The high court in Kerala
, India, has rendered a landmark decision holding that the burden of narrating what happened on board a vessel on the high seas in the lead-up to a fire and consequent loss of cargo is upon the shipowner.
The case related to short-delivery due to fire in a cargo of ammunition comprising charges, fuses and projectiles on board the vessel 'Indian Grace' during its voyage from Udevella to Cochin. The division bench comprising Justice K S Radhakrishnan and Justice K Padmanabhan Nair held that it was the bounden duty of the carrier to explain in what manner the fire occurred on board the ship, and that the said onus could not be shifted to the plaintiff (government of India). Their lordships took note of the statement in the deposition of Richard Knott
of Brooks Bell and Co that
the fire could have originated from a discarded lighted cigarette tossed by the stevedores through the channel of the ship leading to the bottom of the hold, where a cargo of paper pulp was stowed.
The high court rendered its judgment in an appeal brought by the shipowner against the judgment of the trial court which had found the shipowner negligent in stowing together cargo comprising ammunition and paper pulp. The trial court declined to acknowledge the validity of a certificate issued by Swedish port authorities evidencing that the vessel was stowed in accordance with the IMDG Code.
Dismissing the appeal, the high court deviated from its earlier reported decisions wherein it had been held that, once the shipowner has discharged its burden of proving that the loss occurred as a result of an excepted peril, the onus would then shift to the cargo owner to show that the carrier was not entitled to the benefit of exceptions under Article IV Rule 2 (b) of the Hague Rules scheduled to the Indian Carriage
of Goods by Sea Act, 1925.
The contention of the shipowner that it was not liable as per the terms of contract and the law for any loss resulting from the negligence of its servants and agents was rejected by the court.
Source: Maritime Advocate