LPA/208/1999 of Vs on 10 December 2002

:JUDGMENT

(Delivered by R.Jayasimha Babu, J.)

The appellant is a carrier to whom finished leather was entrusted bythe respondent/plaintiff for carriage by air under an air waybill dated23.02.1979 for being delivered to the consignee who was at Boston. The Cargoreached New York on 25.03.1979. From New York to Boston, the goods werecarried by another Airline, Delta Airlines. But that was pursuant to anarrangement between the appellant and that Airline. The cargo reached Bostonon 25/26.03.1979. There is no dispute about the fact that the goods landedsafely and that the goods had not suffered any damage. The suit was filed inJune 1981 after the expiry of the period of two years from the date of arrivalof the goods at the destination.

2. The suit by the plaintiff as against the appellant and the consignee was on the ground that the goods ought not to have been delivered tothe consignee without insisting on the production of the original air waybilland other documents, which had been sent by the plaintiff to it's bankers forbeing delivered to the consignee after collecting the value of the goods. Theconsignee had taken delivery of the goods without producing the original airwaybill and without making the payment to the plaintiff's bank. According tothe plaintiff the consignee had claimed damages for non delivery of a furtherquantity of 45,000 sq. ft. of finished leather.

3. The appellant denied it's liability but stated that there had been some negligence on the part of the other carrier in having delivered the goodswithout insisting upon the original air waybill. It also took the stand thatthe suit was filed beyond the period of limitation prescribed in Rule 30 ofthe Second Schedule to the Carriage by Air Act, 1972. The trial Court heldthat the appellant was liable but dismissed the suit on the ground oflimitation.

4. The learned single Judge on appeal has held that Rule 30(1) which prescribes the period of limitation as two years reckoned from the date ofarrival at the destination or from the date on which the aircraft ought tohave arrived or from the date on which the carriage stopped, has to be readalong with Rule 18 (1) of the same schedule which refers to damage sustainedin the event of destruction or loss of or damage to any registered baggage orany cargo if the occurrence which caused the damage so sustained took placeduring the carriage by air.

5. Chapter III of the Second Schedule is titled as "Liability of the Carrier". Rules 29 and 30 therein read as under:

29 (1) An action for damages must be brought, at the option of theplaintiff, in the territory of one of the High Contracting Parties, eitherbefore the Court having jurisdiction where the carrier is ordinarily resident,or has his principal place of business, or has an establishment by which thecontract has been made or before the Court having jurisdiction at the place ofdestination.(2) Questions of procedure shall be governed by the law of the Courtseized of the case.

30 (1) The right to damages shall be extinguished if an action is notbrought within two years, reckoned from the date of arrival at thedestination, or from the date on which the aircraft ought to have arrived, orfrom the date on which the carriage stopped.

(2) The method of calculating the period of limitation shall bedetermined by the law of the Court seized of the case.

6. The word 'damages' is not defined in the Rules. Rule 17 deals with the damages sustained in the event of death or injury to a passenger;Rule 18 deals with the damage sustained in the event of the destruction orloss of, or damage to, any registered baggage or any cargo; Rule 19 deals withthe liability for damages occasioned by delay in the carriage by air ofpassengers, baggage or cargo.

7. Section 4 of the Act deals with the application of amended Convention (Warsaw Convention 1929 as amended by the Hague Protocol, 1 955) toIndia. Sub-section (1) thereof reads thus:"The Rules contained in the Second Schedule being the provisions of theamended Convention relating to the rights and liabilities of carriers,passengers, consignors, consignees and other persons, shall subject to theprovisions of this Act, have the force of law in India in relation to anycarriage by air to which those rules apply, irrespective of the nationality ofthe aircraft performing the carriage."The Rule of Limitation prescribed in Rule 30 of the Second Schedule is thus aspecial Rule of Limitation in respect of carriage by air and will prevail overthe general law of limitation. The Rules prescribe the forum and the periodbefore which the action is to be brought. Those provisions dealing with theforum and the period of limitation are meant to be the law governing actionsagainst air carriers. Questions of procedure are governed by the law of theCourt in which the action is brought, as provided in Rule 29(2) of the SecondSchedule to the Act.

8. The Rules contained in Chapter III of the Second Schedule are in relation to the claims for damages against the carriers in relation to, interalia, the carriage of goods by air. Such carriage of goods is normally madeonly after an air waybill is issued for which provision is made in Rule 5 inPart III of Chapter II to the Second Schedule. Chapter II is titled as'Documents of Carriage'. Part I of Chapter II is the passenger ticket; PartII of Chapter II is the Baggage check; and Part III of Chapter II is the airwaybill.

9. Rule 5(1) which is in Part III of Chapter II provides that, '

Every carrier of cargo has the right to require the consignor to make out andhandover to him a document called an "air waybill"; every consignor has theright to require the carrier to accept this document. Sub-rule (2) of Rule 5provides that the absence, irregularity or loss of the air waybill does notaffect the existence or the validity of the contract of carriage which shall,subject to the provisions of Rule 9, be nonetheless governed by the Rules inthe Second Schedule.

10. Rule 6(1) provides that the air waybill shall be made out by the consignor in three original parts and be handed over with the cargo. Rule6(2) provides that the first part shall be marked "for the carrier", and shallbe signed by the consignor. The second part shall be marked "for theconsignee"; it shall be signed by the consignor and by the carrier and shallaccompany the cargo. The third part shall be signed by the carrier and handedby him to the consignor after the cargo has been accepted.

11. Rule 8 sets out the minimum requirement of an air waybill. The

air waybill shall contain an indication of the places of departure and destination and other matters. Rule 10(1) provides that the consignor isresponsible for the correctness of the particulars and statements relating tothe cargo which he inserts in the air waybill. Rule 10(2) provides that theconsignor shall indemnify the carrier against all damage suffered by him, orby any other person to whom the carrier is liable, by reason of theirregularity, incorrectness or incompleteness of the particulars andstatements furnished by the consignor.

12. Rule 11(1) provides that the air waybill is prima facie evidenceof the conclusion of the contract, of the receipt of the cargo and of theconditions of carriage. Sub-rule (2) of Rule 11 provides that the statementsin the air waybill relating to the weight, dimensions and packing of thecargo, as well as those relating to the number of packages, are prima facieevidence of the facts stated; those relating to the quantity, volume andcondition of the cargo do not constitute evidence against the carrier exceptso far as they both have been, and are stated in the air waybill to have beenchecked by him the presence of the consignor, or relate to the apparentcondition of the cargo.

13. Rule 12 (1) provides that subject to his liability to carry outhis obligations under the contract of carriage, the consignor has the right,inter alia, to stop the carriage in the course of the journey on any landingor by calling for it to be delivered at the place of destination or in thecourse of the journey to a person other than the consignee named in the airwaybill, or by requiring it to be returned to the aerodrome of departure,subject to his exercising such right of disposition in such a way as not toprejudice the carrier or other consignors and on his repaying the expensesoccasioned by the exercise of that right. Rule 12(4) provides that the rightsconferred on the consignor ceases at the moment when that of the consigneebegins in accordance with Rule 13. Rule 13(1) provides that except in thecircumstances set out in Rule 12 the consignee is entitled on arrival of thecargo at the place of destination to require the carrier to handover to himthe air waybill and to deliver the cargo to him, on payment of the charges dueand on compliance with the conditions of carriage set out in the air waybill.14. Rule 14 provides that the consignor and consignee canrespectively enforce all the rights given to them by Rules 12 and 13, each inhis own name, whether he is acting in his own interest, or in the interest ofanother, provided that he carries out the obligations imposed on the contract.15. Rule 15(2) provides that the provisions of the Rules 12, 13, 14can only be varied by express provisions in the air waybill. Rule 1 5(3)provides that nothing in the rules prevents the issue of a negotiable airwaybill.

16. It is clear from a reading of the provisions relating to the airwaybill that the air waybill is a document provided for in the Rules whichdocument when issued will be governed by the Rules, it being permissible toissue a negotiable air waybill. Claims for damages against the Air line inrelation to the acts of omission or commission on the part of the Air linewith regard to the cargo entrusted to it and covered by air waybill are claimsfor damages governed by the Second Schedule to the Rules and the Rule oflimitation provided for in Rule 30 is the Rule of Limitation governing suchclaims. The fact that the term 'damages' is not defined in the Rules and thatsome types of damages are referred to in some of the Rules in Chapter III does not imply that the period of limitation prescribed in Rule 30, will not applywhen the damages is claimed on the ground of delivery of cargo withoutinsisting upon the production of the air waybill sent by the consignor to theconsignee.17. In this case, the damage alleged is the delivery of theconsignment to the consignee without insisting upon the original air waybillwhich, according to the plaintiff, has resulted in the consignee securing thepossession of the goods without having first paid for the same. The rule oflimitation provided in Rule 30 would clearly be attracted as the claim is inrelation to the alleged wrongful delivery of goods without insisting upon thedocument of title even though the delivery was made to the person to whom itwas intended to be delivered.

18. The trial Court was, therefore, right in the view it took, viz.,that the special rule of limitation provided in Rule 30 would apply. Theappeal is allowed.

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To

1. The Registrar,City Civil Court,Madras - with records

2. The Record Keeper,V.R. Section, High Court,Madras.Dev/