ESSAR SHIPPING LTD. versus THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA

Citation: [2019] 2 S.C.R. 254 · Decided: 15-02-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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254                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
ESSAR SHIPPING LTD.
v.
THE BOARD OF TRUSTEES FOR THE PORT OF CALCUTTA
(Civil Appeal No. 5654 of 2007)
FEBRUARY 15, 2019
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
Major Port Trust Act, 1963:
Liability of vessel – For causing damage – Accident while
berthing appellant’s vessel – Causing damage to a coal loader –
Dock complex put the responsibility for the damage on the vessel –
Master of the vessel denied its responsibility stating that the coal
loader was not kept at proper position – However, subsequently,
the master of vessel accepted the liability under protest – Thereupon
the vessel was allowed to sail out – Committee, set up by Government,
found 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 wrong
position and hence no individual responsibility could be assigned
– Suit by master of the vessel seeking declaration that
acknowledgment of liability was void and seeking its cancellation –
Respondent-Port filed its written submission with a counterclaim,
claiming a decree of Rs. 30 lakhs – Trial court decreed the suit
relying on the finding of the Committee – In appeal, Division Bench
of High Court allowed the counter-claim dismissing the suit – On
appeal, held: The Committee which found that individual
responsibility could not be assigned, consisted of persons having
technical expertise and knowledge in the field – The assessment of
all the relevant factors were duly considered by the Committee in
correct perspective – Therefore view taken by trial court was just
and correct and hence the suit is decreed – Bye-laws of the Port of
Calcutta – Clauses 16 and 20.
Allowing the appeal, the Court
HELD: 1. 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
[2019] 2 S.C.R. 254
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255
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.
[Para 19][270-B-C]
2. The Division Bench of High Court relied on the facts
that the Master of the vessel was told by the Berthing Master to
drop the anchor and whether there was any time lag in obeying
such instruction by the Master of the vessel which made it further
difficult for the Berthing Master,  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 reasons.  The Division Bench, therefore, ought not to
have taken into account said aspect while considering the matter.
[Para 22][272-D-E]
3. From the facts of the case, 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 eit

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