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HC dismisses action against UAE shipping services with costs

by Sarath Malalasekera

The Colombo High Court Judge Ms. Chandra Ekanayake, exercising her Admiralty Jurisdiction, dismissed with costs an action filed by Careway Importers (Pvt) Limited against Cyrus Shipping Services of Sharjah, UAE.

The Judge in her judgement stated that in view of the answer, plaintiff was not entitled to have and maintain this action. 'In the circumstances, I hold the Plaintiff cannot have and maintain this action and as such, plaintiff's action is dismissed with costs'.

C. Jayasundera with Damayanthi Francis instructed by KP Law Associates appeared for the Cyrus Shipping Services of Sharjah-UAE.

The judgement also stated that on examination of the evidence adduced on behalf of the plaintiff, I am of the view that the plaintiff has not been successful in establishing that its cargo was carried on deck especially in the light of the two contradictory endorsements. There is no other evidence as to the fact whether the cargo was carried on deck other than evidence of Ramachandran and Wharf Clerk - both these two witnesses have been disbelieved by me."

'I have proceeded to believe Captain Dias. In his evidence, it has been established that cargo of the plaintiff was carried under deck. If the cargo is carried under deck, the above article of the Hague Visby Rules would apply.

In the aforesaid circumstances, I hold that the prescriptive period laid down in the said rule will apply to this action since the action is not instituted within one year of delivery of goods. Therefore, I hold that the defendant is discharged from all liability in respect of the damages complained of by the plaintiff,' the judgement stated.

The High Court Judge in her lengthy judgement stated...

The plaintiff has instituted this action by way of an action in Personam for the recovery of sum of Rs. 3,082,960 together with legal interest being damages suffered by the plaintiff as the plaintiff's cargo which were shipped on deck of the vessel MV Samra which carries the flag of Panama owned/operated/managed by the defendant was found to be damaged when the goods were discharged at the port of Colombo.

The vessel had loaded 225 mt of big onions in Mumbai between 10.02.1997 and sailed on 08.06.1997. The said vessel arrived at Port of Colombo on or before 14.06.1997 and was berthed soon thereafter. When the plaintiff had found that the plaintiff's cargo which was shipped on deck the above vessel was in a damaged condition, plaintiff appointed Delta Maritime Surveys to inspect and survey the cargo as averred in paragraph 8 of the petition. The surveyor had immediately carried out an on board survey on 18.06.1997.

The defendant by its answer took up the position that the alleged claim of the plaintiff arises under and in terms of the Bill of Lading 'X2' annexed to the petition and the said Bill of Lading and the carriage related thereto are subject to the Hague Visby Rules as incorporated in the carriage of goods by Sea Act No. 21 of 1982. Further, under Article 6 of the above rule, the carrier and the ship shall in any event have to be discharged from liability whatsoever in respect of the goods unless suit is brought within one year of their delivery. In the above premises, the defendant has moved for a dismissal of the plaintiff's action.

The plaintiff adduced the evidence of Chellaiah Ramachandra, the Managing Director of the Plaintiff Company Priyantha Ajith Dias the Marine Surveyor, one of Mr. R. de Frans a wharf clerk in support of its claim.

The defendant did not call any evidence. The plaintiff has admitted the ownership of the vessel, the averments in paragraphs 12 and 14 of the petition and the Bill of Lading. Further plaintiff has raised issues 1 to 11 (as in Plaintiff's list dated 16.07.2001) and issues 14 (a) and 14 (b) by way of consequential issues. Defendant has raised issues 12 and 13 as appearing in the defendent's list dated 16.07.2001 already filed of record.

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