' This is a Civil Revision Petition under section 25 of the Provincial Small Causes Act, 1887, as applicable to Karachi, against the judgment dated 29-5-1976 by a Judge, Small Causes Court, Karachi in Suit No. 662 of 1974, decreeing the said suit in the sum of Rs. 1,900 with cost, as prayed.
2. The facts leading to this revision petition are that a consignment of six cartons containing spring wound one day alarm clocks hereinafter referred to as the 'said goods' was imported in Karachi by M/s. Farooq Watch Co. The said goods were received by the petitioners at London on board their vessel s.s. Donegan apparently in fair condition to be carried and delivered at Karachi. The said vessel arrived at Karachi on 8-6-1974 and discharged the said goods into the custody of the Karachi Port Trust. On 11-6-1974 a delivery order was issued to the clearing agent of M/s. Farooq & Co. for taking delivery of the goods from the Karachi Port Trust. When the clearing agent of M/s. Farooq & Co. went to take delivery of the said goods at the Karachi Port Trust he found the goods lying in a damaged condition. As desired, a joint survey of the goods was carried out on 29-6-1974 in the port premises and as per survey report 19 pieces of alarm clocks were found short. The market value of the goods found short was claimed to be Rs.1,948. Since the goods were insured with the respondent, the loss was sustained by the respondent and the amount of Rs. 1,948 was paid by it to M/s. Farooq & Co., the consignee, under a letter of subrogation. The respondent, therefore, claimed the said amount from the petitioner for which a Suit No. 662 of 1974 was filed in the Court of Small Causes Karachi which was decreed by its judgment dated 29-5-1976, against which this revision petition has been preferred.
3. Mr. Ibrahim Peshori, learned counsel for the petitioners raised the following contentions:-
(1) The petitioners (carriers) discharged the goods from the vessel into the custody of Karachi Port Trust in sound condition.
(2) The liability of the petitioners came to an end on discharge of the consignment from the vessel into the custody of Karachi Port Trust in sound condition.
(3) The consignee has failed to prove the market value or the invoice value. In any case, the amount of compensation, according to the petitioners, for the loss of 19 cases proportionately comes to Rs.832 only.
4. Mr. Ibrahim Peshori in support of his first contention relied on the cargo manifest Exh. 19, provisional outturn report Exh. 21 and the evidence of witnesses produced in defence. Cargo Manifest (Exh. 19) is signed by the agent of the consignee showing the landing of 6 cartons on 11-6- 1974. The provisional outturn report inter alia contains entries about the goods found short or in excess, or found apparently in damaged condition. This report is dated 23-7-1974 which also shows that the discharge of entire cargo was completed on 27-6-1974. This report among others is signed by the Traffic Supervisor, North, K.P.T. KMR. This report makes no mention of the goods in question in any of the entries as referred to above. Thus, prima facie, it is shown that the goods in question were neither short-landed nor landed in a damaged condition. D.W.2 who is a Supervisor in K.P.T. deposed that if cartons are torn or damaged at the time of discharge they are shown in the provisional outturn report. It was also deposed by D.W.1 that the goods were discharged in sound condition. Mr. Lari, however, contended that the survey of the goods clearly shows that the goods were short.
There can be no cavil that as per survey report 19 clocks were found short but the goods were surveyed after about 20 days and the condition at the time of survey is not necessarily the condition of the goods at the time of discharge. I am, therefore, on the basis of this evidence, clear in my mind that the goods in question were discharged from the vessel and delivered to Karachi Port Trust in sound condition.
5. Now I come to the second and main contention, as raised by the learned counsel for the petitioner, and this brings me to determine the position of the Karachi Port Trust as against the carrier and the consignee. Learned counsel for the petitioner relied on several decisions decided by this Court and the Supreme Court.
6. The first case cited by Mr. Peshori is a Karachi decision reported as Karachi Steam Navigation Co.
Ltd. v. Ebrahim Ghani PLD 1957 Kar. 315 by a Division Bench of erstwhile High Court of West Pakistan, Karachi Bench comprising of Constantine and Wahiduddin, JJ. Although the said case was decided mainly on the question of limitation but regarding the position of the Karachi Port Trust it was observed "that in accordance with section 47 of the Karachi Port Trust Act, 1886 the K.P.T. is the agent of the owner of the goods and delivery of the goods by the steamship company under the statutory provision of this enactment is the delivery of the goods to the consignee". In the above- said decision a number of decisions of Judicial Commissioner's Court of Sind alongwith others were referred to. To quote from Sind case only, as reported in AIR 1931 Sind 124, Roopchand, J., observed as follows: - "The Karachi Port Trust are statutory bailees and delivery to them was delivery to the plaintiffs. After the sugar had left the ship's tackle, it was in possession of the Port Trust and on behalf of the holders of the bills of lading and at their risk, although it was also held by the Port Trust subject to a lien and to certain other rights of the ship. As the delivery was made to statutory bailees, no question whatsoever of any reasonable time lapsing between the date of the arrival of the ship and the date on which delivery became due arises. That question could only arise if the delivery was required to be given directly from the ship's tackle to the holder of the bill-of lading. Even then a period of 11 days for taking delivery, that is, the period between the date of the arrival of the ship and 8th May, 1929, would be unreasonable. It is hardly open to the plaintiffs to take advantage of any facilities afforded to them by the Port Trust for storing sugar in their sheds for a certain number of free days or to say that the delivery is not complete till the expiry of such free days. It is also not open to them to take advantage of their own negligence in not holding the survey immediately after the goods were landed.
7. This case went in appeal before a Division Bench of the Sind J.C. Court in AIR 1937 Sind 11 and was approved. The learned Judges Davis, J.C., and Dadiba C. Mehta, J.C. also approved the case in 34 B L R 634, and made the following observation:- "The Port Trust are not the agents of the ship-owners to hold identified and ascertain consignment indefinitely at the will of the consignees, so as to make the ship-owners liable for the loss caused to the consignments, although in particular cases it may well be that they are agents of the ship- owners for the limited purpose of identifying and delivering the consignment mixed together."
8. The decision referred to above PLD 1957 Kar. 317 was considered by the Supreme Court of Pakistan in the case reported as Abdul Jalil v. Muhammadi Steamship Co. PLD 1961 SC 340. The relevant obser vations read as under:- "We have to observe, however, that there is in this case a reference to be Karachi Port Trust Act and it is stated that the Karachi Port Trust is a statutory bailee and that delivery to such statutory bailee amounts to delivery of the goods to the consignee. Reference in support of the proposition that the Trust holds on behalf of the consignee has only been made to section 47 of the Act wherein it is provided that in the Warehouse of the Karachi Port Trust goods are kept at the risk of the owner.
This provision is not by itself sufficient to make the Port Trust, the agent of the consignee. We have not found it necessary to go into the various provisions of the Karachi Port Trust Act to see how far the Port authorities can be said to hold the goods on behalf of the consignee, for it is sufficient to point out that at least in the present case the Port authorities who could not have delivered the goods without a delivery order from respondent No. 1 were not agents or the consignee."
9. In view of the above observations of the Supreme Court PLD 1961 SC 340, Dorab Patel, J. (as he then was) in the case reported as Tar Muhammad Janoo & Co. v. Maldivian National Corporation (Ceylon) Ltd. PLD 1969 Kar. 495, held that--- "In the instant case the Karachi Port Trust was the statutory bailee of the first respondent (the carrier) and not of the applicant (the consignee) and the first respondent is liable to the applicant for the loss claimed even though it may have occurred whilst the applicant's cargo was in the custody of the Karachi Port Trust."
' The learned Judge further observed:- "Accordingly it is not necessary to consider the question whether the loss occurred on account of the negligence of the Karachi Port Trust as alleged by the first respondent. The first respondent is responsible in any case for that loss."
10. The above decision PLD 1969 Kar. 495 came under discussion in another case of Karachi as New Jubilee Insurance Co. Ltd. Dacca v. The United Oriental Steamship Co. Karachi PLD 1975 Kar.
647 and a Division Bench comprising of Noorul Arfin and Z.A. Channa, JJ (as they then were) it was observed- "It appears to us, however, and we say so with great respect to the learned Judge, that their Lordships of the Supreme Court in the above case do not appear to have decided or fully considered the question whether the K.P.T. holds on behalf of the consignee or of the ship-owner, and their Lordships limited their observations to the fact that section 47 of the Karachi Port Trust Act, which provides that goods are kept in the Warehouse of the Karachi Port Trust at the risk of the owner, is not by itself sufficient to make the Port Trust the agent of the consignee. Their Lordships in fact were careful to add that they had "not found it necessary to go into the various provisions of the Karachi Port Trust Act to see how far the Port Trust Authorities can be said to hold the goods on behalf of the consignee, for it is sufficient to point out that at least in the present case the Port authorities who could not have delivered the goods without a delivery order from the respondent No. 1 were not agents of the consignees. Furthermore, in the case which was decided by the learned Single Judge of this Court, the question whether a provision in the bill of lading providing for the cessar of the liability of the ship-owner in respect of the goods shipped, as soon as the goods were free from the ship's tackle, was not considered, which in fact is the major point urged by Mr. Salim Akhtar on behalf of the Shipping Company."
11. The learned Judges further observed that-- "The preponderant view, as we read the authorities, appears to be that the liability of a carrier for carriage of goods under the said Act is for period from the time when the goods are loaded on to the ship upto the time when they are discharged from the ship and that a provision in the bill of lading providing for the cessar of liability of the carrier in respect of goods carried in his ship as soon as the goods have been discharged from the ship or are free from the ship's tackle, is not inconsistent with or repugnant to the provisions of the said Act or the rules framed thereunder."
12. Mr. Peshori also cited a decision of this_ Court reported as Farook Omar v. National Security Insurance Co. Ltd., Karachi PLD 1974 Kar. 321 by Mushtak Ali Kazi, J. (as he then, was) who, relying on AIR 1931 Sind 124, AIR 1959 Mad. 367, 4 Indian Cases 475 and 42 Indian Cases 659, held that:- "the Karachi Port Trust are statutory bailees and delivery to the Karachi Port Trust is on behalf of the consignee The Karachi Port Trust are not, therefore, the agents of the carriers and the carriers have no control over them."
13. The last case cited by Mr. Peshori is also of this Court reported as Abdul Rahman v. Vessel "Marianna N.L" PLD 1983 Kar. 242 by Saleem Akhtar, J. wherein it was held that the Karachi Port Trust, in certain circumstances, can be treated as agents of the consignee but certainly it is only a statutory agent fo limited and restricted purposes.
14. On the other hand, learned counsel for the respondent contended that even if the consignment is delivered to Karachi Port Trust in sound condition the petitioners remained liable to the consignee till the goods were delivered to it in sound condition and full quantity as the Karachi Port Trust acted as agent the petitioners (carriers) unless they obtained a receipt from the Karachi Port Trust under section 37 of the Karachi Port Trust Act, 1886.
15. In support of his contention Mr. Lari relied on section 37 of the Karachi Port Trust Act, 1886 which reads as under:-- "Whenever any goods are landed by the Board from any vessel, the Board shall, if so required, give to the master of such vessel a receipt in the form or to the effect set forth in Schedule C, and may in any such receipt include all goods landed from such vessel during one day."
No master or owner of a vessel from which the goods in respect of which such receipt is given may have been landed shall be liable for any loss or damage to such goods which may occur after they have been so landed."
16. On the basis of the above provision of law it is submitted by Mr. Lari that as no receipt has been given by the Karachi Port Trust to the respondent in respect of the said goods, it shall continue to be liable for any loss or damage to such goods which might have occurred after they have been so landed. Reliance was placed on the case reported as New Jubilee Insurance Company Limited, Dacca v. United Oriental Steamship Co. , Karachi PLD 1975 Kar. 647, already referred to by me in another context., Mr. Lari referred to the observations made in the said case by the learned Judges of this Court while considering the provisions of section 50 of the Chittagong Port Act (V) of 1914, which are similar in terms to the provisions of section 37 of the Karachi Port Trust Act, 1886. The relevant observations appear at pages 652 and 654 of the report which read as under:-- "It will be seen that the twin requirements of the aforesaid section and before the ship-owner can be exempted from liability thereunder are that the goods must be landed by and delivered into the custody of the Port Trust Authorities and that the Port Trust Authorities should issue a receipt therefor in the prescribed form. In the instant case neither of these conditions or requirements has been fulfilled. There is neither tangible evidence to show that the goods were landed by or delivered into the custody of the Chittagong Port Trust Authorities nor has the requisite receipt been produced to the respondents or anyone else (p. 652) On the other hand, the short-landing certificate, at page 30 of the Paper-book, to which we have already adverted, clearly shows that 15 bales of cotton, out of the consignment meant for the EPIDC, were short-landed. In view of this evidence of the Jetty Superintendent, which we have no reason to doubt, we are satisfied that the 15 bales of cotton, which were short-delivered to the consignee, were not landed nor entrusted to the custody of the Chittagong Port Authorities." (p. 654).
17. In so far as the contention based on section 37 of the Karachi Port Trust Act and the observations of a Division Bench of this Court, as quoted above, are concerned it is apparent that the learned Judges in the above-said case were considering the provisions of section 50 of the Chittagong Port Act, which though similar in terms to section 37 of the Karachi Port Trust Act, as observed by me earlier, cannot be said, strictly speaking, to be fully applicable to the facts of the present case. In the Chittagong case it was not pleaded that the practice of the issue of receipt as contemplated by section 50 was discontinued or that in pursuance of the bye-laws framed under the Act a new procedure for the issuance of provisional outturn report was adopted. The two provisions though, in effect, same, but the circumstances as to their application to a situation are dissimilar inasmuch as it has been clearly stated by representative of petitioner No. 2 (D.W.1) that the K.P.T. does not issue the receipt as the same has been discontinued since 1961-62. According to him the petitioner did not obtain any receipt from the K.P.T. after discharge of the goods as K.P.T., as a matter of practice, does not issue such receipt. According to D.W. 2 who is a supervisor of K.P.T. does not issue any discharge receipt except the provisional outturn report. It has also been stated by him that the pro forma of the provisional outturn report and the receipt under section 37, K.P.T. Act are the same which, on perusal by me of the contents of the provisional outturn report and the form given under Schedule appear to be, in effect, the same though columnwise there is some difference, which in my view, is immaterial. He has further stated that the Tally Clerk signs the provisional outturn report if cartons are torn or damaged at the time of discharge. D.W. 3 has also stated in his evidence that the damaged goods are shown in the provisional outturn report. D.W. 4 also stated that the provisional outturn report is issued instead of truck note receipt by K.P.T. All that I am to see, in the presence of Exh. 20, and in the facts and circumstances of the case, whether there is a sufficient compliance of the provisions of section 37 of the K.P.T. Act or not. On the basis of the evidence adduced by the petitioners I am clear in my mind that the discontinuation of the issuance of receipt since 1961-62 also known as truck note, and instead, the continued practice of the issuance of the provisional outturn report do, in view, substantially and effectively fulfilled the intended purpose of the requirement as laid down in section 37 of the said Act. This view of mine is further strengthened by remark No. 1 appended at the end of the report of the said provisional outturn report which reads as under:-- "This is to be considered as preliminary receipt only as per advance cargo goods supplied by the agent M/s. M.N.M. Co., of Pak. Ltd." i.e. petitioner No. 2.
18. Mr. Lari also relied on two decisions namely Abdur Rehman Abdul Gani v. Mackinnon Mackenzie PLD 1958 Dacca 460 and East and West Steamship Co. v. Hossain Brothers PLD 1968 SC 15.
19. In the first case PLD 1958 Dacca 460 a Division Bench of the Dacca High Court, as to the liability of the carrier in respect of the .consignment discharged, observed as under:-- "after the contract of, affreightment ends, the common carrier incurs a new liability as an involuntary warehousemen or a bailee if the goods still continue to remain in his custody even by reason of some fault of the consignee and he is bound to take such care of the goods as a prudent man would take of his own goods of the same kind, bulk or value in similar circumstances. Such bailment arises by necessary implication from the nature of the transaction itself as indicated by Cookburn, C.J."
20. The facts of that case were that a suit was filed for recovery of Rs. 3,680 by way of compensation for loss sustained and for certain survey and agency fees incurred by the appellant as a result of damage caused to a consignment of old newspapers imported by the appellant. The said cargo was landed at the wharf on 18-3-1949 and on 21-3-1949, when the appellant's representative went to take delivery he found that the cargo had been kept in an open space on the wharf without any tarpaulin covering or any other protection and had as a result thereof been damaged by rain water on the previous night. On the joint survey the damage was estimated at 331 per cent of the market price calculated on the basis of the invoice price. The appellant duly claimed the above amount from the carriers but they repudiated liability. There was no serious dispute with regard to the damage by rain water to the goods and the extent of such damage. The trial Court found that the liability of the carrier ceased as soon as it landed the goods in good condition on the 18th March 1949, but thereafter the carrier became werehouse-keeper and its liability was that of a bailee whilst the goods remained in its custody and it was bound to take care of the goods under section 151 of the Contract Act. On the evidence it was found that the carrier had failed to take such care and was held to be liable to make good the loss.
21. The learned Judges of the Dacca High Court for the above view seem to have relied on a passage from Haisbury's Laws of England, 2nd Edition, p. 549 which reads as under:-- "Apart from contract or special custom, the shipowner's liability does not at Common Law cease on the landing of the cargo; though he is no longer liable as a carrier, he incurs a new liability as a warehouseman."
22. In this connection, reference was also made to the observations of Blackburn J., "in the case of Mitchell and others v. The Lancashire and Yorkshire Railway Company 1875 LR 10 QB 256 (260), where the principle of the English Common Law applicable to common carrier was preponded thus:- "I take it the law is very clear to this extent, that where a carrier receives goods to carry to their destination with a liability as carrier (except so far as that duty is qualified by exceptions), he may be said to be an insurer. The goods are then to be,- carried at the risk of the carrier to the end of the journey and when they arrive at the station to which they were forwarded,' the carrier has then complied with his duty when he has given notice to the consignee of their arrival. And, after this notice if the consignee does not fetch the goods away, and becomes in more, then I think the carrier ceases to incur any liability as carrier, but is subject to the ordinary liability of bailees."
23. In the second case PLD 1968 SC 15 Mr. Lari referred to the following observations of late Mr. Justice S.A. Rahman which read as under:-- "I agree but would add that even if the contract of carriage by sea could be said to have ended with the discharge of goods from the ship into a lighter engaged by the ship-owners, the latter would not be absolved from liability as bailees of the goods till they were handed over to the consignees or their agents or assignees. Negligence as a bailee would have sufficed to sustain the claim against the Shipping Company and here there was clear negligence resulting in damage to the goods."
24. The facts of that case were that a consignment of 115 bales of cotton were shipped from Karachi to Chittagong on board the vessel Fatakada. At Chittagong the cargo was discharged into lighter engaged by the ship-owner and then carried to landing jetty. It was admitted that there was no damage caused to the goods either during the time they were in ship's hold or at the time of their discharge at the outer anchorage and that the goods were actually damaged by rain water when they were in the lighter. The only question arose in the appeal was "whether the ship-owners are completely protected by the terms of the bills of lading namely that the carriage was complete when they discharged the goods in the lighter and in any case their liability ceased when the goods were once free of ship's tackle. In other words, if the damage to the goods occurred outside the aforesaid period, the carrier was not liable for the damage. The evidence had established that the lighter had on fixed cover to protect the cargo from rain and that she used tarpaulin for the purpose if and when necessary. It was, therefore, held that as the cargo consisted of valuable goods it was the bounden duty of the carrier or his agents before discharging the cargo to be satisfied if the lighter was propely equipped for the purpose. There was lack of due diligence on the part of the carrier or their servants or agents in discharging the cargo on a lighter which was not fitted for reception of the goods. The ship-owners were under a contractual obligation to care in discharging the cargo, that they committed a breach of it, that the consignee thereby suffered damage and that the consignee was entitled to recover damages unless it was shown that there were other intervening facts which would preclude the consignee to recover the damages.
25. On careful perusal of the aforesaid decisions I am of view that the decision reported in PLD 1958 Dacca 460 is not applicable to the instant case because in that case cargo was landed at the wharf of respondent No. 1 (the carrier) in open space without any protection and was damaged by rain water and thus respondent No. 1 was found negligent, whereas in the instant case the goods after discharge from the vessel were not retained in the control of the petitioners but were delivered to K.P.T. for onward delivery to the consignee in whose favour the delivery order had also been issued. Similarly, the authority reported in PLD 1968 SC 15 cited by the learned counsel for the respondent is also not applicable to the present case as the goods in that case were discharged into the lighters engaged by the carriers and not delivered to Chittagong Port authority, whereas in the present case the goods were delivered to the K.P.T. as per practice of the Karachi Port.
26. To sum up, the legal position that has emerged out of the law cited above, is that the goods are to be delivered to the consignee or his agents, but personal delivery is not required where the settled and established practice of the Port recognizes another mode of delivery. Thus, in Karachi the delivery to the K.P.T. is, as regards the ship's liability, equivalent to delivery to the consignee, for, personal delivery by the carrier to the consignee is not required by Statute, viz. the Port Trust Act, 1886. The Karachi Port Trust Authorities under section 32 of the Act provide for landing all goods from any sea-going vessel coming to their dock, wharves, quays, stages, jetties or piers and give under section 37, if required, to the master in charge of such vessel a receipt in the form or to the effect (underlining is mine) set forth in Schedule 'C' in respect of all goods landed from such vessel during one day, and that no Master to whom such receipt shall have been so given, nor the owner of the vessel from which the goods in respect of which such receipt be given may have been landed, shall be liable for any loss or damage to such goods which may occur after they have been so landed. In the present case, admittedly, the Karachi Port Trust accepted the delivery of the goods as statutory bailee thereof, and after the vessel landed the goods completely the port authorities issued a provisional outturn report as usual practice in vogue since 1961-62, supported by Exh. 20, a circular letter dated 6-6-1966 laying down the "Procedure for Receiving and Tallying Import Cargo under in-tack Tally Scheme", showing, inter alia, the short and damaged cargo, which did not mention the goods in question either short or damaged. The delivery order was also issued by the petitioner No. 2 to the consignee, the subrogee of the respondent, on 11-6-1974 whereafter the petitioner could exercise no control over the said goods. So, the petitioners' liability ceased on giving delivery of the goods to the Karachi Port Trust on their handing over the delivery order of the goods to the consignee's agents on 11-6-1974. Even if a reasonable time i.e. five free days as allowed by K.P.T. to the consignee to facilitate delivery from K.P.T. by the consignee, are taken into account the liability of the petitioners ceased long before the custom duty and sales tax were paid by the consignee on 20-6-1974 and joint survey was requested on 27-6-1974 which was carried out on 29-6-1974, after about 20 days of the landing. It is also noticeable that according to survey report dated 1-7-1974 shortage of 19 alarm clocks has been found due to theft or pilferage.
27. It, therefore, appears that the trial Court exercised its jurisdic tion with material irregularity in not considering the evidence that the Karachi Port Trust had discontinued issuing receipt under section 37 and that instead they issued provisional outturn report which did not show the goods received by them from the vessel in damaged condition.
' In the absence of any evidence to the contrary the goods will be presumed to have been delivered to K.P.T. in the condition and quantity i.e. six cartons, they were received by the carrier and the statutory liability of the carrier ceased after the goods in that condition and quantity left the ship's tackle. It might be that the damage to the goods occurred subsequent to its discharge from the vessel when the goods were in the custody and control of the Karachi Port Trust.
28. Mr. Lari lastly contended that the petitioners, in spite of the contract of affreightment having come to an end on the discharge of the goods, would not be absolved from liability as bailees of the goods as there was negligence resulting in theft or pilferage of the goods. I do not see any substance in the submission as there is not even an iota of evidence that the damage and the loss has occurred due to the fault, failure or negligence of the petitioners in the performance of their statutory or contractual obligation. Hence, the finding of the trial Court fixing liability on the petitioners is untenable in law.
29. In these circumstances, there is no need to consider the third contention of the petitioner about the market value of the missing goods.
30. For the reasons given above, I accept the Revision, set aside the impugned judgment of the Small Causes Court and dismiss the suit, but, in the circumstances of the case, there will be no order as to costs.