This is a perfect case for International Business practitioner to get how the swiping of the cargo at trans-shipment port in LCL / Loose Container Load shipment can create havoc to their Export Import Business.
In this case, exporter exported his LCL consignment from India to Canada whose Marine Insurance was taken by the insurance company.
In the same container, two others exporter’s cargos were stuffed. Transshipment was Colombo, Sri Lanka.
Cargo of second co-partner in the container was to be unloaded at Colombo, Sri Lanka. By so called mistake of the Shipping Line, all three cargos were swiped with each other and the cargo of exporter form India which was to reach to the Canada didn’t reach there. That is the cargo of exporter (from India) who wanted to ship cargo to Canada was unloaded at Colombo and the cargo of other exporter from India who exported to Colombo, reached to Toronto, Canada.
The importer at Canada denied to accept cargo as it didn’t belong to him as cargo was of some other than what importer had ordered. Intimation to Shipping Lines & Insurance company was given about of swiping of cargo at Colombo and receipt of wrong cargo by importer.
In absence of any satisfactory reply from insurance company, legal notice was served by the exporter and then the legal suit was filed.
It is a very good case to understand if such suits are always genuine or many a times are done with malafide intentions? If genuine, how to resolve it and if malafied, then how the competent courts deal with them. The case hinges around the principles of natural justice.
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Detail Case Discussion
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Exporter / Complainant – 1: M/s Glass Exports is a proprietorship firm, owned by
Complainant – 2: Proprietor of M/s Glass Exports which insured the goods
Importer: BHI, Toronto, Canada.
Opponent: Insurance company.
Goods / Cargo: Wooden & brass furniture of Rs.45,85,000/-
Insurance: Under Marine Policy Cover after paying premium of Rs.4,586/- i.e. Premium = 0.1 % of insured amount.
Goods Origin & Destination: As per Purchase Order, consignment was to be sent to Canada Warehouse 4m Chandigarh Warehouse via Transshipment Port Colombo (Sri Lanka) by sea / rail / road.
Before dispatching the consignment, complainant
- Applied for Re-shipment & load survey
- Declaration to custom authority was given vide FORM
- Obtained Certificate of Origin / COO 4m Export Inspection Council, Govt of India
- Obtained Certificate of weighment & measurement
- Obtained Stuffing Container Survey Report
- Obtained Fumigation Certificate
It was also averred by the complainant that on dispatch of shipment,
- Opponent Insurance company were duly intimated vide letter
- Banker of complainant was also intimated vide letter
- A copy of Pre-Inspection Survey was also supplied to Opponent / Insurance Company.
Case of complainants is that unfortunately, when cargo arrived in Toranto - Canada, it was found by consignee that the same did not belong to him & on investigation, the same was found to be interchanged in transit at Colombo in Sri Lanka with some other consignment.
As per the complainant, consignee did not take delivery of wrong consignment & immediately informed consignor as well as Insurance Company.
A claim was lodged by consignee with Shipping Line & opponents were also informed about wrong delivery of consignment.
Heavy correspondence took place between complainant & opponents & all requisite documents were supplied to Opponents from time to time. Despite its best efforts from complainant, Opponent insurance company delayed settlement of the Insurance Claim.
Vide letter dated 10.10.2009, Opponents were asked by complainant to supply documents (under RTI Act, 2005), which Opponents discovered in Sri Lanka as well as from other places through their surveyor.
Opponent insurance company refused to hand over these documents.
Ultimately, after submitting all necessary documents, information & clarifications by complainant as well as consignee, Opponents (Insurance Company) repudiated claim of complainant.
Complainant served a legal notice upon Opponents & finally, filed present complain seeking direction to them to release PRAYER as followed.
PRAYER
Release insurance claim of $ 91,750 (cost + 10%) (Rs.44,38,280 @48.40 prevailing rate);
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Interest @18% per annum from date of loss;
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Rs.5 Lacs as compensation for mental & physical harassment
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Rs.50,000/- as litigation expenses.
LEGAL QUESTIONS (Discussed by court)
Ø Non supply of documents to complainant under R.T.I Act 2005
Ø Payment Received? What is legally locus standi of complaint?
Ø Non-joinder Of Necessary Party
Ø Why 3 Parties Good Stuffed in One Container?
Ø Why trans-shipment through Colombo?
Ø SHIPPING LINE Genuine / Fake?
Ø GOODS Genuine / Fake? What was Sent to Canada? Were Same Goods Sent What was Declared?
Ø DOCUMENTS Genuine / Fake (Fraud / Concocted)?
Ø CONSIGNEE Genuine / Fake (Fraud)?
1). MFT - Trading (1ST Co-partner Co. in Container) Genuine / Fake?
2). Savikar Ply (2ND Co-partner Co. in Container) Genuine / Fake?
3). A-Phillips (Consignee Of MFT) Genuine / Fake?
Ø Investigator’s Report Mentions Genuine / Fraud Transaction?
1). Capt. Mike Talvar (Marine Surveyor of International Marine Surveyors Ltd.
2). Anand Wajesinge (Chartered Insurance Practitioner)
Instead discussing any international laws concerned with export import, the case hinges around the “principles of natural justice” like “men may tell lies but the circumstances do not”. Based on it competent court had tried to derive the conclusion after listening the learned councils on behalf of complainant and opponent.