1. ' MUNIB AHMED KHAN, J.---The plaintiff has filed this suit under the Admiralty Jurisdiction of this Court, for recovery of US $ 43,944 against the Defendants with mark-up, on the facts that Defendant No,1 the vessel is a foreign ship, owned by Defendant No,2 while Defendant No,3 is Slot Charter and Defendant No,4 is a Local Agent of Defendant No,3. According to facts, disclosed in the plaint, the plaintiff entered into contract with Messrs Fabgran N. V. Desguinlei, for supply of 1,00,000 meter polyester, valued at US $94,500 for which they opened L.C. Through bank Brussels Lambert N.V. Antwerp Belgium and obtained Form "E" from State Bank of Pakistan and thereafter entrusted his consignment of 41.450 meters polyester, valued at US $41,851 packed in 277 rolls and stored in 1 x 20 container to the Defendants for its carriage from Karachi to Alexandria. The Defendants issued bill of lading showing thereby that the consignment has been shipped on board, the Vessel Messrs M.V. Hammurabi owned by Defendant No,2. Thereafter the plaintiff submitted original shipping documents to their Bankers. HBL, for negotiation under letter of credit opened by the bank of Brussse ls Lambert. Habib Bank, by its letter, dated 2-6-2001, informed that L.C. Opening bank has refused to accept the documents on the ground of several discrepancies and while the negotiation in respect to the discrepancies were going on, the plaintiff came to know that container has been removed illegally from Alexandria, Port of original destination. The plaintiff intimated such fact to the defendant No,4 through letter, dated 3-6-2000. Thereafter, the plaintiff came to know that consignment was lying at Ashdod. The plaintiff has further submitted that due to this illegal removal of the container, the consignee Messrs Febgran N.V. Antwerp backed-out of the contract.
2. In that situation, the plaintiff arranged another buyer in USA and requested Defendant by 'its letter, dated 8-7-2000 to inform the new buyer the freight charge and transit time for re-routing the consignment to Los Angeles USA. The Defendant instead of acting per directions and realizing their fault, as to illegal removal of container from the port ofdestination, started asking demurrage/storage charges and quoted exorbitant freight charge to Los Angeles with the result, that the consignment could not be re-routed to new buyer, although the Defendant at one stage, confirmed that their charges will be from 16-7-2000 but hey backed out later on. In such situation the plaintiff again procured new buyer at Alexandria and Defendants, were informed through letters, dated 5-8-2000 and 7-8-2000. In response to these letters, the Defendant, first time confirmed through reply, dated 9-8-2000 that container was initially discharged for Alexandria but erroneously shipped to Ashdod and was lying there. The Defendant also informed that their buyer Messrs Fabgran has refused to take delivery of container due to cargo quality of past contract but besides they also confirmed that the container was lying with original seal an in sound Condition and again raised demand for demurrage storage charges. In that situation, the plaintiff caused legal notice, dated 11-8-2000 followed by a reminder, dated 24-8-2000 and requested thereby the Defendants to ship container from Ashdod to Alexandria and also withdrew their illegal demand for demurrage / storage charges. As no response was given, the plaintiff again served a Legal Notice, dated 29-8-2000 and abandoned suit consignment in favour of Defendant and demanded a sum of US $41,851 being C & F price of the consignment. The Defendant/respondent through their letter, dated 28-8-2000 and intimated the container was lying at Alexandria and tried to give an impression that container was lying at Alexandria, all along in sound condition with original seal as the buyer refused to take the delivery due to cargo quality. Through another reply by Advocate, dated 30-8-2000, Defendants confirmed that container was discharged at Alexandria but was erroneously shipped to Ashdod and that they demanded their demurrage / storage charges, as the buyer refused to accept the delivery due to bad experience of a past deal. The plaintiff further submitted that due to illegal demand and the stand taken by Defendant, the plaintiff could not sell the cargo to other buyer, therefore, it abandoned it in favour of Defendants and, thereafter, is entitled to US $43,944 i.e, C & F value of consignment with 18% mark-up as the plaintiff has suffered on account of Defendant's illegal act, as they shipped the plaintiff consignment contrary to terms of bill of lading and that Defendant No,4 is also personally liable to claim of consignment as will as Defendant No,2 being owner of Defendant No,1, a sister ship of Defendant No,2.
3. ' The Defendant jointly filed written statement wherein legal objections have been taken, that Defendant No,2 the owner of Defendant No,1 has no privity of contract with plaintiff, therefore, plaintiff has no cause of action in personam against Defendant No,2 specifically in terms ofsection 4(4) of Admiralty Jurisdiction Ordinance, 1980 and that since writ and warrant of arrest was not served on board, the Defendantvessel, as such jurisdiction in rem never attracted hence suit is in personam only against Defendant No,3, if at all maintainable and that the plaintiff's claim does not arise from any of the causes mentioned in section 3(2) of the Ordinance, 1.980.
4. ' On merits the Defendants have stated that container in dispute was offered to Defendant No,4, for carriage from Karachi to Alexandria. The Defendant Nos.3 and 4 upon shipment of container on Board and Vessel Messrs M.V. Hammurabi, owned by Defendant No,2, issued, to Shipper, the plaintiff bill of lading, dated 15-5-2000 the container was shipped by Defendant .Nos.3 and 4 under slot arrangement with Defendant No,2. They also stated that the ship arrived at Alexnadria on or about 6-6-2000' and said container was discharged in good loaded condition and the notified party mentioned in the bill of lading namely Messrs Febgran N.V. Antwerp to informed Defendant No,3's agent in Belgium that they refused the cargo document, in view of their bad experience in another shipment, sent by the shipper with poor quality of goods. The said receiver therefore, did not come forward to take delivery nor the shippers appeared to take delivery. In such circumstances.
5. Defendant No,3's Alexandria Agent removed the container from Alexandria to a place of their convenience. It is immaterial as to whether the container was removed or not as the receiver/shipper were not ready to take the container immediately after .Arrival of port of discharge. Defendants have denied that plaintiff suffered due to act of Defendants as there was none to receive the container at Alexandria and not because of removal of the container to some other port, which was done in the circumstance of the case and there was no breach of contract of carriage as Defendant No,3 has fulfilled its responsibility under the carriage of goods by sea Act by making the container available for delivery at given destination and that carrier was not obliged to, transship the container elsewhere at the request of shipper hence Defendant is entitled to demurrage / storage charges and even the Defendants were entitled to abandon, the cargo in such circumstances. The fact that the shippers did not find the quoted freight charges from Alexandria to Los Angeles to be suitable for them, is of no concern to the carrier had initially offered to apply demurrage / storage charges from 16-7-2000, in the hope that the shipper or the notified party may collect the cargo but in the absence thereof they withdrew that offer. They have further submitted that the shipper's efforts for procuring new buyer for the cargo is of no concern to the carrier. The container though initially shipped from Alexandria was thereafter made available for transshipment as required by the shipper but the plaintiff did not make any attempt to collect the container only to save itself from the demand of Defendants towards demurrage/ storage charges.
6. The Defendants have not denied the contents of legal notice buthave denied the reason given by the plaintiff, for abandoning the container. It has also been denied that Defendants were given any impression, as reflected in the plaint regarding the particular impression and that container was actually available at Alexandria. In the circumstances, the Defendants were entitled to claim demurrage / storage charges, as firstly, the plaintiff's buyer failed to take charge of container and thereafter, on his refusal, the plaintiff failed to make any other arrangements. It is denied that the plaintiff has suffered any loss or have abandoned the cargo to the Defendants and that the Defendants have no liability in general and specifically the Defendant No,2 has no privity of contract and there may be any answerable question for Defendants Nos. 3 and 4 but there is no involvement of Defendants Nos. 1 and 2 hencethe suit may be dismissed.
7. ' From the above factual controversy, the parties have filed consent issues, which were adopted by the Court.
(1) Whether the suit is not maintainable in the admiralty jurisdiction?
(2) Whether the suit Consignment was discharged at the port of Alexandria on 6-6-2000 in the same good order and condition as it was loaded at Karachi if so, what is its effect?
(3) Whether after discharge of suit consignment at Alexandria on 6-6-2000, the receiver came forward immediately to take delivery of consignment? If not, what is its effect?
(4) Whether the notifying party Messrs Fabgran backed out from the contract in plaint? If so, why and what is its effect?
(5) Whether the suit consignment was shifted from the port of Alexandria to the port of Ashdod and from port of Ashdod back to Alexandria? If so, when and with what effect?
(6) Whetlier Defendant No,3 rightly claimed demurrage storage charges from the receivers even though the consignment was not available at Alexandria".
(7) Whether Defendant No,2 has any privity of contract with the plaintiffs? If not, what is its effect?
(8) Whether plaintiffs have suffered any loss due to any act of the Defendants? If not, what is its effect?
(9) What relief the plaintiffs are entitled to? (10) What should the decree be.
8. ' The plaintiff examined its partner Safdar Ali and producedExhs. P-5/1 to p-5/20 while Defendants Nos. 1 and 2 examined one witness i.e, H.A. Farooqi Defendants Nos. 3 and 4 examined Farooq Rawat. Two more witnesses. Muhammad Zubair from HBL and Asad Masood from Customs Appraisement Department were also examined on Court notice.
9. Issues Nos. 1 and 7 ' The plaintiff has set up his claim by summarizing that firstly, the first buyer Fabgran backed out from the contract as the consignment was not available at Alexandria, and secondly, the second buyer arranged at Los Angeles by the plaintiff could not be delivered the goods, as the Defendants quoted exorbitant freight charges and they insisted for demurrage/storage charges notwithstanding the fact that at one stage the Defendants agreed that demurrage / storage charges will not be charged from 16-7-2000. The plaintiff has also stated that third buyer arranged by the plaintiff was ready to take delivery but consignment was not available at Alexandria. The documents exhibited by the plaintiff are almost not disputed, as the shipment through Defendants Nos. 3 and 4 on board M.V. Hammurabi has not been denied as well as calling of that ship at Alexandria on 6-6-2000.
10. ' On the other hand Defendants have taken defence that no action in rem was available as the Defendant No,3 was under an Agreement of slot charter with Defendant No,2 for the vessel Messrs M.V. Hammurabi and the said vessel was not beneficially owned by Defendant No,3, therefore, his action against Defendant No,1 i.e, sister vessel Khalid Ibne Walid was not available. To controvert his specific factual position, learned counsel for the plaintiff has submitted that Defendants Nos. 1 and 2 have defended the factual position, regarding shipment and off loading the consignment and at no stage they have stated that they have no concern with that factual position. The learned counsel has also stated that charter party agreement was the key document to judge responsibility of the Defendants Nos. 1 and 2 but despite question in evidence, they failed to file that document hence adverse conclusion can be drawn against it. In these circumstances, keeping in view section 4(4)(h) of the Ordinance, as well as the factual position showing that control of the ship Messrs M.V. Hammurabi remained with the Defendant No,2, hence action in rem against Defendants Nos. 1 and 2 is maintainable, on the basis of cause against Defendant No,2 in personam.
11. It is admitted position that the matter in dispute pertains to Agreement relating to carriage of goods in a ship and by virtue of section 3(2)(h), the matter falls within the jurisdiction of the Court the said provision is reproduced as follows:-- "3(2)(h). Any claim arising out of any agreement relating to thecarriage of goods in ship or to be used or hire of ship."
12. ' This is very wide clause bringing all the matters related to shipment, carriage by sea, falls within the admiralty jurisdiction, hence the suit is maintainable on that count also.
13. Issue No,2 ' From the evidence of the parties, it has come on record that consignment was discharged at the port of Alexandria on 6-6-2000. This fact is not disputed, as main issue between the parties was that consignment was transshipped from Alexandria to Ashdod. The plaintiff at no time has controverted this factual position nor any evidence, contrary to it has been brought. Issue No,2 is decided in affirmative.
14. Issue No,3 ' It is admitted position that Habib Bank, by its letter, dated 2nd June, 2000 has intimated the plaintiff that there were discrepancies in the documents, L.C. Opening bank refused to accept the documents. On the other hand, the Defendants hay.e also taken stand that the consignee was not coming forward to receive the consignment as it has some bad experience with the plaintiff in respect to some other goods. In the evidence, the plaintiff has itself stated that they arranged some other buyer in Los Angeles and by their letter, dated 18th July, 2000 Exh. P-5/1-10 asked the freight charges and transit time of the consignment from Alexandria to Los Angeles and thereafter the plaintiff by its letter dated 7th August, 2000, Exh. P/1-4, has intimated about new customer, who wanted to buy consignment but the plaintiff has failed to submit any evidence that the buyer at Los Angeles and thereafter at Alexandria were availed at subsequent stages. The plaintiff witness was asked in this respect but he failed to submit any document or other proof in this respect. The factual position, as has been given in the evidence, proves that although, the consignment was shifted from Alexandria to Ashdod but on 6-6-2000, it landed in Alexandria but there was nobody to receive it apparently for the reason that there was discrepancies in the contract documents, therefore, the consignment remained there and thereafter has admittedly been transferred to place of convenience of the Defendants. The Defendants have taken two stands, firstly, that the consignment was shifted to place of convenience in the absence of any buyer to receive it and, secondly, it was shifted erroneously but either of the Defendent does not give any cause of action in personam against the Defendants Nos.3 and 4 to the plaintiff. The plaintiff itself has shown, through its correspondence, that it was fully aware about the fate of the consignment lying unattended, in the absence of receiver so they tried to Los Angeles but they could not, nor they could prove any alleged buyer at Alexandria. Defendants have stated that the consignment was in good condition under original seal as was loaded from Karachi and nothing inrebuttal has been brought by the plaintiff. In the circumstances, there is no liability on the defendant Nos. 2 and 3 and hence issue No,3 is answered in affirmative.
15. Issue No,4 It has come on. Record and even has not been disputed that Messrs Fabgran, consignee of the goods, has backed out from the contract, as firstly, there were discrepancies in the documents which is evident from the letter of the plaintiff's bank HBL to the plaintiff itself and secondly there was nobody at Alexandria to receive the consignment B on 6-6-2000. When it landed nor there is any communication from Messrs Fabgran that it was effected by non-availability of consignment at Alexandria. In such a circumstance, the consignment remained unattended and almost abandoned, therefore, there is no liability on the part of Defendants as Messrs Fabgran backed out of the contract.
16. Issue No,5 ' It is an admitted position that consignment was shifted from Alexandria to Ashdod and vice versa but reason given by the Defendants are justified but there are no dates to disclose, as to on what date shifting was effected but this factual position does not effect the plaintiff as, at his request the Defendants were even ready to transship the consignment from. Alexandria to Los Angeles but the plaintiff failed to agree to the terms and conditions on the ground that charges were exorbitant.
17. The plaintiff could arrange any other ship for transshipment of the consignment, which it could not.
18. The excuse that Defendant were charging demurrage / storage charges are also not of any help as at one time, the Defendants agreed to charge from 16-7-2000 but since there was no settlement on the controversies therefore, the Defendants started asking total charge. Anyhow, the said factual position does not effect the merits of the case in the light of decision on issues supra.
19. Issue.No,6 Although the Defendant No,3 has claimed demurrage / storage charges but the plaintiff has not been able to establish that they were on higher side. The shifting of consignment from Alexandria to Ashdod is basically due to fault of the plaintiff as its buyer backed out otherwise all the incident would not have happened and since the root cause lies with the plaintiff, therefore, the claim of demurrage / storage charges does not give cause of action to plaintiff. The Defendants although at one stage, for the purpose of settlement of issue, waived demurrage / storage charges from 6- 6-2000 to 16-7-2000, but in the absence of any receiver for the consignment they again started asking it. From the dual stand of the defendants regarding their defence that there was no buyer andsecondly the consignment was shifted erroneously but they have failed to give date. In the 'circumstances Defendants are not entitled to claim demurrage/storage charges.
20. Issue No,8 ' On the basis of findings given on the issue above, the plaintiff has not suffered, due to the fault of Defendants, any loss.
21. Issue Nos. 9 and 10 ' The plaintiff is not entitled to any relief and the suit is dismissed with no order as to costs.