Essar Shipping Ltd. v. the Board of Trustees for the Port of Calcutta
UDAY UMESH LALIT, J.
1. This appeal by special leave challenges the judgmen t and
order dated 27.10.2006 passed by the Division Bench of the High Court
at Calcutta allowing appeal namely A.P.D. No.338 of 1997 and setting
aside the decree dated 09.04.1997 passed by Single Judge of the H igh
Court in Suit No.12 of 1998.
2. On 27.08.1987 at about 1148 hrs. the vessel “M.V. Chennai
Nermai” belonging to the appellant (formally known as South India
Shipping Corporation Ltd.) arrived at the lock gate of Haldia Port for
loading of cargo of coal at Haldia Docks for delivery at the port of
Tuticorin. The vessel de-ballasted while at the lock gate upto 1300 hrs.
At 1306 hrs., in terms of the Rules of Calcutta Port Trust, Be rthing
Master 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 the
lock gates to the berthing area of Haldia Port. While t he vessel was
being berthed at about 1354 hrs., the startboard quarter of the ves sel
came in contact with a coal loader stationed by the side of the berthing
area and the coal loader got damaged.
3. On the same day a letter was issued by the Plant Engine er,
Haldia Dock Complex to the Master of the vessel putting the responsibility
for the loss on the vessel. A reply was given by the Mas ter that very
day denying acceptance of liability while emphasizing that the coal loader
was not kept at proper position. On the same day a notice was sent
from Marine Operations Division, Calcutta Port Trust to the Master of
the vessel holding said Master and the vessel responsible for the damages
with a request to immediately intimate acceptance of liability. The Master
put endorsement; “Received without prejudice, I do not accept liability
for above as contravention proper position of safe ber thing letters
follows:” A reply to the said notice was also sent by the Master on the
same day, reiterating that the coal loader was not kept at a proper position
as against the normal practice of keeping the loader in the center of the
jetty and that the communication between the Berthing Master and the
tugs was poor. On the very day, a letter was also sent by the Master of
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA
the vessel to the Deputy Chairman, Haldia Dock Complex, Haldia that
the vessel had also suffered damage as a result of the coa l loader not
having been kept at proper position and for other reasons mentioned in
said letter.
4. Again on 29.08.1987 the Master of the vessel wrote to the
Manager, Marine Operations, Haldia Dock Complex referring to t he
failure on part of tugs and faulty communication system specially in the
conditions where there were strong winds. On 30.08.1987the vesse l
completed loading operations but was kept waiting for want of clearance
by the Port authorities. On 31.08.1987 a notice was issued by the
Manager, Marine Operations Division, Calcutta Port Trust to the Master
of the vessel holding him and the vessel responsible for the damages
with a request to intimate acceptance of liability. The endorsement put
by the Master on the copy of said letter was; “Liability accepted under
protest without prejudice to owners/agents contentio n for right of
defence.” Another notice was sent by the Manager, Marine Operations
Division of Calcutta Port Trust on 01.09.1987 to the same effect. The
endorsement on the copy of said notice was to the following effect:
“Liability accepted without prejudice to the extent of only loader
being put in working condition on turn key basis.”
After the aforesaid endorsement, the vessel was allowed to sail out of
Haldia Docks on 01.09.1987.
5. On 20.10.1987 an Order was passed by the Government of
India, Ministry of Surface Transport setting up a Committee as under:
“A shiploader at the coal berth at Haldia Dock complex was damaged
on 27.8.87 when a vessel “Chennai Nermai” was being berthed. The
damage was of serious and extensive nature. It has been decide d to
set-up an enquiry committee to examine the various asp ects of the
accident and fix responsibility. The Committee will consist of following
members :-
i) Principal Officer,
Mercantile Marine Department,
Calcutta.
(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.
Calcutta Port Trust – Convenor.
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2. The Committee will submit their report by 30.11.87.”
6. The Committee went into the matter, examined various officials
and then submitted its Report on 06.01.1988. Paragraphs 5 to 9 of the
Report were:
“5. M.V. “Chennai Nermai” with accommodation aft has a length
of about 190 metres. Capt. Arun Rajgopal was the master of the
ship when she arrived at Sandheads prior to the accident. Arrival
draft of the vessel was reported as 7 metres. The vessel was
deballasted before entering the Haldia locks on 27 th August, 1987
and the same was continued in the lock so that the mean draft of
the vessel was reduced to about 5.5 metres as per the mast er of
the ship. The matter was not however, reported to Shri S. P .
Rajak, Berthing Master of the Haldia Dock Complex who boarded
the ship at the 1ocks. On the fateful day the water level inside the
docks was 5.0 metres above datum because of high tide agai nst
normal state of around 4.5 metres.
6. While proceeding to the Coal Berth the vessel encountered
heavy wind from South south-west at a speed of 24 knots. MT
Ahalya and MT Kunti were available for assisting the ve ssel in
berthing operation. As M.V. “Chennai Nermai” had a light draft
she was subjected to considerable wind force from the port side.
The effect was further pronounced because of the high water
level in the impounded dock. The accommodation on the vessel
being located on the aft and the side thrust on that area was much
higher than on the rest of the ship. As a result, the aft part of the
ship was constantly being blown towards the berth which could
not be adequately checked by the tugs. As a consequence, stern
of the vessel made contact with the jetty and overhanging counter
of the ship contacted No.1 Shiploader which was parked towards
the southern end of the berth. The Committee did not have the
opportunity to examine the damage sustained by the ship but the
same appears to have been of a light nature as the vessel could
leave port after completion of loading. However, because of
impact the structure of the Shiploader was distorted and one s et
of wheels was derailed. Due to this damage the par ticular
shiploader was rendered in-operative.
7. It has been observed that the master of the ship did not kee p
the berthing master informed of the deballasting as a res ult of
which the ship was subjected to larger wind force from t he port
side. The wind speed on that particular day which is reported to
ESSAR SHIPPING LTD. v. BOARD OF TRUSTEES FOR THE
PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
have been 24 knots was considerable though berthing operation
under such condition is not normally suspended. At one stage of
the operation there was even danger of M.V. “Chennai Nermai”
getting set on to a dredger which was tied up beyond southern
end of the Coal Berth. Fortunately, the accident could be averted.
8. The wind force acting on the accommodation located at aft
part of the vessel proved to be too strong which could not be
checked by the assisting tugs. Though stern of the vessel came
in contact with the berth the damage to the jetty did not appear to
be considerable. Unfortunately, the overhanging counter of the
ship touched one leg of No.1 Shiploader causing damage to the
same as described earlier.
9. While no specific responsibility can be fixed due to dynami c
situation prevailing at the time of accident a combination of the
following factors seems to have led to occurrence of the abov e
accident :-
(i) Deballasting of the ship thereby exposing larger are a of the
vessel to wind force.
(ii) Higher water level within the impounded dock because of the
higher rise of tide which resulted in enhanced wind action on the
ship.
(iii) Blowing of wind at high speed of 24 knots at an angle giving
rise to considerable wind force on aft part of the ship because of
the superstructure.
(iv) Inadequacy of communication system between the ship and
the assisting tugs leading to delay in timely action.
(v) Parking of No.1 Shiploader at southern end of the berth instead
of usual location at the centre.”
7. After setting out various factors in para no. 9, those fac tors
were considered in detail by the Committee and finally the conclusion
was arrived at:
“17. As has been pointed out earlier, the accident took place due
to unfortunate combination of certain unusual factors put together
for which no individual responsibility can be assigned.”
8. Soon thereafter, the appellant instituted Suit No.12 of 1988 on
the original side of the High Court at Calcutta praying inter alia for a
declaration that the acknowledgement of liability dated 01.09.1987 was
void and without any legal effect and for cancellation of said endorsement.
261
It was contended that the Master of the vessel had initiall y refused to
acknowledge the liability for the accident in question; that despite having
completed loading of cargo, the vessel was not allowed to sail out of the
docks and was kept waiting; and that the acknowledgement dated
01.09.1987 was wrested out of the reluctant Master by wrongful detention
of the vessel.
9. The respondent filed its written statement with a counter claim
and claimed a decree for Rs.30 lakhs. It was contended that the accident
occurred purely because of negligence on part of the Mast er and the
crew of the vessel; that the appellant was bound by the acknowledgement
of liability and that the plaintiff/appellant was liable to compensate the
respondent for damage to the coal loader which was estimated at Rs.30
lakhs. In the written statement a specific stand was taken in para 14 as
under:
“14. The defendant further states that the said Vessel M.V. Chenai
Nermai arrived at Haldia from sandhead on 27 th August, 1987
and was placed in the locks at about 1100 hrs. As about 1305 hrs.
the said Vessel proceeded to coal berth with the assista nce of a
tug M.T. Ahalya for to coal berth with the assistance of a t ug
M.T. Ahalya for towing and M.T. Kunti for checking. At the time
there was a rough weather and the wind was blowing at a speed
of 24 knots. The draft of the said Vessel when arrived at sandhead
was reported as 8 meters. Further the Master of th e Vessel
de-ballasted the Vessel at the time of approaching Haldia load in
jetty for ingress into the dock system and continued to do so in the
locks thereby reducing the draft of the Vessel considerab ly and
increasing the freeboard of the Vessel thus offering bigger area
to the prevailing strong wind to play upon. While the vessel was
sent to the berth, there was considerable wind force playing on
aft part of the vessel. It was found that because of this s tern of
the vessel came in contact with the Southern and of the coa l
berth and the Vessel collided with no.1 ship loader parked in that
area. As the Vessel had been de-ballasted, and freeboard of t he
Vessel had been increased, there being very little hold of the vessels
under water area in the water, the Vessel heeled over and damaged
the Coal loader which would have been avoided if the board had
not increased due to de-ballasting of the vessel. As a res ult of
such accident the said ship loader was damaged rendering t he
same totally out of commission. While the vessel was ent ering
into the port the mean draft of the Vessel was reduced to about
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
5.5 metres according to the Master of the Vessel. The Master of
the Vessels did not report the same to the berthing Mast er who
boarded the vessel at the locks. As the said vessel had a light
draft she was subjected to considerable wind force from the port
side. The effect was further pronounced because of the high
water level in the said dock. As a result, the Master and c rew
and/or the servants and agents of the plaintiff made the said vessel
unmanageable in the said weather condition which was not even
disclosed to the berthing Master.”
10. In its rejoinder/replication, the appellant dealt with assertions
in para 14 of the written statement as under:-
“5. With reference to paragraph 14 of the written statement, the
plaintiff states that the true facts were as follows:-
(a) The vessel arrived at Sandheads from Tuticorin at 17.42
hours on 23 rd August, 1987. Her draft then was 7 meters
which was reported from Sandheads to Haldia. Soon
thereafter River Pilot Mr. Malik Boarded the vessel which
then proceeded to Haldia, the draft of the vessel was reduced
to 6.5 meters. The vessel arrived at Haldia on 24 th August,
1987 towards noon. As permission to enter the locks was
not given, the vessel had to remain anchored in the River off
the locks.
(b) In the morning of 24 th August, 1987 the vessel was directed
by the Marine office at Haldia to go back to Sandheads and
the vessel accordingly went back reaching Sandheads on
26 th August, 1987. On the following day, the vessel again
proceeded to Haldia under the pilotage of a River Pilot and
arrived at Haldia on 27 th August, 1987. The vessel was
deballasted again at Haldia prior to entry into the Locks and
while inside the Locks until her draft was brought down to
4.69 metres forward and 6.25 metres aft.
(c) The Berthing Master Mr. Rajaak boarded the vessel in the
locks at about 13 hours to shift the vessel to the coal berth
with the assistance of two Tugs owned by the defendant
and marked by the defendant’s employees. The vessel then
moved out of the Locks assisted by the Tug “Ahalya” which
was made fast forward with two ship’s lines. As the wind
was SSW., the second Tug “Kunti” was kept as a stand by
on the starboard side. After the vessel cleared the Locks,
263
the Tug “Kunti” was made fast aft with 2 ship’s lines and
the vessel proceeded towards the coal berth.
(d) On the way to the coal berth the vessel was observed to be
canting towards port whereupon the Forward Tug “Ahalya”
was cast off and was directed by the Berthing Master to
push the vessel’s bow towards star board. At the sa me
time the aft tug “Kunti” was directed to pull the Stern towards
port side, unfortunately both the Tugs were poor in responding
to the repeated orders of the Berthing Master with the result
that the intended maneuver of the Berthing Master to arrest
the cant of the stern of the vessel towards starboard could
not be carried out effectively and at about 13.54 Hours the
starboard quarter of the vessel came into contact with the
jetty and the Loader No.1 and both the Loader and the Jetty
sustained damages.
6. Except as to what has been stated in the next pr oceeding
paragraph and except that the wind force was about 24 knots at
the relevant time the plaintiff denies each and every stat ement
contained in paragraph 14 of the written statement. In particular,
it is denied that the stern of the vessel came into contact with the
loader because of the wind force or that the wind forc e was
considerable or that there was very little of the vessel’s under
water area in the water or that the collision would not have occurred
if the vessel had not been deballasted. It is further denied that the
Berthing Master was not aware of the draft of the vessel or that
the vessel was rendered unmanageable by any act of the plaintiff
or its servants or agents as alleged or at all.”
11. The appellant/plaintiff examined Capt. Arjun Raj Gopal, Master
of 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 w as
in the locks the windforce was about 24 knots. In answer to question
No.239 he stated that while the vessel is in the dock, it would be under
the control of the Berthing Master. In answer to question N o.393 he
stated that since the vessel was not allowed to sail out of Haldia port for
two days, he put his signature under the endorsement. While gi ving
answer 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 the
port since one loader was placed at a wrong position for the
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
berthing of the vessel. There was no response from the forward
tug for carrying out Berthing Master’s orders. The aft t ug was
very slow in responding to the Berthing Master’s orders. The
communication between the Berthing Master and the tug specially
the forward one was very poor and should have been by walkie
talkie through the tug’s V.H.A. The Anchor could not be brought
earlier because the dredger was tied between the ore and coal
berths. Lastly there was no mooring boat to take a line from the
ship’s bow to the coal berth which would have been he lpful in
checking the cant and straightening the vessel.”
In his cross-examination, while answering question No.466, PW1
accepted that he had not informed the Berthing Master about the fact
that 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 Berthing
Mater informed about all necessary particulars including the fact
that the vessels draft was lowered by the deballasting what would
be your answer?
A. The berthing Master worked along the Jetty and climbed up
the ships local gang-way and therefore, he should have read the
draft which is always customary by the Boarding Pilot. The
deballasting was completed by 1300 hrs. before the Berth ing
Master boarded as he boarded 1306 hrs. So, he should have read
the latest draft of the draft of the vessel.”
12. Four witnesses were examined by the respondent/defendant
in support of its case. Capt. R.M. Gangadhar, Manager (Marine) Haldia
Dock Complex, Calcutta Port Trust was examined as DW1. Answer to
Question No.16 in his examination-in-chief was as under:-
“16. Q. Is it usual to decrease the draft in dock before the berthing
loading?
A. In normal weather it does not make any differ ence but
when the wind is strong no prudent master deballasts the ship
during the passage of the vessel.”
In response to question no.51, in his cross-examinat ion he
accepted that before taking charge of the vessel it was cus tomary for
the Berthing Master to acquaint himself of the draft marks. Further, in
response to question no.123 he also accepted that the draft lines of the
vessel are clearly visible to the Berthing Master whil e he approaches
the ship. In answer to question No.124 he accepted that if the Berthing
Master did not check the draft lines, it would be negligence on his part.
The questions and answers were:-
265
123. Q. If that be so then the draft lines of the vessel were clearly
visible 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 the
damage sustained by the Coal Loader, Mr. S.P. Rajak, Berthing Master
was examined as DW4. In his examination-in-chief the witness accepted
that he had the experience of having maneuvered many vessels on more
than 1500 occasions including the very same vessel on 2/3 times earlier.
In response to question no.32 regarding reason for the acci dent he
deposed:
“32. Q. According to you what was the reason of that accident?
A. Because of the ship’s high very board. The wind impact was
too much.”
Some of the questions and answers given by the witness in his
cross-examination were as under:-
“36. Q. You have deposed that the master of the vessel is the
person who issues the command to the engine room and other
stations on board vessel. On what basis does the maste r of the
vessel issue such command?
A. Whatever advice I give he repeats to his crew member s and
officers.
37. Q. You are aware of certain CPT bye-laws which is in
force?
A. Some of them.
38. Q. Are you aware that when a vessel is inside the dock
complex she is in the command of responsible officer of CPT?
A. Yes, for the movement of the vessel the berthing master boards
the vessel.
39. Q. When you say that the berthing master boards the vessel
in an advisory capacity – you are supported by some instruction –
are you not?
A. Instructions means that the vessel has to be berthed safely.
Yes.
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
40. Q. When you say that you board in an advisory capacity is it
supported by any written instruction of CPT?
A. I do not know that, but since the day I joined at Hooghly Dock
Complex I have seen that in the ships log book it is noted that
whenever any berthing master or pilot boards on the vessel it is
on the advisory capacity.
41. Q. If what you say is correct that the berthing master or the
pilot 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 superior
officers must be knowing but the berthing master of the ship acting
as Advisory capacity.
42. Q. Shown bye-laws specially clause 16 and 20. Do you find
from clause 16 that a vessel is inside the dock she is incharge of
a duly authorized officer of CPT?
A. Yes.
To Court:
43. Q. Have you seen these rules before?
A. No.
44. Q. Are you aware of these Rules?
A. No.
… … …
48. Q. Can a vessel be berthed without a Berthing Master on
board the vessel?
A. No.
49. Q. Did you personally check the draught before boarding the
vessel?
A. No. Because, the vessel Master had already declared the 7
metres’ draught and as I was a new man handling as a Berthing
Master. I had checked whatever draught she had declared, she
had to maintain that. This is in respect of other vessels also that
they have to maintain that draught and the River Pilot c onfirms
me that he has seen the draught.
… … …
267
54. Q. Do you normally ask the Master of the vessel about he r
draught at the time you take charge?
A. When vessel is going for loading, normally we do not ask the
Captain about the draught, because we know that she is light and
going for loading.
… … …
67. Q. You agree with the reasons given by the Commission?
A. Yes.
68. Q. You also agree with the recommendations of the
Commission?
A. Yes.
… … …
71. Q. Who informed about the 7 metres’ draught?
A. The Captain had already sent the wireless message th at the
vessel was having 8 metres’ draught and cannot be reduced to 7
metres’ draught.
72. Q . The Captain did not tell you that the vessel was having 7
metres’ 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 decreed
the suit. It was observed that the Committee set up by the Government
of India had found that the accident had taken place due to unfortunate
combination of certain unusual factors for which no responsibility could
be assigned: that though the Master of the vessel had not informed the
Berthing Master about the fact that the vessel had de-ba llasted, it was
for 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 Calcutt a there
could be no movement within the docks unless the vessel was incharge
of a duly authorized officer and that the Berthing Master was responsible
for guiding the vessel to its berth: that the coal loader was parked at the
southern end of the berth instead of its usual location at the centre; and
that the endorsement in question obtained from the Master of the vessel
was not in keeping with Section 116 of The Major Port Trust Act, 1963.
The Single Judge thus concluded:
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
“For those reasons, I hold that during the process of berthing the
vessel was under the guidance and in the charge of the berthing
master, who was a duly authorized employee of the defendant,
and that the accident occurred due to the lack of proper care and
inadequate expertise of the berthing master coupled with the
archaic communication system which was both audible and
unseable by the berthing master as also the tugs, then prevalent in
the Haldia Dock Complex. The defendant wrongfully gave a go
bye to the procedure laid down in Section 116 of The Major Port
Trust Act, 1963 and malafide obtained the endorsement from the
master in acceptance of liability for the damage. Therefore there
shall be a decree in terms of prayer (a) and (b) of the plai nt.”
15. The respondent being aggrieved, challenged the decision of
the Single Judge by filing appeal namely A.P.D No.338 of 1997 which
was allowed by the Division Bench of the High Court by decision dated
27.10.2006. The Division Bench also allowed the counter claim a nd
directed the appellant/plaintiff to pay sum of Rs.24,04,237/- towards cost
of 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 by
the Government of India could be taken as evidence in the matter but it
concluded as under:
“We, thus, have before us material to come to the foll owing
conclusion –
(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 exposed
to wind;
(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 at
the time suggested by the Berthing Mater.
………………………………………………………….
“….. For the aforesaid reasons we are inclined to hold that th e
vessel collided with the loader not due to any fault or negligence
on the part of the Berthing Master or any Servant or employee or
any tug of the defendant but solely because of negligence on the
part of the Master of the ship. The Master of the ship ow ed a
269
duty to safely navigate the vessel. He committed breach of the
duty in the manner discussed above resulting into severe damage
to the loader.”
16. The decision of the Division Bench of the High Court is
presently under challenge. Mr. Bhaskar P. Gupta, lear ned Senior
Advocate appearing for the appellant laid stress on the repo rt of the
High-Power Committee including the conclusions adde d by the
Committee. Further, it was submitted that the Berthing Master was an
experienced officer and in terms of the bye-laws of the Cal cutta Port
Trust, the vessel was under his command. According to him, as accepted
by DW1, the Berthing Master was obliged to check the draft marks
before taking charge of the vessel and if he had failed to do so it was a
clear case of negligence on his part and, therefore, even if the Master of
the vessel had not specifically intimated to the Berthing Master the fact
that the vessel had deballasted, the liability of the Berthing Master would
not get absolved. Mr. Gupta also submitted that the quantification towards
cost of repair as accepted by the Division Bench and the award of
interest at the rate of 12% was also incorrect.
17. Mr. Parag P. Tripathi, learned Senior Advocate appearing for
the respondent submitted that the Master of the vessel ha d admittedly
not intimated that the vessel had deballasted and the evide nce clearly
indicated that, that factor was the major cause for the accident resulting
in damage to the coal loader. According to him as a result of deballasting,
the draft of the vessel had reduced and it became difficult t o navigate
the vessel into the docks. Mr. Tripathi, learned Senior Advocate relied
upon judgment of the Privy Council in Fowles vs. Eastern and
Australian Steamship Company, Limited 1 in which statutory provision
similar 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-going
vessel shall move into, or out of, or within the Docks, or to or from
a jetty berth, unless she is in the charge of a duly authorised officer
of the Commissioners.
20. Co-operation with authorised officials – The Master or Owner
shall obey every lawful direction of, and act in full co-operation
with all duly authorised officers of the Commissioners for the
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
1 [1916] 2 AC 556
purpose of mooring or unmooring, moving or removing a sea-
going vessel or of regulating her position or of adjust ing her
equipment and gear, for the loading or discharging of her cargo.”
19. At the outset, an important feature of the matter must be
noted. The accident in the present matter had evoked attention and the
Government of India had appointed a Committee to examine va rious
aspects of the accident and fix responsibility. The Committee consisted
of four persons having technical 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.
20. We may now deal with some of the technical terms whi ch
have been used in the present matter by the witnesses and the Committee.
We have been given to understand that a vessel in which cargo is yet to
be loaded, being lighter in weight, can pose problems for effective
navigation in high seas. In order to stabilize the vessel certain amount of
weight is added which then helps in letting part of the vessel to be under
the surface of the water and thereby lend stability. The weight for such
purpose could be in any form but normally there are tanks whi ch are
filled with water and the weight of such filled water affords stability to
the vessel when no cargo is loaded. Adding of such weight is called
‘ballasting’ a vessel. However, before the loading operations begin, the
vessel is required to pump out the water from such tanks and this process
is called “deballasting”. The portion of the vessel which is bel ow the
water surface is normally referred to as “draft” of the vessel. The
larger the draft, the more stable the vessel. As a result of “deballasting”
the weight of the vessel gets considerably reduced and conse quently
the “draft” of the vessel, namely, the portion below the sur face of the
water also gets reduced. Resultantly, the surface above the level of the
water would get increased and in windy conditions such larger surface
of the vessel above water may have impact on navigation. Further, it is
common case that Haldia Port proper is not directly touchi ng the sea
and from the place where river Hooghli meets the sea, the wat er is
arrested by employing locks. The journey of the vessel from the locks
to the berthing area of the docks is through the water so arrested and is
to be undertaken under the express guidance of an authorised officer.
271
21. Now, the facts as they emerge from the records are:
(a) The vessel arrived at the Sandheads that is location just
before Haldia locks on 23.08.1987 and the “draft” of the vessel wa s
reported to be seven meters. For guiding its onward journey, Rivor Pilot
boarded and the vessel proceeded towards Haldia locks. The draft was
then reduced to 6.5 meters. Though the vessel arrived at Haldia loc ks
on 24.8.1987, the vessel was not allowed to enter and was directed to go
back to Sandheads.
(b) On 27.8.1987 under the Pilotage, the vessel again arrived at
Haldia locks. Just before the entering the locks it had deballa sted and
the “draft” was brought down to 4.69 meters forward and 6.25 mete rs
aft. The conditions at that time were quite windy and the force o f the
wind was 24 knots.
(c) At this stage, Berthing Master Mr. Rajak boarded the vessel
while it was in Haldia locks to guide the vessel with the as sistance of
tow Tugs to the berthing area. During its entire passage the vessel was
tugged by said tugs employed by the Board and was under the command
of the Berthing Master.
(d) The Berthing Master had adequate experience of having
guided navigation from locks to the berthing area on at least 1500
occasions. In fact he had guided the very same vessel on two or thr ee
previous occasions.
(e) Going by the text of bye-laws of Port of Calcutta as well as
the accepted factual position, the vessel was under the control of the
Berthing Master.
(f) The Master of the vessel did not intimate to the Bert hing
Master that the vessel had deballasted and that the draf t had been
reduced to 4.69 meters forward and 6.25 meters aft. H owever, as
accepted by DW1, Manager (Marine), Haldia Docks Complex, it w as
the responsibility of the Berthing Master to check the draft before he
could start navigating the vessel.
(g) Same witness further admitted that in normal conditions it
was usual to decrease the draft before passage of the ves sel into the
berthing area.
(h) On the relevant day, the level of the water in the impounded
dock was also high.
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
(i) While being berthed, the vessel came in contact with a coal
loader which was stationed at the Southern end of the Jetty or berthing
area 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, an
endorsement was given by the Master of the vessel after the vessel was
in the Docks for two days even after being loaded.
(l) The damage to the loader, according to the evidence led by
the defendants-respondent was to the tune of Rs.24.04 lakhs.
22. There is one more issue as well, namely, whether the Master
of the vessel was told by the Berthing Master to drop the anchor and
whether there was any time lag in relaying such instruction by the Master
of the vessel which made it further difficult for the Berthing Master.
The Division Bench has relied upon this aspect while assessing the fact
situation on record 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 it s 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.
23. If the emerging facts, as set out earlier are considered, 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 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 fe atures are
relied upon by either side to put the liability on the opposi te side. To
273
make the appellant liable, question would be whether non-intimation of
said fact by the Master of the vessel, as indicated above, was so singularly
crucial as to justify putting the entire blame on the appellant. We cannot
disregard the fact that it was part of the duty of the Berthing Master to
check the draft of the vessel before he took over the contr ol of the
vessel. Under the bye-laws the vessel had to be under the control of the
officer of the Port or the Berthing Master. The Be rthing Master was
not a new comer or an inexperienced person. He had to his cr edit the
experience of having navigated vessels from the locks to the dock area
on at least 1500 previous occasions. If the intensity of the wind was 24
knots when he took over the control of the vessel, it was all the more
reason for him to be more careful in checking the draft before assuming
control over the vessel. As an officer employed and authorised by the
Port, he was having greater knowledge than anyone else how the vessel
had to be navigated from the locks to the dock area. We must also give
due regard to the facts that a Committee of four experts in the field was
appointed by the Government of India to look into the matter and fix the
responsibility; that the Committee had recorded statement s of all the
concerned persons including the Master of the vessel, Berthing Master
and all other concerned officials; and that after thorough enquiry t he
Committee found that the factors which were responsible for the accident
were beyond the control of anyone.
24. Considering the entirety of the matter, we find tha t the
assessment of all the relevant factors were duly conside red by the
Committee in correct perspective and it cannot be conclude d that the
acts of commission or omission on part of the Master of the vessel
alone, were responsible for and resulted in causing the damage t o the
coal 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 Master
in doing what was expected of him and other factors were also
responsible. The conclusion arrived at by the Comm ittee in the
circumstances, which weighed with the Single Judge, in our view, is the
correct perspective from which the matter is required to be considered.
In our assessment, the view taken by the trial court was, therefore, just
and correct and that of the Division Bench was erroneous.
25. Before we conclude we must deal with the case relied upon
by Mr. Tripathi, learned Senior Advocate for the respondent. What was
in issue in that case was the alleged negligence of a licensed pilot. What
we have found is that it was combination of all factors as concluded by
ESSAR SHIPPING LTD. v. THE BOARD OF TRUSTEES FOR
THE PORT OF CALCUTTA [UDAY UMESH LALIT, J.]
the Committee and the matter could not be put at the level of negligence
on part of any individual simplicitor. We, therefore, do not find said case
or the discussion therein to be of any relevance in so far as the present
matter is concerned. In the assessment that we have made, it would
also not be necessary to go into the questions as to the extent of damage
to the coal loader and whether the amount as claimed by the defendant-
respondent was correctly arrived at and assessed or the in terest had to
be at the level of 12% or at any lesser rate.
26. We, therefore, allow this appeal, set aside the judgment under
appeal and restore the judgment and decree passed by the Single Judge
in Suit No.12 of 1988. No costs.
Kalpana K. Tripathy Appeal allowed.