1. ' This suit has been filed by the plaintiffs for recovery of Rs,101,844.20 only. Briefly the facts giving rise to the suit are that the plaintiffs who are Private Limited Company registered under the Companies Act having their registered office at Marriot Road, Karachi had imported 50 bales of Hessian cloth from Singapore per vessel. s.s "ANNITA" which is owned and controlled by the defendant No,1. The said bales were imported through Bill of Lading No,30 dated 15-7-1973 for delivery to the plaintiffs at Karachi. The said vessel arrived at Karachi Port on or about 16-8-1973 and discharged her cargo at the Jetties of defendant No,4, Karachi Port Trust under the agency of defendant No,2 who are the local agents of defendant No,1 and also answerable to cargo owners by virtue of their declaration under Section 55(e) of the Customs Act. Messrs.Rehmatullah & Co. We're Clearing Agents appointed by the plaintiffs for taking delivery of their cargo but they found goods in damaged and pilfered condition and applied for Steamer and Insurance survey which was granted by the defendant No,2 and 3. Consequently the defendant No,2 appointed M/s. G.B. Potts & Co. Ltd. As Steamer Sureyors and M/s. Ghafoor Associates were appointed as Insurance Surveyors by the defendant No,3. Both the surveyors first examined 30 bales out of the said consignments and observed that all the 30 bales were damaged by the sea water. Later on the remaining 20 bales which were landed in loose condition were also examined and it was revealed that besides their being damaged by sea water, 7,393 yards of Hessian Cloth were also pilfered and were short. Such report and certificates were issued by the surveyors. On the basis of such certificates the plaintiffs claimed to have suffered loss of Rs,1,01,844.20. The plaintiffs' consigment being insured with the defendant No,3 under Policy No,MP 2062/73 dated 1-8-1973, the defendant No,3 are also liable to indemnify the plaintiffs for the said loss. The plaintiffs, therefore, claimed the above loss from the defendants as according to the plaintiffs the loss was sustained by them due to negligence and wilful misconduct on the part of the carriers, their servants, charterer and the ship agents and/or the servants of Karachi Port Trust who as carriers and bailees of the goods are liable to compensate the plaintiffs for the said loss. The plaintiffs also claim to have sent their claim bill to the defendants and also served the defendant No,4 with notice under Section 87 of the Karachi Port Trust Act. The plaintiffs also claim costs and interest @ 10 per annum against the defendants or whosoever of them is found liable. The defendants Nos.1 and 2 filed a joint written statement wherein they denied the claim of the plaintiffs. They have further claimed that pilferage in 20 bales of Hessian Cloth occurred when the goods were in custody of the defendant No,4 and, therefore, the defendants Nos.1 and 2 are not liable for the same. It was further claimed in the written statement that the vessel on its way from Colombo to Karachi encountered heavy weather and sea water entered over deck and hatches including hatch No,3 where the cargo of the plaintiffs was stored and that on arrival at Karachi, the Master of the ship lodged his protest against all stores and perils of the sea with Mr. M.A. Kotwal, Notary Public, and therefore these defendants are not liable for any loss occurred due to perils of the sea. The defendant No,3 also filed their written statement wherein they have taken plea that the assessment of the loss is not true and not covered under the Insurance Policy. The defendant No,4 also filed their written statement and have taken plea that at the time of discharge of the cargo at Karachi Port by the above said vessel the same was found in the ship defective and was received by them subject to delivery under the qualifying remarks "70% Hessian Cloth loose and wet with Salt Water" as recorded and shown in the preliminary Outturn Report of the vessel which has been duly signed by the representative of the Shipping Agents, in token of confirming the landing position of the consignment. It was also revealed by the defendants Nos.1 and 2 that defendant No,5 are the owners of the vessel and, therefore, the defendant No,5 was subsequently joined in the suit who also filed their written statement wherein it was claimed that the vessel was chartered by the defendant No,1 and the same was under the control and management of the defendant No,1 and therefore, the defendant No,5 are not liable for any loss sustained by the plaintiffs for the reasons that there was no private of contract between the defendant No,5 and the plaintiffs. On the basis of these pleadings the following Issues were framed:-
(1) Whether the suit against defendants Nos.4 and 5 is barred by time?
(2) Whether the Court has jurisdiction to try the suit against defendant No,5? Under:
(3) Whether the goods were damaged by salt water? If so, to what extent and of what value?
(4) Whether any damage to the goods was caused due to perils of the sea and act of God? If so, to what extent?
(5) Whether the goods were pilfered after they were discharged at the port? If so, what was the value of such goods and are any of the defendants liable to compensate the plaintiffs?
(6) Whether the plaintiffs had insured the goods with the defendants Nos.3 for the risk claimed in the suit? If so, are they entitled to recover any amount from the defendants No,3?
(7) Whether any loss to the plaintiffs was caused due to the negligence of the defendants?
(8) Whether the suit against defendants No,4 is barred under the provisions of Bye-Law 46 of the Karachi Port Trust General Bye Law and section 87 of the Karachi Port Trust Act?
(9) Whether the plaintiffs have any private of contract with the defendants No,5?
(10) Whether defendants Nos.5 as owners of the vessel can be held liable to compensate the plaintiff?
(11) In the event a decree is passed as against the defendant No,3 is it entitled to claim indemnity from defendants Nos.1, 2 and 5.?
12. What the decree should be and against which defendant?
2. The plaintiffs examined Mr. Muhammad Ali, Suryeyor's representative and Mr. M.A. Jalil, the representative of the plaintiffs. The defendants Nos.1 and 2 examined Mr. Sajjad Ahmad, their Claims Supervisor and Mr. N.R. Dobash, Advocate while the defendant No,4 examined Malik Amir- ul-Haq, Incharge of Shed No,11 of the K.P.T. The defendants Nos.3 and 5 have remained absent and have not contested the suit after filing the written statement. However, the learned counsel for the plaintiffs admitted and it has also come in the evidence that an amount of Rs,72,171.21 was paid by the defendant No,3 towards the plaintiffs insurance claim which amount is liable to be refunded to the defendant No,3 in case suit of the plaintiff is decreed. The witnesses also produced various documents in their evidence.
3. ' I have heard Mr. Ghulam Muhammad Ibrahim, Advocate for the plaintiffs, Mr. About Inam, Advocate for the defendants Nos.1 and 2 and Mr. Zahiruddin Khan learned counsel for the Defendant No,4.
4. ' The submissions of the learned counsel and findings on the issues are as Issue No,1: ' This issue was raised by the defendants Nos.4 and 5. The defendant No,5 has not contested the suit after filing of their written statement. However, the learned counsel for the defendant No,4 has not pressed this issue in view of the fact that the Preliminary Outturn Report was issued on 20-9- 1973 and the suit having been filed on 28-2-1974 is within six months from the date the cause of action has accrued as provided under Section 87 of the Karachi Port Trust Act. The suit, therefore, being within time, this issue is answered in negative.
5. ISSUE No,2: ' This issue was raised by the defendant No,5 who has not contested the same and the issue is accordingly answered as not pressed.
6. ISSUES NOS.3, 4 AND 5: ' Issue No,3 is the main issue in the suit. This issue is in two parts. Mr. Abul Inam, learned counsel for the defendants 1 and 2, has very fairly conceded that according to the evidence which has come on record the plaintiffs have been able to show that the goods were damaged by the sea water and further that the defendants Nos.1 and 2 have not been able to bring any material evidence on record in respect of their contention that the goods were damaged due to perils of the sea and act of the God. In these circumstances the first part of issue No,3 stands answered in affirmative. Now the material point for consideration is as to what is the extent of the damage caused to the goods in the suit? On this point the plaintiffs have examined one Muhammad Ali (Exh.5) the employee of M/s. Ghafoor Associates, the Surveyor appointed by the plaintiffs. This Witness has produced two Survey Reports (Exhs.6 & 7). The other witness examined by the plaintiffs is Mr. M.A. Jalil, Claims Officer of the plaintiffs' company, he has produced a number of documents and correspondence between the parties. He has also produced the Preliminary Outturn Reports as Exh.42 and also the delivery order as Exh.43. This preliminary Outturn Report has also been produced by Mr. Sajjad Ahmad (Exh.44) the witness examined by the defendants Nos.1 and 2 as Exh.47. The defendants Nos.1 and 2 have also examined Mr. N.R. Dobash, Advocate, who has produced the protest record Noterial Register kept by the Notary Public Mr. Late M.N. Kotwal. The defendant No,4 have examined Mr. Malik Amirul Haq, the Incharge of Shed No,11 of Karachi Port Trust, where the goods were stored after unloading from the vessel. It is an admitted position that the Preliminary Outturn Report was issued on 20-9-1973 which is on record as Exh.42 and Exh.47. This report clearly mentions that the bales were received in damaged condition 70% loss and wet with sea water. This report also shows that same bales were received in loose condition. This report also bears the signature of the representative of the defendants Nos.1 and 2 who has signed the said report without raising any objection to the above-said condition of the goods. Mr. M.A. Jail, Claims Officer of the plaintiffs, in cross-examination has specifically' stated.: "I see P.O.R. Dated 8-11-1973 and produce it as Ex.42. When the consignment reached Karachi Port, the P.O.R. Was prepared by the representative of the Shipping Agent. I say that it is mentioned therein that 70% goods were found in loose condition and that entire goods were wet by Sea Water.
7. The said portions are marked with red ink/pen on P.O.R. My Clearing Agent took delivery of the entire consignment of 50 bales. The witness voluntarily says that there was pilferage in it. The goods were received in incorrect marking. I made an application (Ex.28) to get the correct marking done."
8. ' At another stage this witness in cross-examination states that: "-My Clearing Agent had received the delivery of the entire consignment. He did not receive it either under protest or made any endorsement that there was some pilferage."
9. ' It has also come in evidence that the parties i,e. The defendant No,3 and the defendants Nos.1 and 2 had appinted their respective surveyors who surveyed the goods. M/s Ghafoor Associates were appointed as Surveyor by the Insurance Co. (Defendant No,3) while M/s. G.B. Potts & Co,. Were appointed as Surveyors by the defendants Nos.1 and 2. It is also an admitted position that the survey was made by the two surveyors separately. The plaintiffs have produced the survey report of M/s. Ghafoor Associates as Exhs. 6 and 7 which show that in the first instant only a quantity of 30% out of the total of 50 bales were surveyed on 21-9- 1973 and the report was issued on 25-10- 1973 while the remaining 20 bales which were in loose condition were surveyed on 7-11-1973 and the report was issued on 16-11-1973. The two reports show' that the following loss was sustained by the plaintiffs:-
(1) 8 bales to the extent of 30%.
(ii) 12 bales to the extent of 55%.
(iii) 10 bales to the extent of 40%.
(iv) Shortage of 7,393 yards. As against this the defendants have produced the report and two certificates issued by their Surveyors M/s. G.B. Potts & Co. Ltd. As Exhs.53, 54 and 56. These certificates and report show the extent of loss suffered by the plaintiffs as under:-
(i) 8 bales loss sustained 20%.
(ii) 12 bales loss sustained 35%.
(iii) 10 bales loss sustained 50%.
(iv) Shortage of 7,393 yards. ' one from the Surveyors have been examined by the parties but their reports have been brought on record through the employees of M/s Ghafoor Associates who himself had no Licence of Survey and through the Claims Supervisor of defendant No,2. Both the parties have not been able to show as to what basis the above demand was assessed by the Surveyors. Mr. Ghulam Muhammad Ibrahim, leared counsel for the plaintiffs, has submitted that the reports of the Surveyors are to be accepted as it is, and the liability of the Shipping Company and Carriers to make good the loss and damage sustained by the consignee. He has further submitted that the responsibility of the Carriers, being Bailees of the goods, would continue till the time of delivery to the consignee. He has placed reliance on a number of cases of the Superior Courts in respect of his above contention. Mr. Zahiruddin Khan, learned counsel for the defendant No,4 has submitted that it being an admitted position that the goods were received at Karachi Port in damaged condition the K.P.T. Is not liable for damage caused to the goods nor even for the pilferage in the goods. He has submitted that the witness of the K.P.T. Has specifically denied that any theft or shortage in the goods was committed during the period the goods were stored with the K.P.T. He has also pointed out that there is no definite evidence on this point. As against this the learned counsel for the defendants Nos.1 and 2 has argued that the goods were kept in the custody of the K.P.T. And the pilferage of 7,393 yards of Hessian Cloth was effected during this period and, therefore, it would be liability of the K.P.T. To make good the said loss to the plaintiffs. He has submitted the report of their surveyors (Exh.7) which reads as under:- "The shortage appears to have arisen from the pilferage in Port."
10. ' I am not convinced of this submission of the Surveyors as in the first instant this is not a definite evidence but merely a conjecture on the part of the surveyor without giving any details as to how he has arrived at this conjecture. It may further be observed that in case of East and West Steamship Company v. Hussain Brothers and others PLD 1968 SC 15 it was held by their Lordships that the Shipping owners as bailees are not absolved from the liability till the goods are handed over to the consignee and that the claims for damage would be sustainable in case of negligence on part of ship owners resulting in loss and damage to goods. Also in case of M/s. Tar Muhammad Janoo & Co. v. M/s. Maldivian National Corporation (Ceylon) Ltd. And another PLD 1969 Kar.
495. The learned Single Judge of this Court has held as under:- "Therefore, I hold that in the instant case the Karachi Port Trust was the statutory bailee of the first respondent, and not of the applicant, and the first respondent is liable to the applicant for the loss claimed even thong it may have occurred whilst the applicant's cargo was in the custody o the Karachi Port Trust. 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.
11. The fir respondent is responsible in any case for that loss."
12. In view of the above discussion it is clear that the K.P.T. Act as Bailees of the carriers and not the consignee and any loss sustained by the consignee even when the goods are kept in custody of the K.P.T. Would be the liability of the carriers unless proved otherwise. Now in view of the two reports of the surveyors, the fact that the damage has been sustained on account of sea water and pilferage, I am inclined to hold that the defendants Nos.1 and 2 liable for the damages but in the absence of any basis for arriving at the extent of damage suffered by the plaintiffs, I would allow the plaintiffs the damage at the least percentagess as ascertained by the two surveyors which is as under:-
(i) 8 bales at 20%.
(ii) 12 bales at 35%.
(iii) 10 bales at 40% (iiv) Loss of 7,393 yards.
13. ' These issues are accordingly answered in the above terms. ISSUE NO.6.
14. It has come in the evidence of the plaintiffs that during the pendency of the suit the defendant No,3 have paid them a sum of Rs,72,171.21 towards their claim. The defendant No,3 have also admitted in their written statement that the said consignment was insured with them. In view of the above fact, this issue stands answered in affirmative. However, the amount paid by the defendant No,3 to the plaintiffs would be refundable to them from the decrial amount.
15. ISSUE NO.7.
16. ' This issue stands answered in view of the findings on issues Nos.3 to 5.
17. ISSUE NO.8.
18. ' This issue has not been pressed.
19. ISSUES NOS.9 & 10.
20. It has been admitted by the defendants Nos.1 and 2 in their evidence that the said ship was on charter with them and was under their management and F control. In view of the above admission.
21. I answer this issue in negative and hold that there had been no privity of contract between the plaintiffs and the defendant No,5. The suit accordingly would be dismissed as against the defendant No,5.
22. ISSUE NO.11.
23. ' Not pressed.
24. ISSUE NO.12.
25. In view of the findings on Issues Nos.3 to 5 the suit is dismissed against defendants Nos.3, 4 and 5 while the suit is decreed against the defendant Nos.1 and 2 jointly and severally to the extent as mentioned above. The parties will bear their own costs. The, plaintiff's however, allowed interest on the decretal amount @ 10% per annum against the defendants Nos.1 and 2 from the date of the decree till the date of payment.