1. ' G. SAFDAR SHAH, J.-These four appeals arise out of the same judgment, dated 15th August, 1966 of the then High Court of the West Pakistan, Karachi Bench by which the four Letters Patent Appeals from the judgment of a learned Single Judge of the same High Court were allowed with the result that the four suits filed by the respondents against the appellants were decreed.
2. ' In order to appreciate the nature of disputes between the parties, it would be useful to briefly recall the facts of each suit filed on the original side of the High Court by the appellants. In Suit No, 411/1955, which is the subject-matter of Civil Appeal No, K-31/1971, the plaintiffs namely, A.R.
3. Mohammad Siddiq alleged that they had shipped on board the vessel s. s. Al-Hassan belonging to the defendants Company, namely, Muhammadi Steamship Company Limited, 1,520 bags of rapeseed from Karachi to Chittagong on 13th February, 1954. On 26th February, 1954 the ship arrived at the outer anchorage of Chittagong ; on 18th March,.1954, the ship finally berthed at the Chittagong Port and after discharging its cargo left the Port on 27th March, 1954. Subsequently, it was discovered, however, that the ship had altogether failed to discharge 520 bags, whereas out of the goods discharged by it, 440 bags were found to be in damaged condition with the result that the plaintiffs suffered a loss of Rs, 35,683-9-6. Upon these allegations, the plaintiffs prayed that since the defendants Company had refused to pay them the said amount, their suit in that behalf should be decreed with costs.
4. ' In Suit No, 250/1955, which is the subject-matter of Civil Appeal No, K-32/1971, Messrs Adam Limited were the plaintiffs and Muhammadi Steamship Company Limited were the defendants. The case set up by the plaintiffs in their suit was that they had shipped on the same vessel, i.e, `Al-Hassan '
5. 2,500 bags of rapeseeds from Karachi to Chittagong. Upon arrival at the Port of Chittagong, however, when the ship discharged its cargo on 27th March, 1954, it was discovered that it had altogether failed to discharge 529 bags as a result of which the plaintiffs suffered a loss of Rs, 31,740, which amount when demanded the defendants failed to pay. Upon these allegations it was prayed by the plaintiffs that their suit be decreed for the said amount with costs.
6. ' In Suit No, 409/1955, which is the subject-matter of Civil Appeal No, K-33/1971, Messrs A. R.
7. Mohammad Siddiq were the plaintiffs and East & West Steamship Company Limited were the defendants. The case set up by the plaintiffs in their suit was that they had shipped on board the vessel s. s.Fakirjee Cowasjee' belonging to the defendants Company 3,000 bags of rapeseeds from Karachi to Chittagong on 17th February, 1954. Upon arrival of the vessel at the Port of Chittagong, however, the ship altogether failed to discharge 68 bags whereas 409 bags were discharged by it in damaged condition as a result of which they suffered a loss of Rs, 40,464-6-3, which amount on demand the defendants Company refused to pay. It was, therefore, prayed by the plaintiffs that their suit be decreed against the defendants for that amount with costs.
8. ' In Suit No, 410/1955, Haji Hussain & Company Limited were the plaintiffs and East & West Steamship Company and Norwich Union Fire Insurance Society Limited were the defendants. The case set up by the plaintiffs in their suit was that on 15th February, 1954 they had shipped from Karachi to the Port of Chittagong 2000 bags of rapeseeds on board the vessel s. s. Fakirjee Cowasjee belonging to the defendants Shipping Company. Upon arrival at the Port of Chittagong, however, when the ship discharged its cargo, it was discovered that 1430 bags were discharged by it in damaged condition with the result that the plaintiffs suffered a loss of Rs, 84,370 which amount on demand the defendants Company refused to pay. The plaintiffs, therefore, prayed for the decree of their suit against the defendants for the said amount with costs.
9. ' In their respective written statements filed by the appellants herein, they denied the claim of the plaintiffs mainly on four grounds : firstly, that the goods of the plaintiffs suffered from inherent defect or vice ; secondly, that no part of the goods had actually been lost, but the plaintiffs refused to accept their delivery for want of the identification marks, as the same had obliterated owing to the internal heat which the goods had generated because of the inherent defect or vice with which they suffered ; thirdly, that whatever damage had been caused to the goods, the same was owing to the perils of the sea for which they were not responsible : and fourthly, that every care had been taken to ensure the safety of the goods, and consequently the respondents were wrong to allege that they, their agents or servants were in any manner negligent in the discharge of their obligations as carriers.
10. ' In view of this state of the pleadings of the parties, the learned Judge on the original side of the High Court, consolidated the four suits and framed therein the following issues :-
(1) Whether any part of the cargo was short-landed as distinguished from being damaged ?
(2) Whether any loss of or damage to the goods resulted from perils, dangers and accidents of the sea ?
(3) Whether the goods that were damaged, were demaged because they suffered from inherent defect, quality or vice ? If they did, was the defect, quality or vice discoverable by due diligence ?
(4) Whether any loss of or damage to the goods was caused by the negligence of the steamship companies, their servants or agents ? If the answer be in the negative, what is its effect ?
(5) Has the plaintiff in Suit No, 410 of 1955 suffered any damages ? If not, what is its effect ?
11. Whether defendant No, 2 in Suit No, 410 of 1955 is liable to pay damages, if any, in terms of the insurance policy ?
(7) To what amount of money as damages, if any, are the plaintiffs entitled ?
(8) General.
12. ' After recording the evidence of the parties on these issues, the learned Judge dismissed all the four suits by his consolidated judgment, dated 31st October, 1961, on the grounds, firstly, that the respondents had failed to prove any short lading of their goods ; and secondly, that they had failed to rebut the evidence adduced by the appellants that the goods shipped by them had been damaged as they suffered from inherent defect and vice.
13. ' Against the said judgment, respondents filed four separate appeals before the Letters Patent Bench of the High Court, which were allowed by a consolidated judgment, dated 15th August, 1966, mainly on the ground that the appellants were under a statutory obligation to have delivered the goods at the Port of Chittagong in the same apparent good condition and order in which they had received them that having endorsed the respective bills of lading to the same effect they were estopped from leading evidence to prove that when the goods were loaded on board, their respective vessels they were not in apparent good condition and order, and that in these circumstances they were obliged to prove that so long as the goods had remained in their control, they had suffered no negligence on their part, as the goods had been handled with care and caution.
14. ' Leave to appeal was granted to the appellants by this Court for the consideration of the limited question namely, "as to the burden of proof in such actions for damages for short delivery or delivery in damaged conditions as the said question was considered to be of great public importance on which, however, there existed no authoritative decision of this Court.
15. ' Now the decision of this question would mainly turn on the words "shipped in apparent good order and condition", as contained in the respective bills of lading delivered to the respondents by the appellants as well as "the Rules relating to the Carriage of Goods by Sea Act, 1925 (hereinafter referred to as the Act) out of which Rules, rule 2 of Article III and rule 2 (m) of Article IV being relevant may be noted :- "ARTICLE III :
2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.
16. ' ARTICLE ' ARTICLE IV :
2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from
(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods."
17. ' Mr. Fazalur Rehman, the learned counsel for the appellants contended that the finding recorded by the learned Judge on the original side of the High Court as to the 'burden of proof' was proper and so the L. P. A. Bench was in error to upset the said finding. He argued that the words appearing in the bills of lading to the effect "shipped in apparent good order and condition", could in no wise be construed to constitute an admission on the part of the appellants that the goods were actually free from inherent defect, quality or vice, and in that behalf he relied on the well-known judgment of the Judicial Committee of the Privy Council in the case of The Ida (1).
18. ' In order to appreciate this contention, reference may first be made to para. 18 of the judgment of the learned Single Judge, in which under Issues Nos. 3 and 4, he has discussed the said question.
19. The finding recorded by the learned Judge in para. 18, is "The third and fourth issues relate to damage to it during the voyages. The third issue is based upon clause (m) paragraph 2 of Article IV and the fourth issue is based on paragraph 2 of Article III of the Carriage of Goods by Sea Act, 1925. The fourth issue emphasises the duty of the carrier to "properly and carefully" discharge the general responsibilities stated in the relevant provision and the third issue embodies the main plea of the defendants. I felt during the trial that counsel for both sides were very uncertain about their clients' burden of proof. I, therefore, gave them time and heard arguments on this question while evidence was yet being recorded by me".
20. ' After recording the evidence, the learned Judge, finally addressed himself to the question of the 'burden of proof', took into consideration the above Rules contained in Articles III and IV of the Rules and expressed the view that "The general responsibilities of the carrier set out in paragraph 2 of Article HI are thus subject to the exception stated in clause (m) of paragraph 2 of Article IV, which means that the carrier is to discharge those duties but there is no liability if loss or damage is caused by an excepted situation. If the carrier proves the latter he can take advantage of it, unless the exception is defeated by proof of the failure of the carrier to discharge the general responsibilities. It is obvious that this proof should be such as to defeat the exception and not irrelevant to it. For instance, it will be useless for the shipper or consignee of the goods to prove that there was negligence of the carrier in the loading of boxes of apples, if no damage was caused to the apples by the negligence and the apples rotted exclusively owing to an inherent vice in them.
21. Carver has expressed the main view of the law in this respect at page 186 of his above-mentioned book, 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 to the carrier to bring the cause of damage specifically within Article IV, r.
2. If the cargo owner wishes to defeat that plea by proving negligence, the onus is on him to do so,"
22. ' The learned Judge then proceeded to express his satisfaction about the said passage from Carver, and held that the same "appears to be reasonable and almost obviously correct". As to the case-law cited
(1) (1875) 32 L R 541 ' before him, namely : Sea Gosse Millard v. Canadian Government Merchant Marine, American Can Co. V. Same (1) the well-known case of The Ida, Joseph Constantine Steamship Line Limited v.
23. Imperial Smelting Corporation Limited (2) and the case of the Glendarroch (3), he observed that "The true view of the law, therefore, at least on the provisions of the English Carriage of Goods by Sea Act, 1924 and our Act of 1925 is as summarised by Carver (at page 186 and reproduced above) with regard to the burden of proof of an exception which falls under Article IV-2 of the Acts. The carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defeat it is on the shipper or consignee".
24. ' After having expressed himself thus, and having approved the above passage reproduced from Carver, the learned Judge first considered the evidence of the appellants, as to the plea taken by them that the goods belonging to the respondents had been damaged owing to the inherent defect and vice, and felt satisfied that they had successfully discharged the burden in that behalf and held that the same was "sufficient to shift the burden to the plaintiffs to disprove the evidence produced by the defendants that the rapeseed was defective because the relevant crop was generally bad". Having recorded the said finding, the learned Judge then evaluated the evidence of the respondents to see if they had succeeded to rebut the evidence of the appellants, but in this respect he expressed his dissatisfaction, and consequently recorded the following finding :- "33. If the seed did not suffer from it, then there is no other reason nearly as cogent, convincing and fairly conceivable as inherent vice to enable one to attribute to it the serious damage that was admittedly done to the seed. The crop was without doubt generally bad and the only explanation deducible from the state of evidence that is on record is that the rapeseed that was shipped was damaged during the voyages owing to its inherent vice in which no negligence of the defendants was involved."
25. ' It would thus be seen that the learned Judge had not only, with respect, gleaned from the case- law cited before him ; as well as from Carver on 'Carriage of goods by Sea' ; the Act and the Rules made thereunder, the correct principle of law governing the 'burden of proof' in cases of carriage of goods by Sea. But also correctly placed the said burden initially on the appellants. After considering the evidence tendered by them in that behalf, however, the learned Judge felt satisfied and observed that the same/ was "sufficient to shift the burden to the plaintiffs to disprove the evidence produced by the defendants that the rapeseed was defective because the relevant crop was generally bad."
26. ' The L. P. A. Bench, however, disagreed with the said finding, as by analysing the evidence of the appellants, it held that in view of the facts and circumstances of the cases "it was the duty and incumbent on the Shipping Company to produce the best evidence about the care shown to the cargo during the voyages". Having noted, moreover, that during the voyages the goods of the respondents had been placed along side the cargo of rocksalt, the Bench Concluded that "the possibility therefore that the
(1) (1927) 2 K B 432 (2) (1942) A C 154
(3) (1894) 70 L T R 344 ' rapeseed cargo of these two holds was damaged on account of the excessive moisture in the rocksalt cannot be ruled out". In this view of the evidence, the L. P. A. Bench finally set aside the judgment of the learned Single Judge holding that the appellants had acted carelessly in the stowage and handling of the cargo of the respondents and that "the conclusion reached by the learned Single Judge that there is no other reason nearly as cogent, convincing and fairly conceivable as inherent vice to enable one to attribute to it the serious damage that was admittedly done to the seed cannot be said to be based on proper appreciation of the evidence. In these circumstances we have no hesitation in holding that the plea of inherent defect, quality or vice specified in Article IV of the Carriage of Goods by Sea Act, 1925 is not available to the above respondents".
27. ' From this it should be clear that the learned Single Judge and the L. P. A. Bench were not in disagreement as to the 'burden of proof' in cases of carriage of goods by Sea. The respective conclusions reached by them were manifestly based on the appreciation of evidence of the parties with this difference though that whereas according to the learned Single Judge the appellants had, by the evidence tendered by them, succeeded to show that the goods belonging to the respondents suffered from inherent defect, quality or vice, the L. P. A. Bench not only held the appellants negligent but also that the evidence produced by them was wholly insufficient to sustain the finding recorded by the learned trial Judge.
28. ' The question of the 'burden of proof' in cases of carriage of goods by Sea has really never been in any serious doubt in the near past. After noting a large number of judgments of the House of Lords, the Judicial Committee of the Privy Council, the Canadian, Australian and Newzealand Courts, the L. P. A. Bench held that "The true view of the law, therefore, at least on the provisions of the English Carriage of Goods by Sea Act, 1924 and our Act of 1925 is as summarised by Carver (at page 186 and reproduced above) with regard to the burden of proof of an exception which falls under Article IV-2 of the Acts. The carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defeat it is on the shipper or consignee." And further that "These decisions furnish clear answer to the question on whom the burden of proof should be in cases arising under the Pakistan Carriage of Goods by Sea Act, 1925 which contains the same principles as in the English or Australian Statutes. Once it is proved that the Cargo was delivered damaged after shipment during the voyage, the onus shifts on the carrier to bring the cause of damage within the exception provided in Article IV of the said enactment. In case the carrier is able to bring the case within the immunities specified in the said Article, it would be for the shipper to prove that damage was caused by the negligence of the carrier".
29. ' This seems to us to be the correct ennunciation of law as to the 'burden of proof' in cases of carriage of goods by Sea. The word; "shipped in apparent good order and condition", which appear in the bills of lading in the present cases had also fallen for consideration in Messrs Abdul Rahman- Abdul Ghani v. Messrs United Oriental Steamship Co., Karachi and others (1), and it was held that they would estop "as against the person taking the bill of lading for value or presenting it to get delivery of the goods, the ship owner from proving that the goods were not in apparent
(I) PLD 1959 Dacca 526 ' good order and condition when shipped". In fact in the bill of lading in that case the said words were suffixed by the words "Attention is drawn to the packing of these goods which in the opinion of the carrier is insufficient". But even so it was held that the ship-owner could not be heard to allege that "there were at the time of shipment external defects in them which were apparent to reasonable inspection". Furthermore, as to the scope of Article III of the Rules, it was laid down therein that "I do not think that the terms of Article III put the preliminary onus on the owner of the goods to give affirmative evidence that the carrier has been negligent. It is enough if the owner of the goods proves either that the goods have not been delivered, or have been delivered damaged.
30. The carrier is a bailee and it is for him to show that he has taken reasonable care of the goods while they have been in his custody (which includes the custody of his servants or agents on his behalf) and to bring himself, if there be loss or damage, within the specified immunities. It is I think the general rule applicable in English law to the position of bailees that the bailee is bound to restore the subject of the bailment in the same condition as that in which he received it, and it is for him to explain or offer valid excuse if he has not done so. It is for him to prove that reasonable care had been exercised".
31. In East & West Steamship Co. v. Hossain Brothers and others (1), this Court had the occasion to consider the same very question and hold that "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 is directed to the manner in which the obligations entered into are to be carried out. Not 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 against the consequences of negligence".
32. Furthermore, S. A. Rahman, J. (as he then was), appended a separate note to the judgment and observed that "I agree but would add that even if the contract of carriage by sea could be said to have ended with the discharge of goods from the ship into a lighter engaged by the ship owners, the latter would not be absolved from liability as bailees of the goods till they were handed over to the consignee or their agents or assignees. Negligence as a bailee would have sufficed to sustain the claim against the Shipping Company and here there was clear negligence resulting in damage to the goods".
33. It should thus be evident that the view taken by this Court, as well a the Dacca High Court, and in the impugned judgment is in complet harmony with the exposition of the same law by the English, Australian and Canadian Courts of which very careful notice was taken both in the judg ments of the learned Single Judge, as well as the L.P.A. Bench of the High Court. It would, therefore, follow that the question of 'burden of proof' E in cases of carriage of goods by Sea, for the consideration of which question leave was granted to the appellants herein, had indeed already bee authoritatively decided by this Court, although the judgment in that behalf came to be delivered subsequent to the leave granting order. In other words the legal position in this behalf is quite clear, and needs no furthe elucidation.
(1) PLD 1968 SC 15 ' Adverting now to the contention urged by the learned counsel for the appellants, we find that the case of The Ida on which he has relied is distinguishable. Unlike the present appeals, in which the expression used in the bills of lading was "shipped in apparent good order and condition", in that case the same very expression used in the bill of lading was suffixed by the words "quality and quantity unknown", therefore, the Judicial Committee held, that the learned Judge was wrong in holding, as he did, that the plaintiff had given prima facie evidence that the cargo was in good condition at the time of its being shipped-evidence calling upon the defendants to rebut it. This was obviously a cardinal question in the cause, and this finding may be considered as, in a great degree, the foundation of the judgment. The bill of lading throws no light upon the question, the master having written across it, "ignoro qualitae-quantita," thereby preventing its constituting any admission by him of the cargo, as was rightly held, by the learned Judge".
34. ' It is, therefore, clear that the case of The Ida is of no help to the appellants. Since the learned counsel had raised no other contention, these appeals fail and are dismissed with costs.