1. ' The plaintiff had imported 100 chests of black tea which were shipped from Rotterdam under Bill of Lading No, 68 on board Marianna N. L. At Karachi 80 chests were shortlanded and 20 chests were discharged in damaged condition. K. P. T. Issued shortlanding certificate and the surveyor appointed by the defendants confirmed shortage of 285 Kgs. In the contents of 20 chests. The plaintiff through his clearing agent lodged claim of Rs, 70,02547 in respect of 80 chests shortlanded and Rs, 4,98951 for shortage of 285 Kgs. As payment was not made this Admiralty suit was filed against the defendant vessels. In the written statement it has been pleaded that 5 pallets were received for shipments which were insufficiently packed and marked. Out of 5 pallets 4 had broken due to insufficiency of packing and their contents were discharged under Nil marks. The contents of these pallets were shown as excess landed cargo in the outturn report of the defendant issued by the K. P. T. The chests under Nil marks were offered to the plaintiffs but they refused to accept.
2. According to the defendant the entire consignment was discharged from the ship in the care and custody of plaintiff's agents under marks and nil marks and, therefore, the liability of the ship ceased the moment the goods were free from ship's tackle. On the basis of these pleadings the following issues were framed :-
(1) Whether there was shortlanding of 20 chests of tea from the consignment of 100 chests of tea carried by the defendant vessel ;
(2) Whether 20 chests of tea are discharged from the defendant vessel in damaged condition resulting into shortage of 285 Kgs. Of tea' from the contents thereof ?
(3) Whether the suit of the plaintiff is hit by section 69 of the Partnership Act ?
(4) Whether the defendant vessel failed to discharge and deliver the goods in accordance with the B/L issued by it ?
(5) Whether the plaintiff is entitled to the judgment and decree as prayed ? If so, for what amount ?
(6) What should the decree be ?
3. Issue No, I.-The Bill of Lading was issued for carriage of 5 pallets on board the defendant. In the Bill of Lading the goods have been described as "100 chests S.T.D. 388 P F I Kenya Black tea packed on 5 pallets (each pallet of 20 chests)". The vessel arrived at Karachi on 12/7/1979 and discharged the cargo. The Karachi Port Trust issued a shortlanding certificate in November, 1979 stating that the goods were discharged under Index No, 294 and out of the manifested quantity of 5 packages one package has landed and 4 packages were short. The plaintiffs have also examined a representative of the K. P. T. Who has produced the provisional outturn report of the defendant vessel. In this report 26 tea chests have been shown to he defective. In the final outturn report under Index No, 294, 4 pallets have been shown as short and in the excess column at S. No, 8/30 tea chests under Nil marks have been shown to be defective. In fact first the number of chests was mentioned as 60 tea chests and then it was amended to 30 tea chests. There is an entry at No, 1 in this column in which it has been mentioned that 8 tea chests bearing same number as mentioned in the Bill of Lading are lying in defective condition. Here also first 28 tea chests in defective condition were mentioned which has been scored and instead figure 8 has been written. The plaintiff's contention is that the defendant had discharged 20 chests in damaged condition and 80 chests have been short-landed. On the basis of the outturn report the plaintiff has submitted that the short-landing has been proved. Mr. Iqbal Siddiqui the learned Advocate for the defendant has contended that since there are clear over writings and changes in the final outturn report as well as provisional outturn report no reliance can be placed upon them and it cannot be established that only 20 chests were discharged. According to Mr. Siddiqui if the original figures of the final outturn report are taken into consideration then 60 tea chests were discharged under Nil mark and 28 under defective condition. Thus, there was shortage of 12 chests only. Under the provisions of Carriage of Goods by Sea Act it is the duty of the carrier to properly and carefully load, handle, stow, carry, keep and discharge the goods in the same order and condition in which they were loaded. The carrier is also required to issue B/Lading the leading marks necessary for identification of the goods as furnished by the shipper, the number of packages, quantity or weight and the apparent order and condition of the goods. These particulars mentioned under the Bill of Lading shall be prima facie evidence of the receipt of goods by the carrier as mentioned therein. The carriers are also required to discharge the cargo in the same order and condition in which he had received the cargo unless they are able to establish exemptions granted under Article 4, rule 2 of Carriage of Goods by Sea Act. It was, therefore, the duty of the defendant to have discharged the goods in pallets as received by it. The admitted position is that the pallets had broken down and the goods were discharged in chests some of which bore the specified marks and numbers and some of which were without number. The defendant has tried to justify that the packing was not sufficient and proper but it was a half-hearted plea and obviously in the face of the entries in the Bill of Lading it was not possible to establish nor any evidence was led in rebuttal. It has, therefore, to be considered whether the chests which had been discharged by the defendant constituted the cargo shipped under the relevant Bill of Lading and- were according to the same number and of the same weight.
4. Mr. Ghulam Muhammad Ibrahim the learned counsel for the plaintiff has contended that the final outturn report is the authentic document, prepared by K. P. T., on the basis of the cargo book, and as the same is duly signed by the carrier's agents the defendant cannot go behind it. Any document prepared under the statutory provision of law should have evidentiary force, but if it is not prepared as provided by law it loses its statutory authenticity and remains only an ordinary piece of document which should be taken into consideration only if it fulfils the test of ordinary rule of evidence.The procedure for discharging the cargo and preparing the tally list by Karachi Port Trust is not the same as provided by the K. P. T. Act. Presently the goods are being discharged and provisional and final outturn reports are prepared on the basis of I. C. A. Scheme. The representative of the K. P. T. Has admitted that the checking of the goods is carried out only after they have been discharged from the vessel and put in the shed. During this process the delivery is also effected. In these circumstances whether such a document should be binding upon the carriers is open to doubt but in the present case I do not wish to express any opinion on the point and leave it open to be determined in some other proper matter. However, once it is established that the goods were not discharged in pallets it is for the carriers defendant to establish that the tea chests which were discharged under Nil marks are part of the consignment in suit. Even if for argument sake the contention of the learned counsel for the defendant may be accepted there is a shortage of 12 chests. The only dispute can be in respect of 28 tea chests which are stated to have been discharged in defective condition under Nil marks and have been amended as 8.
5. According to the outturn report, as stated in Exh. 5/7, out of manifested quantity of 5 packages, the package had landed and 4 packages had short-landed. If one pallet had been discharged which may have been in defective condition then it cannot contain 28 chests. Therefore, it seems that there had been some mistakes in the entry which were corrected subsequently. The surveyor had been appointed by the defendant and only 20 tea chests in broken condition were offered for survey contents of which were running out. Even if the contention of the learned counsel for the defendant is correct that 60 tea chests were discharged under Nil mark then it was the duty of the carrier to establish that these 60 chests belonged to the plaintiff. The carrier is bound to deliver the cargo under the marks and numbers specified in the Bill of Lading unless they are able to bring their case within the exceptions. If the marks and numbers have obliterated during voyage or that the pallets have broken down then it does not mean that such cargo or the contents of broken pallets cannot be offerred by the carrier to the consignees. The carrier can offer these contents to consignee provided it is able to establish that these contents belong to the consignees. The carriers, therefore, have to establish by evidence that the goods which were discharged under Nil marks were part of the consignment which were shipped under the relevant Bill of Lading. There is nothing on record to establish that these goods belong to the plaintiff. In fact the evidence is that there were many other consignments of tea on board which had been discharged under Nil mark.
6. This is, therefore, a case where the goods of several consignees of similar nature have been mixed and it is difficult to identify and separate the cargo of various consignees. In these circumstances the carrier is duty bound to separate and identify the cargo of each consignee and deliver to them.
7. In the absence of any evidence to that effect my finding is in the affirmative.
8. Issue No, 2.-From the aforestated discussion it is established that the pallets had broken down and some chests had been discharged under Nil marks and some under proper marks. 20 chests which were under proper marks were examined by the surveyor of the defendant and he found shortage of 285 Kgs. Mr. Siddiqui the learned counsel for the defendant has contended that the goods after discharge were put in the shed which were mishandled by employees of K. P. T. And were removed from one place to another and as the plaintiff did not accept the delivery with despatch or within reasonable time this survey report does not represent the correct position and the defendant is not liable to pay for it. The defendant called at Karachi on 12-7-79 and discharged the cargo. The plaintiff made inquiries in October, 1979 when he was informed by defendant's local agents that 2 cases and 78 bags under Nil marks were lying for delivery. The plaintiff by letter dated 24-10-79 requested for survey which seems to have been immediately granted as it was held on 25-10-79.
9. After goods were discharged on 12-7-79 there seems to be complete inaction on the part of the plaintiff whose clearing agents made inquiries for the first time on 18-10-79. A carrier is bound to discharge the cargo and the consignees is bound to remove the goods from the ship's side depending upon the terms of contract and port bye-laws. The consignees should take delivery of goods as fast as the ship can deliver or in a manner permissible by the port bye-laws. In the present case the plaintiff should have taken delivery the moment goods were discharged in the custody of the Karachi Port Trust. The plaintiff applied for delivery order on 30-9-1979. The goods remained in the custody of K. P. T. And were subjected to shifting handling from time to time.
10. Improper and unreasonable delay of the consignee in taking delivery will not discharge the carriers from their obligation to deliver the cargo to the consignee but it may have the effect on the degree of responsibility of the carriers for the safety of the cargo. The cargo was lying in the custody of K. P.
11. T. Over which the defendants did not have any control. As the plaintiff failed to take delivery, the cargo had to be shifted from one place to another and was subjected to various types of handling.
12. This was bound to cause further loss and deterioration. The survey was carried out about 3 months after the discharge. It is well-settled that the survey report reflects the condition of goods found at the time of survey. In view of the facts that the goods had suffered handling which would have caused loss and deterioration it is difficult to establish that at the time of discharge there was a shortage of 285 Kgs.
13. ' Mr. Siddiqui the learned counsel for the defendant relying on Article 3, rule 6 of carriage of Goods by Sea Act has contended that as no notice of loss or damage and the general nature of such loss or damage was given in writing to the defendant or its agent at the port of discharge before or at the time of removal of goods it is a prima facie evidence of delivery by the defendant of the goods as described in the Bill of Lading. The learned counsel while advancing this argument contended that as the goods were taken by K. P. T. And removed from the shed it will amount to removal of the goods into the custody of the person entitled to delivery under the contract of carriage. The argument though attractive suffered from infirmities. Under Article 3, paragraph 6 the removal of goods shall be pirma facie evidence of delivery by the carrier of the goods as described in the Bill of Lading provided the goods are taken into the custody by the person entitled to delivery under the contract of carriage. K. P. T. Is not a person under the contract of carriage entitled to delivery of the goods. Mr. Siddiqui has contended that as K. P. T. Is an agent of the consignee they are entitled to delivery of the goods. K. P. T. May in certain circumstances be treated as agent of the consignees but certainly it is only a statutory agent for limited C and restricted purposes. This contention has no force. My finding is that 20 chests were discharged in damaged condition but the shortage of 285 Kgs. At the time of discharge has not been proved.
14. Issue No, 3. -The plaintiff is a proprietary firm. No evidence has been produced to establish that it is a partnership firm. My finding on this issue is therefore in the negative.
15. Issue No, 5.-The plaintiff has proved non-delivery of 80 chests. In order to prove the value of goods the plaintiff has produced the invoice and bank's cost memo. Showing the value of the goods imported by him. The plaintiff has also examined a representative of the bank who has stated that the plaintiff had opened a letter of credit for US $ 8,800 and it has been negotiated. The shipping documents which include invoice and Bill of Lading were surrendered by the beneficiary and were produced by this witness. He his further stated that plaintiff paid Rs, 91,694 to the bank and the Bill of Lading was endorsed in his favour. On the basis of this valuation the plaintiff had lodged claim of Rs, 70,025.47 for shortlanding of 80 chests. The plaintiff has proved the loss of Rs, 70,025.47 suffered by him which the defendant is liable to compensate. The suit is, therefore, decreed for Rs, 70,025.47 with proportionate cost. As the defendant had furnished bank guarantee on 11-8-80, the plaintiff is not entitled to interest from the date of suit till recovery.