' By a short order dated 10-5-77 I had dismissed this application for reasons to be recorded later.
These are the reasons for the decision.
2. This is a suit filed by Messrs H. Nizem Din & Sons Ltd., who are manufacturers and exporters of tents, for recovery of Rs, 3,21,750. 25 for loss of goods shipped for export to Bahrain. Originally the suit was brought under the Admiralty Jurisdiction ot this Court but it was ordered by my Lord the Chief Justice on 6-5-77 at the request of the plaintiffs' counsel that this case be treater as one on the ordinary original side of this Court as the claim under the Admiralty Jurisdiction did not lie.
3. The first defendant in the suit is the vessel m. v. 'OROOMEE', the second is Captain John Methews, the Master of the aforesaid vessel, the third Mox Palm Ltd, the Charterers of the vessel, the fourth Transworld Shipping Corporation Ltd., who are the local agents for the third defendant, while defendant No, 5 is the Insurance Company with whom the goods were insured.
4. It is the case of the plaintiffs that under a contract of carriage embodied in a Bill of Lading dated 21-1-77 issued by defendant No, 4 as agents of defendant No, 3, the plaintiffs shipped to Bahrain from Karachi 50 Military I. P. Tents weighing 40 Lbs. Packed in 60 Bundles under specified marks par m. v. 'OROOMEE' against the order of Bahrain Defence Forces of the value equal to the claim in suit.
It is alleged that in breach of the terms of the Letter of Credit and the Bill of Lading the goods were transhipped to the other vessel of defendants Nos 2 and 3 known as m. v. 'DESPINA' for delivery at Bahrain. The plaintiffs came to know that the in. v. DESPINA had sailed without discharging the cargo for an unknown destination and it was apprehended that the goods were intended to be jettisoned. This information was conveyed to the plaintiffs by defendant No, 4 through his letter dated 29-4-77 which also revealed that the vessel OROOMEE was presently at Karachi Port. Since the goods did not reach the consignee the present claim is made for the value of the goods.
5. Alongwith the plaint the present application was submitted for grant a interlocutory relief by way of temporary injunction to restrain defendants Nos. I to 4 from removing the vessel out of the Port of Karachi and also for an order requiring defendants Nos. 2 to 4 to furnish security in suit amount.
6. Defendant No, 2 has appeared for self and on behalf of defendant No, 1 and filed a counter- affidavit resisting the request for interlocutory relief. It was disclosed in the counter-affidavit that the vessel is owned by A. H. Watts & Company Ltd., England and that defendant No, 3 were the time charterers of the said vessel which expired on 17-2-T7. According to the said defendant the ship was chartered for voyage from Karachi to Daman and was not to call at Bahrain. Despite this defendant No, 4 having this knowledge issued the Bill of Lading for Bahrain and instructed the Master of the ship to discharge the cargo at Daman for trans-shipment to Bahrain. However, it is contended that goods were not allowed to be discharged at the aforesaid Port and consequently under instructions of defendant No, 3 the goods were delivered to in. v. DESPINA for trans-shipment.
The defendant No, 2 denied the possession of the goods and also denied that there was any apprehension of the same being jettisoned.
7. Defendant No, 4 was represented by his counsel but has not filed any counter-affidavit.
8. It was contended by Mr. Sateen) Akhtar for the first two defendants that no case for attachment before judgment or temporary injunction was made out. He argued that having regard to the provisions of the Bills of Lading Act, 1856, upon negotiation of the Bill of Lading as is admitted in this case, the property in the goods stands transferred to the consignee and the right of action upon the contract evidenced by the Bill of Lading is vested thereby in him. It therefore follows that the shipper no longer has any rights under the contract. It was also contended that in any case the vessel which has been attached is not the property of any of the defendants and is therefore not liable to be attached under Order XXVI, rule 5, C. P. C.
9. Mr. S. M. Haider did not attempt to meet these points except that he questioned the validity of the contention that on the goods having shipped the shipper ceases to have any right in the goods. He referred to passages from Carver on Carriage of Goods by Sea (10th Edition) where the learned author expressed the opinion that the vesting of the property in the goods will not in all cases be the decisive factor in determining who has the right of action. If a special contract is made with the carrier from which it appears that the shipper was himself the contracting party, he is the person able to sue. In Dunlop v. Lambert (1) also the goods had been shipped under a Bill of Lading, by which freight was payable by the shipper, and on a question 49 to he right of the shipper twine for loss of goods, the House of Lords held that if the consignor made a special contract with the carrier, and the carrier agreed to take the goods for hien, the special contract supersedes the necessity of showing the ownership la the goods. In this case the Bill of Lading on its face shows that the freight was prepaid.
10. In view of the above the case is one of first impression so far as this point is concerned. The affect of the provisions of the Bills of Lading Act has yet to be considered. The question is not free from doubt and has yet to be determined by considering what the intention was between transferor dna transferee. However, even it it be held that the plaintiffs have a right to sue, the question is whether in the facts and circumstances of this case they are entitled to interim relief.
11. As far as prima facie rise is concerned, I must confess that the carrier's conduct as admitted in their affidavit is not very comtnenable. It was admitted that the consignment was accepted for shipment on board for Batuaia and was trans-shioped to another vessel allegedly at the instructions of the local agent, in glaring breach of the conditions of Bill of Lading not permitting such trans-shipment. Although the other vessel in which the goods were discharged also belongs to the same owners/charterers, these defendants are still not clear about the fate of the goods.
12. It is axiomatic that the attachment under Order XXXVIII, rule 5, C. P. C. Canuoi, be orderea as a matter of course only on the ground that the plaintiffs have a good case at the trial and is to be ordered in exceptional oases only when conditions preseribed by law are satisfied. The applicant must show facts indicating that the defendant is about to dispose of his property or is about to remove it from the local limits of the jurisdiction of the Court, with intent to obstruct or delay the execution of any decree that may bs passed against him. It was forcefully contended that the vessel had arrived at the Port of Karachi on 4-4-77 and is leaving after taking cargo, in normal course of ousiness. The intention is not to take out the ship to defeat any decree thst may be passed. It was also stated that the cargo on board the anip for export consists partly of perishable goods and if it is prevented from leaving it will result in collosal loss. These are weighty considerations to be taken in account for the present purposes.
13. However, the point that clinches the issue is the question that the vessel sought to be attacoed is admittedly not the property of the defendants. It is well established tnat it is only the property owned by the defmien that can be attached. See PLD 1956 Sind 330 ; P L ll 1958 Lah. 772 and A 1 R 1960 All.
615. Order XXXVIII, rule 5, C. P. C. Also clearly provides attachment before judgment of the defendants' property. It being admitted that none of the defendants before the Court has any right in the vessel, obviously this Court will have no jurisdiction to attach tae same.
14. Confronted with this position the learned counsel for the plaintiffs did not even attempt to press his prayer for confirmation of ad interim order attaching the vessel. Similarly he did not urge for temporary injuaclion to restrain the ship from sailing off. Even otherwise, in my opinion,, (0 (1839) 6 CL & F 600 ' no case for temporary injunction has been made out. The balance of convenience clearly lies on the side of defendants as detaining the snip ati Karachi would surely result in greater inconvenience to the defendants than in case of refusal in granting of injunction. The plaintiffs have set up a money claim and therefore tne question of monetary compensation not being available for the injury is out of question. The only submission on behalf of the plaintiffs was that the conduct of the defendants was blatantly in breach of their undertakings contained in the Bill of Lading and therefore, in the interests of justice they should be called up to furnish security. However, since the prayer originally was for attachment before judgment and temporary injunction, I am not inclined to entertain this submission. Additionally there is no justification for passing such an order, if the plaintiffs have failed to bring their case within the purview of Order XXX VIII, rule 5, C. P. C.
15. In the result this application is dismissed and the ad interim order shall start forthwith vacateu.
The consequence will be that the attachment effected upon the ship shall stand raised forthwith.