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
3) 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 contract,
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 ship-owner,
6) On receipt of the charter party on the 24th February, the plaintiff could have rescinded the contract but did nothing,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.
The 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
It 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.