Sea Act, 1925

Sea Act, 1925 (Act XXVI of 1925)

Whether the Defendants are responsible for
shipment of damaged and unwholesome cargo of rice.

In the instance case, it emerges:

1) Under
the provisions of the contract dated 12th January, 1999 (Ext.3), the defendant
no.5 was the seller as well as the carrier with full and total responsibility
to deliver the cargo of correct specification in the hands of the
representatives of the plaintiff at Mongla,

2) The
defendant no.5, in violation of its contractual obligations shipped the goods
in a vessel not chartered by itself but by the defendant no.7

According to the contract, the shipment was to be made on or before 11th
February, 1999 but shipment was made on 13th March, 1999, in violation of the

4) Trust-worthy
pre-shipment inspection certificate and the certificate of standard and quality
of the consignment of rice were not made available,

5) On
20th February, 1999, the plaintiff, got a copy of the bill of lading but failed
to notice that it was neither issued by the defendant no.5 nor by the

6) On receipt of the charter party on the 24th
February, the plaintiff could have rescinded the contract but did nothing,

7) The
defendant no.5 played fraud on the plaintiff and illegally negotiated the
shipping documents on 23rd February for 90% payment on the invoice value of the
consignment of rice,

8) On or
about 28th April, 1999, the officials of the plaintiff, realized that bulk of
the consignment of rice was damaged and off specification, as such, could have
demanded damages at double the rate on the basis of Final Discharge Report,

9) The
concerned consignment of rice which reached the port at Mongla, Bangladesh, was
in the same condition, damaged or otherwise, in which it was loaded at the port
at Haldia, India.

10) The
concerned consignment of rice which reached at Mongla, Bangladesh, was damaged,
unwholesome and unfit for human consumption.

1l) The
seller, the defendant no.5, alone was responsible for supplying such damaged
and unwholesome consignment of rice to the plaintiff.

plaintiff is entitled to the decree as prayed for against the seller, the
defendant no.5 and its agent, the defendant no.8 who was also a signatory in
the contract, but not against the rest of the defendants.

Govt. of Bangladesh Vs. M. V. Vishwa Kaumudi
& Ors 12 BLT (HCD)365

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appears that the vessel reached the outer anchorage of the Mongla Port at Hiron
Point on 14th March, 1999 and took its berth on 15th April, 1999. It remained
at the port till it was sold in auction and was taken way on 29th April, 2003.
The vessel remained in the port for more then 4(four) years, far beyond the
period necessary for unloading a cargo of 8,430 m.t. of rice. As such, the
contesting defendants filed a counter claim of Tk.27,76,84,9 10.00 under
different heads. They also paid the necessary court-fees against their claimed
amount. — It is true that long before the detection of the damaged cargo, the
defendant no.5, got its 90% of the invoice value of the cargo by committing
fraud on them. It might be that the concerned officials realizing the said
situation, tried to arrive at a compromise solution by asking the defendant
no.5 to segregate the cargo but at the
same time they ought to have appreciated that the vessel was not owned by the
seller, rather, it was a chartered vessel by another charterer, again in
violation of clause-7 of the contract, as such, delaying and detaining of the
vessel would also cause serious loss to its owner who had no contractual
obligation with the plaintiff. It might be that in order to balance the payment
of 90% invoice value of the cargo they wanted to detain the vessel as a
security against the payment fraudulently taken by the defendant no.5, but they
ought to have realized that they ought not to have done so against a third
party who is a stranger to their contract, causing loss and damage to them and
for such loss and damage to the defendant nos. 1 and 3, the plaintiff would now
be held liable in detaining the vessel illegally since 15th July, 1999.

Govt. of Bangladesh Vs. M. V. Vishwa Kaumudi
& Ors 12 BLT (HCD)365.