ESSAR SHIPPING LTD. versus THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA on 15 February 2019

254 SUPREME COURT REPORTS [2019] 2 S.C.R.[2019] 2 S.C.R. 254

AESSAR SHIPPING LTD.

v.

THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA(Civil Appeal No. 5654 of 2007)

FEBRUARY 15, 2019

B[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Major Port Trust Act, 1963:

Liability of vessel – For causing damage – Accident whileberthing appellant’s vessel – Causing damage to a coal loader –CDock complex put the responsibility for the damage on the vessel –Master of the vessel denied its responsibility stating that the coalloader was not kept at proper position – However, subsequently,the master of vessel accepted the liability under protest – Thereuponthe vessel was allowed to sail out – Committee, set up by Government,Dfound that accident took place due to dynamic situations viz.deballasting of ship, higher water level in dock, high wind speed,inadequacy of communication and parking of coalloader at wrongposition and hence no individual responsibility could be assigned– Suit by master of the vessel seeking declaration thatacknowledgment of liability was void and seeking its cancellation –ERespondent-Port filed its written submission with a counterclaim,claiming a decree of Rs. 30 lakhs – Trial court decreed the suitrelying on the finding of the Committee – In appeal, Division Benchof High Court allowed the counter-claim dismissing the suit – Onappeal, held: The Committee which found that individualFresponsibility could not be assigned, consisted of persons havingtechnical expertise and knowledge in the field – The assessment ofall the relevant factors were duly considered by the Committee incorrect perspective – Therefore view taken by trial court was justand correct and hence the suit is decreed – Bye-laws of the Port ofCalcutta – Clauses 16 and 20.G

Allowing the appeal, the Court

HELD: 1. The accident in the present matter had evokedattention and the Government of India had appointed a Committeeto examine various aspects of the accident and fix responsibility.The Committee consisted of four persons having technicalH

expertise and knowledge in the field. Said Committee found thatno specific responsibility could be fixed due to the dynamicsituation prevailing at the time of accident and that it wasoccasioned, as a result of combination of five factors named bythe Committee. Every single factor was gone into and atthe end of its discussion the Committee had found thatindividual responsibility could not be assigned in the matter.[Para 19][270-B-C]

2. The Division Bench of High Court relied on the factsthat the Master of the vessel was told by the Berthing Master todrop the anchor and whether there was any time lag in obeyingsuch instruction by the Master of the vessel which made it furtherdifficult for the Berthing Master, but the evidence in that behalfis not clear. In his answer as regards factors which caused theaccident, the Berthing Master gave two reasons: ship’s high boardi.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 ofthe reasons. The Committee, consisting of experts in the fieldhad also examined witnesses and considered the entire materialbefore it whereafter it arrived at its conclusion. Said Committeealso did not put this factor of delay in anchoring the vessel to beone of the reasons. The Division Bench, therefore, ought not tohave taken into account said aspect while considering the matter.[Para 22][272-D-E]

3. From the facts of the case, two crucial aspects thatemerge are (a) non-intimation on part of the Master of the Vesselabout the fact that the vessel had deballasted while at the locksand (b) failure on part of the Berthing Master to apprise himselfof the draft of the vessel though he was obliged to check thatpart. All the other factors were either natural factors, such asthe level of the water in the impounded dock or intensity of thewind or were the factors over which neither the Master of thevessel nor the Berthing Master had any direct control. The factorslike lack of communication, as was sought to be projected by theplaintiff-appellant, between the tugs and the Berthing Master orthe location of the coal loader on the Southern tip of the Jetty orthe berthing area could be contributing factors but at the core ofthe matter were aforesaid two features. Each of those two featuresare relied upon by either side to put the liability on the oppositeside. [Para 23][272-F-H]

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A4. It was part of the duty of the Berthing Master to checkthe draft of the vessel before he took over the control of thevessel. Under the bye-laws the vessel had to be under the controlof the officer of the Port or the Berthing Master. The BerthingMaster was not a new comer or an inexperienced person. Hehad to his credit the experience of having navigated vessels fromBthe locks to the dock area on at least 1500 previous occasions.If the intensity of the wind was 24 knots when he took over thecontrol of the vessel, it was all the more reason for him to bemore careful in checking the draft before assuming control overthe vessel. As an officer employed and authorised by the Port,Che was having greater knowledge than anyone else how the vesselhad to be navigated from the locks to the dock area. A Committeeof four experts in the field was appointed by the Government ofIndia to look into the matter and fix the responsibility; that theCommittee had recorded statements of all the concerned personsincluding the Master of the vessel, Berthing Master and all otherDconcerned officials; and that after thorough enquiry theCommittee found that the factors which were responsible for theaccident were beyond the control of anyone. [Para 23][273-B-D]5. Considering the entirety of the matter, the assessmentof all the relevant factors were duly considered by the Committeein correct perspective and it cannot be concluded that the acts ofEcommission or omission on part of the Master of the vessel alone,were responsible for and resulted in causing the damage to thecoal loader. He may be held responsible to a certain extent forhis non-intimation but the failure on part of the Berthing Masterin doing what was expected of him and other factors were alsoFresponsible. The conclusion arrived at by the Committee in thecircumstances, which weighed with the Single Judge, is the correctperspective from which the matter is required to be considered.Therefore, the view taken by the trial court was just andcorrect and that of the Division Bench was erroneous.[Para 24][273-E-G]GFowles v. Eastern and Australian Steamship Company,Limited [1916] 2 AC 556 – distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5654of 2007.

From the Judgment and Order dated 27.10.2006 of the HighHCourt at Calcutta in A.P.D. No. 338 of 1997.

Pinaki Addy, Chira Ranjan Addy, Advs. for the Appellant.

Buddy A. Ranganadhan, A. V. Rangam, Advs. for theRespondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. This appeal by special leave challenges the judgment andorder dated 27.10.2006 passed by the Division Bench of the High Courtat Calcutta allowing appeal namely A.P.D. No.338 of 1997 and settingaside the decree dated 09.04.1997 passed by Single Judge of the HighCourt in Suit No.12 of 1998.

2. On 27.08.1987 at about 1148 hrs. the vessel “M.V. ChennaiNermai” belonging to the appellant (formally known as South IndiaShipping Corporation Ltd.) arrived at the lock gate of Haldia Port forloading of cargo of coal at Haldia Docks for delivery at the port ofTuticorin. The vessel de-ballasted while at the lock gate upto 1300 hrs.At 1306 hrs., in terms of the Rules of Calcutta Port Trust, BerthingMaster 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 thelock gates to the berthing area of Haldia Port. While the vessel wasbeing berthed at about 1354 hrs., the startboard quarter of the vesselcame in contact with a coal loader stationed by the side of the berthingarea 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 responsibilityfor the loss on the vessel. A reply was given by the Master that veryday denying acceptance of liability while emphasizing that the coal loaderwas not kept at proper position. On the same day a notice was sentfrom Marine Operations Division, Calcutta Port Trust to the Master ofthe vessel holding said Master and the vessel responsible for the damageswith a request to immediately intimate acceptance of liability. The Masterput endorsement; “Received without prejudice, I do not accept liabilityfor above as contravention proper position of safe berthing lettersfollows:” A reply to the said notice was also sent by the Master on thesame day, reiterating that the coal loader was not kept at a proper positionas against the normal practice of keeping the loader in the center of thejetty and that the communication between the Berthing Master and thetugs was poor. On the very day, a letter was also sent by the Master of A

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Athe vessel to the Deputy Chairman, Haldia Dock Complex, Haldia thatthe vessel had also suffered damage as a result of the coal loader nothaving been kept at proper position and for other reasons mentioned insaid letter.

4. Again on 29.08.1987 the Master of the vessel wrote to theBManager, Marine Operations, Haldia Dock Complex referring to thefailure on part of tugs and faulty communication system specially in theconditions where there were strong winds. On 30.08.1987 the vesselcompleted loading operations but was kept waiting for want of clearanceby the Port authorities. On 31.08.1987 a notice was issued by theManager, Marine Operations Division, Calcutta Port Trust to the MasterCof the vessel holding him and the vessel responsible for the damageswith a request to intimate acceptance of liability. The endorsement putby the Master on the copy of said letter was; “Liability accepted underprotest without prejudice to owners/agents contention for right ofdefence.” Another notice was sent by the Manager, Marine OperationsDivision of Calcutta Port Trust on 01.09.1987 to the same effect. TheDendorsement on the copy of said notice was to the following effect:“Liability accepted without prejudice to the extent of only loaderbeing put in working condition on turn key basis.”After the aforesaid endorsement, the vessel was allowed to sail out ofHaldia Docks on 01.09.1987.

E5. On 20.10.1987 an Order was passed by the Government ofIndia, Ministry of Surface Transport setting up a Committee as under:“A shiploader at the coal berth at Haldia Dock complex was damagedon 27.8.87 when a vessel “Chennai Nermai” was being berthed. Thedamage was of serious and extensive nature. It has been decided toset-up an enquiry committee to examine the various aspects of theFaccident and fix responsibility. The Committee will consist of followingmembers :-

i) Principal Officer,Mercantile Marine Department,Calcutta.

G(ii) Director (Mechanical)DA(P) Organisation, Ministry of Surface Transport.(iii) Director (Technical) “Poompuhar” Shipping Company.V.Floor, 304/305, Anna Salei, Madras – 600 018.

(iv) Director Marine Department.

HCalcutta Port Trust – Convenor.

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

6. The Committee went into the matter, examined various officialsand then submitted its Report on 06.01.1988. Paragraphs 5 to 9 of theReport were:

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

6. While proceeding to the Coal Berth the vessel encounteredheavy wind from South south-west at a speed of 24 knots. MTAhalya and MT Kunti were available for assisting the vessel inberthing operation. As M.V. “Chennai Nermai” had a light draftshe was subjected to considerable wind force from the port side.The effect was further pronounced because of the high waterlevel in the impounded dock. The accommodation on the vesselbeing located on the aft and the side thrust on that area was muchhigher than on the rest of the ship. As a result, the aft part of theship was constantly being blown towards the berth which couldnot be adequately checked by the tugs. As a consequence, sternof the vessel made contact with the jetty and overhanging counterof the ship contacted No.1 Shiploader which was parked towardsthe southern end of the berth. The Committee did not have theopportunity to examine the damage sustained by the ship but thesame appears to have been of a light nature as the vessel couldleave port after completion of loading. However, because ofimpact the structure of the Shiploader was distorted and one setof wheels was derailed. Due to this damage the particularshiploader was rendered in-operative.

7. It has been observed that the master of the ship did not keepthe berthing master informed of the deballasting as a result ofwhich the ship was subjected to larger wind force from the portside. The wind speed on that particular day which is reported to A

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have been 24 knots was considerable though berthing operationunder such condition is not normally suspended. At one stage ofthe operation there was even danger of M.V. “Chennai Nermai”getting set on to a dredger which was tied up beyond southernend of the Coal Berth. Fortunately, the accident could be averted.

B8. The wind force acting on the accommodation located at aftpart of the vessel proved to be too strong which could not bechecked by the assisting tugs. Though stern of the vessel camein contact with the berth the damage to the jetty did not appear tobe considerable. Unfortunately, the overhanging counter of theship touched one leg of No.1 Shiploader causing damage to theCsame as described earlier.

9. While no specific responsibility can be fixed due to dynamicsituation prevailing at the time of accident a combination of thefollowing factors seems to have led to occurrence of the aboveaccident :-D(i) Deballasting of the ship thereby exposing larger area of thevessel to wind force.

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

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

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

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

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7. After setting out various factors in para no. 9, those factorswere considered in detail by the Committee and finally the conclusionwas arrived at:

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

8. Soon thereafter, the appellant instituted Suit No.12 of 1988 onthe original side of the High Court at Calcutta praying inter alia for adeclaration that the acknowledgement of liability dated 01.09.1987 wasHvoid and without any legal effect and for cancellation of said endorsement.

It was contended that the Master of the vessel had initially refused toacknowledge the liability for the accident in question; that despite havingcompleted loading of cargo, the vessel was not allowed to sail out of thedocks and was kept waiting; and that the acknowledgement dated01.09.1987 was wrested out of the reluctant Master by wrongful detentionof the vessel.

9. The respondent filed its written statement with a counter claimand claimed a decree for Rs.30 lakhs. It was contended that the accidentoccurred purely because of negligence on part of the Master and thecrew of the vessel; that the appellant was bound by the acknowledgementof liability and that the plaintiff/appellant was liable to compensate therespondent for damage to the coal loader which was estimated at Rs.30lakhs. In the written statement a specific stand was taken in para 14 asunder:

“14. The defendant further states that the said Vessel M.V. ChenaiNermai arrived at Haldia from sandhead on 27[th] August, 1987and was placed in the locks at about 1100 hrs. As about 1305 hrs.the said Vessel proceeded to coal berth with the assistance of atug M.T. Ahalya for to coal berth with the assistance of a tugM.T. Ahalya for towing and M.T. Kunti for checking. At the timethere was a rough weather and the wind was blowing at a speedof 24 knots. The draft of the said Vessel when arrived at sandheadwas reported as 8 meters. Further the Master of the Vesselde-ballasted the Vessel at the time of approaching Haldia load injetty for ingress into the dock system and continued to do so in thelocks thereby reducing the draft of the Vessel considerably andincreasing the freeboard of the Vessel thus offering bigger areato the prevailing strong wind to play upon. While the vessel wassent to the berth, there was considerable wind force playing onaft part of the vessel. It was found that because of this stern ofthe vessel came in contact with the Southern and of the coalberth and the Vessel collided with no.1 ship loader parked in thatarea. As the Vessel had been de-ballasted, and freeboard of theVessel had been increased, there being very little hold of the vesselsunder water area in the water, the Vessel heeled over and damagedthe Coal loader which would have been avoided if the board hadnot increased due to de-ballasting of the vessel. As a result ofsuch accident the said ship loader was damaged rendering thesame totally out of commission. While the vessel was enteringinto the port the mean draft of the Vessel was reduced to about A

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A5.5 metres according to the Master of the Vessel. The Master ofthe Vessels did not report the same to the berthing Master whoboarded the vessel at the locks. As the said vessel had a lightdraft she was subjected to considerable wind force from the portside. The effect was further pronounced because of the highwater level in the said dock. As a result, the Master and crewBand/or the servants and agents of the plaintiff made the said vesselunmanageable in the said weather condition which was not evendisclosed to the berthing Master.”

10. In its rejoinder/replication, the appellant dealt with assertionsin para 14 of the written statement as under:- C“5. With reference to paragraph 14 of the written statement, theplaintiff states that the true facts were as follows:- (a) The vessel arrived at Sandheads from Tuticorin at 17.42hours on 23[rd] August, 1987. Her draft then was 7 meterswhich was reported from Sandheads to Haldia. SoonDthereafter River Pilot Mr. Malik Boarded the vessel whichthen proceeded to Haldia, the draft of the vessel was reducedto 6.5 meters. The vessel arrived at Haldia on 24[th] August,1987 towards noon. As permission to enter the locks wasnot given, the vessel had to remain anchored in the River offthe locks.E

(b) In the morning of 24[th] August, 1987 the vessel was directedby the Marine office at Haldia to go back to Sandheads andthe vessel accordingly went back reaching Sandheads on26[th] August, 1987. On the following day, the vessel againproceeded to Haldia under the pilotage of a River Pilot andFarrived at Haldia on 27[th] August, 1987. The vessel wasdeballasted again at Haldia prior to entry into the Locks andwhile inside the Locks until her draft was brought down to4.69 metres forward and 6.25 metres aft.

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

(d) On the way to the coal berth the vessel was observed to becanting towards port whereupon the Forward Tug “Ahalya”was cast off and was directed by the Berthing Master topush the vessel’s bow towards star board. At the sametime the aft tug “Kunti” was directed to pull the Stern towardsport side, unfortunately both the Tugs were poor in respondingto the repeated orders of the Berthing Master with the resultthat the intended maneuver of the Berthing Master to arrestthe cant of the stern of the vessel towards starboard couldnot be carried out effectively and at about 13.54 Hours thestarboard quarter of the vessel came into contact with thejetty and the Loader No.1 and both the Loader and the Jettysustained damages.

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

11. The appellant/plaintiff examined Capt. Arjun Raj Gopal, Masterof 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 wasin the locks the windforce was about 24 knots. In answer to questionNo.239 he stated that while the vessel is in the dock, it would be underthe control of the Berthing Master. In answer to question No.393 hestated that since the vessel was not allowed to sail out of Haldia port fortwo days, he put his signature under the endorsement. While givinganswer 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 theport since one loader was placed at a wrong position for the A

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Aberthing of the vessel. There was no response from the forwardtug for carrying out Berthing Master’s orders. The aft tug wasvery slow in responding to the Berthing Master’s orders. Thecommunication between the Berthing Master and the tug speciallythe forward one was very poor and should have been by walkietalkie through the tug’s V.H.A. The Anchor could not be broughtBearlier because the dredger was tied between the ore and coalberths. Lastly there was no mooring boat to take a line from theship’s bow to the coal berth which would have been helpful inchecking the cant and straightening the vessel.”

In his cross-examination, while answering question No.466, PW1accepted that he had not informed the Berthing Master about the factCthat 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 BerthingMater informed about all necessary particulars including the factthat the vessels draft was lowered by the deballasting what wouldDbe your answer?A. The berthing Master worked along the Jetty and climbed upthe ships local gang-way and therefore, he should have read thedraft which is always customary by the Boarding Pilot. Thedeballasting was completed by 1300 hrs. before the BerthingMaster boarded as he boarded 1306 hrs. So, he should have readEthe latest draft of the draft of the vessel.”

12. Four witnesses were examined by the respondent/defendantin support of its case. Capt. R.M. Gangadhar, Manager (Marine) HaldiaDock Complex, Calcutta Port Trust was examined as DW1. Answer toQuestion No.16 in his examination-in-chief was as under:-“16. Q. Is it usual to decrease the draft in dock before the berthingFloading?

A. In normal weather it does not make any difference butwhen the wind is strong no prudent master deballasts the shipduring the passage of the vessel.”

In response to question no.51, in his cross-examination heGaccepted that before taking charge of the vessel it was customary forthe Berthing Master to acquaint himself of the draft marks. Further, inresponse to question no.123 he also accepted that the draft lines of thevessel are clearly visible to the Berthing Master while he approachesthe ship. In answer to question No.124 he accepted that if the BerthingMaster did not check the draft lines, it would be negligence on his part.HThe questions and answers were:-

123. Q. If that be so then the draft lines of the vessel were clearlyvisible 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 thedamage sustained by the Coal Loader, Mr. S.P. Rajak, Berthing Masterwas examined as DW4. In his examination-in-chief the witness acceptedthat he had the experience of having maneuvered many vessels on morethan 1500 occasions including the very same vessel on 2/3 times earlier.In response to question no.32 regarding reason for the accident hedeposed:

“32. Q. According to you what was the reason of that accident?A. Because of the ship’s high very board. The wind impact wastoo much.”

Some of the questions and answers given by the witness in hiscross-examination were as under:- “36. Q. You have deposed that the master of the vessel is theperson who issues the command to the engine room and otherstations on board vessel. On what basis does the master of thevessel issue such command?

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

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

A. Some of them.

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

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

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

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

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A40. Q. When you say that you board in an advisory capacity is itsupported by any written instruction of CPT?

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

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41. Q. If what you say is correct that the berthing master or thepilot 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 superiorCofficers must be knowing but the berthing master of the ship actingas Advisory capacity.

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

A. Yes.D

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43. Q. Have you seen these rules before?

A. No.

44. Q. Are you aware of these Rules?

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48. Q. Can a vessel be berthed without a Berthing Master onboard the vessel?

A. No.

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

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

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

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

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

A. Yes.

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

A. Yes.

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

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

72. Q. The Captain did not tell you that the vessel was having 7metres’ 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 decreedthe suit. It was observed that the Committee set up by the Governmentof India had found that the accident had taken place due to unfortunatecombination of certain unusual factors for which no responsibility couldbe assigned: that though the Master of the vessel had not informed theBerthing Master about the fact that the vessel had de-ballasted, it wasfor 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 therecould be no movement within the docks unless the vessel was inchargeof a duly authorized officer and that the Berthing Master was responsiblefor guiding the vessel to its berth: that the coal loader was parked at thesouthern end of the berth instead of its usual location at the centre; andthat the endorsement in question obtained from the Master of the vesselwas not in keeping with Section 116 of The Major Port Trust Act, 1963.The Single Judge thus concluded:

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A“For those reasons, I hold that during the process of berthing thevessel was under the guidance and in the charge of the berthingmaster, who was a duly authorized employee of the defendant,and that the accident occurred due to the lack of proper care andinadequate expertise of the berthing master coupled with thearchaic communication system which was both audible andBunseable by the berthing master as also the tugs, then prevalent inthe Haldia Dock Complex. The defendant wrongfully gave a gobye to the procedure laid down in Section 116 of The Major PortTrust Act, 1963 and malafide obtained the endorsement from themaster in acceptance of liability for the damage. Therefore thereCshall be a decree in terms of prayer (a) and (b) of the plaint.”15. The respondent being aggrieved, challenged the decision ofthe Single Judge by filing appeal namely A.P.D No.338 of 1997 whichwas allowed by the Division Bench of the High Court by decision dated27.10.2006. The Division Bench also allowed the counter claim and Ddirected the appellant/plaintiff to pay sum of Rs.24,04,237/- towards costof 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 bythe Government of India could be taken as evidence in the matter but itconcluded as under:

“We, thus, have before us material to come to the followingEconclusion –

(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 exposedto wind;F(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 atthe time suggested by the Berthing Mater.

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

duty to safely navigate the vessel. He committed breach of theduty in the manner discussed above resulting into severe damageto the loader.”

16. The decision of the Division Bench of the High Court ispresently under challenge. Mr. Bhaskar P. Gupta, learned SeniorAdvocate appearing for the appellant laid stress on the report of theHigh-Power Committee including the conclusions added by theCommittee. Further, it was submitted that the Berthing Master was anexperienced officer and in terms of the bye-laws of the Calcutta PortTrust, the vessel was under his command. According to him, as acceptedby DW1, the Berthing Master was obliged to check the draft marksbefore taking charge of the vessel and if he had failed to do so it was aclear case of negligence on his part and, therefore, even if the Master ofthe vessel had not specifically intimated to the Berthing Master the factthat the vessel had deballasted, the liability of the Berthing Master wouldnot get absolved. Mr. Gupta also submitted that the quantification towardscost of repair as accepted by the Division Bench and the award ofinterest at the rate of 12% was also incorrect.

17. Mr. Parag P. Tripathi, learned Senior Advocate appearing forthe respondent submitted that the Master of the vessel had admittedlynot intimated that the vessel had deballasted and the evidence clearlyindicated that, that factor was the major cause for the accident resultingin 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 navigatethe vessel into the docks. Mr. Tripathi, learned Senior Advocate reliedupon judgment of the Privy Council in Fowles vs. Eastern andAustralian Steamship Company, Limited[1] in which statutory provisionsimilar 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-goingvessel shall move into, or out of, or within the Docks, or to or froma jetty berth, unless she is in the charge of a duly authorised officerof the Commissioners.

20. Co-operation with authorised officials – The Master or Ownershall obey every lawful direction of, and act in full co-operationwith all duly authorised officers of the Commissioners for the A

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Apurpose of mooring or unmooring, moving or removing a sea-going vessel or of regulating her position or of adjusting herequipment and gear, for the loading or discharging of her cargo.”

19. At the outset, an important feature of the matter must benoted. The accident in the present matter had evoked attention and theBGovernment of India had appointed a Committee to examine variousaspects of the accident and fix responsibility. The Committee consistedof four persons having technical expertise and knowledge in the field.Said Committee found that no specific responsibility could be fixed dueto the dynamic situation prevailing at the time of accident and that it wasoccasioned, as a result of combination of five factors named by theCCommittee. Every single factor was gone into and at the end of itsdiscussion the Committee had found that individual responsibility couldnot be assigned in the matter.

20. We may now deal with some of the technical terms whichhave been used in the present matter by the witnesses and the Committee.DWe have been given to understand that a vessel in which cargo is yet tobe loaded, being lighter in weight, can pose problems for effectivenavigation in high seas. In order to stabilize the vessel certain amount ofweight is added which then helps in letting part of the vessel to be underthe surface of the water and thereby lend stability. The weight for suchpurpose could be in any form but normally there are tanks which areEfilled with water and the weight of such filled water affords stability tothe vessel when no cargo is loaded. Adding of such weight is called‘ballasting’ a vessel. However, before the loading operations begin, thevessel is required to pump out the water from such tanks and this processis called “deballasting”. The portion of the vessel which is below theFwater surface is normally referred to as “draft” of the vessel. Thelarger the draft, the more stable the vessel. As a result of “deballasting”the weight of the vessel gets considerably reduced and consequentlythe “draft” of the vessel, namely, the portion below the surface of thewater also gets reduced. Resultantly, the surface above the level of the water would get increased and in windy conditions such larger surfaceGof the vessel above water may have impact on navigation. Further, it iscommon case that Haldia Port proper is not directly touching the seaand from the place where river Hooghli meets the sea, the water isarrested by employing locks. The journey of the vessel from the locksto the berthing area of the docks is through the water so arrested and isHto be undertaken under the express guidance of an authorised officer.

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

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

(a) The vessel arrived at the Sandheads that is location justbefore Haldia locks on 23.08.1987 and the “draft” of the vessel wasreported to be seven meters. For guiding its onward journey, Rivor Pilotboarded and the vessel proceeded towards Haldia locks. The draft wasthen reduced to 6.5 meters. Though the vessel arrived at Haldia lockson 24.8.1987, the vessel was not allowed to enter and was directed to goback to Sandheads.

(b) On 27.8.1987 under the Pilotage, the vessel again arrived atHaldia locks. Just before the entering the locks it had deballasted andthe “draft” was brought down to 4.69 meters forward and 6.25 metersaft. The conditions at that time were quite windy and the force of thewind was 24 knots.

(c) At this stage, Berthing Master Mr. Rajak boarded the vesselwhile it was in Haldia locks to guide the vessel with the assistance oftow Tugs to the berthing area. During its entire passage the vessel wastugged by said tugs employed by the Board and was under the commandof the Berthing Master.

(d) The Berthing Master had adequate experience of havingguided navigation from locks to the berthing area on at least 1500occasions. In fact he had guided the very same vessel on two or threeprevious occasions.

(e) Going by the text of bye-laws of Port of Calcutta as well asthe accepted factual position, the vessel was under the control of theBerthing Master.

(f) The Master of the vessel did not intimate to the BerthingMaster that the vessel had deballasted and that the draft had beenreduced to 4.69 meters forward and 6.25 meters aft. However, asaccepted by DW1, Manager (Marine), Haldia Docks Complex, it wasthe responsibility of the Berthing Master to check the draft before hecould start navigating the vessel.

(g) Same witness further admitted that in normal conditions itwas usual to decrease the draft before passage of the vessel into theberthing area.

(h) On the relevant day, the level of the water in the impoundeddock was also high.

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A(i) While being berthed, the vessel came in contact with a coalloader which was stationed at the Southern end of the Jetty or berthingarea as against the normal location being at the center of the Jetty.

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

(k) At a stage when the damage was yet to be assessed, anBendorsement was given by the Master of the vessel after the vessel wasin the Docks for two days even after being loaded.

(l) The damage to the loader, according to the evidence led bythe defendants-respondent was to the tune of Rs.24.04 lakhs.

22. There is one more issue as well, namely, whether the MasterCof the vessel was told by the Berthing Master to drop the anchor andwhether there was any time lag in relaying such instruction by the Masterof the vessel which made it further difficult for the Berthing Master.The Division Bench has relied upon this aspect while assessing the factsituation on record but the evidence in that behalf is not clear. In hisanswer as regards factors which caused the accident, the BerthingDMaster gave two reasons: ship’s high board i.e. the area above the watersurface and the impact of the wind. However, he did not name, delay inregard to anchoring as one of the reasons. The Committee, consistingof experts in the field had also examined witnesses and considered theentire material before it whereafter it arrived at its conclusion. SaidECommittee also did not put this factor of delay in anchoring the vessel tobe one of the reasons. The Division Bench, therefore, ought not to havetaken into account said aspect while considering the matter.

23. If the emerging facts, as set out earlier are considered, twocrucial aspects that emerge are (a) non-intimation on part of the Masterof the Vessel about the fact that the vessel had deballasted while at theFlocks and (b) failure on part of the Berthing Master to apprise himself ofthe draft of the vessel though he was obliged to check that part. All theother factors were either natural factors, such as the level of the waterin the impounded dock or intensity of the wind or the factors over whichneither the Master of the vessel nor the Berthing Master had any directGcontrol. The factors like lack of communication, as was sought to beprojected by the plaintiff-appellant, between the tugs and the BerthingMaster or the location of the coal loader on the Southern tip of the Jettyor the berthing area could be contributing factors but at the core of thematter were aforesaid two features. Each of those two features arerelied upon by either side to put the liability on the opposite side. ToH

make the appellant liable, question would be whether non-intimation ofsaid fact by the Master of the vessel, as indicated above, was so singularlycrucial as to justify putting the entire blame on the appellant. We cannotdisregard the fact that it was part of the duty of the Berthing Master tocheck the draft of the vessel before he took over the control of thevessel. Under the bye-laws the vessel had to be under the control of theofficer of the Port or the Berthing Master. The Berthing Master wasnot a new comer or an inexperienced person. He had to his credit theexperience of having navigated vessels from the locks to the dock areaon at least 1500 previous occasions. If the intensity of the wind was 24knots when he took over the control of the vessel, it was all the morereason for him to be more careful in checking the draft before assumingcontrol over the vessel. As an officer employed and authorised by thePort, he was having greater knowledge than anyone else how the vesselhad to be navigated from the locks to the dock area. We must also givedue regard to the facts that a Committee of four experts in the field wasappointed by the Government of India to look into the matter and fix theresponsibility; that the Committee had recorded statements of all theconcerned persons including the Master of the vessel, Berthing Masterand all other concerned officials; and that after thorough enquiry theCommittee found that the factors which were responsible for the accidentwere beyond the control of anyone.

24. Considering the entirety of the matter, we find that theassessment of all the relevant factors were duly considered by theCommittee in correct perspective and it cannot be concluded that theacts of commission or omission on part of the Master of the vesselalone, were responsible for and resulted in causing the damage to thecoal 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 Masterin doing what was expected of him and other factors were alsoresponsible. The conclusion arrived at by the Committee in thecircumstances, which weighed with the Single Judge, in our view, is thecorrect perspective from which the matter is required to be considered.In our assessment, the view taken by the trial court was, therefore, justand correct and that of the Division Bench was erroneous.

25. Before we conclude we must deal with the case relied uponby Mr. Tripathi, learned Senior Advocate for the respondent. What wasin issue in that case was the alleged negligence of a licensed pilot. Whatwe have found is that it was combination of all factors as concluded by AB

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Athe Committee and the matter could not be put at the level of negligenceon part of any individual simplicitor. We, therefore, do not find said caseor the discussion therein to be of any relevance in so far as the presentmatter is concerned. In the assessment that we have made, it wouldalso not be necessary to go into the questions as to the extent of damageto the coal loader and whether the amount as claimed by the defendant-Brespondent was correctly arrived at and assessed or the interest had tobe at the level of 12% or at any lesser rate.

26. We, therefore, allow this appeal, set aside the judgment underappeal and restore the judgment and decree passed by the Single Judgein Suit No.12 of 1988. No costs.

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Kalpana K. Tripathy

Appeal allowed.

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