1. ' FAISAL ARAB, J.---Under a contract dated 9-12-1986, plaintiff No,1 sold 144,000 yards of cotton duplex printed cloth priced at $165,600 to a Dubai based company i,e, Ahmed Abdullah Akbar Trading Establishment. The said company in turn sold the contracted goods to Al-Hilal Trading Company based in Dar-us-Salaam, Tanzania, which is plaintiff No,2 in the present case. On account of such onward sale, the goods were to be delivered by plaintiff No,1 to plaintiff No,2 directly to Dar-us-Salaam.
2. ' The plaintiff No,1 entrusted the goods to the defendant, the shipping company, for their shipment to Dar-us-Salaam. Upon loading the goods on defendant's ship m.v. "Global Express", the defendant's agent in Karachi issued bill of Lading dated 13-12-1986. The ship sailed from Karachi for Dar-us-Salaam on 14-12-1986 and in early January, 1987 arrived at the Dar-us-Salaam port after touching other ports.
3. ' The case of the plaintiffs is that when the plaintiff No,2 approached ship owner's local agent at Dar-us-Salaam for taking delivery of the consignment, it was informed that container carrying the consignment, though has been discharged at the port, is not traceable. When the plaintiff No,2 showed urgency to get the delivery of the consignment, the defendant after verification at its end informed the plaintiffs that the consignment was in fact dispatched in Container No,134242-0 instead of Container No,134247-0 mentioned in the bill of lading, hence the confusion and therefore, the plaintiff No,2 should approach the port authorities at Dar-us-Salaam to take delivery of Container No,134242-0.
4. ' The plaintiff No,2 then approached the local agent of the defendant at Dar-us-Salaam to take delivery of Container No,134242, however, the same too was not to be found at the port. When confronted with this situation, the defendant, instead of locating the container, asked plaintiff No,2 to approach the Port Authorities at Dar-us-Salaam and stop bothering it. As it was defendant's obligation to ensure that the consignment was discharged at the port of destination, the plaintiffs were left with no other option but to file the present suit for recovery of US $ 165,600 i,e, the value of consignment together with 14% p.a. Interest thereon. The value of the consignment at the time of filing of the suit inclusive of the component of 14% interest was calculated by the plaintiff in Pak Rupees at Rs,3,311,271.
5. ' In its written statement, the defendant raised following pleas: --
(i) The plaintiff No,1 having negotiated the bill of lading and the ultimate endorsement in favour of Messrs Ahmad Abdullah Akbar Trading Establishment, Dubai, it did not possess any legal title to the consignment.
(ii) The plaintiff No,2 did not acquire ownership of the cargo, and therefore, has no locus standi to file the present suit.
(iii) The claim is barred by time.
(iv) Container No,134242-0 was carrying the consignment in question and not Container No,134247.
6. The mention of this number in the bill of lading is an apparent mistake and plaintiff therefore, planned to take advantage of this mistake.
(v) The missing container was alleged to contain 100% cotton duplex printed width 47" and the total C.I.F. Value of the contents of all the three containers was declared as Shs.270,000 and the value of each container would thus be Shs.90,000 only.
(vi) The missing container was transferred to customs shed area on 13th February, 1987 and was released on the same day.
(vii) The missing container was duly discharged at the port of Dar-us-Salaam and Tanzania Harbours Authority has issued certificate showing no Short Landing of manifested quantity at Dar- us-Salaam. The plaintiffs have not produced any other evidence of short landing.
(viii) The clearing and Forwarding Agents took the delivery of the other two containers i,e, Container No,305900-2 and 254840-4 on 13-2-1987, but with a purpose and pre-planned motive did not request for the delivery of the third container i,e, Container No,134242-0 discharged along with the other two containers and stacked on line L5.
(ix) After intentionally not taking delivery of Container No,134242 officially, but otherwise managing its removal from the port, the agent after about 10 days of taking delivery of other two containers, sought delivery of the third container, which obviously was missing from the port.
(x) During investigation, it was revealed that the plaintiffs in furtherance of their plan and taking advantage of a clerical error on 27-1-1987 caused the presentation of C11 Form through NASACO and customs substituting the Container No,CTIU 134242-0 with container CTIU 134247-0, knowing fully well that this container was neither mentioned in the manifest nor in the survey report. It was also not tallied according to the tally Sheet No,109507 of 3rd January, 1987 which only record Container No,CTIU 134242-0 having landed.
7. ' On the basis of the pleadings of the parties, following issues were settled for trial:--
(1) Whether the plaintiffs are owners of the goods in questions and have any right or locus standi to file the present suit?
(2) Whether plaintiffs have no cause of action against the defendant?
(3) Whether the suit is bad for non joinder of necessary and proper parties and also for misjoinder of the parties?
(4) Whether plaintiffs have not come to this Honourable Court with clean hands?
(5) Whether the defendants are entitled to compensatory costs in the circumstances of the case?
(6) Whether the plaintiffs goods were loaded per M.V. Global Express No,1 from Karachi in Container M.V. CTIU 134242-0 and not CTIU 134247?
(7) Whether the other consignments of the plaintiff loaded in container namely CTIU 305900-2 under B.L. No,9KD33 and CTIU 254840-4 under B.L. No,9KD -35 on the same vessel were discharged and/or taken delivery of by the plaintiff?
(8) Whether the plaintiffs are deliberately taking undue advantages of mistake or typographical error in the mentioning of CTIU.134247 in the bill of lading?
(9) Whether the plaintiffs have taken delivery of the Container No,134242, which was discharged, at the port of destination of the vessel?
(10) Whether the short-landing of the container in question has been certified by the Port Authorities of Dar-us- Salaam? '
(11) Whether the plaintiffs have lodged any claim for short-landing at the port of Discharge? If so what is the effect?
(12) Whether the defendants are entitled to amounts claimed in the counter-claim?
(13) What should the decree be?
8. ' Plaintiffs examined one witness Mr. Ghulam Adam and thereafter the plaintiffs side was closed.
9. The matter was then adjourned for defendant's evidence. In spite of affording several opportunities to adduce evidence, the defendant failed to examine any witness in support of its case. Finally, on 14-12-2004 it was ordered by this Court that in case the defendant fails to produce evidence in the matter its aide shall stand closed on the next date i,e, 25-1-2005, without any further orders. On 25- 1-2005 too, the defendant failed to adduce evidence. It was then ordered that in terms of order dated 14-12-2004, the side of the defendant stands automatically closed. Subsequently, an application for reopening the defendant's side was moved by the defendant, but the same was dismissed vide order dated 22-2-2005. Thereafter the case was listed for final arguments.
10. The burden to prove Issues Nos.1 to 10 and 12 was on the defendant. The defendant after filing written statement as well as counter-claim failed to adduce any evidence though several opportunities given. Where a defendant fails to adduce evidence in his defence, then his pleas taken in his written statement are not to be considered except those which are purely legal pleas or which are otherwise admitted by the plaintiff in his pleadings and evidence. However, in absence of any evidence of the defendant, all factual pleas taken in written statement have to be ignored while deciding the controversy between the parties. In the case of Muhammad Noor Alam v. Zair Hussain reported in 1988 M LD 1122, it was held by a Division Bench of this Court that if a party fails to produce its evidence in support of the pleas raised in the written statement, then pleas raised by such defaulting party in is written statement cannot be considered, except such pleas which have been admitted by the plaintiff.
11. ' In view of the above legal position, the pleas taken in the written statement, proof of which depended upon evidence have to be ignored and therefore, no decision on Issues Nos.1 to 10 could be given. This leaves this Court with Issues Nos.11 and 13 only to be decided.
12. ' Issue No,11: ' In support of its case, the plaintiffs produced several documents. Exhibit No,12 was produced in evidence which is the contract of sale dated 9-12-1986. It shows that the consignment in question was to be shipped to Dar-us-Salaam. Exhibit No,13 is telex dated 3-3-1987 written by the defendant to its agent in Dar-us-Salaam, stating that the plaintiffs have informed the defendant that the container in question is not traceable at the port. Exhibit No,14 is defendant's another telex dated 24-2-1987 wherein it is stated that the consignment was shipped in Container No,134247-0 and not in Container No,134242-0. Exhibits Nos.15 and 16 are also defendant's telexes dated 18-3-1987 and 19-3-1987 respectively, stating that the efforts are being made by the defendant to find out the whereabouts of the missing container. Exhibit No,17 is yet another telex dated 8-4-1987 wherein defendant advised plaintiff No,1 to remain in touch with the vessel's agent at Darus-Salaam and that further correspondence with the defendant is not necessary. Exhibit No,19 is also telex dated 18-4-1987 from plaintiff No,1 to defendant which is reproduced as under:-- "(1) The bill of lading for the above shipment was showing container number as CTIU-134247-0.
13. After the ship reached Dar-us-Salaam our buyers even after extensive search could not locate the container with above number receiving their complaint. We conveyed the same to you, whereupon you intimated us that the correct number of our above container was CTIU134247-0 instead of the one mentioned in bill of lading and you corrected bill of lading accordingly. However, container with this new number is also not traceable at Dar-us-Salaam Port. So please confirm whether you have given this new number of container (i,e, CTIU134247-0) to any other shipper also.
(2) Whether you have enquired at all other ports where the above ship was to touch as to our above container has been unloaded there through mistake, if so what reply was received. Kindly send us copies of your telexes as well as copies of their replies.
(3) Please give us names, addresses, telephone and telex numbers of shipping agents at all ports where the above ship was to touch so that we may also make inquires for the container if we consider it necessary.
(4) Please let us know immediately if you have succeeded in finding out the whereabouts of our above lost container".
14. ' From the correspondence exchanged between the parties, it is evident that the defendant claimed that it discharged the container at the port of Dar-us-Salaam and was making every effort to locate the same and yet without locating it, the defendant shifted its burden by asking the plaintiffs to make efforts to locate the container. In terms of telex message dated 18-4-1987, the plaintiff No,1 even asked the defendant to make enquiries from all ports touched by the vessel in order to find out whether the consignment has been mistakenly discharged at any other port. From the contents of telex dated 18-4-1987 it is evident that the plaintiff No,2 was so desperate to take delivery of the consignment that it even asked the defendant to give the names and addresses of all their Shipping Agents at all the different ports where the ship called en-route to Dar-us-Salaam in order to locate the missing container although such was the obligation of the defendant.
15. When any consignment is entrusted to a carder for delivery to a port of destination, then it is carrier's bounden duty to ensure that consignment reaches the designated port. In case the shipment does not reach its destination or even if it reaches the destination but on account of negligence by the carrier or its agent, the same is lost or misdelivered and the real consignee or the endorsee of the of the bill of lading does riot get the delivery of the consignment, the carrier becomes answerable to the shipper of the consignee or the endorsee of the bill of lading, as the case may be, for the lost consignment. In such a situation the carrier cannot absolve itself of its obligation by shifting its responsibility on the port authorities. The shipper, or the consignee or the endorsee of the bill of lading as the case may be, has every right to claim from the carrier compensation as well as damages for the lost consignment and the carrier has to compensate them for value of the goods as well as for a claim of damages that they may have sustained on account of nondelivery of the consignment.
16. ' In the case of Pakistan v. American President Lines and others reported in PLD 1962 Karachi 87 this Court held as follows:-- "31. The conclusion is that a certain amount of negligence of the representatives of the ship-owners and the loss of 480 bags of sugar to the plaintiff is proved. , There is no proof that the stevedores of the plaintiff or representatives of ship-owners or officers of the plaintiff stole them. In these circumstances, the legal position of the ship-owners is extremely weak. They have two responsibilities---one is general and the other relates to the supposed theft.
32. Their general responsibility can be stated briefly in the words of Carver at page 186 of his book "Carriage of Goods by Sea" as follows:- 'Accordingly, it is submitted, the true view is that if the goods-owner proves that the goods have not been delivered, or have been damaged after shipment, the onus shifts on the carrier to bring the cause of damage specifically within Art. IV, R.2. If the cargo-owner wishes to defeat that plea by proving negligence, the onus is on him to do so."
17. ' Defendant No,1 have not proved the exception on which their counsel has relied on section 4(2)(I) but their negligence to a certain degree and confusing interventions are proved. Moreover, the allegation of theft made by them does not entitle them to the benefit of section 4 (2)(I) of the (United States) Carriage of Goods by Sea Act, 1936, for two reasons ---firstly, because it is not proved that the thieves were the servants and agents of the plaintiff; secondly, because theft raises the question of the vigilance of the ship-owners and falls more appropriately under section 4(2)(q) the category of "any other cause arising without the fault or neglect of the carrier or without the fault or neglect of the agents. Or servants of the carrier"---See Owners of Cargo of City of Baroda v.
18. Hall Line Ltd. (1). The burden of establishing a cause within the terms of section 4(2)(q) was on defendant No,1 "It is not enough for the ship-owners to show that the damage done was partly due to some cause for which he is excused if part of the damage is not so caused. He must show how much damage was due to the cause for which he is excused, because it is only in respect of that cause that he can claim protection. If he does not do so, he has failed to show to what extent in money his prima facie liability for the whole ought to be reduced." (Scrutton on Charter-parties, pp. 486-87, sixth edition).
19. ' They must fail 'owing to the inexplicable character of the evidence of theft and their confusing intervention.
20. ' In the case of East and West Steamship Company v.. Hossain Brothers and others reported in PLD 1968 SC 15, the Honourable Supreme Court at page 24 of its judgment held:-- "Once the goods are loaded on the ship, the ship-owner can free himself from the obligation by bringing himself within the exception mentioned in Article IV. Rule 2 of Article III has already been cited. It is directed to the manner in which the obligations entered into are to be carried out. No doubt, rule 2 of Article III is subject to Article IV. But exceptions mentioned in Article IV do not cover a case of failure to discharge the goods "properly and carefully". Hence, the exception clauses will not protect the ship-owners in this case against the consequences of negligence.
21. ' I would, therefore, hold that the ship-owners committed a breach of the obligation contained in the bill of lading and as such the consignee was entitled to recover damages in a case like this. The quantum of damage awarded by the Courts below has not been challenged before us."
22. Thus it is for the carrier to establish that the consignment shipped through his vessel has been discharged at the port of destination and that delivery order for which consignment has also been issued by the carrier's agent to the consignee or the endorsee of the bill of lading. If this is not established, then mere assertion of the carrier that consignment was discharged at the port of destination and that it is for the consignee to prove that goods have not been discharged in order to make the carrier liable for the lost consignment, are of no legal value. The carrier has to establish through cogent evidence that consignment in question was discharged and given into the custody of the port authorities. In the present case the defendant failed to discharge this burden. In fact at all times the carrier and its agent represented that they are trying to locate the container. On the other hand, plaintiff No,2, who was endorsee of the bill of lading, tried its utmost to get the delivery of the goods but the defendant did not even discharge its burden by establishing that the container in question was unloaded at the port of destination. In fact the defendant did not even lead any evidence to establish its various assertions made in its written statement. The defendant therefore, cannot shift its burden by taking the plea that it was for the plaintiffs to file complaint with the port authorities at the port of discharge for the lost consignment. Issue No,11 is therefore, answered accordingly.
23. ' ISSUE No,13 ' In view of the above discussion, the plaintiffs haven established their claim for seeking compensation for the lost consignment. The suit is decreed against the defendant in a sum of Rs,2,904,624 being the value of the consignment in Pak rupees at the time of filing of this suit. The defendant shall be further liable to pay interest on this decretal amount in terms of section 34 of Civil Procedure Code at the rate of 6% per annum, chargeable from the date on which delivery of the consignment was to be made till the realization of the decretal amount. The costs shall follow the event.