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The Indian Grace Notes

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THE INDIAN GRACE FACTS The plaintiffs claim to be entitled to sue for damage suffered by a consignment of munitions carried on board the defendants' vessel Indian Grace on a voyage from Uddevala in Sweden to Cochin in India between 26 June and 4 September 1987. The munitions were loaded in No. 3 hold, above wood pulp destined for other consignees. On 1 July, a fire was discovered in No. 3 hold; this was extinguished with water. The vessel put in to Cherbourg for survey, and to repack and restow the cargo in No. 3 hold. At about this time a small number of artillery shells, probably 51, were jettisoned as damaged. In addition, compression damage to some of the boxes of munitions was noted. This was caused by the swelling of the wood pulp in the hold after it had been flooded with water. The vessel resumed her voyage to India on 6 August 1987, arriving at Cochin in early September, and the cargo was cleared by 4 September. The plaintiffs contend that they have not only lost the shells jettisoned and those damaged by crushing in the hold, but that they have also lost the value of the remaining munitions because of the effect of radiant heat upon them. It is accordingly contended that the cargo was a total loss. Claim in Cochin: On 1 September 1988, the Union of India as plaintiff represented by the Madras Commandant issued a plaint in the subordinate judge's court in Cochin, India, seeking damages for the 51 shells which were not delivered. By paragraph 4 of the plaint the plaintiff purported to confine the suit to a claim for Rs. 189,508.67 in respect of the 51 shells only. No application was made to amend the pleadings to bring forward a larger claim. This suit came on for final hearing on 7 December 1989, and judgment was given on 16 December 1989 by the Principal Sub-Judge in the subordinate judge's court, Cochin. The plaintiff was awarded the full amount of its claim against the defendants. The defendants have appealed against this judgment, and the appeal is still pending in India. Claim in England: The statement of claim was served on 25 May

1990. In its original form, it makes claim for the total loss of the munitions cargo, including the 51 shells and 10 charges which had been the subject of the action in Cochin. The defence was served on 16 August 1990 and, in its original form, it pleaded issue estoppel as a defence to the claim, upon the ground that the plaintiffs were capable of bringing the whole claim in Cochin but decided not to do so. HOLDING LORD GOFF

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