' The plaintiffs have filed this suit for recovery of Rs, 54,521. Briefly the facts are that in the year 1977 Zeal Pak Cement Factory Limited imported one case of electrical spares for their factory from West Germany. The goods were shipped on board m.v. Taxila awned by the defendants. The vessel arrived at Karachi on 25-6-1977 and discharged the Karachi bound cargo but this consignment was short- landed. The consignees made quarries and lodged their claim and the defendants offered to pay Rs, 1,704 which was not accepted by the consignees. The plaintiffs being the insurers paid the consignee's claim and having subrogated to the rights of the consignees filed this suit for recovery of the claim. The plaintiffs have pleaded that in the bill of lading numbers of letter of credit and import licence were mentioned which amounted to describing and inserting in the bill of lading the value of the goods and therefore the defendants are liable to compensate to the plaintiffs for the entire value of the consignment.
2. The defendants filed their written statement in which the short landing was not denied but it was denied that in the bill of lading the value of the goods had been mentioned and that they are liable to compensate the plaintiffs for the entire value of the consignment. The defendants pleaded that the maximum limit of the defendant's liability is limited and the plaintiffs are not entitled to claim more than the said amount. The defendants also pleaded that the suit is barred by time. With the consent of the parties the Court framed the following issues :
(1) Whether one case was short landed?
(2) What damages if any the plaintiffs are entitled to?
(3) Relief?
3. The plaintiffs examined three witnesses but the defendants have not examined any witness.
During the arguments Mr. Iqbal Siddiqui the learned counsel for the defendants has raised the issue that the suit is barred by time. Mr. Rauf the learned counsel for plaintiffs contended that as this plea was raised and no issue was framed the defendants cannot agitate it at this stage. It is well settled that even if the plea of limitation has not' been raised by the defendants the court can consider it and dismiss the suit as provided by section 3 of the Limitation Act. The law does not require that issue of limitation will be considered only if it has been pleaded by the defendants. Further by agreement of parties the plea of limitation can neither be waived nor dropped nor can by agreement the period of limitation prescribed by the Limitation Act be curtailed or extended except as provided by the Act itself. Therefore although issue on point of limitation had not been framed. I have heard both the parties on this issue. Particularly so as none of the parties have contended that any further evidence will be required for determining this issue.
4. Mr. Rauf the learned counsel for the plaintiffs has contended that this is a case of short-landing of goods and therefore the cause of action to the plaintiffs will arise only when the defendants refused to deliver the goods and finally disclaimed their liability. A claim of short-landing against a carrier is governed by Article 31 of the Limitation Act which provides as follows :- ' Against a carrier for One year. When the goods compensation for ought to be de- non-delivery of, or livered. Delay in delivering goods.
At this stage it is proper to mention that Article 30 provides for period of limitation in respect of claims against a carrier for compensation for losing or injuring the goods. It therefore does not cover the claims of non-delivery which is governed by Article 31. Under Article 31 the period of limitation of one year starts running from the date "when the goods ought to be delivered." It has therefore to be determined when the goods ought to have been delivered by the carrier. Normally the goods are to be delivered by the vessels when it calls at the port of discharge but situations may arise when this date may not be treated as the date from which the period of limitation starts running. Where time of delivery is specified in the contract of carriage, the goods ought to be delivered on that specified time. But where no such time has been specified the delivery should be effected within a reasonable time. The determination of reasonable time shall depend upon the facts and circumstances of each case. Difficulty has arisen in determining the date of delivery where time of delivery has not been specified and the parties have entered into correspondence and negotiations and the carriers have asked for time for making inquiries or searching the goods. In such cases the time shall be computed from the date when the carriers inform that the goods have been lost or that they are unable to deliver the goods. This is so because the carriers by such correspondence extend the time for delivery at a future date. Reference can be made to Gulzar Ahmad v. Sind Punjab Company, Abdul Jalil v. Muhammad! Steamship Company, and the case of Messrs United Electric Refrigeration Co..
5. In support of his contention that the time shall start running from the date when the defendants repudiate their liability the learned counsel for plaintiffs has referred to Firm Muhammad Sadiq etc. v. Federation of Pakistan, where relying on Raigarh Jutes Mills v. Commissioners, Calcutta Port, it was observed that the time, under Art. 31 of the Limitation Act, "runs from the definite refusal or declaration of inability to deliver the goods made by the defendant." En this case on 7-3-1949 three bales of old coats were dispatched by railway under three different railway receipts from Karachi to Wazirabad. Two receipts were endorsed in the name of partner partner and the third receipt in the name of the other partner. As the goods were lost in transit the plaintiff entered into correspondence with the railway and ultimately on 18-12-1949 the railway authorities informed the plaintiff that the goods had been lost. The plaintiff firm through its partner sent a notice under section 80, C. P. C. On 5-12-1949. The firm ultimately filed suit against Federation of Pakistan which was resisted on the ground that notice under section 80, C. P. C. Was not valid and that the plaintiffs had no locus standi1 2 3 4 5 to sue. The trial Court decreed the suit which was maintained in the first appeal. In the second appeal a learned Single Judge of the High Court took the view that notice under section 80 was invalid and therefore the plaintiff's locus standi to sue and the suit was dismissed. The firm filed a Letters Patent Appeal where only these two questions were under consideration. The Bench observed that at trial the objection as to plaintiff's locus standi involved merely the question whether the plaintiff firm had acquired interest in the property which was dispatched from Karachi by paying the necessary consideration or not. With regard to the last point it seems that in the second appeal it was held that as the two railway receipts were endorsed in the name of the partners of the firm the suit by the partners was not competent. While dealing with this aspect of the case it was observed as follows :- "About the second point which the learned Single Judge has taken against the plaintiff-appellant, it has been contended before us that had the objection been taken in the trial Court in the written statement which was filed on the 2nd of May, 1950, the plaintiff could have either amended the plaint so as to make Muhammad Sadiq alone the plaintiff in respect of the two receipts which bore an endorsement in his own favour or, in the alternative, what was still better, the plaintiff firm could have issued a fresh notice either in the firm's name or two separate notices in the names of its two partners, under section 80, Civil P. C., and then lodged a suit or suits within time. The cause of action, according to Mr. Sirajud-Din Abmad, arose in this case on the 18th of June, 1949 when finally the railway authorities intimated by letter to the plaintiff that the goods had been lost. The argument has considerable force behind it. As has been observed above, the objection was not taken in the first two Courts at all in this form nor was it raised in the grounds of appeal here. For the first time it seems to have been agitated at the arguments stage, before the learned Single Judge. The time, under Article 31 of the Limitation Act, runs from the definite refusal or declaration of inability to deliver the goods made by the defendant. Reference, inter alia, may be made to Raigarh Jute Mills v.
Commissioners, Calcutta Port. The cause of action in such cases arise when the owner of goods is made aware that there will be no further delivery. It is thus apparent that if this objection had been taken in time, the plaintiffs would have been in a position, to rectify the mistake, to send fresh legal notice and to lodge their suit or suits which would have been still in time."
6. It thus seems that the question of limitation was not under consideration and the Bench had entirely relied upon Raigarh Jute Mill case. It is therefore necessary to consider the facts and observations of this case. On 2nd February, 1944 the plaintiff had delivered a large quantity of jute to the defendant which was received by Bengal Assam Railway on their behalf for carriage and delivery at Raigarh. The goods were loaded in 4 covered wagons. Three wagons arrived but fourth wagon never arrived and goods were never delivered. On 28th March, the plaintiff wrote to Bengal Assam Railway complaining about non delivery of one wagon and also stated that they have learnt that it had caught fire. On 14th April a copy of this letter was sent to the defendant railway who replied on 20th April and stated that the matter was receiving attention. On 4th May they wrote that the claim will be dealt with by B & A Railway. It was found that the plaintiff was unaware and was not informed before 28-3-1944 that the defendants would not deliver the jute. The suit was filed on 27-3- 1945 and therefore it was held that it was not barred by time. In this case the main question for consideration was what will be the date of non-delivery of part of the goods when major part of the goods have arrived. On this point there seems to be conflict of opinion in the Indian High Courts which is reflected from AIR 1933 Pat. 45, AIR 1927 Pat. 335, AIR 1923 Pat. 298, AIR 1946 Mad. 133 and I L R 45 All.
43. However in Raigarh Jute Mills' case which is under consideration it was held that as the plaintiff "was told that enquiry was being made; this clearly conveyed expectation of information being received and delivery taking place In any event the earliest date when from the meagre information given, a refusal or inability to deliver was conveyed, was 28th March, before which, in view a reasonable time for delivery had not expired, and at the earliest the limitation period commenced to run'.
7. The facts of Raigarh Jute Mills case are distinguishable from the present case because here the defendants at no stage assured the consignee to give delivery at a future date, or made any representations that enquiries were being made or matter was being looked into or was under consideration. From the evidence on record it seems that the defendants did not reply to any letter except on 7-8-1978 when they offered to settle the claim for Rs, 1,704. Whether such a silence can amount to an assurance to give delivery at a future date? In my opinion it is not so. Not a single letter has been produced from which such a promise can be spelt out. Mr. Rauf contended that as the defendants by their letter dated 7-8-1978 assured to compensate the consignees they have admitted their liability and the period upto this date should be excluded from computing the period of limitation. Similar contention was considered in Deutsche Da:rpachiffaharts Gescllschaft v. Central Insurance Co. Ltd., where reliance was placed on Delhi Cloth and General Mills Ltd. v. Federation of Pakistan, and the following observation was quoted and followed stating it to be the settled law : "The argument that the period during which a carrier may put off the settlement of the matter by promising an inquiry and giving hopes to the consigner of making compensation should be excluded from computation of the period under Article 31 amounts to the importation of an extraneous consideration into the context of that Article. A debtor may go on verbally assuring the creditor that he would pay his debt but that would not enlarge period of creditor's time to recover it in a Court of law."
8. The vessel arrived on 25-6-1977 but there is no evidence to show that when the goods were discharged and whether such discharge was in the presence of the consignees clearing agents.
However on 7-8-1977 the clearing agent applied to Karachi Port Trust for issuance of short delivery certificate which was issued on 18-8-1977. He then filed a claim with the defendants on 23-8.1977.
Thereafter the defendants by their letter dated 7-8-1978 asked to settle the claim for Rs, 1,704. These facts can hardly bring the case within the ambit of the principles laid down in the cases of Firm Mohd. Sadiq etc. And Raigarh Jute Mills Ltd. The plaintiffs filed this suit on 27-2-1979. For bringing the suit within time the plaintiffs have relied on the defendants letter dated 7-8-1978 alleging that cause of action arose on 7-8-1978 when the liability was admitted by the defendants. If for argument's sake this letter is treated as admission of liability then it will not extend the period of limitation as it was not written before the expiry of the period of limitation and therefore provisions of section 19 of the Limitation Act will not apply.
9. Mr. Rauf the learned counsel for the plaintiffs contended that as the plaintiffs have paid the claim of consignees they are entitled to be indemnified by the defendants and hence the limitation for suit shall commence from the date of payment i,e, 29-)-1979. Reliance have been placed on New Jubilee Insurance Co. Ltd. v. American Orient Lines Inc., New York. In this case the consignee had filed suit claiming damages for short landing of 10 skids against the Carriers, its local agent and the insurer.
The suit was decreed against them jointly and severally. Thereafter the plaintiff took out execution against the insurer as a result of which the insurer had to satisfy the decree. The insurer then brought a suit against the carrier and its local agent for recovery of amount by way of reimbursement seeking a decree against the carrier and its agent. On these facts it was held that "the cause of action in this suit is not based on the rights under the policy of insurance by subrogation but the right of indemnity that an indemnifier has on payment against the wrongdoer", and therefore the limitation for such suit was to commence from the date of payment. The present case is based on the plaintiff's right under the policy by subrogation. In para. 17 of the plaint it has been stated that as the defendants "did not settle the claim the consignee filed a claim against the plaintiff who settled the same by making full payment and obtained letter of subrogation from the consignees. Thus the plaintiff stepped into the shoes of the consignee and became entitled to6 7 8 pursue the claim and also file the present suit in their own name." The plaintiffs on their own showing have based their claim on subrogation under section 135-A of the Transfer of Property Act. An insurer on payment of claim, by operation of law, subrogates to the rights and remedies of the insulted. This case is therefore completely 0 distinguishable and period of limitation cannot be computed from the date of payment. As the plaintiffs have failed to establish that the defendants assured or promised to give delivery at a future date the period of limitation can not be computed from 7-8- 1978 when the defendants offered to settle the claim for Rs, 1,704. The consignees were aware of short delivery from the very beginning. In any event when their clearing agent applied for short landing certificate on 7-8-1977 and lodged the claim on 23-8-1977 the consignees were aware that no delivery will be effected. The suit was filed on 20-1-1979 which is patently barred by time.
10. In this context some facts brought on record, though not referred by the learned counsel of the parties, need to be mentioned. The plaintiff's right to sue is based on payment made to the consignee/insured. From the plaintiffs' evidence it is clear that they had not made any payment to the consignee till the filing of the suit. When the defendants by their letter dated 7-8-1978 offered to settle the claim for Rs, 1,704 the consignee started corresponding with the plaintiffs. The statement of P. W. 1 that after payment was made the consignees executed the letter of subrogation is contradicted by the documents filed by the plaintiffs. The consignees sent a letter dated 27-8-1978 to the plaintiffs which was replied by their letter dated 19-9-1978 when they asked the consignees to send the documents including letter of subrogation. The consignees by their letter dated 10-9-1979 (Exh. 6) enclosed letter of subrogation (Exh. 16) and requested for payment of Rs, 53,999. This letter was replied by the plaintiffs on 29-7-1979 (Exh. 14) which acknowledged the receipt of the loss voucher (Exh. 15) which seems to be a pre-receipt acknowledging payment in anticipation of payment being made at a future date. This voucher does not bear any date. The plaintiffs by their letter dated 29-9-1979 (Exh. 14) informed that they are requesting their accounts to issue the cheque. It is thus clear that Exhs. 15 and 16 do not prove payment as these documents were obtained from the consignees before the payment was made. No other evidence has been produced by the plaintiffs to show that payment was made to the consignee before filing the suit. The statement of P.
W. 1 regarding payment cannot be accepted as he has to state on the basis of Exhs. 15 and 16. From plaintiffs' own evidence it has not been established that they subrogated to the rights of the consignees. Even if plaintiffs' version is accepted then payment was made in September, 199 whereas suit was filed on 20-1-1979 at a time when they did not have the right to sue. However I am not inclined to non-suit the plaintiffs on this point because it is possible that if this objection would have been raised by the defendants the plaintiffs may have produced further evidence to prove payment.
11. Issues No, 1.--It is an admitted position that one case had short landed. My finding is in the affirmative.
12. Issues No, 2.--The plaintiffs have claimed Rs, 54,521 being the value of one case. The defendants have contended that their maximum liability is limited to lesser amount and therefore no decree can be passed for the amount in suit. Mr. A. Rauf the learned counsel for the plaintiffs has referred to the photocopy of the bill of lading (Exh. 3). The original or the copy of bill of lading containing terms and conditions has not been filed by any party. Mr. Rauf has contended that as in the bill of lading the number of letter of credit, Registration number, Import Licence number and State Bank of Pakistan Registration number have been mentioned, it amounts to declaration of value of goods inserted in the bill of lading and therefore in view of the provisions of Art. IV, rule 5 of the Carriage of Goods by Sea Act, 1925 the defendants are liable to pay compensation equivalent to the value of the goods and cannot limit their liability. Mr. Rauf has further contended that as the number of the letter of credit has been mentioned in the bill of lading it will amount to incorporation of this document as a part of the bill of lading. Relying on PLD 1960 Dacca 555 and PLD 1977 Kar. 37 the learned counsel argued that the document should be read as a whole.
13. To appreciate this contention it is necessary to advert to the form of bill of lading. In the column entitled number and kind of package the following particulars are given :- {{TABLE}} Port l ofFinal Destination FreightNo of original Discharge(If non-carriage)payableBremilnBa/L Karachi.at ___________________________________________________________________ Marks and Number and kind of packages : description Gross Measure- Numbersof goods said to containweight ment said said to to bebe 1 Case Electrical Spares to ZPCF Ltd.Zeal Pak Cement Factory Ltd., HyderabadHyderabad.
HO/ZP/F-As per Openers Purchase Order 426/76/1No. HO/ZP/P-426/76/1353 dt.
VEA11-1-1977.
Karachi Letter of Credit No. MR. 29/269.
Registration No. WO 58567-- Import Licence No. 849247 and No. 845246 State Bank of Pakistan Regn.
No. 1 /77/ 50! /044/800 and No. 1/77/903/0431961 Pre Prepaid.
Copy not Negotiable. {{TABLE}}
14. Article III, rule 3 of the Carriage of Goods by Sea Act provides that on shippers demand the carrier should issue bill of lading showing among other things (a) the loading marks necessary for identification of the goods furnished by the shipper before loading, the goods, (b) the number of packages or the quantity or weight and (c) the apparent order and condition of the goods. A bill of lading is a prima fade evidence of the receipt of goods and such particulars as mentioned above.
This prima facie evidence is rebuttable by the carriers against a shipper/consignee. Reference can be made to Tar Muhammad Janoo & Co. v. Maldivian National Corpn. (Ceylon) . Ltd . It is pertinent to note that the particulars required to be mentioned under Art. III, rule 3(a) (b) and (c) do not provide to show the value of the goods and therefore in the bill of lading there is no column for showing the value of goods. Nor can value if mentioned will be a prima facie evidence as provided by Art. III, rule 4. The scheme of the Act is that Art. III relates to "responsibilities and liabilities" of the carrier and Art. IV relates to "rights and immunities" of the carriers. Art IV, rule 5 limits the maximum liability of the carrier for loss or damage to goods. However it provides that the carrier will not be entitled to limit its liability if the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading. It further provides that such declaration of nature and value if made will be prima facie evidence but shall not be binding or conclusive on the carrier.
The carrier can rebut the value shown in the bill of lading and if the carrier does not admit the value9 the shipper/consignee or endorsee of the bill of lading will have to prove the value of the goods by independent evidence.
15. Now in the background of these legislative provisions it is to be considered whether the value and nature of goods were declared by the shipper and inserted in the bill of lading thereby depriving the defendants from limiting their liability. The rule for interpretation of documents is that it should be taken as a whole and should be understood in its ordinary grammatical meaning provided there is no ambiguity in it. The learned counsel for the plaintiffs has not pointed out to any ambiguity in it.
The most important consideration while interpreting the documents is to see the intention of the parties. There is no incorporating clause. Therefore it cannot be inferred that by inserting the number of letter of credit, licence number and State Bank of Pakistan Registration number the parties had intended to mean it as a declaration of value of goods. Article IV, rule 5 in clear terms provides that the nature and value of the goods should be declared by shipper before shipment and inserted in the bill of lading. Unless it is done the carriers cannot be deprived of their right to limit their maximum liability. In Anticosti Shipping Co. v. Viateur St-Amand, it was held that the provisions of Art. IV, rule 5 are for the benefit of the carrier. If the value is intended to be declared by the shipper and inserted in the bill of lading then it should be in clear and unambiguous terms making it sufficiently clear that such insertion is intended to deprive the carriers of their right to claim limitation of liability. However if in the bill of lading value of the goods is inserted in a clear and understandable manner then unless the carriers disprove, it shall be deemed to have been inserted as provided by Art. IV, rule 5. A mere mention of any agreement, licence or letter of credit without indicating that they were examined by the carriers and were incorporated as a part of the bill of lading with a view to declare the value of the goods, it is not e possible to accept such documents as an integral part of the bill of lading. By mere reference to these documents one cannot infer that it amounts to a declaration of value of goods inserted in the bill of lading.
16. The learned counsel for the defendants contended that the defendants' maximum liability is limited to 500 D. M. As the carriage originated from West Germany. It would be correct only when it is held that the case is governed the law of West Germany. No attempt has been made by the defendants to prove it, instead in para. 22 of the written statement the provisions of Art. IV, rule 5 of the Carriage of Goods by Sea Act, 1925 have been invoked which certainly does not fix per package maximum liability D. M.
500. Mr. Rauf on the other hand has contended that the defendants' per package maximum liability is KO in gold value. In view of the finding that the suit is barred by time I do not feel it proper to determine this aspect of the matter as it will be only of academic interest. This question will remain open for determination in any other proper case. The plaintiffs are therefore not entitled to any damages.
' Issue No,
3. The suit is dismissed with no order as to costs. PLD 1966 Kar. 253 PLD 1961 SC 340 1980 CLC 921 PLD 1956 Lah. 1093 AIR. 1947 Cal. 98 PLD 1975 Kar. 819 PLD 1964 Lab. 444 PLD 1977 Kar. 569 PLD 1969 Kar. 495 1959 LLR 35210 1 2 3 4 5 6 7 8 9 10