1. ' Pakistan Shipping Lines Limited (hereinafter for the sake of brevity called 'the Shipping Company') has filed this suit against Trustees of the Port of Karachi (hereinafter called 'The Trustees'), claiming a sum of Rs, 1,69,425 as compensation for damage caused to one of the three cases of dairy plant packed in three cases shipped per s. s. 'Mansoor' which was chartered by the Shipping Company, and which arrived on 27th July, 1969 at Karachi Port. The Shipping Company, has also joined Lyallpur Dairies Limited (hereinafter called 'The Importer'), and Messrs Afghan Agencies (hereinafter called 'the Clearing Agents') as defendants Nos. 2 and 3, to the suit.
2. ' It is the case of the Shipping Company. That on or about 29th July, 1969, while one out of three cases of dairy plant shipped from Hamburg to Karachi under Bill of Lading No, 168 dated 14th June, 1969 deliverable to the order of the Industrial Development Bank of Pakistan was being landed by the Trustees. It was dropped on the dec or was slacked very rapidly to the deck. In striking the deck, it is claimed, the case containing machinery was broken open and the machinery was seriously damaged. According to the Shipping Company, the Trustees committed breach of the contract in not taking due and reasonable care and acted without due diligence in handling the case. In the alternative, it is pleaded that all servants and/or agents of the Trustees, who were operating the crane were negligent in that they did not take all reasonable care in landing the case and acted without due diligence. According to the averments made in the plaint, the Clearing Agents of the Importer preferred a claim for payment of a sum of Rs, 1, 69, 425 by the Shipping Company, on account of damages suffered by the Importer. The Shipping Company, has joined the Importer and the Clearing Agents as parties to the suit, as according to the Shipping Company, they are entitled to the fruits of the decree which may be passed in the suit, and because it was for them to prove the quantum of damages suffered by them.
3. ' The Trustees in their written statement have denied their liability and pleaded that they were not responsible for the damage caused to the goods for the crane was hired by the Stevedor Company, Karachi, who were engaged as Stevedors by the Shipping Company, itself, and it was operated under the supervision, direction and instruction of the Stevedors, They have also denied, for want of knowledge, that the case was either dropped on the deck of the ship or was slacked very rapidly to the deck as alleged or that the case containing the machinery, was broken open and the machinery was seriously damaged. They have also pleaded that they did not bear any responsibility or liability for damage to the machinery in view of Bye-laws 25 to 35 of the General Bye-Laws of the Karachi Port Trust.
4. ' They have further pleaded that the claim is not maintainable under Bye-Laws Nos. 43 and 46 of the General Bye-Laws of the Karachi Port Trust. The Importer and the Clearing Agents who have filed a joint written statement, while not admitting the allegations made in paragraph 3 of the plaint, have pleaded that a part of machiney containing the butter packing machine, while being discharged, was damaged due to want of due care and caution on the part of the Trustees. They have further pleaded that one of them viz., the Importer, has filed a separate suit, being Suit No, 304 of 1970, against the Shipping Company, joining there to the Trustees and the Clearing Agents as pro forma defendants and claiming a sum of Rs, 1,69,455. 50 from the Shipping Company. They have however, supported the claim of the Shipping Company, and pleaded that decree may be passed in favour of the Importer and/or the Clearing Agents for the amount claimed in the suit.
5. ' On the pleadings of the parties, the following consent issues were filed on 19th April, 1971 which were adopted by the Court :- "(1) Whether defendant No. 1, their Agents and/or servants were operating/moving the cranes for discharging the case from the ship ?
(2) Whether damage to the case was caused due to the negligence of the servants and/or agents of the defendant No. 1. If so what is the effect ?
(3) Whether goods were given to K. P. T. In damaged condition. If so, what is the effect ?
(4) What amount of loss was suffered by defendants Nos. 2 and 3 due to the damage caused to case containing machinery ?
(5) Whether plaintiffs claim is not maintainable under Bye-Laws 25 to 35, 43 and 46 of Karachi Port Trust General Bye-Laws and sections 87 and 88 of K. P. T. Act ?
(6) To what reliefs plaintiffs and defendants 2 and 3 are entitled ?
6. ' Now, before I consider these issues I may in detail refer to the other suit filed by the Importer against the Shipping Company, the Trustees and the Clearing Agents, claiming a sum of Rs, 1,69,455.50 and pleading that the Shipping Company, had placed an order on the Trustees of the Port of Karachi for supplying the shore crane which they had provided. The Importer has further pleaded that the crane while discharging the Importer's packages on or about 27th July, 1969 was operated negligently by the Shipping Company, or its agents or servants and as a consequence whereof the cases were dropped on the deck and as a result of the impact of the fall, the cases of the machinery were completely damaged which were treated as total loss.
7. ' The Importer in the second suit has claimed a sum of Rs, 1,69,425.50 as damages with the following particulars :- Particulars :- {{TABLE}} Rs, Cost D. M. 69, 540 (.4 D. M. 75, 1395: Pak Rs, 100 92,548.00 Bonus on freight proportionate 1,140.00 Insurance proportionate a paisa 90 per Rs, 100 758.00 Clearing agents bill including duty, wharfage and demurrage 45,018.24 Cost of bonus voucher. 29,960.86 1,69,425.50 {{TABLE}} ' In the second suit the Importer has specifically and significantly pleaded that it has joined the Trustees and the Clearing Agents as pro forma defendants. In the second suit the Shipping Company, in its written statement has pleaded that for discharge of the cargo from the ship it placed order on the Trustees to supply shore crane and they provided the same which was operated by the staff of the Trustees. It is further pleaded that while one case out of the three cases was being landed by the Trustees it was dropped on the deck or was slacked very rapidly to the deck. In striking the deck, the case containing machinery was broken open and the machinery was seriously damaged. It is further pleaded that the Trustees committed breach of contract in not taking the due and reasonable care and diligence in landing the goods. Further, in the alternative, it is pleaded that the Trustees, their servants and/or agents who were operating the crane were negligent in that they did not take due care and diligence in landing the cases. It has denied its liability and pleaded that it has already filed a suit, being Suit No, 123 of 1970, in this Court against the Trustees for benefit of the Importer and/or the Clearing Agents. It has further pleaded that the Importer's claim is exaggerated, speculative and extortionate. It has also pleaded that the Importer is not entitled to Rs, 29,960.86 on account of the costs of bonus voucher and Rs, 45,018.24 on account of custom duty, wharfage, and demurrage charges. It has further pleaded that the defendants' maximum liability for loss or damage per package or unit is to the extent of the equivalent of D M. 1,250 in Pakistani currency in accordance with the Law of Germany from where the shipment was made.
8. ' The Trustees of the Port of Karachi took the same defence as they have pleaded that the suit is not maintainable for want of service of notice under section 87 of the Karachi Port Trust Act, 1886 read with Bye-Law 46 of the Karachi Port Trust Manual. Part, ' The Clearing Agents in their written statement supported the claim of the Importer and have further submitted that the decree may be passed against the Shipping Company, and Trustees jointly in favour of the Importer and the Clearing Agents.
9. ' On the pleadings of the parties in the second suit, the following consent issues filed by the learned counsel for the parties were adopted by the Court on 3rd May, 1971 "(1) Whether the defendart No, 2, their agent and/or servant were responsible for operating/moving the cranes for discharging the case from the ship?
(2) Whether the damage to the case was caused due to negligence of the servant and/or agents of the defendants No,
2. If so, what is its effect ?
(3) Whether the goods were given to K. P, T. In damaged condition. If so what is its effect ?
(4) What amount of loss was suffered by the piaintiffs due to the damage caused to case containing machinery ?
(5) Whether the plaintiffs claim is not maintainable as against defendants No, 2 under Bye-Laws 25 to 35, 45 and 46 of the Karachi Port Trust General Bye-Laws and sections 87 and 88 of the K. P. T. Act ?
(6) Whether the suit as against the defendants No, 2 is not maintainable as the defendants No 2 are the statutory bailees of the ship and not of the plaintiffs/consignees ?
(7) To what relief plaintiffs are entitled ?
10. ' It will be seen that the issues in both the suits are common. By the order dated 22nd December, 1976, by consent of all the parties, both the suits were consolidated. Accordingly the evidence in Suit No, 123 of 1970 was recorded but the same is to be read as common to both the suits. I, therefore, propose to dispose of both the suits by this judgment.
11. ' The Shipping Company, has examined in support of its claim Saeed Bhombal (Exh. P 6), Kalim Akhtar, (Exh. 7), Abdul Rehman, (Exh. 8), Zaheeruddin (Exh. 9).
12. ' Saeed Bhombal who was working as Marine Surveyor and had carried out the survey of the goods at the request of Shipping Company, produced survey report dated 11th August, 1969 (Exh. P. 6/1).
13. He deposed that he had examined two cases at K. P. T. Open Plinth No, 7, East Wharf on 31st July, 1969. He stated that he did not take any technician or mechanic to dismantle the machinery before the survey. He deposed that it. Was the outward survey as it appeared to his naked eye. The material part of the survey report reads as follows :- ' Butter Moulding and Cutting Machine 8304-B. "1. Case/2.
(1) 1 Metal cover plate (Approximately 2 mm. Thick) dented, crews sheared off.
(2) Control wheel (bakelite) broken, shaft bent,
(3) Speed regulator control wheel (bakelite) broken.
(4) Metal cylindrical cover for shaft dented-oil leaked out-no further damage apparent.
(5) One stitch assembly lying loose, one button partly loose.
(6) One assembly apparently Rocker Arm, sheared off from ball at lower end and broken from Cast-iron plate at upper end.
(7) Two roller assemblys with gear wheels found loose-position of original fitting not apparent.
(8) One gear wheel found broken and damaged original fitted position not apparent.
(9) Two electrical relays damaged and loose.
(10) Body Paint chipped at places.
(11) Case 1, found contents complete and sound."
14. ' It will be seen from the above report that the surveyor has not assessed the loss in terms of money and has not stated that the plant or machinery has become totally useless or the damage could not be repaired. In cross-examination by the counsel for the Trustees he deposed that he did not remember whether any person from the K. P. T. Was present at the time of survey of the machinery.
15. It was suggested to this witness that he could not survey the goods without the permission of the Trustees within the premises of K. P. T. He however, submitted that the Clearing Agents had taken the permission. But the same, has not been produced in evidence.
16. ' Kaleem Akhtar (Exh. 7) who was Assistant Manager of National Shipping Corporation stated that the carriage of goods by sea is governed by the Hague Rules and that he had obtained the English translation of Hague Rules from West Germany but he has not produced the same. Therefore. His evidence is not at all material.
17. ' Abdul Rehman (Exh. 8) is a material witness. He stated that he was working in the Stevedor Company, Karachi and that the Shipping Company, had appointed his company as Stevedors by its letter dated 21st July, 1969 (Exh. P-8/1), and that the cargo was unloaded by them. He further stated that he had requisitioned the crane of the K. P. T. For unloading the cargo from s. s. Mansoor".
18. He produced 19 crane's requisition slips (Exhs. P-28/2 to 8/20). According to him one case out of three cases was damaged by the negligence of the crane driver. He further stated that the K. P. T.
19. Cranes were operated by their drivers. He however, admitted that the sling in the hatch of the ship was made by the labourers of Stevedor Company Karachi. According to him the case was fixed in the hook of the crane and thereafter labourer in the hatch gave a signal to the crane operator to heave up the cargo. According to him, thereafter his work ended. He further stated that he was present on the dock at that time and saw the crane driver heaving up the cargo and dashing it against the wall of the hatch and consequently one case fell down on the deck. The wooden planks were broken due to that impact. According to him the Chief Officer of the ship made entry in his log book regarding the damage to the case.
20. ' In cross-examination to the counsel of the Trustees, he admitted that after requisition, the crane worked in the charge of the Stevedor Company, Karachi and that the driver operated the crane under their orders. The labour was employed by them. In cross-examination to Mr. Abdul Raoof, Advocate for the Importer and the Clearing Agents, he stated.That there was only one case in the sling and the case fell down from a height of about 6 feets on the deck.
21. ' Zaheeruddin (Exh. 9) who was an employee of the Shipping Company, and was working as the claim incharge produced the Bill of Lading (Exh. P-6/2-A) and stated that according to the endorsement on the Bill of Lading the delivery of the goods was to be made to the Clearing Agents.
22. He also stated that his company had given two legal notices to the Trustees and he produced the copies of the notices together with acknowledgment receipt. He was not cross-examined by any of the counsel.
23. ' Hamid Mukhtar Ahmad (Exh. 10), Abeerul Islam (Exh. D/11), Karamat Hussain (Exh. D/I2), Hassan Abbas (Exh. D/13), Hassan Ahmed (Exh. D/14) and Nazar Hussain (Exh. D/15) were examined on behalf of the defendants.
24. ' Hamid Mukhtar Ahmad (Exh. 10) deposed that the name of his firm was Hamid Mukhtar & Company, which was established in Lahore since December, 1964 and they surveyed damage to the consignments of insurance companies. He gave his qualification as B. Sc., Mechanical and B.
25. Sc., Electrical Engineering and stated that in the year 1970 his firm was appointed to do the survey of one package of the Importer, by the National Insurance Company, as it was then called, and he had surveyed the package at Lyalipur and then at Lahore and prepared his report (Exh. 10/1) which he produced and which was admitted subject to the objection of Mr. Ismail Tijahi, Advocate for the Shipping Company, which was that the document was not disclosed at any time by the Importer.
26. He further stated the report bore his signature and was correct and was sent to N. C. S., Lahore. He further deposed that he had dismantled the case for detailed survey of the machine.
27. ' In cross-examination to the counsel for the Shipping Company, he admitted that he did not issue any notice to the Shipping Company, and that none of the agents of the Shipping Company, were present. He also admitted that he had not surveyed the remaining two cases of the machinery. He further stated that the part of the machinery contained in Case No, 2 and surveyed by him could be sold in the market as scrap. He further stated that in his report he had valued the scrap at Rs,
500. He also stated that he saw the goods at Lyalipur and then asked the Importer to shift the same to Lahore for detailed inspection. He further stated that he did not remember whether the case bore the caution "Handle with care" on it. He expressed his ignorance whether the case was sent to Lyalipur from Karachi by truck or rail. He however, admitted that he did not see any other package nor could he say anything about its value.
28. ' The next witness examined by Mr. Zaheeruddin Khan, Advocate for the Trustees, was Abeerul Islam (Exh. D/11). He stated that he was incharge of Crane Section, West Wharf, Karachi Port Trust and that the shipping agents or the stevedors requisitioned cranes from the Karachi Port Trust on hire by filling requisition form and the Department allotted the cranes to the applicants. He further stated that the staff of the cranes worked under the supervision of the applicants though the same was employed by the Karachi Port Trust and when a crane was requisitioned by a shipping agent or stevedors the staff worked for the purposes of loading and unloading of the cargo from the ship under the shipping agent or the stevedors. He further stated that in July, 1969 he was on duty at Keamari and the Shipping Company, by a letter addressed to the Karachi Port Trust on 21st July, 1969 requested them to supply a crane to its stevedors namely, Messrs Stevedor Company, Karachi. He produced the letter (Exh. P/8/1). He further stated that accordingly the Karachi Port Trust supplied the crane to the Shipping Company's stevedors.
29. ' In his cross-examination to Mr. Ismail Tijani, he stated that the employees of the crane were permanent servants of the Karachi Port Trust and that they were entitled to fringed benefits from the Karachi Port Trust. He also stated that at the relevant time be was working as Foreman at the Karachi Port Trust Office at Berth No, 7 and the cranes were electric cranes and were fixed on'rail but they were adjustable on the rail. He admitted that he was not present at the site when the cargo was being discharged and explained that his duty was only to allot cranes to applicants and not to visit the site.
30. ' The next witness examined on behalf of the Trustees was Karamat Hussain (Exh. D/12). He stated that in July, August, 1969 he was on duty in Shed No, 8 of the Karachi Port Trust and that he was P.
0. R. Clerk at that time and had prepared the Provisional Out-turn Report for the vessel 's. s. Mansoor' on 7th August.
31. 1969. It was also signed by the ship's representative and the Incharge of the Karachi Port Trust, Mr. Hassan Abbas. He produced the report (Exh. 12/1) and further stated that in this report on page marked red there was remark one case was broken completely ; the other two cases were defective''. He further stated that the ship's representative was present when he inspected the three cases in question. He stated that P.
0. R. Was prepared within 24 hours after the entire cargo was unloaded and that the Karachi Port Trust became responsible for the goods as soon as they were discharged from the ship.
32. ' In cross-examination to Mr. Ismail Tijani he stated that the Karachi Port Trust did not prepare truck notes. He pleaded his ignorance whether the three cases were surveyed, before he prepared the P.
0. R. He also stated that the P.
0. R. Did not contain any of those three cases.
33. ' Hassan Abbas (Exh. D. W/13), on behalf of the Trustees deposed that he was the Traffic Supervisor, K. P. T., Karachi. In July-August he was Incharge of Shed No, 8, West Wharf, Karachi. He further stated that P.
0. R. (Exh. 12/1) was prepared in his supervision and he identified his signature thereon. He saw entries on page 6 of this report and said that two cases were in broken condition and the third was completely broken. He further stated that he was present at the Wharf while the cases were being unloaded from the ship and that the staff of the crane was not working under his instruction but was under the instruction of the agents concerned. He produced the delivery order (Exh. 13/2) and the delivery receipt executed by the Clearing Agents on 16th August, 1969 (Exh. 13/3). He deposed that no survey of the goods was done before the goods were delivered to the Clearing Agents. The Shipping Company, had given notice to the Karachi. Port Trust regarding the goods which he produced (Exh. 13/4) and (Exh. 13/5). He also produced the reply sent by the Karachi Port Trust (Exh.
34. 13/6).
35. ' In cross-examination he stated that P.
0. R. Was prepared under 1. C. A. Scheme and they did not issue K. P. T. Trust Notes. He further stated that P.
0. R. Was prepared after the entire cargo was discharged from the ship. He stated that he had several assistants and they were . Working under him. He has also stated that the delivery of the three cases was given to the Clearing Agents by one of his assistant who had signed the endorsement but he could not give his name. He has also stated that the cargo was first kept on the trolley and then removed to the shed where it remained from 27th July, 1969 to 16th August, 1969 in his charge.
36. ' Hassan Ahmed (Exh. D/14) was examined on behalf of the Importer. He was one of the Directors of the Importer. He stated that Importer had imported dairy plant from West Germany which was packed in three cases and the parts in three cases would make a complete dairy plant. The plant was worth Rs, 4 lacs. He produced a pro forma invoice (Exh. 14/1) and the invoice of the plant (Exh.
37. 14/2). He stated that the goods were insured and he produced the insurance policy (Exh. 14/3). All these documents were admitted subject to objection of Mr. Ismail Tijani and the learned counsel for the Shipping Company. He further stated that the Importer had paid demurrage and for the payment of ship freight the Importer had obtained bonus vouchers of Rs, 4, 148.32. He produced receipt for the same (Exh. 14/4). He further stated. That the Importer had paid Rs, 6, 940 as import licence fee acknowledged by receipt (Exh. 14/4) He produced insurance receipts (Exhs. 14/6 to 14/12). He further stated that the Importer also paid bank commission, L. C. Charges and interest to the extent of Rs, 43,000. He produced two bank statements (Exh. 14/13 and Exh. 14/4). He also stated that he got the goods surveyed in Shed No 8 at West Wharf, and that two survey reports were made by the Ship Surveyors and the Insurance Surveyors. He saw the report (Exh. 6/1) and said that it was the same survey report. He further stated that the Importer took three cases to Lyallpur after the survey report and the goods were further dismantled at Lahore and final report (Exh. 10/1) was prepared by Hamid Mukhtar and Company. He stated that the Importer suffered a total loss of Rs, 1,69,425.00 and he served a notice on the Shipping Company (Exh. 14/15).
38. ' In cross-examination to the counsel for the Shipping Company he stated that the Importer had obtained delivery order from the Karachi Port Trust on 7th August, 1969 though the Importer had applied for delivery on 27th July, 1969 and the goods were delivered to him at Lyallpur by the Clearing Agents which were carried by truck to Lyallpur and then to Lahore. He further stated that the freight was not on prepaid basis. He however, admitted that the Bill of Lading (Exh. D. W. 13/1) showed that the freight was on prepaid basis. In cross-examination to Mr. Zaheeruddin Khan, Advocate, he stated that the Importer and the Clearing Agents were sister concerns. He admitted that the survey could be done in the Karachi Port Trust shed with the consent and in the presence of an officer of the Karachi Port Trust and in the instant case he did not know whether the survey was done in the presence of the officer of the Karachi Port Trust or with his consent. He further admitted that he was not present at that time. He also admitted that there were no marks in the delivery receipt (Exh. 13/3) to show that the cases were delivered after the survey but explained that was so because there was no such column in the delivery form. He also stated that it was not within his knowledge whether any information was given to the Karachi Port Trust or the customs authority regarding the survey of the goods in the shedule.
39. ' The other witness examined was Nazar Hussain, the Manager of the Clearing Agents (Exh. D/15).
40. According to him all the three cases were surveyed on the deck of the vessel on 27th July, 1969 and it was an external survey. He further stated that he had sent all the three cases to the Importer at Lyallpur. He produced two clearing receipts (Exhs. 15/1 and 15/2) and also produced copies of two letters (Exhs. 15/3 and 15/4), one of them, dated 23rd September, 1969 was addressed to the Shipping Company. He also produced an office copy of the letter dated 26th August, 1969 (Exh.
41. 15/5) under which they had lodged the claim with the Shipping Company. He stated that he had no personal knowledge about the goods in the instant case. He stated that in the bill of entry he had shown the value of the goods as Rs, 85,919. He admitted that the Clearing Agents made no application to the Customs Authority for the refund of custom duty in respect of the damaged package.
42. ' In cross-examination to Mr. Zaheeruddin Khan, Advocate, for the Trustees he stated that the bill of entry was produced before the Customs Authority. In order to prove total loss. He admitted after seeing the documents of his office that there was no document to show that the notice was given to the Karachi Port Trust for survey of the goods in the Katachi Port Trust area. He further admitted that there was no documents with the Clearing Agents to show that the Karachi Port Trust had permitted to carry out the survey of the goods.
43. ' Having generally reviewed the evidence led on behalf of the parties now T proceed to decide the issues.
44. Issues Nos, I and 2 ' It would be convenient to take up issues Nos. 1 and 2 together.
45. ' In relation to these issues evidence of for witnesses namely, Abdul kehtnan (Exh. 8), Abeerul Islam (Exh. D/1 I), Karamat Hussain (Exh. D/12), and Hassan Abbas (Exh. D/13) is materiel.
46. ' Abdul Rahman who was working in the Stevedor Company. Karachi, Who were engaged by the Shipping Company, deposed that he had requisitioned the crane from the Karachi Port Trust for unloading the cargo from s. s. Mansoor and the crane was operated by the driver of the Karachi Port Trust, and that the sling was made by his Labourers. He also stated that the sling was fixed in the hook of the crane and thereafter the labourer in the hatch gave a signal to the crane operator to heave up the cargo and then his work ended. He further deposed that he saw the crane man heaving up the cargo and dashing it against the wall of the hatch and one case fell down on the deck. He, however, in his cross-examination admitted that he had requisitioned the crane from the Karachi Port Trust on hire and the same worked in his charge and that the driver had operated the crane under his order. The labourers were employed by his company. He further deposed that he, as Foreman, was Incharge of the labour of his Company.
47. ' Abeerul Islam (Exh. D/11), an employee of the Karachi Port Trust deposed that though the staff on the cranes was employed by the Karachi Port Trust but the same worked under the supervision of the hirers of the cranes. He further deposed that when crane was requisitioned by a shipping agent. Or stevedor the staff worked under his directions for the purposes of loading and unloading the cargo from the ship. He further deposed that the Karachi Poi t Trust had supplied the crane on the requisition of the Shipping Company, to their stevedors namely, Messrs Stevedor Company, Karachi.
48. ' K armat Hussain (Exh. D/12), another employee of the Karachi Port Trust deposed that the Karachi Port Trust became responsible for the goods as soon as they were discharged from the ship.
49. ' Hassan Abbas (Exh. D/13) another employee of the Karachi Port Trust deposed that he was present at the Wharf while the goods were being unloaded from the ship and that the staff of the crane was not working under his instructions but was working under the Instructions of the agent concerned.
50. ' The evidence of these witnesses is consistent with Bye-Law 35 of the General Bye-Laws of the Karachi Port Trust which are contained in the. Karachi Port Trust Manual. Part III. This bye-law reads as follows :'- 'Tindals of vessels and managers of lighterage companies must make their own arrangements for the proper slinging of cargo in lighters or boats and for directing the crane drivers when discharging or loading, and the Board will not undertake any responsibility for the same."
51. Therefore, it is clear that the labourers who slung the cargo and the crane driver both worked under the instructions of the stevedors who were engaged by the Shipping Company. Accordingly, the Trustees are not responsible for any damage caused to the case due to the negligence on the part of the labourers and the crane driver while it was being unloaded from the ship.
52. ' It is the case of the Shipping Company, in Suit No, 123 of 1970 that one case out of three cases of dairy plant was damaged while unloadins. In support of its case the Shipping Company, examined Sued Bhombal (Exh. 6) who surveyed two out of three cases in the Karachi Port Trust area and according to the survey report one case was, damaged. It is in evidence of Abdul Rehman (Exh.
53. D/8) an employee of the Stevedor Company. Karachi that the sling in the hatch of the ship was made by his labourers and then it was fixed in the hook of the crane and thereafter, the labourer in the hatch eave signal to the crane operator to heave up the cargo. He deposed, as already stated, that he saw the craneman. Heaving up the cargo and dashed it against the wall of the hatch consequently one case fell down on the deck. He further deposed that wooden planks of the case were broken due to heavy impact, and that after requisition the crane worked in the charge of the Stevedor Company and the driver operated the crane under their orders and the labourers were employed by them. This evidence finds support from the evidence of Abeerul Islam who came in the witness-box on behalf of the Trustees and also from the evidence of Hassan Abbas who deposed as already mentioned, that he was present at the Wharf while the cases were being unloaded from the ship and the staff of the crane was not working under his instructions but was working under the instruction of the agents concerned. Therefore, it is clear that damage to one case was caused due to the negligence of the servants and/or agents of the Stevedor Company and not those of the Turstees. Since the Stevedor Company were engaged by the Shipping Company. The latter is responsible to the Importer in accordance with the provisions of sections 151 and 152 of the Contract Act for there is no plea that the Shipping Company, had taken as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods and no special contract has been pleaded. In fact the Shipping. Company, in its plaint has pleaded the regligence of the servants and/or agents of the trustees who operated the crane but as found earlier they were not acting under the directions of the Trustees. Significantly the Importer in its suit has categorically stated in paragraph 9 of the plaint that it has joined the Trustees and the Clearing Agents as pro forma defendants. I, therefore, decide both the issues against the Shipping Company.
54. Issue No, 3 : ' The Shipping Company, in the plaint in the suit filed by it has stated that one case had fallen from the sling on the deck. Therefore, this case was delivered to the custody of the Karachi Port Trust in damaged condition which is confirmed by the survey report (Exh. P-6/l), produced by Saeed Bhombal. The Importer in its suit in paragraph 4 of the plaint has taken the following stand :- "The plaintiffs state that the defendant No. 1 committed breach of the contract in not taking all due and reasonable care and diligence in landing the said case. Further and in the alternative the plaintiffs state that the defendant No. 1, their servants and/or agents who were operating the crane, were negligent in that they did not take all reasonable care and diligence in landing the said case."
55. ' Besides, the above admissions I may also refer to the evidence of Karamat Hussain, an employee of the Karachi Port Trust who had prepared the Provisional Outturn Report (Exh. 12/1) for the vessel s. s. Mansoor on 7th August, 1969, which according to the witness, was signed by the ship's representative and also by the Incharge of the Karachi Port Trust, Hassan Abbas. According to him in this report on page marked red there is a remark, "one case broken completely and the other two cases were defective". It is, therefore, clear that one case given to the Karachi Port Trust as in damaged condition and its effect is that the Karachi Port Trust is not responsible for the damage.
56. Accordingly, I decide this issue against the plaintiffs in both the suits.
57. Issue No, 5 : ' I have already found as a fact that damage to one case was caused due to the negligence of the labourer and/or crane driver who were working tinder the direction and control of the stevedor Company who were engaged by the Shipping Company. Therefore, it is not necessary to discuss Bye-Laws 25 to 34, 43, 45 and 46 of the General Bye-Laws of the Karachi Port Trust. I may however, mention that under byelaw 46 of the General Bye-Laws of the Karachi Port Trust, the Trustees, are not responsible in any way for damage to the goods by wharfages, breakages unless notice is given to them within one month from the date of landing of the goods. It is admitted position that no such notice was given either by the Importer or the Shipping Company. It may be mentioned that the ship carrying the goods had arrived at the port on 27th July, 1969, and the two cases were surveyed by Saeed Bhombal as stated by him on 31st July, 1969. The Shipping Company however, served, a notice dated 27th January, 1970, under section 87 of the Karachi Port Trust Act, 1886 (Exh.
58. 9/1). The Importer gave no notice whatever to the Trustees, not even under section 87 of the Karachi Port Trust Act.
59. 1886. Therefore, the suit filed by the Importer against the Trustees is not maintainable. Indeed the Importer in its suit has stated that it has joined the Trustees only as proforma defendant. For the above stated reasons it is not necessary even to discuss section 88 of the Karachi Port Trust Act. I therefore, decide the issue in favour of the Trustees and against the Importer.
60. Issue No, 6 : ' In view of my finding on issues Nos. 1, 2, 3 and 5 it has become unnecessary to decide this issue.
61. Issues Nos. 4 and 7 : ' Now, I take up issues Nos. 4 and 7 together. So far as the suit filed by the Shipping. Company, is concerned in view of my finding on issues Nos. 1, 2 and 3 the Shipping Company, has had no cause to file the same against the Trustees. As regard the suit filed by the Importer the same is not maintainable against the Trustees. The Importer is however, entitled to claim damages for damage to one case, from the Shipping Company.
62. ' The importer has claimed a total sum of Rs, 1,69,425.50 as damages, the full particulars whereof are mentioned hereinbefore. It is admitted fact that only one case was damaged although Karamat Hussain P.
0. R. Clerk of the Karachi Port Trust has stated that in the Provisional Out-turn Report on page marked red, there was a remark that "one case was broken completely, the other two cases were defective". But this remark even if correct, would not mean that other two cases were damaged.
63. Further, Hamid Mukhtar Ahmad (Exh. 10) who carried out the survey of one case first at Lyallpur and then at Lahore, stated that his firm was appointed to carry out survey of one package of the Importer by the National Insurance Company, as it was then called. He produced the survey report (Exh. 10/1). The details of the damage to the part of the machinery contained in one case are given in the survey report. He has stated therein that the damage could be repaired and has also estimated the value of spare parts as follows :- "Spare parts to be obtained locally .Rs, 2,700.00 from abroad at D M 27,000 equivalent to Pak.
64. Rs, 32,670.00 calculated at the rate of I D M : Pak. Rs, 1.21.
65. ' He has further estimated the expenses of expert coming to Pakistan for inspection and another expert for fitting, testing and commissioning including the remuneration of the local mechanic at Rs, 31,980. However, the learned counsel for the Trustees and the Shipping Company, submitted that this survey report could not be looked into for the reasons that admittedly, the survey was carried out behind the back of, and without notice, to the Trustees and the Shipping Company, and that this survey report was never disclosed before Hamid Mukhtar gave evidence. It was further submitted that this report was not disclosed even in the affidavit of documents filed by the Importer in its suit.
66. So far as the first reason is concerned it is correct that the survey was carried out without any notice to the Shipping Company, against whom D the claim for damages is preferred, therefore, the same is not binding on the Shipping Company. It is well settled that a survey of cargo or goods carried out by the surveyor without any notice to the interested party or, in other words, against whom claim is to be preferred on the basis of such survey, is not binding on such party. However, I may refer to some of the reported decisions of this Court in support of this principle. In the case of the Central Insurance Company Ltd. v. Chittagong Steamship Corporation Ltd. And another it was observed by the learned Judge at page 262 of the report as follows :- "I would, therefore, decline to bind the defendants with the second survey of which they had no notice, and which was not carried out in their presence and the result of which is not corroborated by the evidence of account books, showing sale below invoice price."
67. ' The next case to be mentioned is that of Farook Omar v. National Security Insurance Company Ltd., Karachi and another (2). In this case Mushtak Ali Kazi, J. Relying on the case mentioned hereinbefore at pages 326 and 327 of the report observed as follows "The Survey Report by the Surveyors appointed by the Insurance Company is also not binding on defendant No, 2 since no notice of survey was given to the defendant No, 2 or their agents and the survey was ex parte as against them. In PLD 1968 Kar. 252, this principle has been explained that only the report of the joint survey of which the Carriers have notice, is binding on them and the survey of which they had no notice and which was not carried out in their presence and the result of which is not corroborated by other evidence cannot be held to be binding on the Carrier."
68. ' The last decision to be referred to is by I. Mahmud, J. In the case of The National Electric Radio, Refrigeration Company (Pakistan) Ltd., Karachi v. Messrs Sachilige Lauro, Naples (Italy) and 3 others (3). It was held by the learned Judges at pages 269 and 270 of the report as follows :- "Moreover, neither the Carrier, nor its agents received any notice of the proposed survey which was to be conducted at the plaintiff's godown on 18th April, 1966. As rightly submitted by Mr. Saleem Akhtar, Advocate, for the defendants Nos. 1 and 2, the first intimation of the particulars of the alleged damage was conveyed to the Carrier's Agent on 7th June, 1966 just before the suit was {{FOOT NOTE}}
(1) P L L 1968 Kar. 252 (2) PLD 1974 Kar. 321 (3) PLD 1977 Kar. 264 {{FOOT NOTE}} filed by the plaintiff's legal notice Exh. 12/7 claiming an estimated less of Rs, 1,28,385. Counsel cited Central Insurance Company Ltd. v. Chittagong Steamship Corporation Ltd. And another PLD 1968 Kar. 252, which held that in the absence of notice of the survey, the Carrier is not bound by the Survey Report. I, therefore, hold that the first two defendants are not bound by Survey Report."
69. ' The second reason that the survey report was not disclosed before its production in the witness- box through Hamid Mukhtar Ahmed, in the affidavit, is also correct. However, it was submitted that the report was not in possession of the Importer, but the Importer must be having either a copy of the report or at least it must be aware of the report for survey could have been carried out without its knowledge, therefore, the Importer should have disclosed it in the affidavit filed by it, by mentioning that the same was in possession of the Surveyors and/or the Insurance Company.
70. Accordingly, the survey report is not binding on the Shipping Company or the Trustees. It cannot be relied upon for the additiona reason that the case was first surveyed on 1st January. 1970 more than five months after the landing of the case from the ship and the final survey report was prepared on 21st April, 1970.
71. ' Now, I would consider the other evidence.. Hassan Ahmed, Director of the Importer, who deposed that the plant was worth Rs, 4,09,000 and that his company had paid a sum of Rs, 4,148.32 in purchasing the bonus vouchers under receipt (Exh. 14/4), a sum of Rs, 6,940 as import licence fee under receipt (Exh. 14/5). He further deposed that he paid insurance premia under Receipts (Exh.
72. 14/6 to Exh. 14/12) and Bank commission, L/C charges and interest to the extent of Rs, 43,000. Iu support of last item he placed reliance on 2 bank statements (Exhs. 14/13 and 14/14). Accordingly he claimed that he had spent a sum of Rs, 1,69,425.50 on the cargo.
73. ' Nazar Hussain, Manager of the Clearing Agents simply pro forma clearing bills (Exh. 15/1 and Exh.
74. 15/2) for a total sum of Rs, 47,865.24 which amount included the amounts of import duty, godown charges and agency commission. This witness however. In cross-examination stated that in the bill of entry he had shown the assessable value of the goods at Rs, 85,990.
75. ' Further, for assessm ent of damages reliance was placed on proforma invoice (Exh. 14/2) and the invoice (Exh, 14/1), but the same as stated earlier, were admitted subject to the objection of Mr. Tijani, Mr. Abdul Raoof Khan, learned counsel for the Importer however, relying on a Supreme Court case namely, Malik Mohammad Din and another v. Mohammad Islam (1) submitted that once a document was admitted in evidence no objection could be raised as to its formal proof. But in this case the document was admitted into evidence without any objection in the trial Court. It was observed by their Lordships that the objection regarding the defect, if any, in the method of proof of the document could not be raised at that stage. It was further observed that it was well settled that an objection as to the formality of proof must he taken at the earliest stage and if it had not been taken then, it could not b allowed to be taken at the appellate stage. In the present case the objection was taken to the admissibility of the document at the trial stag and the same was exhibited subject to objection which was not decided {{FOOT NOTE}}
(I) PLD 1969 SC 1361 {{FOOT NOTE}} then. Therefore, the case cited by Mr. Abdul Raoof Khan does not support him. I may herein-below quote the relevant observations which appear at pages 144 and 145 of the report :- "With regard to the first contention, it will be sufficient to state that the objection regarding the defect, if any, in the method of proof of the document, cannot be raised at this stage. For, the document was admitted into evidence, without any objection, in the trial Court. It is now well settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then, it cannot be allowed to be taken at the appellate stage "
76. Accordingly, since these invoices were not proved, therefore, the? Cannot be relied upon.
77. ' It is admitted fact that damage to the parts of the machinery contained in one case was caused due to the fall of the case on the deck, and the Shipping Company, itself had got the machinery contained in two cases surveyed through Bhombal & Company, and the survey report (Exh. P-6/1) was produced by Saeed Bhombal (Exh. 6) who was examined as a witness on behalf of the Shipping Company. But the survey report does not state whether the damaged parts of the machinery could be repaired or not, and what was the extent of damage to the parts of the machinery contained in one case in terms of money and what would be the cost of repair of the damaged parts of the machinery, and if they could not be repaired, what would be the cost of the replacement of the damaged parts There is no evidence on these points. Hamid Mukhtar Ahmed (Exh. 10) who produced the survey report (Exh. 10/1) of the survey allegedly carried out at Lyallpur and Lahore first after about 5 months and then after 8 months of the discharge of the cargo from the ship, has also not stated in his evidence that the machinery contained in the remaining two cases could not be used independently without the machinery contained in the damaged case. He has also not stated the value of the damaged parts of the machinery, though in the survey report he has mentioned that the machinery could be repaired at a cost of about Rs 67,355 which included the cost of the parts and expenses of two foreign experts visiting Pakistan. Even if this survey report could be relied upon, the surveyor has not stated therein specifically that all the damaged parts of the machinery could not be repaired, locally through local experts and that all the spare parts were not available locally or could not be so obtained. I have already stated that I cannot rely on the survey report (Exh. 1011) for the reasons mentioned hereinbefore. Even if I could rely on the survey report, in view of the deficiencies pointed out there in, whatever damages I would assess those would be based on conjectures and surmises. But assessment of damages on such basis is not permissible under the law.
78. ' However, in the written statement tiled by the Shipping Company, in Suit No, 304 of 1970, in paragraph 9 thereof, it has stated that the ship's maximum liability for loss or damage per package or unit is to the extent of the equivalent of D. M.
79. 1.250.00 in Pak Currency in accordance with the law of Germany from where the shipment was made. Although the Shipping Company failed to prove this averment yet this could be the safe basis for awarding damages against the Shipping Company, treating it as an admission on its part.
80. ' For the reasons stated above I hold that the Shipping Company, is not entitled to any relief, whatsoever. Accordingly. I dismiss the suit filed by the Shipping Company, being Suit No, 123 of 1970, with costs to the Trustees only.
81. ' However, Suit No, 304 of 1970 filed by the Importer is decreed against the Shipping Company, only for Rs, 1,512.50 equivalent to D. M. 1,250.00 calculated are Rs, 1.21 equivalent to D. M. L, the rate - prevailing at the relevant time, with proportionate costs to the Importer, leaving the other parties to bear their own costs. The Importer shall also be entitled to interest on the decretal amount at the rate of 9 per cent. Per annum from the date of suit till payment.