' The applicants, Pakistan National Shipping Corporation, in these proceedings seek to revise the concurrent judgments and decrees of the two Courts below on the ground that the suit of the respondents was barred by time and, further, as the said learned Courts have failed to determine the question of actual loss sustained by the consignee and acted, or acted erroneously, in merely enforcing the subrogation rights of the respondent Insurance Company.
2. As to the first question, the period of limitation prescribed by Article 30 of the First Schedule to the Limitation Act, in a suit against a carrier for compensation for loss or injury to goods, is one year from the occurrence of loss or injury. Similarly, in the next following Article 31, such period for a like relief for non-delivery of, or delay in delivering, goods is an identical period of time of one year but, in such cases, running from the date the "goods ought to be delivered". It is urged that the consignment was discharged at Karachi on or about 15-1-1980 and that the loss to the goods (or short delivery thereof), in this case Rapid Port-Land Cement, was, due to default of the consignee, assessed much later, on due survey being carried out. The suit, therefore, from which this Revision Application arises should have been filed within one year from 15-1-1980 i,e. The date of discharge of goods.
3. The Courts below are unanimous on the point that survey was conducted on the instructions of the applicants themselves and by their own surveyor on 24-1-1980 and a report, dated 22-3-1980, reflecting a shortage of 13,216 K.G., was made available on or after such date. It has also been found that on 14-1-1981 the applicant Shipping Company issued a letter to the consignee extending the period of limitation for filing a suit for another three months. Such suit was filed on 15-4-1981.
Applicants, however, now urged that no such extenstion could be allowed to tamper with the Law of Limitation and that this plea is open to them since there is no estoppel against statute. Reliance in this behalf is placed on Deutsche Dampschifffaharts-Gesellschaft v. Central Insurance Company (PLD 1975 Karachi 819) and United Electric and Refrigeration Company v. Veb Deutesche Seere Darex, Rostock East Germany (1980 CLC 921), to contend that no party can competently extend the period of limitation prescribed by law, even so as to operate against itself.
4. Before examining the question of extension of limitation, it is to be pointed out that the date of occurrence of loss or injury to the goods, where equivalent to non-delivery or short delivery thereof, is not always the date of discharge of the Cargo by the carrier. A contrary view expressed by Wahiduddin Ahmad, J., in the Division Bench case of Karachi Steam Navigation Company Limited v.
Ibrahim Ghani (PLD 1957 Karachi 315) was rejected by the Supreme Court in Abdul Jalil Choudhry v.
Muhammadi Steamship Company (PLD 1961 SC 340) in the following words:-- "In view of what has been stated above, we are not prepared to accept the proposition laid down in this case."
5. It is to be seen that Articles 30 and 31 in the First Schedule to the Limitation Act, which provide periods of limitation of one year in each case, from different points of time, may involve a degree of overlapping in given circumstances. Thus when Article 30 ibid prescribes a period of one year for a suit against a carrier for 'losing or injuring goods" from the occurrence of loss or injury, a given case may fall under such Article as well as in the following Article C 31 which prescribes like period of one year for a similar suit for non-delivery, or delay in delivery, the period commencing from the date the goods ought to have been delivered. This may be so in the event of loss of goods, which, in specific circumstances, may be equated with non-delivery or short delivery. In such cases, on established authority, it will be open to a plaintiff to frame the suit in a manner enabling him to take advantage of the maximum period available in either of these articles. The present suit may be such a one.
6. Taking up Article 30 first, the date of such loss or injury to the goods, as is spoken of in that Article, should be the date on which the loss, on being apprehended, is surveyed, ascertained or assessed, that is, if that be necessary. It is only then that the loss, on being discovered, becomes actionable and not before. Here, it may bear recall that suits under either of these Articles are for "compensation" and due or appropriate compensation can hardly be claimable unless the "loss", "injury" or want of "delivery", wholly or in part, has been ascertained. Only from such point of time limitation should run.
' As observed by Hon'ble B.Z. Kaikaus, J., while in the High Court, in Federation of Pakistan v. Raja Fazal Dad Khan (PLD 1954 Lahore 635) a proper way of determining "when the goods ought to be delivered" is to find out when the plaintiff could have filed the suit for compensation without being met by a plea that the suit was premature. This observation being pertinent to Article 31, in the context of Article 30 I would, respectfully, venture to substitute the query by posing the question: When the loss or injury to the goods occurred and at what point of time the plaintiff would have been in a position not to be exposed to the penalty of being non-suited for being in Court earlier than his time? As soon as such exposure of being non-suited ceases the period of limitation under either of these Articles would begin to run. That eventuality would not occur, in relation to Article 30, till the loss, on being apprehended, is surveyed and assessed, if that be necessary for ascertainment of "compensation". If Article 30 (and for the matter of that even Article 3) was not interpreted on such lines the result would be unfair and unjust. A priori from what has been laid down by the Supreme Court of Pakistan in Abdul Jalil's case ibid. The loss or injury, while the goods are in transit or even immediately upon their discharge, is not synonymous of occurrence of the loss or injury. This has to be so, for unless that was the case an aggrieved party may even be driven to locate the possible date of loss even during the course of the voyage. Similarly, the loss or injury in contemplation, under Article 30, to the goods is not a mere physical loss or injury but can only be a substantial and real one arising upon due discovery or ascertainment and a corresponding prospect of denial for restitution. In this view of the matter, till such time as the survey report for ascertainment, apparently necessary, was made and a claim was lodged by the consignee with prospect of refusal by the carrier, which in this case happened to be Pakistan Railways and the Pakistan National Shipping Corporation, respectively, it cannot be said that the loss or injury to the goods had crystalised to give rise to a cause of action for filing the suit for which the period of limitation is contemplated to be one year from occurrence of "loss or injury". As seen, the survey was made on 24-1-1980 and a report was prepared on 22-3-1980 and it is nobody's case that the requisite claim was lodged and refused prior to 15-4-1980, within one year of which, that is on 15-4- 1981, the suit was filed. As such the suit in question on the date of its institution was in time.
7. Even if the foregoing was not the case, it is not correct to say that the period of limitation here could not be extended by mutual consent, for if period of performance can be extended under section 63 of the Contract Act, 1872, or an acknowledgment can be given in terms of section 19 of the Limitation Act, 1908, resulting in extension of time for filing a suit, there is no reason why, in consonance with rules of Private International Law, the period of limitation, applicable to a contract of carriage cannot be extended by, directly so providing against the interest of the promisor. To press the point home it will be useful to reproduce the following observations of the. Supreme Court of Pakistan in the case of Abdul Jalil Chaudhry ibid: ' In the case of a contract of carriage of goods by sea, if there be in the contract a date fixed for delivery, that would be the terminus a quo for limitation. If, on the other hand, there be no date fixed reasonable time would have to be ascertained, and that would depend upon the particular circumstances of a case. However, the matter does not end there. The time for the performance of a contract is liable to be extended by the promisee as provided in section 63 of the Contract Act, 1908. This section does not say that the consent of the promisor is also needed for extension, but that is obviously essential for if the promisor was not prepared to give performance at all any extension would be meaningless. However, the consent need not be express and may be implied.
Similarly, extension by the promisee too may be only implied. The section will apply to a case where there is originally a date fixed for the performance as also to a case where no date has been fixed and the contract is to be performed within a reasonable time. Therefore, in all cases of carriage of goods by sea the terminus a quo for limitation will be effected, if the promisee agrees to have performance at a date later than that originally fixed or later than which constituted a reasonable time. At the same time, it is not even necessary that this extension of time by the promisee should take place before the expiry of the date on which contract was to be performed, for the utmost that could be urged in a case where there is extension after the expiry of the original period would be that there was a fresh agreement rather than an extension and a fresh agreement for delivery would have no less effect than extension. If such fresh agreement be valid and binding it would give rise to a fresh cause of action, and there would be a fresh terminus a quo for limitation when the carrier failed to perform the fresh agreement. There is no law which forbids a fresh agreement as to the time of performance in the case of carriage of goods by sea and therefore such an agreement would be binding and would constitute a new basis for calculation of the period of limitation.--"The present case appears to us to fall in the category of cases where there has been, implied extension of time. The position of the respondent No,1 throughout was that the goods were lying at the Jetty and that it was prepared to give delivery subject to the payment of any excess freight which may be determined on a re-measurement. The appellant on the other hand, was throw out prepared to take delivery". "If a party continues to represent that it is prepared to perform a contract into which it has entered, after the expiry of the period fixed for performance, it cannot contend that it was not bound to perform the contract, in the absence of a legal bar which deprives the undertaking of all legal effect. There is nothing in the Carriage of Goods by Sea Act which prevents the parties from making fresh binding agreements. It would be quite open to the carrier in case, for instance, where the goods could not be found, to undertake to trace the goods and deliver them at such future date as may be agreed upon. Clause 6 is not intended to force the parties to come to Court. They can adjust their disputes in any manner they like and they can make fresh agreement in any difficult situation.
"The carrier should be held to the representations which it makes and on which the consignee acted."
(The underlinings are mine).
The Supreme Court had occasion to reiterate the above dicta in British India Steam Navigation Co.
Ltd. v. Abdul Razak Abdul Kader (PLD 1967 SC 68). The restatement of the rule, in the words of S.A.
Rehman, J., was as under:- "There seems no adequate ground for allowing the appellants to get out of their own representations made to the plaintiff, asking them to hold their hands on the assurance that their claim would not be allowed to be objected by limitation, pending further investigation, in respect of the goods short delivered".
For the purposes of Article 30, the words "pending further investigation in respect of the goods short delivered", above quoted, may, conveniently and without doing any violence to the legislative objective, be read as "pending further investigation for ascertainment of loss or injury to the goods, if any". Besides, it will amount to making a fetish of technicalities to say that while time for performance may be extended or an acknowledgment of liability may be given or even a fresh contract may be entered into, yet, in a contract of carriage, the promise with the promisor's consent (or vice versa) cannot extend the period of limitation. Any such view, in shipping matters, should run contrary to the dicta of the Supreme Court in Re Abdul Jalil above.
8. On the point under consideration reference, advantageously, may also be made to the case of Premier Insurance Company Limited v. Irans Oceanic Steamship Company Limited (PLD 1980 Karachi 54) where Ghulam Rasool Shaikh, J., of this Court, inter alia, relying upon the quoted dicta of the Supreme Court and on a reference to the British Maritime Law Association Agreement, 1960, popularly known as Gold Clause Agreement, which expressly provided for extension of time by a further period of 12 months against ship-owners, came to the conclusion that the period of limitation under Article 31 of the Limitation Act could be extended. None of the parties to this litigation have referred to the said Gold Clause Agreement and it may or may not apply to this case. Two things, however, are obvious: One, under Private International Law such stipulations for extension of limitation are not only binding and enforcible but even common place. Two, the contract of carriage in this case attracted performance both in and outside Pakistan and applicability of Private International Law cannot be ruled out. As seen the terms of the Gold Clause Agreement have been enforced in this country. Thus, on principle, if a general agreement of the nature referred can be a well-founded basis for an effective extension of the period of limitation, express agreement inter parties may equally be so. The ratio in Re Deutsche Dampsciffaharts- Gesellschaft (PLD 1975 Karachi 819), on which the case of Karachi Electric and Refrigeration Company (1980 CLC 1921) is founded, with respect, being not entirely in accord with the Supreme Court views in the cited authorities, to that extent, can be distinguishable.
9. While it is doubtful that the concept of estoppel against statute applies in this matter, for in relation to many a period of limitation provided in the Limitation Act, under that statute itself, there is no unalterable rule, the modern doctrine of Promissory Estoppel may, legitimately, apply to the case, as due to the promise and representation of the applicants, the consignee and, in turn, the insurers, stood stripped off a valuable right and even though there may have passed no consideration in the process, such an undertaking or representation can be enforced. This, however, is alternative to the subsisting consideration being 'tself sufficient for such extension.
10. Taking up now, the second contention of the applicants namely, that ere was no determination as to the actual loss sustained by the consignee, the sit ion seems factually incorrect. Such loss, even to the extent of every singleof Cement lost/short delivered was assessed, determined and accepted. more than that was not brought in question. It is too late in the day for the applicants to urge now that the subrogated rights of the respondents are not the equivalent of such loss. Such question cannot be gone into at this stage of the proceedings as the quantum of valuation of each K.G. Loss of cement was not expressly raised.
' In the result, this Revision Application has no merit and was dismissed through a short order dictated in Court, reasons wherefor are recorded herein.