Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

Reportable   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 5654 of 2007

Essar Shipping Ltd.               …. Appellant  

Versus

The Board of Trustees for the port of Calcutta             …. Respondent  

JUDGMENT

Uday Umesh Lalit, J.

1. This appeal by special leave challenges the judgment and order

dated  27.10.2006  passed  by  the  Division  Bench  of  the  High  Court  at

Calcutta allowing appeal namely A.P.D. No.338 of 1997 and setting aside

the decree dated 09.04.1997 passed by Single Judge of the High Court in

Suit No.12 of 1998.

2. On  27.08.1987  at  about  1148  hrs.  the  vessel  “M.V.  Chennai

Nermai”  belonging  to  the  appellant  (formally  known  as  South  India

         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

Shipping Corporation Ltd.)  arrived at  the  lock gate  of  Haldia  Port  for

loading  of  cargo  of  coal  at  Haldia  Docks  for  delivery  at  the  port  of

Tuticorin.  The vessel de-ballasted while at the lock gate upto 1300 hrs.

At 1306 hrs., in terms of the Rules of Calcutta Port Trust, Berthing Master

Mr.  Rajak  of  the  Port  Trust  boarded  the  vessel  and  by  1342  hrs.  the

forward and aft tugs were attached for towing the vessel from the lock

gates to the berthing area of Haldia Port.   While the vessel  was being

berthed at about 1354 hrs., the startboard quarter of the vessel came in

contact with a coal loader stationed by the side of the berthing area and

the coal loader got damaged.   

3. On the same day a letter was issued by the Plant Engineer, Haldia

Dock Complex to the Master of the vessel putting the responsibility for

the loss on the vessel.   A reply was given by the Master that very day

denying acceptance of liability while emphasizing that the coal loader was

not kept at proper possession.  On the same day a notice was sent from

Marine  Operations  Division,  Calcutta  Port  Trust  to  the  Master  of  the

vessel  holding said Master  and the vessel  responsible  for  the damages

with a request to immediately intimate acceptance of liability.  The Master

put endorsement;  “Received without prejudice, I do not accept liability

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

for  above  as  contravention  proper  position  of  safe  berthing  letters

follows:”  A reply to the said notice was also sent by the Master on the

same day, reiterating that the coal loader was not kept at a proper position

as against the normal practice of keeping the loader in the center of the

jetty and that the communication between the Berthing Master and the

tugs was poor.  On the very day, a letter was also sent by the Master of the

vessel  to the Deputy Chairman, Haldia Dock Complex, Haldia that the

vessel had also suffered damage as a result of the coal loader not having

been kept proper position and for other reasons mentioned in said letter.

4. Again  on  29.08.1987  the  Master  of  the  vessel  wrote  to  the

Manager,  Marine  Operations,  Haldia  Dock  Complex  referring  to  the

failure on part of tugs and faulty communication system specially in the

conditions  where  there  were  strong  winds.   On  30.08.1987 the  vessel

completed loading operations but was kept waiting for want of clearance

by  the  Port  authorities.   On  31.08.1987  a  notice  was  issued  by  the

Manager, Marine Operations Division, Calcutta Port Trust to the Master

of the vessel holding him and the vessel responsible for the damages with

a request to intimate acceptance of liability.  The endorsement put by the

Master on the copy of said letter was;  “Liability accepted under protest

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

without  prejudice  to  owners/agents  contention  for  right  of  defence.”

Another notice was sent by the Manager, Marine Operations Division of

Calcutta Port Trust on 01.09.1987 to the same effect.  The endorsement on

the copy of said notice was to the following effect:

“Liability accepted without  prejudice  to the extent  of  only  loader

being put in working condition on turn key basis.”

After the aforesaid endorsement, the vessel was allowed to sail out of

Haldia Docks on 01.09.1987.

5. On 20.10.1987 an Order was passed by the Government of India,

Ministry of Surface Transport setting up a Committee as under:

“A shiploader at the coal berth at Haldia Dock complex was damaged on 27.8.87 when a vessel “Chennai Nermai” was being berthed.  The damage was of serious and extensive nature.  It has been decided to set-up an enquiry committee to  examine  the  various  aspects  of  the  accident  and  fix responsibility.   The  Committee  will  consist  of  following members :-

i) Principal Officer, Mercantile Marine Department, Calcutta.

(ii) Director (Mechanical) DA(P) Organisation, Ministry of Surface Transport.

(iii) Director (Technical) “Poompuhar”  Shipping Company.

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

V.Floor, 304/305, Anna Salei, Madras – 600 018.

(iv) Director Marine Department. Calcutta Port Trust – Convenor.

2. The Committee will submit their report by 30.11.87.”

6. The Committee went into the matter, examined various officials

and then submitted its Report on 06.01.1988.  Paragraphs 5 to 9 of the

Report were:

“5. M.V. “Chennai Nermai” with accommodation aft has a length of about 190 metres. Capt. Arun Rajgopal was the master of the ship when she arrived at Sandheads prior to the accident.  Arrival draft of the vessel was reported as 7 metres.   The  vessel  was  deballasted  before  entering  the Haldia  locks  on  27th August,  1987  and  the  same  was continued in the lock so that the mean draft of the vessel was reduced to about 5.5 metres as per the master of the ship.  The matter was not however, reported to Shri S. P. Rajak, Berthing Master of the Haldia Dock Complex who boarded the ship at the 1ocks.  On the fateful day the water level inside the docks was 5.0 metres above datum because of high tide against normal state of around 4.5 metres.

6. While  proceeding  to  the  Coal  Berth  the  vessel encountered heavy wind from South south-west at a speed of 24 knots.  MT Ahalya and MT Kunti were available for assisting  the  vessel  in  berthing  operation.   As  M.V. “Chennai  Nermai” had a light  draft  she  was subjected to considerable wind force from the port side.  The effect was further pronounced because of the high water level in the impounded dock.  The accommodation on the vessel being located on the aft and the side thrust on that area was much higher than on the rest of the ship.  As a result, the aft part of

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

the  ship  was  constantly  being  blown  towards  the  berth which could not be adequately checked by the tugs.  As a consequence, stern of the vessel made contact with the jetty and  overhanging  counter  of  the  ship  contacted  No.1 Shiploader which was parked towards the southern end of the berth.  The Committee did not have the opportunity to examine  the  damage  sustained  by  the  ship  but  the  same appears to have been of a light nature as the vessel could leave port after completion of loading.  However, because of impact the structure of the Shiploader was distorted and one set  of  wheels  was  derailed.   Due  to  this  damage  the particular shiploader was rendered in-operative.

7. It has been observed that the master of the ship did not keep the berthing master informed of the deballasting as a result of which the ship was subjected to larger wind force from the port side.  The wind speed on that particular day which is reported to have been 24 knots was considerable though  berthing  operation  under  such  condition  is  not normally suspended.   At  one stage of  the operation there was even danger of M.V. “Chennai Nermai” getting set on to a dredger which was tied up beyond southern end of the Coal Berth.  Fortunately, the accident could be averted.

8. The wind force acting on the accommodation located at aft part of the vessel proved to be too strong which could not be checked by the assisting tugs.  Though stern of the vessel came in contact with the berth the damage to the jetty did  not  appear  to  be  considerable.   Unfortunately,  the overhanging counter  of  the ship touched one leg of  No.1 Shiploader causing damage to the same as described earlier.

9. While no specific responsibility can be fixed due to dynamic  situation  prevailing  at  the  time  of  accident  a combination of the following factors seems to have led to occurrence of the above accident :-

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

(i)  Deballasting of the ship thereby exposing larger area of the vessel to wind force.

(ii) Higher water level within the impounded dock because of the  higher  rise  of  tide  which  resulted  in  enhanced  wind action on the ship.

(iii) Blowing  of  wind  at  high  speed  of  24  knots  at  an  angle giving rise to considerable wind force on aft part of the ship because of the superstructure.

(iv) Inadequacy of communication system between the ship and the assisting tugs leading to delay in timely action.

(v) Parking  of  No.1  Shiploader  at  southern  end  of  the  berth instead of usual location at the centre.”   

7. After setting out various factors in para no. 9, those factors were

considered  in  detail  by  the  Committee  and finally  the  conclusion  was

arrived at:

“17. As has been pointed out earlier, the accident took place due to unfortunate  combination of  certain unusual  factors put together for which no individual responsibility can be assigned.”   

8. Soon thereafter, the appellant instituted Suit No.12 of 1988 on the

original  side  of  the  High  Court  at  Calcutta  praying  inter  alia for  a

declaration that the acknowledgement of liability dated 01.09.1987 was

void  and  without  any  legal  effect  and  for  cancellation  of  said

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

endorsement.  It was contended that the Master of the vessel had initially

refused  to  acknowledge  the  liability  for  the  accident  in  question;  that

despite having completed loading of cargo, the vessel was not allowed to

sail out of the docks and was kept waiting; and that the acknowledgement

dated 01.09.1987 was wrested out of the reluctant Master by wrongful

detention of the vessel.   

9. The respondent filed its  written statement with a  counter  claim

and claimed a decree for Rs.30 lakhs.  It was contended that the accident

occurred purely because of negligence on part of the Master and the crew

of the vessel;  that the appellant was bound by the acknowledgement of

liability  and  that  the  plaintiff/appellant  was  liable  to  compensate  the

respondent for damage to the coal loader which was estimated at Rs.30

lakhs.  In the written statement a specific stand was taken in para 14 as

under:

“14.  The defendant further states that the said Vessel M.V. Chenai  Nermai  arrived  at  Haldia  from  sandhead  on  27th August, 1987 and was placed in the locks at about 1100 hrs. As about 1305 hrs. the said Vessel proceeded to coal berth with the assistance of a tug M.T. Ahalya for to coal berth with  the assistance  of  a  tug  M.T.  Ahalya  for  towing and M.T. Kunti for checking.    At the time there was a rough weather and the wind was blowing at a speed of 24 knots. The draft of the said Vessel when arrived at sandhead was

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

reported as 8 meters.  Further the Master of the Vessel de- ballasted the Vessel at the time of approaching Haldia load in jetty for ingress into the dock system and continued to do so  in  the  locks  thereby  reducing  the  draft  of  the  Vessel considerably and increasing the freeboard of the Vessel thus offering bigger area to the prevailing strong wind to play upon.   While the vessel  was sent  to the berth,  there  was considerable wind force playing on aft part of the vessel.  It was found that because of this stern of the vessel came in contact  with  the  Southern  and  of  the  coal  berth  and  the Vessel collided with no.1 ship loader parked in that area.  As the Vessel had been de-ballasted, and freeboard of the Vessel had  been  increased,  there  being  very  little  hold  of  the vessels under water area in the water, the Vessel heeled over and  damaged  the  Coal  loader  which  would  have  been avoided if the board had not increased due to de-ballasting of the vessel.   As a  result  of  such accident  the said ship loader  was  damaged  rendering  the  same  totally  out  of commission.  While the vessel was entering into the port the mean draft of the Vessel was reduced to about 5.5 metres according to the Master of the Vessel.  The Master of the Vessels did not report the same to the berthing Master who boarded the vessel  at the locks.  As the said vessel had a light  draft  she  was  subjected  to  considerable  wind  force from  the  port  side.   The  effect  was  further  pronounced because of the high water level in the said dock.  As a result, the Master and crew and/or the servants and agents of the plaintiff  made  the  said  vessel  unmanageable  in  the  said weather  condition  which  was  not  even  disclosed  to  the berthing Master.”

10. In its rejoinder/replication, the appellant dealt with assertions in

para 14 of the written statement as under:-

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

“5. With  reference  to  paragraph  14  of  the  written statement,  the  plaintiff  states  that  the  true  facts  were  as follows:-

(a)  The vessel  arrived at  Sandheads from Tuticorin at  17.42 hours on 23rd August, 1987.  Her draft then was 7 meters which  was  reported  from  Sandheads  to  Haldia.   Soon thereafter River Pilot Mr. Malik Boarded the vessel which then  proceeded  to  Haldia,  the  draft  of  the  vessel  was reduced to 6.5 meters.  The vessel arrived at Haldia on 24th August,  1987  towards  noon.   As  permission  to  enter  the locks was not given, the vessel had to remain anchored in the River off the locks.

(b)  In the morning of 24th August, 1987 the vessel was directed by the Marine office at Haldia to go back to Sandheads and the  vessel  accordingly  went  back  reaching  Sandheads  on 26th August, 1987.  On the following day, the vessel again proceeded to Haldia under the pilotage of a River Pilot and arrived at  Haldia  on  27th August,  1987.   The  vessel  was deballasted again at Haldia prior to entry into the Locks and while inside the Locks until her draft was brought down to 4.69 metres forward and 6.25 metres aft.

(c)  The Berthing Master Mr. Rajaak boarded the vessel in the locks at about 13 hours to shift the vessel to the coal berth with the assistance of two Tugs owned by the defendant and marked  by  the  defendant’s  employees.   The  vessel  then moved out of the Locks assisted by the Tug “Ahalya” which was made fast forward with two ship’s lines.  As the wind was SSW., the second Tug “Kunti” was kept as a stand by on the starboard side.  After the vessel cleared the Locks, the Tug “Kunti” was made fast aft with 2 ship’s lines and the vessel proceeded towards the coal berth.

(d)   On the way to the coal berth the vessel was observed to be canting towards port whereupon the Forward Tug “Ahalya” was cast  off  and was directed  by the Berthing Master  to

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

push the vessel’s bow towards star board.  At the same time the aft tug “Kunti” was directed to pull the Stern towards port  side,  unfortunately  both  the  Tugs  were  poor  in responding to  the repeated orders  of  the Berthing Master with the result that the intended maneuver of the Berthing Master to arrest the cant of the stern of the vessel towards starboard could not be carried out effectively and at about 13.54 Hours the starboard quarter of the vessel came into contact  with  the  jetty  and the  Loader  No.1  and  both  the Loader and the Jetty sustained damages.

6. Except  as  to  what  has  been  stated  in  the  next proceeding paragraph and except  that  the wind force was about 24 knots at the relevant time the plaintiff denies each and every statement contained in paragraph 14 of the written statement.   In particular,  it  is  denied that the stern of the vessel came into contact with the loader because of the wind force or that the wind force was considerable or that there was very little of the vessel’s under water area in the water or that the collision would not have occurred if the vessel had  not  been  deballasted.   It  is  further  denied  that  the Berthing Master was not aware of the draft of the vessel or that the vessel was rendered unmanageable by any act of the plaintiff or its servants or agents as alleged or at all.”

11. The appellant/plaintiff examined Capt. Arjun Raj Gopal, Master of

the Vessel as PW1 in support of its case.  In his examination-in-chief, in

answer to question No.112 PW1 accepted that while the vessel was in the

locks the windforce was about 24 knots.  In answer to question No.239 he

stated that while the vessel is in the dock, it would be under the control of

the Berthing Master.  In answer to question No.393 he stated that since the

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

vessel was not allowed to sail out of Haldia port for two days, he put his

signature  under  the  endorsement.   While  giving  answer  to  question

No.396, the cause for collision was stated as under:

396 Q.  What  according  to  you  was  the  cause  of  this collision?

A. It was due to the negligence on the part of the officers of the port since one loader was placed at a wrong position for the berthing of the vessel.  There was no response from the forward tug for carrying out Berthing Master’s orders. The aft  tug was very slow in responding to the Berthing Master’s orders.  The communication between the Berthing Master and the tug specially the forward one was very poor and  should  have  been  by walkie  talkie  through  the  tug’s V.H.A.  The Anchor could not be brought earlier because the dredger was tied between the ore and coal berths.  Lastly there was no mooring boat to take a line from the ship’s bow to the coal berth which would have been helpful in checking the cant and straightening the vessel.”

In his cross-examination, while answering question No.466, PW1

accepted that he had not informed the Berthing Master about the fact that

he had de-ballasted the vessel.  His answer to question No.468 was to the

following effect.

468.Q.  If  I,  therefore,  suggest  that  you  did  not  keep  the Berthing  Mater  informed  about  all  necessary  particulars including the fact that the vessels draft was lowered by the deballasting what would be your answer?

A. The berthing Master worked along the Jetty and climbed up the ships local gang-way and therefore, he should have

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

read the draft which is always customary by the Boarding Pilot.  The deballasting was completed by 1300 hrs.  before the Berthing Master boarded as he boarded 1306 hrs. So, he should have read the latest draft of the draft of the vessel.”

12. Four  witnesses  were  examined  by  the  respondent/defendant  in

support  of  its  case.   Capt.  R.M.  Gangadhar,  Manager  (Marine)  Haldia

Dock Complex, Calcutta Port Trust was examined as DW1.  Answer to

Question No.16 in his examination-in-chief was as under:-

“16. Q.  Is it usual to decrease the draft in dock before the berthing loading?

       A.  In normal weather it does not make any difference but when the wind is strong no prudent master deballasts  the ship during the passage of the vessel.”

 In  response  to  question  no.51,  in  his  cross-examination  he

accepted that before taking charge of the vessel it was customary for the

Berthing  Master  to  acquaint  himself  of  the  draft  marks.   Further,  in

response to question no.123 he also accepted that the draft lines of the

vessel are clearly visible to the Berthing Master while he approaches the

ship.   In  answer  to  question  No.124  he  accepted  that  if  the  Berthing

Master did not check the draft lines, it would be negligence on his part.

The questions and answers were:-

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

123. Q. If that be so then the draft lines of the vessel were clearly visible to the berthing master while he approached the lock?

A.  Yes.

124.  Q.  The fact that he did not is negligence on his part?

A.  Yes.”

13. Witnesses DW2 and DW3 were examined in regard to the damage

sustained  by  the  Coal  Loader,  Mr.  S.P.  Rajak,  Berthing  Master  was

examined as DW4.  In his examination-in-chief the witness accepted that

he had the experience of having maneuvered many vessels on more than

1500 occasions including the very same vessel on 2/3 times earlier.  In

response to question no.32 regarding reason for the accident he deposed:

“32.  Q.  According  to  you  what  was  the  reason  of  that accident?

A.  Because of  the ship’s high very board.   The wind impact was too much.”

Some of  the  questions  and  answers  given  by the  witness  in  his

cross-examination were as under:-

“36.  Q.  You have deposed that the master of the vessel is the person who issues the command to the engine room and other  stations  on  board  vessel.   On  what  basis  does  the master of the vessel issue such command?

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

A.  Whatever  advice  I  give  he  repeats  to  his  crew members and officers.

37.  Q.  You are aware of certain CPT bye-laws which is in force?

A.  Some of them.

38.  Q.  Are you aware that when a vessel is inside the dock complex she  is  in  the  command of  responsible  officer  of CPT?

A.  Yes,  for  the  movement  of  the  vessel  the  berthing master boards the vessel.

39.  Q.  When you say that the berthing master boards the vessel in an advisory capacity – you are supported by some instruction – are you not?

A. Instructions means that the vessel has to be berthed safely.  Yes.

40.   Q.   When  you  say  that  you  board  in  an  advisory capacity is it supported by any written instruction of CPT?

A.  I  do not  know that,  but  since  the  day I  joined at Hooghly Dock Complex I have seen that in the ships log book it is noted that whenever any berthing master or pilot boards on the vessel it is on the advisory capacity.

41. Q.  If what you say is correct that the berthing master or the pilot board the vessel in an advisory capacity should it not appear from the CPT bye-laws?

A.  I am just berthing master so about all these rules my superior officers must be knowing but the berthing master of the ship acting as Advisory capacity.

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

42.  Q.  Shown bye-laws specially clause 16 and 20.  Do you find from clause 16 that a vessel is inside the dock she is incharge of a duly authorized officer of CPT?

A. Yes.

To Court:

43.  Q.  Have you seen these rules before?

A.         No.

44.  Q.  Are you aware of these Rules?

A.         No. … … …

48.  Q.  Can a vessel be berthed without a Berthing Master on board the vessel? A.  No.

49.   Q.   Did  you  personally  check  the  draught  before boarding the vessel?

A.  No.  Because, the vessel Master had already declared the 7 metres’ draught and as I was a new man handling as a Berthing Master.  I had checked whatever draught she had declared,  she  had to  maintain that.   This  is  in  respect  of other vessels  also that  they have to maintain that draught and  the  River  Pilot  confirms  me  that  he  has  seen  the draught.

… … …

54.  Q.  Do you normally ask the Master of the vessel about her draught at the time you take charge?

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

A.  When vessel is going for loading, normally we do not ask the Captain about the draught, because we know that she is light and going for loading.

… … …

67.   Q.   You  agree  with  the  reasons  given  by  the Commission?

A.         Yes.

68.   Q.  You also agree with the recommendations of the Commission?

A.         Yes. … … …

71.  Q.  Who informed about the 7 metres’ draught?

A.   The Captain had already sent the wireless message that the vessel was having 8 metres’ draught and cannot be reduced to 7  metres’ draught.

72.  Q.   The Captain did not tell you that the vessel  was having 7 metres’ draught?

A.          The Captain did not tell me anything.”

14. After considering the material on record and rival submissions, the

Single Judge by his judgment and order dated 09.04.1997 decreed the suit.

It was observed that the Committee set up by the Government of India had

found that the accident had taken place due to unfortunate combination of

certain unusual factors for which no responsibility could be assigned: that

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

though the Master  of  the vessel  had not informed the Berthing Master

about the fact  that  the vessel  had de-ballasted,  it  was for  the Berthing

Master to acquaint himself with the draft of the vessel: that in terms of

clause  16  of  the  bye-laws  of  the  Port  of  Calcutta  there  could  be  no

movement  within  the  docks  unless  the  vessel  was  incharge  of  a  duly

authorized  officer  and  that  the  Berthing  Master  was  responsible  for

guiding the  vessel  to  its  berth:  that  the  coal  loader  was  parked at  the

southern end of the berth instead of its usual location at the centre; and

that the endorsement in question obtained from the Master of the vessel

was not in keeping with Section 116 of The Major Port Trust Act, 1963.

The Single Judge thus concluded:

“For those reasons, I hold that during the process of berthing the vessel was under the guidance and in the charge of the berthing master, who was a duly authorized employee of the defendant, and that the accident occurred due to the lack of proper care and inadequate expertise of the berthing master coupled with the archaic communication system which was both audible and unseable by the berthing master as also the tugs,  then  prevalent  in  the  Haldia  Dock  Complex.   The defendant wrongfully gave a go bye to the procedure laid down in Section 116 of The Major Port Trust Act, 1963 and malafide  obtained  the  endorsement  from  the  master  in acceptance of liability for the damage.  Therefore there shall be a decree in terms of prayer (a) and (b) of the plaint.”

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

15. The respondent being aggrieved, challenged the decision of the

Single Judge by filing appeal namely A.P.D No.338 of 1997 which was

allowed  by  the  Division  Bench  of  the  High  Court  by  decision  dated

27.10.2006.   The Division Bench also allowed the counter  claim and

directed the appellant/plaintiff to pay sum of Rs.24,04,237/- towards cost

of repair along with interest at the rate of 12% per annum till payment.

The Division Bench accepted that the report of the Committee set up by

the Government of India could be taken as evidence in the matter but it

concluded as under:

“We, thus, have before us material to come to the following conclusion –  (a) Draft of the vessel was reduced; (b) Such  reduction  was  not  communicated  to  the

Berthing Master; (c) By reduction of the draft larger area of the vessel was

exposed to wind; (d) Wind on the fateful day was blowing violently which

we are, inclined to hold, made the ship unmanageable and  

(e) the Master added fuel to the fire by not dropping the anchor at the time suggested by the Berthing Mater.

………………………………………………………….

“….. For the aforesaid reasons we are inclined to hold that the vessel collided with the loader not due to any fault or negligence on the part of the Berthing Master or any Servant or employee or any tug of the defendant but solely because of  negligence  on the  part  of  the Master  of  the  ship.  The

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

Master of the ship owed a duty to safely navigate the vessel. He committed breach of the duty in the manner discussed above resulting into severe damage to the loader.”

16. The decision of the Division Bench of the High Court is presently

under  challenge.   Mr.  Bhaskar  P.  Gupta,  learned  Senior  Advocate

appearing for the appellant laid stress on the report of the High-Power

Committee including the conclusions added by the Committee.  Further, it

was submitted that the Berthing Master was an experienced officer and in

terms of the bye-laws of the Calcutta Port Trust, the vessel was under his

command.  According to him, as accepted by DW1, the Berthing Master

was obliged to check the draft marks before taking charge of the vessel

and if he had failed to do so it was a clear case of negligence on his part

and,  therefore,  even  if  the  Master  of  the  vessel  had  not  specifically

intimated to the Berthing Master the fact that the vessel had deballasted,

the liability of the Berthing Master would not get absolved.  Mr. Gupta

also submitted that the quantification towards cost of repair as accepted by

the Division Bench and the award of interest at the rate of 12% was also

incorrect.

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

17. Mr. Parag P. Tripathi, learned Senior Advocate appearing for the

respondent  submitted that  the Master  of  the vessel  had admittedly not

intimated  that  the  vessel  had  deballasted  and  the  evidence  clearly

indicated that, that factor was the major cause for the accident resulting in

damage to the coal loader.  According to him as a result of deballasting,

the draft of the vessel had reduced and it became difficult to navigate the

vessel into the docks.  Mr. Tripathi, learned Senior Advocate relied upon

judgment of the Privy Council in  Fowles  vs. Eastern and Australian

Steamship Company, Limited1 in which statutory provision similar to the

present bye laws had come up for consideration.

18. Before we deal with the factual controversy.  Bye laws 16 & 20 of

the Port of Calcutta may be extracted:

“16.  Movement of vessels by authorized officials – No sea- going vessel shall move into, or out of, or within the Docks, or to or from a jetty berth, unless she is in the charge of a duly authorised officer of the Commissioners.  

20.  Co-operation with authorised officials – The Master or Owner shall obey every lawful direction of, and act in full co-operation  with  all  duly  authorised  officers  of  the Commissioners for the purpose of mooring or unmooring, moving or removing a sea-going vessel or of regulating her position  or  of  adjusting  her  equipment  and  gear,  for  the loading or discharging of her cargo.”

1       [1916] 2 AC 556   

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

19. At the outset, an important feature of the matter must be noted.

The  accident  in  the  present  matter  had  evoked  attention  and  the

Government  of  India  had  appointed  a  Committee  to  examine  various

aspects of the accident and fix responsibility.  The Committee consisted of

four persons having technical expertise and knowledge in the field.  Said

Committee found that no specific responsibility could be fixed due to the

dynamic  situation  prevailing  at  the  time  of  accident  and  that  it  was

occasioned,  as  a  result  of  combination  of  five  factors  named  by  the

Committee.   Every  single  factor  was  gone  into  and  at  the  end  of  its

discussion the Committee had found that individual responsibility could

not be assigned in the matter.    

20. We may now deal with some of the technical terms which have

been used in the present matter by the witnesses and the Committee.  We

have been given to understand that a vessel in which cargo is yet to be

loaded, being lighter in weight, can pose problems for effective navigation

in high seas.  In order to stabilize the vessel certain amount of weight is

added which then helps in letting part of the vessel to be under the surface

of the water and thereby lend stability.  The weight for such purpose could

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

be in any form but normally there are tanks which are filled with water

and the weight of such filled water affords stability to the vessel when no

cargo is loaded.   Adding of such weight is  called ‘ballasting’ a vessel.

However, before the loading operations begin, the vessel  is required to

pump  out  the  water  from  such  tanks  and  this  process  is  called

“deballasting”.  The portion of the vessel which is below the water surface

is normally referred to as “draft” of the vessel.  The larger the draft, the

more stable the vessel.   As a result  of “deballasting” the weight of the

vessel  gets  considerably  reduced  and  consequently  the  “draft”  of  the

vessel,  namely,  the  portion  below  the  surface  of  the  water  also  gets

reduced.  Resultantly, the surface above the level of the water would get

increased and in windy conditions such larger surface of the vessel above

water may have impact on navigation.   Further, it is common case that

Haldia Port proper is not  directly touching the sea and from the place

where river Hooghli meets the sea,  the water is arrested by employing

locks.  The journey of the vessel from the locks to the berthing area of the

docks is through the water so arrested and is to be undertaken under the

express guidance of an authorised officer.   

21. Now, the facts as they emerge from the records are:

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

(a) The vessel  arrived at  the Sandheads that is  location just before

Haldia locks on 23.08.1987 and the “draft” of the vessel was reported to

be seven meters.  For guiding its onward journey, Rivor Pilot boarded and

the vessel proceeded towards Haldia locks.  The draft was then reduced to

6.5 meters.  Though the vessel arrived at Haldia locks on 24.8.1987, the

vessel was not allowed to enter and was directed to go back to Sandheads.

(b) On  27.8.1987  under  the  Pilotage,  the  vessel  again  arrived  at

Haldia locks.  Just before the entering the locks it had deballasted and the

“draft” was brought down to 4.69 meters forward and 6.25 meters aft.

The conditions at that time were quite windy and the force of the wind

was 24 knots.

(c) At this stage, Berthing Master Mr. Rajak boarded the vessel while

it was in Haldia locks to guide the vessel with the assistance of tow Tugs

to the berthing area.  During its entire passage the vessel was tugged by

said  tugs  employed by the  Board  and was  under  the command of  the

Berthing Master.

(d) The Berthing Master had adequate experience of having guided

navigation from locks to the berthing area on at least 1500 occasions.  In

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

fact  he  had  guided  the  very  same  vessel  on  two  or  three  previous

occasions.

(e) Going by the text of bye-laws of Port of Calcutta as well as the

accepted factual position, the vessel was under the control of the Berthing

Master.

(f) The Master of the vessel did not intimate to the Berthing Master

that the vessel had deballasted and that the draft had been reduced to 4.69

meters  forward  and  6.25  meters  aft.   However,  as  accepted  by  DW1,

Manager (Marine), Haldia Docks Complex, it was the responsibility of the

Berthing Master to check the draft before he could start navigating the

vessel.

(g) Same witness further  admitted that  in normal conditions it  was

usual to decrease the draft before passage of the vessel into the berthing

area.

(h) On the relevant day, the level of the water in the impounded dock

was also high.

(i) While being berthed, the vessel came in contact with a coal loader

which was stationed at the Southern end of the Jetty or berthing area as

against the normal location being at the center of the Jetty.  

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

(j) As a result of collision the coal loader got damaged.

(k) At  a  stage  when  the  damage  was  yet  to  be  assessed,  an

endorsement was given by the Master of the vessel after the vessel was in

the Docks for two days even after being loaded.

(l) The damage to the loader, according to the evidence led by the

defendants-respondent was to the tune of Rs.24.04 lakhs.    

22. There is one more issue as well, namely, whether the Master of the

vessel was told by the Berthing Master to drop the anchor and whether

there was any time lag in relaying such instruction by the Master of the

vessel  which  made  it  further  difficult  for  the  Berthing  Master.   The

Division  Bench  has  relied  upon  this  aspect  while  assessing  the  fact

situation on record but the evidence in that behalf is  not clear.   In his

answer as regards factors which caused the accident, the Berthing Master

gave two reasons: ship’s high board i.e. the area above the water surface

and the impact of the wind.  However, he did not name, delay in regard to

anchoring as one of the reasons.  The Committee, consisting of experts in

the field had also examined witnesses and considered the entire material

before it whereafter it arrived at its conclusion.  Said Committee also did

not  put  this  factor  of  delay  in  anchoring  the  vessel  to  be  one  of  the

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

reasons.   The Division Bench,  therefore,  ought  not  to  have  taken into

account said aspect while considering the matter.

23. If the emerging facts, as set out earlier are considered, two crucial

aspects that emerge are (a) non-intimation on part of the Master of the

Vessel about the fact that the vessel had deballasted while at the locks and

(b) failure on part of the Berthing Master to apprise himself of the draft of

the vessel though he was obliged to check that part.  All the other factors

were either natural factors, such as the level of the water in the impounded

dock or intensity of the wind or were the factors over which neither the

Master of the vessel nor the Berthing Master had any direct control.  The

factors like lack of communication, as was sought to be projected by the

plaintiff-appellant,  between  the  tugs  and  the  Berthing  Master  or  the

location of the coal loader on the Southern tip of the Jetty or the berthing

area  could  be  contributing  factors  but  at  the  core  of  the  matter  were

aforesaid two features.   Each of those two features are relied upon by

either side to put the liability on the opposite side.  To make the appellant

liable,  question  would  be  whether  non-intimation  of  said  fact  by  the

Master of the vessel, as indicated above, was so singularly crucial as to

justify putting the entire blame on the appellant.  We cannot disregard the

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

fact that it was part of the duty of the Berthing Master to check the draft of

the vessel before he took over the control of the vessel.  Under the bye-

laws the vessel had to be under the control of the officer of the Port or the

Berthing  Master.   The  Berthing  Master  was  not  a  new  comer  or  an

inexperienced  person.  He  had  to  his  credit  the  experience  of  having

navigated vessels from the locks to the dock area on at least 1500 previous

occasions.  If the intensity of the wind was 24 knots when he took over

the control of the vessel, it was all the more reason for him to be more

careful in checking the draft before assuming control over the vessel.   As

an officer employed and authorised by the Port, he was having greater

knowledge than anyone else how the vessel had to be navigated from the

locks to the dock area.  We must also give due regard to the facts that a

Committee of four experts in the field was appointed by the Government

of  India  to  look  into  the  matter  and  fix  the  responsibility;  that  the

Committee had recorded statements of all the concerned persons including

the  Master  of  the  vessel,  Berthing  Master  and  all  other  concerned

officials;  and that after thorough enquiry the Committee found that the

factors which were responsible for the accident were beyond the control

of anyone.   

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

24. Considering the entirety of the matter, we find that the assessment

of all the relevant factors were duly considered by the Committee in correct

perspective  and  it  cannot  be  concluded  that  the  acts  of  commission  or

omission on part of the Master of the vessel alone, were responsible for and

resulted  in  causing  the  damage  to  the  coal  loader.   He  may  be  held

responsible to a certain extent for his non-intimation as stated above, but

the failure on part of the Berthing Master in doing what was expected of

him and other factors were also responsible.  The conclusion arrived at by

the Committee in the circumstances, which weighed with the Single Judge,

in our view, is the correct perspective from which the matter is required to

be considered.  In our assessment, the view taken by the trial court was,

therefore, just and correct and that of the Division Bench was erroneous.

25. Before we conclude we must deal with the case relied upon by Mr.

Tripathi, learned Senior Advocate for the respondent.   What was in issue in

that case was the alleged negligence of a licensed pilot.  What we have

found  is  that  it  was  combination  of  all  factors  as  concluded  by  the

Committee and the matter could not be put at the level of negligence on

part of any individual simplicitor.  We, therefore, do not find said case or

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         Civil Appeal No.5654 of 2007           Essar Shipping Ltd. v. The Board of trustees for the port of Calcutta

the discussion therein to be of any relevance in so far as the present matter

is concerned.  In the assessment that we have made, it would also not be

necessary to go into the questions as to the extent of damage to the coal

loader and whether the amount as claimed by the defendant-respondent was

correctly arrived at and assessed or the interest had to be at the level of

12% or at any lesser rate.

26. We,  therefore,  allow this appeal,  set  aside the judgment under

appeal and restore the judgment and decree passed by the Single Judge

in Suit No.12 of 1988.   No costs.

     .……………………….J.      (Abhay Manohar Sapre)

………………………..J.            (Uday Umesh Lalit)

New Delhi, February 15, 2019

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