1. ' The plaintiffs had placed an order for the import of one complete steam power generating plant.
2. The suppliers made partial shipment of 3 packages under bill of lading on board s s. Flying Foam from New York. These three packages were described one generator complete and two boxes containing parts and accessories. The vessel called at Karachi on 14-1-1970 and short landed two boxes containing parts and accessories. A short-landing certificate dated 24-6-70 was issued by the K. P. T. The plaintiffs through their clearing agent claimed U. S. $ 16-116 equivalent to Rs, 77,309, being the value of the short-landed cases. However, during the pendency of the suit Pakistan currency was devalued and the plaintiffs amended their plaint and claimed Rs, 1,58,821.57. In the amended plaint the plaintiff have alleged that they have incurred U. S. $ 16,116 for reimporting the short-landed parts and accessories of their generating plant. In these circumstances the plaintiffs have claimed the said amount from the defendant No, I as carriers, the defendant No, 2 as their local agents and defendant No, 3 as the insurers who had issued the marine policy. In their written statement the defendants Nos. 1 and 2 have stated that the goods were carried by vessel of defendant No, 1 on terms and conditions contained in Bill of Lading No, 187 dated 12-12-1969. They have not admitted the particulars and contents of the packages. While admitting that two cases were not discharged when the vessel called at Karachi, it has been pleaded that two boxes were traced as having over-landed at the port of Madras and the defendants were making arrangements for transhipments of those two boxes. The plaintiff's clearing agent had filed claim for Rs, 31,540,50, which was subsequently revised to Rs, 77,309. The defendants have pleaded that the plaintiffs are not entitled to claim Rs, 1,58,821.57. They have further pleaded that in terms of clause 17 of the Bill of Lading their maximum liability is limited to U. S. $ 500, per package. It has been further pleaded that the defendants had made all arrangements for bringing the two boxes to Karachi but due to long shoremen's strike in East Coast it was delayed. By a supplementary written statement the defendants Nos. 1 and 2 have averred that these two boxes were brought to Karachi but the plaintiffs refused to accept them.
3. ' The defendant No, 3 has admitted the issuance of the policy and taken the plea that the suit is time-barred against the carriage due to negligence of the plaintiff. It has been pleaded that the defendant No, 1 is primarily liable and the liability of the insurers is secondary in nature. It has been further pleaded that the goods were never shipped from the port of shipment and therefore the insurers are not liable to pay. On the basis of these pleadings issues were framed and with the consent of the parties Issue No, 2 was amended. Following are the issues:
(1) Whether the defendant No, 2 undertook to discharge claims for damage and/or short-delivery by the vessel Flying Foam and/or the defendant No, 1?
(2) Whether the defendant No, 1 can deny the particulars mentioned in the B/Lading. If so to what extent and in regard to which particulars.
(3) Whether the two cases were landed at Madras and/or over carried? If so, its effect.
(4) Whether the defendants Nos. 1 and 2 can deliver the short landed cases now and is the plaintiff bound to accept the same. If so unconditionally or subject to conditions ?
(5) Whether the defendants jointly and severally are liable to pay the plaintiff's claim in regard to the short delivery? If so to what sum?
(6) What should the decree be?
4. Issue No, 1. -The defendants No, 2 are the local agents of the defendants No, 1 who are foreign carriers. The main ground for holding the defendant No, 2 personally liable for the claim is that they have given a declaration tinder section 55 (d) & (e) of the Customs Act, 1969, to discharge all liabilities of the vessel. Section 55 is equivalent to section 64-D of the Customs Act, 1878. In this regard its relevant portion is reproduced as follows:- "Section 55.-(1) Power to refuse port-clearance to vessels or permission for departure to other conveyance.-The appropriate Officer may refuse to give port-clearance to vessel or permission for departure to any other conveyance until-
(a) . . ,
(b) . . .
(c) . . . .
(d) the agent, if any, delivers to the appropriate Officer declaration in writing to the effect that he will be liable for any penalty imposed under clause 24 of the Table under subsection (1) of section 156 and furnishes security for the discharge of the same.
(e) the agent, if any, delivers to the appropriate Officer a declaration in writing to the effect that such agent is answerable for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods.
(2) An agent delivering a declaration under clause (d) of subsection (i) shall be liable to all penalties which might be imposed on the person in charge of such conveyance under clause 24 of the Table under subsection (1) of section 156, and an agent delivering a declaration under clause
(e) of subsection (1) shall be bound to discharge all claims referred to in such declaration."
5. ' To obtain port clearance besides other formalities the ship agent has to file a declaration in writing undertaking to pay any penalty imposed under clause 24 of the Table under subsection (1) of section 156, and also furnishes security to discharge this liability. The agent is also required to give a further declaration in writing holding himself answerable for the discharge of all claims for damage or short delivery which may be proved by the owner of the import cargo. The effect of these declarations has been specified in section 55(2). The agent will be liable to pay all the penalties specified above and shall be also liable to satisfy the claims relating to short-delivery and damage to import cargo as specified in the declaration. Such satisfaction of the claim is however subject to condition specified in section 55(i)(e) that agent's liability will arise only after the damage or short-delivery is established. The agent's liability is therefore not independent of his principal. It is co-extensive with the carrier and unless the claim is admitted, before holding the agent liable the claimant should establish his claim for damage or short delivery against the carrier. In this regard reference can be made to Barjorjee Cowasjee v. Habib Insurance Co. (1), in which section 64(d) of Sea Custom Act, 1878, was under consideration and it was held that a ship agent is not personally liable on his declaration given under section 64(d) of the Sea Customs Act before the claim is established against the carrier. Further reference can be made to Haji Shakoor Ghani v. Hindle & Co. Ltd. (2), Haji Shakoor Ghani Firm v. Firm of Volkart Bros. And another (3), AIR 1937 Sind 11 (judgment in appeal); British India Steam Navigation Co. Ltd. And another v. M. A.
6. Wadud & Co. And another (4).
(1) PLD 1975 Kar. 194 (2) AIR 1932 Born. 330
(3) AIR 1931 Sind 124 (4) PLD 1968 Dacca 860 ' The provisions of section 55(1) (d) and (e) fix liability on the ship agent and therefore they should be strictly construed. It does not provide for separate declaration to be filed by the agent therefore the agent can incorporate both the undertakings specified in section 550 (d) and (e) in one declaration. Further the agent can filed one general and continuing declaration in respect of the vessels of his principals. Reference can be made to Messrs Pakistan Industrial Chains Co. v.
7. Amercian Oriental Lines New York and others (1).
8. ' The declaration filed before the Custom authorities has not been produced. However the plaintiffs have placed reliance on the averments made in para. 2 of the plaint where it is alleged that the defendants No, 2 have undertaken to pay all the liabilities and claims arising against the vessel.
9. This wide and general allegation has been denied. The defendants No, 2 admitted to have filed a declaration but denied their liability. The appropriate and proper course for the plaintiff was to have called the custom authorities to produce the declaration. However as defendants No, 2 have admitted that declaration has been filed, copy of which has not been produced by them it can be presumed that it would be in terms provided by law. The defendants No, 2 having filed the declaration will be liable to plaintiff's claim for short landing if it is established against the carriers, the defendant No, I.
10. Issue No, 2. -The plaintiff's contention is that the Bill of lading was issued by the defendant No, 1 and therefore all the particulars mentioned in it are binding upon the defendants Nos. 1 and 2 and they cannot deny its contents. In order to determine this issue for the present reference will be made to the provisions of Carriage of Goods by Sea Act, 1925, which is identical to U. S. Carriage of Goods By Sea Act. Article II fixes responsibility and liability of the carrier. Rule 1 of Art. III provides that the carrier before and at the beginning of the voyage shall be bound to exercise due delligence to make the ship sea-worthy, properly manned, equipped and fit for carriage of goods. It is the duty of the carrier to properly and carefully load, handle, stow, carry, keep and discharge the goods. The carriage is further regulated by providing that after receiving the goods the carrier or master or its agent shall on demand of the shipper issue Bill of Lading stating (a) the leading marks as furnished in writing by the shipper before loading and/or legibly marked on the case, (b) the number of packages or pieces or the quantity or weight as furnished in writing by the shipper and (c) the apparent order and condition of the goods. The option has been given to the carrier that if it has reasonable ground for suspecting the accuracy of the marks, particulars and conditions of the goods as declared by the shipper or which it has had no reasonable means of checking then it is not bound to state and show these particulars in the Bill of Lading. This option is very important as in the subsequent paragraph rules it has been provided that the particulars and description mentioned in rule 3(a)(b)(c) of Article III (specified above) stated in the Bill of Lading shall be prima facie evidence of the receipt by the carrier of the goods as mentioned in it. This provision, therefore imposes certain liabilities on the carriers issuing Bill of Lading which would be a prima facie evidence of the particulars relating to marks number of packages, weight and apparent condition of goods if mentioned in the bill of lading. The bill of lading will be prima facie evidence of the facts stated therein in compliance with Article HI rule 3(a)(b) and (c). Reference can be made to Deutsche Dampschiti Faharts-Gesellshaft v. Central Insurance Co. Ltd. (2). It has
(I) P D 1969 Ku. 89 (2) r L D 1975 Ka. 819 therefore to be considered whether the plaintiff's contention that all the particulars mentioned in the bill of lading are binding on the defendants Nos. 1 and 2 is tenable. There is no dispute about the marks and number of the goods. The parties have also not disputed that there were 3 packages of which one was described as "piece: generator complete" the other two packages were described as "Boxes" parts and accessories for generators". Besides this the following entries also appear in the bill of lading: "Import Permit No, I. P.
0. 95629 dated April 30, 1968, "Expire May 31st 1970."- ' DLF Loan No, 194 L/C No, DLF/LC-803 "Partial Shipment of 8 one Complete Steam Power Generation Plant Cap Blk of Generating & MW with Equipment as per it am 1 to 15 of the Annexure to agreement dated May 10, 1968. And spare parts and miscellaneous Electrical Supplies as per Item No, 16 of the annexure."
11. ' Mr. Salim Memon the learned counsel for the plaintiff has contended that as in the bill of lading the numbers of import permit and the letter of credit have been mentioned the same stand incorporated by reference and therefore the price of the goods shall be deemed to have been declared and mentioned in the bill of lading. This argument will be more relevant while considering the mixumum liability of the carriers.
12. ' It is very common practice to incorporate into the bills of lading some or all the terms of charter- party. In such cases inquiry has to be made which of the terms have been incorporates. According to Scrutton on "Charter-parties" 18th edition. "(1) The incorporating clause must be construed in order to see whether it is wide enough to bring about a prima facie incorporation of the relevant terms". General words of incorporation will be effective in respect of terms and conditions which are germane to the shipment, carriage and discharge.
13. "(2) If the incorporating clause is wide enough to effect prima facie incorporation, the term which is sought to be incorporated must be examined to see whether it makes sense in the context of the bill of lading" and (3) where there- is incorporation which is prima facie effective, then unless it is consistent with the terms of bill of lading it will be rejected." Putting the entry made in the bill lading to the aforestated test it is clear that there is no incorporating clause in the bill of lading. Only the numbers of import licence and letter of credit, have been mentioned. It also describes the goods to be partial shipment under the agreement. Such entries would hardly mean that the terms of import permit, letter of credit and purchase agreement have been incorporated in the bill of lading.
14. Therefore the plaintiff's contention that by reference to these entries in the bill of lading value of the goods shall be deemed to have been declared and mentioned in the bill of lading is misconcieved.
15. ' Under law as stated above, the particulars required under Article III rule 3 (a), (b) and (c) mentioned in the bill of lading are prima facie evidence of receipt by the carriers of the goods described therein. Under rule 4 a presumption is, created about such descriptions made in the bill and lading and therefore unless rebutted such particulars are binding on the carriers. The particulars required under Article III to be mentioned in the Bill of Lading do not include the value of the goods. Therefore, even if the value of goods is mentioned specifically or by reference no presumption shall be attached to such entry as provided by Article III, rule 4. Where nature an value of goods have been declared by the shipper before shipment and inserted in the bill of lading then under Art. IV, rule 5 it shall be prima facie evidence but shall not be binding or conclusive on the carrier or that any presumption is attached to such an entry. It may further be mentioned that the Act provides that the particulars mentioned in the Bill of Lading in compliance with Article III, rule 3
(a) (b) and (c) are prima facie evidence against the Carriers. This clearly means that it is rebuttable but the burden of proof will be upon the carrier to show that such particulars mentioned therein are not correct. However as held in Tar Muhammad Jamoo & Co. v. Maldivian National Corporation (Ceylone) Ltd. (1), as against an endorsee of a bill of lading the carrier should not be allowed to repudiate the statements shown on the bill of lading issued by him. Because the equities between the endorser of bill of lading and carrier and between consignee and carrier are different. My finding is that the particulars relating to marks, number of packages and apparent nature and condition of the goods as stated in the Bill of Lading are binding upon the defendants Nos. 1 and 2 but no presumption can be attached to the particulars relating to import permit and letter of credit mentioned in the bill of lading nor can it amount to a declaration of value by the shipper.
16. Issue No, 3.-The admitted position is that two cases containing parts and accessories did not land at Karachi. The defendants Nos. 1 and 2 however have stated that these two boxes were discharged at Madras due to oversight. Immediately when the plaintiff notified of the short landing the defendants Nos. 1 and 2 made enquiries and traced the boxes at Madras. They made arrangement for carrying these boxes to Karachi and brought them to Karachi in May, 1972. So far the question of over carriage of goods at Madras and bringing them to Karachi is concerned it has been proved by the evidence of the defendants. The effect of this issue will be considered while dealing with Issues Nos. 4 and 5.
17. Issue No, 4.-The vessel arrived at Karachi on 14-1-1970 but as two boxes had short landed the plaintiffs through their clearing agents made enquiries and by their letter dated 14.5-70 filed a claim for Rs, 31,540. The defendant No, 2 as local agents replied that enquiries for the short landed packages were in progress. However, they cautioned that this does not amount to an admission of liability. The defendants also intimated that their maximum liability was U. S. $ 500 per package and while enquiring about the value of each box asked the plaintiffs to submit documents proving invoice value of the goods. While these negotiations were going on the defendants No, 1 by their letter dated 13-1-71 informed the plaintiffs that they were able to trace the boxes at Madras. The plaintiffs by their letter dated 21-4-71 asked the defendants Nos. 1 and 2 to locate and arrange shipment of boxes. Again on 15-5-71 the defendants No, I informed the plaintiffs that only one package had been located. However on 28-6-71 the plaintiffs were informed that both boxes had been traced out. By letters dated 25-8-71 and 14-9-71 the defendants No, 1 confirmed that the boxes had been transhipped. In this context it may be mentioned that by their letter dated 13-5-71 the plaintiffs bad expressed their willingness to accept the goods provided they were not damaged. The defendant No, 1 by their letter dated 14-9-71 had confirmed the transshipment and informed that the vessel carrying the boxes was to call at Karachi on 26-10-71. The goods did not arrive and the boxes were brought to Karachi in May, 1972, by this time the suit had been filed and the plaintiffs, therefore, refused to accept the delivery.
(1) PLD 1969 Kar. 495 ' Mr. Kazmi the learned counsel for the defendants has contended that as the goods had arrived, it was the duty of the plaintiffs to have accepted the delivery and adjusted their claim accordingly.
18. The contention of the learned counsel for the defendants Nos. 1 and 2 in effect means that whenever the carriers deliver the cargo the consignees are bound to accept the same for the simple reason that no time for delivery was fixed in the contract of afreightment. The contract of afreightment is witnessed by the bill of lading. If the contract or the bill of lading does not provide for a fixed date of delivery of goods then this does not mean that it gives the carrier an unfettered right to deliver the cargo at its own discretion and according to its own convenience. In the absence of any specific condition stipulaitng date of discharge or delivery the implied condition will be that it shall be discharged or delivered within a reasonable time. From the fact it is clear that the boxes were discharged at Madras and even after they were located, they were not brought to Karachi within a reasonable time. Up to 13-5-71 the plaintiffs were agreeable to accept the cargo but the defendants were unable to carry them from Madras to Karachi which ultimately arrived in May, 1972. The explanation for delayed arrival offered by the defendants Nos. 1 and 2 in their evidence is that the goods were carried to U. S. A. And due to shoremen's strike at East Coast it could not be brought till May, 1972. There is no satisfactory evidence how and for what reason the goods were discharged at Madras. The carriers could have produced the log books and stowage plan to show that they had properly vowed and carried the goods. For discharge of boxes at Madris the defendants No, 1 have not sought protection of any exception. Their case does not fall within any of the exceptions provided under Article IV, rule 2. The carriers under the law are duty bound not only to exercise due diligence to make the ship seaworthy before the voyage but also to properly and carefully load, handle, stow, carry, keep, care for and discharge the goods at destination. The defendants No, 1 should have explained in what manner they had performed their statutory duty in carrying and discharging the goods. In the absence of any satisfactory explanation the only conclusion that can be drawn is that the defendants No, 1 were negligent in carrying and discharging the goods. Furthermore after the boxes were located no proper steps were taken to tranship them from Madras to Karachi. The defendants No, 1 for their own convenience loaded it on their own vessel which first sailed to U. S. A. Where according to them it was delayed due to shorermen's strike. The defendants No, I have not produced the log book or any other document from which these facts could be ascertained. The explanation to justify the delay in bringing the boxes in May, 1972, cannot be accepted. The plaintiffs on the other hand have stated that these goods were accessories for installing the generator and machinery and it was not possible for them to have waited too long. After waiting for sufficiently long time the plaintiffs imported these goods and therefore they were not interested when it was offered to them in May, 1972. The stand taken by the plaintiffs is justified as the defendants failed to bring the goods within a reasonable time and therefore they cannot press the consignees to take delivery of the goods whose utility by lapse of time has extinguished. In these circumstances my finding is that the plaintiffs were not bound to accept the delivery of two boxes when it was offered by the defendants Nos. 1 and 2.
19. Issue No, 6. -Having determined that the defendants have defaulted in delivery of the cargo the question remains whether the plaintiffs are entitled to recover damages from the defendants. The fundamental principle is that compensation ought to be made to the party who has been wronged by the breach for the losses he has sustained in consequence of it. Generally such a party is entitled to be placed in the same position pecuniarily as if the contract had been performed.
20. However, this general rule is subject to certain limitations that the loss suffered should be as a direct consequence of the breach and should not be remote. Mr. Salim Memon the learned counsel for the plaintiffs had contended that the plaintiffs are entitled to the pecuniary loss suffered by them due to breach. In this regard the learned counsel has referred to PLD 1964. Kar. 250, PLD 1965 Kar. 205, 1973 SCM R 555 and PLD 1977 Kar.
377. There can be no cavil with the proposition enunciated in these authorities. But in the present case the damage had to be assessed and liability has to be determined on the facts and circumstances as well as the terms of contract and the provisions of law governing the same. The plaintiffs had first claimed damages of Rs, 31,540 thereafter they increased it to U S $ 15,116 and then filed a suit and Rs, 77,309. After the devaluation of Pakistan currency the plaintiffs revalued their claim on the basis of the devalued rate of exchange and enhence it to Rs, 1,58,821.57. The plaintiffs have based their claim initially on the fact that they have imported those goods to replace the lost consignment valued at $ 16,116. In respect of which two bills of entry have been filed in which the import value of the goods has been mentioned as Rs, 49,100 and Rs, 37,469. These bills of entry relate to bills of lading issued on 11/9/1970 and 5/11/1970. They give description of goods as spare parts and it cannot be said that the goods mentioned therein were the same and were meant for replacement of the goods that were lost. No witness has been examined by the plaintiffs to establish these facts. Therefore these two documents cannot prove the plaintiff's claim. The only document on which the plaintiffs have placed reliance is the letter of Worthington on Machinery System International addressed to the defendants No,
1. It is significant to note that when the defendants No, 1 & 2 asked the plaintiffs to submit proper invoice and packing list of the goods to ascertain the correct nature and value of the two boxes they submitted certain document which did not satisfactiorily explain and prove their claim. The defendants No, 1, therefore made enquiries from the shippers who addressed this letter on July 23, 1970 which had been filed by the defendants. The plaintiffs during arguments have stated that they admit this documents. By this letter the suppliers stated that the invoice relating to this consignment did not itemise the value of each case of shipment as other accessories and parts contained within cases No, 2 & 3 were integral components of the generator and were included in the total price of the unit. It further stated as follows "The items contained in these two short landed cases have been re-ordered by Crescent to replace the original equipment not received. Our Reference number on this replacement order is C E-2045, and covers exactly the equipment described on the attached list. The value for this equipment, including both shortlanded cases, is $ 14,325 with freight charges estimated at $ 8,675 for a total approximate C & F value of $ 23,000.
21. ' We are unable to quote values for each box, since these items were sold collectively, as explained above, and our supplier has not afforded us an itemized pricing schedule. We only have data relative to the costs of the total replacement consignment."
22. ' This is the only document on the basis of which the plaintiffs contend that the value of the goods has been proved. Mr. Kazmi the learned counsel for the defendants Nos. I and 2 has contended that the plaintiffs have failed to prove the value of the goods and therefore there is no evidence on the basis of which damage can be assessed. The learned counsel for the plaintiffs has referred to the endorsement in the bill of lading regarding import permit and letter of credit but in fact no value has been declared in the bill of lading nor the letter of credit has been produced to show the value of the missing goods. The plaintiffs have not even entered the witness-box nor examined their bankers to show that the letter of credit was opened and was paid. From the evidence on record the value of the two boxes cannot be ascertained. As the plaintiffs have not proved the value of the goods originally paid or their market value at the port of destination on the date of breach they have failed to establish their claim for damages. It has therefore to be examined whether in these circumstances they are entitled to claim the suit amount. As a general rule the plaintiff who has failed to prove his claim is not entited to any damages. But in the present case the situation seems to be some what different. The plaintiffs made their claim and the defendants I & 2 by their letter dated August, 13, 1970 admitted their liability to the extent of their maximum liability at the rate of US $ 500 per package.
23. ' The question then arises whether the defendants are entitled to restrict their liability to the maximum fixed under the law. The learned counsel for the defendant has claimed that if at all the suit has to be decreed it should be only to the extent of the maximum liability. The goods were carried from New York where the bill of lading was issued. According to clause I of the bill of lading it shall have effect subject to the provisions of Carriage of Goods by Sea Act of U. S. A. 1936 which shall be deemed to have been incorporated. Clause 17 of the bill of lading provides that the value of the goods shall be deemed to be $ 500 per package and the liability of the carrier shall be determined on the basis of a value of $ 500 per package unless the nature of goods and valuation higher than $ 500 per package shall have been declared by shipper in writing and inserted in this bill of lading and extra freight paid. The Carriage of goods by Sea Act, 1936 fixes the maximum liability of carriers at U S $ 500 per package or per customary freight unit or the equivalent of that sum in other currency. It is well-settled that a foreign law has to be proved as a fact and none of the parties have proved this law except by referring from the text-books. In these circumstances as Cl. 17, of the bill of lading has not been challenged to be void and considering th4t the defendant No, 1 have admitted their liability to the extent of US $ 1,000, I determine the liability of the defendants Nos. 1 and 2 jointly and severally at US $ 1,000 at the rate of exchange of US $ 20.8633=Rs,
100. The defendants Nos. 1 & 2 are therefore liable to pay Rs, 4,792.
24. ' Mr. Salim Memon the learned counsel for the plaintiff contended that as the defendants No, 1 were negligent in performance of their contractual and statutory duty they are not entitled to limit their liability.
25. ' In the facts and circumstances of the case this contention is of no material bearing but in due deference to the argument of the learned counsel I will briefly deal with it. The learned counsel has made reference to Art. IV, rule 3 which fixes the maximum liability of the carriers and lays down the conditions under which the carriers are entitled to claim its benefits. Similar provisions with a difference in the amount have been made in section 4, subsection (5) of United States Carriage of Goods by Sea Act, 1936.
26. ' This provision limits the liability of the Carriers. However, the carrier loses this protection if the shipper declares the nature and value of the goods before shipment and it is inserted in the bill of lading. In these circumstances the carriers may be liable to pay damages according to the declared value provided it is not disproved. It is pertinent to note that under Art. IV, r. 6 no other condition has been placed which may deprive the carrier of this protection. It gives wide protection to the carriers and the ship will not be liable in any event to pay more than the maximum liability unless the nature and value of the goods have been declared before shipment and inserted in the bill of lading or the carriers agree to pay a sum higher than the amount fixed by this provision. The words "in any event suggest the wide protection afforded to the carriers and the ship in all events and circumstances so. If the contention of the learned counsel for the plaintiffs is accepted then it will render these provisions meaningless. In this regard references can be made to Falcon Bridge Nickle Lines Ltd. v. Chimo Ltd. (1). In this case the goods were lost during carriage due to the negligence of the carriers. In these circumstances the effect of non-declaration of value in relation to the carriers right to limit his liability was discussed at page 302 in the following manner :- ' Furthermore, to allow the appellant's omission to make a declaration of value to prevail would not be unlike allowing the shipper to invoke his own omission to penalise the carrier by substituting $ 70,000 instead of $ 500 as the latter's limit of liability. Perhaps this word "omission" is not the appopriate term because there is no evidence that the failure of the shipper or its agent to cause a valuation to be inserted in the bill of lading was due to inadvertency. Indeed, if the appellant anticipated that the meaning it now seeks to attribute to the word "unit" would prevail, doubtless it would have been careful to refrain from making any declaration of value.
27. ' It is well recognized that in fixing freight rate, whether on land or sea, there are more than a dozen factors which are taken into consideration ; see Freight Traffic Red Book, 1955, published in the United States. In my opinion, the most important of these are the value, bulk, weight and risk of handling the article. I place value first since it is an ever present factor which accounts for the rate differential applicable to the carriage of two article of the same size and weight but where the value of one greatly exceeds the value of the other. But this is not the only reason why great importance is attached by the carrier to the shipper's valuation of the object to be shipped. True, such declared valuation, in so far as the carrier is concerned, is only prima facie evidence of the actual value of the article shipped, and is not binding on him, but as I read the Act it is not open to the shipper to claim any damages in excess of the amount of his declared valuation.
28. It therefore establishes that where nature and value of goods has not been declared and entered in the bill of lading the carriers can seek protection under Art. IV, rule 5.
29. ' The plaintiffs have contended that they are entitled to claim damages at the devalue rate of exchange. Mr. Rauf the learned counsel for defendants No, 3 has referred to PLD 1965 Kar. 506, PLD 1956 Kar. 47 and 1968 SCM R 495. In view of these authorities it is well-settled that the plaintiff is entitled to claim damages at the rate of exchange prevalent on the date when the breach was committed. In the present case the date of breach
(1) (1969) 2 Lloyd's Law Rep. 227 is 14/1/70 when the goods were discharged and were found to have been short landed. In that event the rate of exchange as stated in the defendant's letter quoted above as well as in the letter of the plaintiff's clearing agent dated 20/6/70 will prevail. The plaintiffs' claim against defendant No, 3 cannot be sustained because the insurance policy has not been filed and it cannot be ascertained on what basis and which risks were assumed by defendant No,
3. Even the letter of the defendant No, 3 in which they are alleged to have admitted the plaintiff's claim has not been filed.
30. In the result the suit against defendants Nos. 1 and 2 is decreed for Rs, 4,792 with proportionate costs. The suit against defendant No, 3 is dismissed with no order as to costs.