TOMORROW ANTIQUES vs ALITALIA CARGO

THESE two complaints have been filed by the complainants M/s. Tomorrow Antiques and M/s. Dilawari Exporters against respondent, Alitalia Cargo and others alleging deficiency on the part of respondent. Brief facts of the case are : Original Petition No. 155/1995

M /s. Tomorrow Antiques, after getting an order from D.D. Sales of New York, USA for 1025 pairs of cotton gents Dhotis, handed over this consignment to respondent No. 3 M/s. Fourways Movers (P) Ltd. on 4th of October, 1994, who is an IATA agent, for onward dispatch to New York for which a ''House'' Airway Bill-842 was prepared by the Agent, respondent No. 3, then a carting order was prepared by respondent No. 1 which indicates the dispatch of this consignment as 6.10.1994 by Flight AZ 1905 with a rider ''cargo accepted subject to space''. Master Airway Bill was prepared on 4.10.1994. It is the contention of the complainant that there was a commitment about the arrival of consignment in New York by or before 10.10.1994 whereas it did not reach there till 20.10.1994, which resulted in cancellation of order by the importer causing loss to both the parties for which this complaint has been filed claiming in all Rs. 9.80 lakh with interest @ 18% and special damages of Rs. 15 lakh. Original Petition No. 156/1995 M/s. Dilawari Exporters after getting an order from D.D. Sales of New York, USA for 2050 pairs of cotton gents Dhotis, 150 sets of cotton ladies Ghagra-Choli, 150 pieces of Dupattas, handed over the consignment to respondent No. 3 M/s. Fourways Movers (P) Ltd. on 4.10.1994 for onward dispatch to New York for which a "House" Airway Bill-841 was prepared by the agent respondent No. 3, a carting order was then prepared by respondent No. 1, which indicates its dispatch on 6.10.1994 by Fit. AZ-1905 with a rider v Cargo accepted subject to space''� Master Airway Bill is dated 4.10.1994. It is the contention of the complainant in spite of clear understanding between the parties that the consignment shall reach New York before 10.10.1994, the consignment reached its destination only on 20.10.1994, while in-between i.e. on 16.10.1994, the importer, on account of non-receipt of consignment by due date, cancelled the export order and claimed damages. Alleging deficiency in service on the part of respondents especially respondent No. 1, the complaint has been filed claiming Rs. 22.46 lakhs being the value of consignment plus interest @ 18% thereon and Rs. 15 lakhs on account of special damages.

SINCE the basic facts are the same, respondents are the same and are being contested through the same lawyers, we go on to decide both the cases through a single order. Replies were filed by respondent Nos. 1 and 3 denying any negligence on their part resulting in deficiency in service. Rejoinder affidavits were filed and evidence was led by affidavits. In O.P. 155/1995 one affidavit by way of evidence was filed by Mr. Divesh Mehra, partner of M/s. Tomorrow Antiques on behalf of the complainant, followed by an additional affidavit by him and one affidavit by way of evidence was filed by Sh. Ajay Kumar Datta, Cargo Sales Manager on behalf of respondent No. 1.

IN O.P. 156/1995, on behalf of the complainant, one affidavit was filed by the sole proprietor Mr. Jagmohan Dilwari of Dilawari Exports and one affidavit by way of evidence was filed by Sh. Ajay Kumar Dutta, Cargo Sales Officer on behalf of respondent No. 1. It was argued by the learned Counsel for the complainant Mr. S.K. Sharma that at the time of handing over the consignment to respondent No. 3, understanding was clear between the parties that the consignment must reach New York before 10.10.1994 and once the carting order issued by 1st respondent clearly indicated dispatch of goods by Fit. AZ 1905 on 6.10.1994, they got reassured that the ''contract'', of the consignment reaching New York on 10.10.1994 shall materialise. According to him, as mentioned in the complaint, the complainant kept checking from time-to-time and he was assured that the consignments have reached New York but was shocked to receive a communication on 16.10.1994 from the importer D.D. Sales of New York cancelling the order as the consignment had not reached New York by 10.10.1994 and their enquiries revealed that the consignment was still in Rome on that date and reached New York only on 20.10.1994 against the expected date of 10.10.1994. According to him respondent No. 1 was obliged to deliver the consignment in New York (USA) by 10.10.1994, and by failing to do so under Carrier Act 1865, his liability is absolute. He relied upon Raws v. Hill, 1846 2 CB 877, wherein it was held : "As a rule negligence is not to be presumed; it is rather to be presumed that ordinary care has been used. The rule does not apply in the case of common carriers who, on the ground of public policy, are presumed to have been negligent if goods entrusted to their case have been lost or damaged or delayed in delivery."

HE also cited (AIR 1921 Calcutta 315) Indian General Navigation and Railway Co. v. Easter Assam Co. Ltd., wherein it was held : "When a defendant is called up to prove that he was not negligent he is not really called upon to prove a negative. He is called upon to prove that he took reasonable care. The task is burdensome not because the thing to be proved is negative but because the field within which the care has to be proved is quite indefinite and the presumption being against the carrier the defendants'' positive proof must cover the whole field."

HE also relied upon Rule 19 of Ch. III of IInd Schedule of Carriage by Air Act, 1972, which reads as follows : "The carrier is liable for damage occasioned by delay in the carriage by air of passengers, luggage or goods."

According to him a carrier is duty-bound to carry the goods and deliver them at the stipulated time or within reasonable time. The time, which is necessary in the ordinary way of its business, is available to him to complete the carriage and after that unreasonable delay begins. In the instant case the carting order specifically mentions the consignment shall be going on 6.10.1994. Complainants had specifically mentioned that the cargo should reach New York by 10.10.1994. It is in pursuance of this that respondent No. 3 had preferred the House Airway Bill and Airway Bill on 4.10.1994 itself and sent to respondent No. 1, who then issued the carting order on 4.10.1994 assuring the complainants that the consignment shall be airlifted on 6.10.1994 and the presumption was that it shall reach New York before 10.10.1994. Respondent No. 1 has not been able to show any reason, why when the consignment was to be airlifted on 6.10.1994 was not airlifted on that date? The evasive reply of the respondent No. 1 that it could be on account of, for want of space, and taking umbrage under the clause in the carting order, ''cargo subject to availability of space'' does not help the respondent No. 1 especially in the light of the complainant''s unrebutted statement that 50 tonnes of goods were lifted on 6.10.1994 by AZ 1901, another 23 tonnes of goods were lifted on 11.10.1994 vide Fit. AZ 987. This has not been denied. The reasons for non-lifting the consignment of the complainant, while others'' consignments were lifted also does not help the 1st respondent as they are evasive and general.

THE liability of the carrier under Section 9 of the Carrier Act, 1865 is absolute for which he relied on the judgment of Supreme Court in I (2000) CPJ 42 (SC)=III (2000) SLT 554=2000 (4) SCC 91, Patel Roadways v. Parla Yamaha, and Nath Brother Exim International v. Best Roadways Rutntal, I (2000) CPJ 25 (SC)=III (2000) SLT 181=2000 (4) SCC 553. He also rebutted the contention of the plea of respondent on issue relating to ''privity of contract'' between the complainant and respondent No. 1. According to him, respondent No. 2 is the agent of respondent No. 1, and respondent No. 3 is the agent of respondent No. 2, all on commission basis. The House Airway Bill and the Master Airway Bill are drawn in accordance with the RBI Exchange Control Manual, 1993 according to which Master Airway Bill will be issued to the Consolidating Cargo Agent who will in turn issue his own Airway Bill to the individual shippers. The act of the Agent and Sub-agent binds the principal as against the third party. It is his contention that principle of privity of contract will not apply because if there has been negligence by a tort-feasor (Airlines), then the person who has committed negligence will be liable for damages. He rebutted the contention of the respondent 1 that the claimed amount is inflated. In fact loss to them and their reputation is much more.

ON the other hand it was argued by the learned Counsel for respondent 1 Mr. Bhasin, that there was no privity of contract between the complainant and the Airlines. Master Airway Bill is the only contract of carriage by air, between the parties. Names mentioned in the Master Airway Bill are the contracting parties. The shipper in both the Master Airway Bills is shown as Fourway Movers (P) Ltd. Complainant''s name may have figured in the House Airway Bill but the contract binding the parties is the Master Airway Bill in which the names of the complainant does not figure as per provisions in Part III of Schedule II of the Carriage by Air Act, 1972, Airway Bill is the contract between the parties. In this contract, time was not the essence of the contract as no time frame was given to respondent 1 or for that matter, not mentioned in the Master Airway Bill or for that matter in the House Airway Bill. Carting order did contain a date and Flight No. but two points are important in this regard. Firstly that in order to forward the goods in the stores of IAAI, the document has to contain the information of its dispatch which has to be within forty-eight hours. Without even knowing the urgency on the part of the complainant, goods were deposited with IAAI but it was subject to space. As soon as space was available in AZ 1905, cargo was sent. It could leave on 13.10.1994 and on reaching Rome, it had to undergo fumigation as on account of Plague in the country, all goods from India were subjected to fumigation. Thus, it will be seen that goods reached New York within a fortnight of booking. It is this sequence of events which need to be appreciated. It is his contention, that Cargo Clearing Agents are agents of the shipper and not of the carrier. In the present cases respondent 3 was not only an Agent but also the shipper. Respondent 1 never gave any assurance about the goods reaching New York before 10.10.1994. Consignment was accepted subject to space. Present case is not a case of loss, delay or damage of consignment, therefore, the claim of the complainants were rejected by the Headquarter of the respondent 1 on two grounds, no separate date of consignment reaching the destination were given in the Airway Bill and secondly nature of goods were not perishable. However, without prejudice a sum of US $ 10,000.00 along with 2 J Class Ticket on the BBY-Rome-New York-Rome-Bombay were offered for commercial reasons which was not accepted by the shippers. The carrier is bound by the instructions of the shipper given in the contract in this case the Master Airway Bill. The terms of the contract appear to have been observed in full. He also drew our attention to Clause 8 of the conditions of the contract which reads as follows: "Carrier undertakes to complete the carriage hereunder with reasonable dispatch...." It was also stated by him that on the consignment reaching the destination and after informing the notifying party, the goods are deposited in the Customs'' warehouse after which the responsibility of the carrier comes to end. This is what was done Import/Export Regulations of USA stipulate that if the (unaccompanied) goods remain unclaimed for 15 days, then it shall be kept in their Customs'' warehouse for 1 year, after which it will be auctioned. In the instant case since the goods were neither claimed, nor re-imported those might have been auctioned. As can be seen that there has been no negligence on the part of the carrier. They handled the goods with reasonable dispatch. Complaints have been filed in both cases as an after-thought and to cover their own negligence. We have heard the arguments and perused the material on record. Before going on to the main issue of delay in delivery, it is necessary to deal with the points raised by the respondents. First point raised by them is that there has been no privity of contract between the parties i.e. complainants and the 1st respondent� we find that for bringing merit in his case the complainant has tried to build his case by stating that respondent 3 accepted the consignment on behalf of respondent No. 2 who in turn had accepted the consignment on behalf of respondent No. 1, thus, establishing relationship of principal and agent(s), hence, his (complainant''s) depositing the goods with respondent No. 3 binds the respondent No. 1 and he becomes a privity to the contract. It is not in doubt that respondent No. 3 is an IATA Agent even though the complainant in the original complaint filed by him had relied upon the fact that respondent No. 3 was the agent of respondent No. 1, but after making prayer under Order 6 Rule 17 read with Section 151 of C.P.C., amended the complaint, on the sole ground that their earlier stand of making respondent 3 as an agent of respondent 1 was an inadvertent mistake. The fact of the matter is that, services of respondent 3 were engaged by the complainant, hence the need to bring in an amended complaint, which was permitted. In the amended complaint, respondent 3 is stated to be an IATA Agent for the shipment of goods to New York. The complainant wishes to rely upon the RBI Guidelines under RBI Exchange Control Manual, 1993 which states that, ''where air cargo is shipped under consolidation, the airline company''s Master Airway Bill will be issued to the Consolidating Cargo Agent, who will in turn issue his own House Airway Bill (HAWB''s) to individual shippers''. No such case has been set up by the complainant in the complaint. We also see that Clause 11 Schedule II of Cargo by Air Act, 1972, states as follows : (i) "The airway bill is prima facie evidence of the conclusion of the contract of the receipt of cargo and of the conditions of carriage/''

IT is not disputed by the parties that Airway Bill alone is a contract between the parties. Firstly we see that Part III Chapter II of Schedule II of the Act does not even remotely refer to any other document except Airway Bill. We find that on the Airway Bill which happens to be prima facie evidence of conclusion of contract of the receipt of Cargo and the conditions of Carriage, the name of the Shipper is shown as Fourway Movers Pvt. Ltd. O.P No. 3, and not that of the complainant nor is there any evidence/indication of any such capacity of the respondent No. 3 on the Airway Bill. Therefore, it will not be possible to reach in the Airway Bill what is not set out or indicated therein. It is for this reason that we tend to agree with respondent No. 1 and accept its plea that the complainant has no locus standi to file the present complaint against respondent No. 1, the Airline. Things would have been different if at the time of booking the cargo the respondent No. 3 had issued a communication to respondent No. 1 that it was acting as agent of the complainant. The complainant has not claimed any relief against respondent No. 3. Therefore, even though there may be a case against respondent No. 1 on merits, the case would fail for want of locus standi of the complainant to file this complaint. There is a lot that can be said on merits, but in view of the want of locus standi in favour of the complainant, we have not gone into that. However, while dismissing this complaint for the aforesaid reasons, we only express hope that respondent No. 1 will not reside from its offer of US $ 10,000/- along with 2 J Class Tickets, on the BBY-Rome-New York-Rome-Bombay, irrespective of what is observed herein. In these circumstances, we have no option except to dismiss the complaint which we hereby do.