases have any relevance to the matter in issue.
We do, not find any ground to interfere.
The petition is dismissed.
Source : 47 DLR (AD) (1995) 31.