JUDGMENT RANA BHAGWANDAS, J. - Plaintiff Corporation has filed this suit for recovery of Rs.
22,72,117,00 on the averments that they are a statutory corporation established under the National Insurance Corporation Ordinance, 1975. The defendant corporation is a carrier carrying goods from one place to another place for consideration but - the case of the plaintiffs is that defendant corporation has given a declaration under Sea Customs Act thereby agreeing and undertaking to pay full compensation for all claims and losses suffered by the consignments carried by them.
2. In 1981, Government of Pakistan imported two cartons stores from United States of America as Military support equipment of Government of Pakistan. Defendants accepted the above consignment for shipment and issued a Bill of Lading No. 36, dated 17.10.1981 per their vessel M.V.
Chitral. Value of the consignment k was not declared in the Bill of Lading but there is a mention about the contract No. And the consignment in it. The vessel above-named arrived at port of Karachi on or about 16.12.1981 and discharged its cargo but the consignment in suit was short landed. Accordingly an intimation was sent to the defendants as well as K.P.T, for tracing the missing consignment. While the defendants could not deliver the consignment, KPT issued a final short landing certificate dated 26.9.1982 which was sent by the plaintiffs to the defendants on 13.10.1982 with a request to settle the claim of Rs. 22,72,117/-. According to the plaintiffs defendants corporation extended the time and lastly extended the period upto 15.8.1982! As the consignment was insured with the plaintiff corporation under Marine Cargo Insurance Policy and the defendants did not settle the claim despite repeated letters, plaintiffs settled the claim by paying a sum of Rs.
22,72,117/- to the consignees and obtained a letter of subrogation. Cause of action, according to the plaint arose on or about 16.12.1981 when the goods were discharged from the vessel, on 26.9.1982 when short landing certificate was issued and on 21.2.1983 when the claim was admitted and settled with the consignees.
3. Defendant corporation in its written statement raised two preliminary objections firstly that the suit is barred by limitation as the goods were completely discharged on 23.12.1981 whereas the suit was filed on 16.8.1983 and secondly under the terms and conditions of the Bill of Lading forming the contract their maximum liability for loss of two cartons is confined to US dollars 1000 only. It is their case that the value of the consignment was never declared to them nor incorporated in the Bill of Lasing. According to them despite an express warning to the shippers with regard to the carrier's maximum liability per package printed in bold letters on the face of Bill of Lading the shippers did not exercise the "ad valorem" freight option as per clause 12 of the Bill of Lading. They relied upon Article iv (5) of the Carriage of Goods by Sea Act of U.S.A., 1936 in support of their plea with regard to maximum liability.
4. On the pleadings of the parties following consent issues were settled:
(1) Whether the suit is barred by limitation?
(2) Whether the plaintiff stood validly subrogated to all the rights and remedies of the consignee/insured at the time of filing the subject suit?
(3) Whether the suit is based for non-joinder of proper and necessary parties?
(4) Whether the defendants have given any declaration under the Sea Customs Act and, if so, to what effect?
(5) Whether the consignment in question was short landed?
(6) Whether the defendants can deny the particulars mentioned in the relevant Bill of Lading? If so, to what extent and in regard to which particulars?
(7) Whether the relevant Bill of Lading was a valued Bill of Lading?
(8) Whether the defendant is liable to pay the plaintiffs claim in regard to the short landing? If so to what sum?
(9) What should the decree be?
5. Both the parties preferred not to lead any oral evidence and relied upon the documents filed by them which were admitted and denied by parties respectively and exhibited under the signature of learned Single Judge.
6. At the hearing, Mr. A. Rauf, learned counsel for the plaintiffs addressed this Court whereas Mr. Saarmad Osami. Counsel for defendants remained absent without any intimation. My findings are as under for the following reasons.
Reasons Issue No. 1:
7. Article 31 of the First Schedule to the Limitation Act prescribes a period of one year in a suit against a carrier for compensation for nondelivery of or delay in delivering the goods from the date when the goods ought to be delivered. It is the ease of the plaintiffs that vessel called at the port of Karachi and discharged its cargo on 16.12.1981 when initially the cause of action accrued to them, secondly on 26.9.1982 when final short landing certificate was issued by K.P.T, and lastly on 21.2.1983 when they admitted and settled the claim with the consignees. Conversely case of the defendants is that the vessel no doubt landed at Karachi on 16.12.1981 but it completed discharge of its Karachi bound cargo on 23.12.1981. Taking the said date as terminus a quo for computing the statutory period of one year, suit filed on 16.8.1983 is hopelessly barred by limitation. With regard to the subsequent dates for accrual of cause of action as claimed by the plaintiffs, defendant corporation denied and disputed the accrual of cause of action, which is substantial on the face of it.
8. In support of his contention that the period of limitation shall count from the date of short landing report issued by Karachi Port Trust, learned counsel for the plaintiffs referred to photocopy of the short landing certificate Ex. 5/19 issued by K.P.T, on 26.9.1982. I am least impressed by this submission of the learned counsel for the reason that this letter was sent to the consignees in response to their letter dated 20.9.1982 which cannot be taken as the date of commencement of limitation, in fact consignees by their letter dated 7th April, 1982, Ex. 5/18 lodged their claim for shortage of consignment with the defendants in the sum of Rs. 19,12,065.50 and for expeditious settlement. The plaintiff insurance company having paid up the claim to the consignees after obtaining a letter of subrogation in law, stepped into the shoes of the consignees, and their status is no better or higher than that of the consignees^ Learned counsel referred to Firm Muhammad Sadiq v. Federation of Pakistan (PLD 1956 (W.P.) Lahore 1093) expressing the view that time under Article 31 of the Limitation Act runs from the definite refusal or declaration of inability to deliver the goods made by the defendants. The court observed that the cause of action in such cases arises to the owner of goods when he is made aware that there will be no further delivery. In the aforesaid case Lahore High Court was dealing with a Letters Patent Appeal from the order of learned Single Judge passed in Regular and Appeal. In the said case objection as to the non service of notice under section 80 of Civil Procedure Code was not raised in the written statement and the Railway Authorities intimated to the plaintiff, much later, that the goods had been lost. In fact objection with regard to lack of notice was neither taken in the first two Courts nor raised in the grounds of appeal and was agitated for the first time before the High Court in second appeal. Ratio in the above case, therefore, can hardly apply to the facts of this case when it is admitted that the vessel Calle at the port of Karachi on 16.12.1981 and completed discharge of its cargo bn,2312.81 whereafter it is supposed to have sailed away from the Pakistan territories.
9. In my view, the language employed in the aforesaid provision of law unequivocally postulates that a suit against the carrier for compensation for loss or damage to goods must be held within one year from the date when the goods ought to be delivered. It is common ground that the vessel completely discharged its goods at the port of Karachi on 23.12.1981 whereas consignees lodged their claim with the defendant corporation as far back as 7th April, 1982 which circumstance by itself reflects that they had notice and knowledge of non-delivery of the goods in entirety.
Consistent view of the superior Courts in this respect has been to compute the period of limitation from the date when the consignee has the notice that the delivery cannot be given to him.
Computing the period of limitation from this date it is my considered view that the present suit filed on 16.8.1983 is completely barred by limitation and the plaintiffs cannot be permitted to agitate that since they settled the claim with the consignees on 21.2.1983 period of limitation shall run from this date It is equally difficult to subscribe the plaintiffs view that defendants had extended the time upto 15.8.1982 or that on this account suit filed on 16.8.1983 is well within time. I am fortified in this view by the judgment in National Insurance Corporation v. Pakistan National Shipping Corporation rendered by Saeeduzzaman Siddiqui, J. (as His Lordship then was) (1985 C.L.C.360). Accordingly I hold that the suit is barred by limitation.
Issue No. 2:
10. There is no dispute on this issue inasmuch as the plaintiffs stood subrogated to ail the rights and remedies of the consignees at the time of filing the suit. The issue is answered accordingly.
Issue No.3:
11. No doubt, this issue was raised in the written statement, none has cared to appear and press the issue. Point taken in para 3 of the preliminary objections that alleged shippers and the trustees of the port of Karachi being necessary parties to the suit ought to have been joined is, thus without any merit and of no consequence.
Issue No.4:
12. In the absence of any valid evidence on record to show that the defendants had made any declaration to the Customs Authorities under the provisions of Customs Act, it is highly difficult to accept the proposition advanced by the plaintiffs. I hold accordingly.
Issue Nos. 6 & 7:
13. On the authority of Bill of Lading Ex. 5/14 issued by the defendant corporation, it can be safely concluded that the defendant corporation accepted two cartons stores on account of Military support equipment for the Government of Pakistan weighing 95 pounds for discharge at the port of Karachi and delivery to Officer Commanding, Armed Forces Embarkation Head Quarter Kemari, Karachi. Terms and conditions of shipment are duly incorporated and printed on the Bill of Lading.
As pointed out earlier value of the goods was not declared by the shippers at the time of shipment with the carrier and it is not mentioned in the Bill of Lading. According to the terms of Bill of Lading the goods were shipped and the Bill of Lading issued subject to the express condition that it shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, 1936 which shall be deemed to be incorporated herein. It further postulates that if this Bill of Lading is issued in a locality where there is in force a Carriage of Goods by Sea Act or Ordinance or Statute of a similar nature to the International Convention for the unification of certain rules relating to Bill of Lading at Brussels of August 25, 1924, it is subject to the provisions stated in such Act, Ordinance and Rules thereto annexed which may be in effect where this Bill of Lading is issued.
In fact defendants are not denying the particulars mentioned in the Bill of Lading which are otherwise valid. Lawful and binding on them for all intents and purposes. Mere mention in the Bill of Lading of a contract number without any acknowledgment that the goods, their nature, particulars and condition were actually examined by the carriers and the contract incorporated in the Bill of Lading with a view to declare the value of the goods does not by any means make such contract an integral part of the Bill of Lading. A glance at the Bill of Lading leads to the conclusion that no declaration as regards value of the consignment was ever made to the carriers and for this reason not incorporated in the Bill of Lading. While the Bill of Lading would be prima facie evidence of the facts stated therein in compliance with Article III rule 3 (a) (b) and (c), no presumption can be attached to particulars relating to import permit and contract mentioned in Bill of Lading. Refer Crescent Sugar Mills v. American Export Isbrandt Sen Incorporated (PLD 1983 Karachi 29). I am, therefore inclined to the view that the Bill of Lading in the present suit was not a valued Bill of Lading. The issues are answered accordingly.
Issue No. 5:
14. There is absolutely no cavil with the factual position that the consignment in suit was short landed and I fail to understand as to how the issue was settled. It is accordingly dropped as redundant.
Issue No. 8:
15. While the plaintiffs in this suit claim a sum of Rs.22,72,117/- for the reason that they paid this amount to the consignees and obtained a letter of subrogation, learned counsel at the Bar claimed a sum of Rs.19,12,065.50 being the value of the Marine Insurance Policy. Be that as it may, in terms of contract plaintiffs would have been at the most entitled to the maximum liability of the carrier as incorporated in clause (9) Of the terms of Bill of Lading which is confined to US dollars 500 per carton. I say so because the contract between the consignees and the carrier is reflected in the terms and conditions of the Bill of Lading which is binding on the plaintiffs being the successor-in interest of the consignees.
16. Faced with this situation, learned counsel referred to National Electric Radio Refrigeration Limited v. Schiliae Lauro Naples (PLD 1977 Karachi 264) for the view that the provisions of the rules to the Carriage of Good by Sea Act, 1925: do mot apply in relation to carriage of goods by sea in a ship carrying goods*'from a foreign port to a port in Pakistan. There is no cavil with The proposition with regard to inapplicability of the provisions of Carriage of Goods by Sea Act, 1925 but the case in hand would be governed by the Carriage of Goods by Sea Act of U.S.A., 1936. Likewise I am not inclined to accept the view that the aforesaid U.S.A, law would not be applicable in the event of consignment shipped from a foreign port to Pakistan for the reason that Pakistan was not a signatory to International Convention for unification of Marine laws popularly known as "Hague Rules" framed at Brussels. The contention is misconceived and fallacious on the face of it, as Pakistan subsequently ratified and adopted the Hague Convention.
17. Mr. a. Rauf then referred to New Jubles Insurance Company Ltd. v. American Orient (PLD 1977 Karachi 569) for the view that the defendants being interested in payment of the claim can maintain this suit for recovery of the sum insured by reason of section 69 of the Contract Act.
Learned counsel is in the view that since the plaintiffs settled the claim of the consignees in the assured sum in consequence of the Marine Insurance Policy issued by them, they are interested in the payment of the aforesaid sum and thus entitled to its recovery. There is hardly any substance in the contention of the learned counsel when he seeks entitlement to the sum assured. On the facts stated and explained above, in terms of the contract between the consignees and the carrier, if consignees themselves could claim not more than a sum of US dollars 1000 only, plaintiffs having stepped into their shoes cannot claim higher amount than stipulated in the contract. Refer The Karachi Electric Supply Corporation Ltd. v. American Export Isbrandtser Lines Inc. Karachi PLD 1976 Karachi 23). The argument is completely misconceived and fallacious on the face of it as the rights of the plaintiffs if at all any shall be governed by section 135-A, Transfer of Property Act.
Issue No. 9:
18. In view of the findings on the foregoing issues defendants are not liable to pay the suit amount to the plaintiffs for the reason that the claim is barred by limitation. Had the claim been preferred within time liability of the defendant corporation would not exceed US dollars 1000 for two cartons payable in Pakistani currency on the date of short landing in Pakistan. For the aforesaid facts and reasons, plaintiff's suit fails and is hereby dismissed with costs.