1. ' By order, dated 23-9-1998, I had decreed this suit against defendants Nos.1 and 2 and had dismissed it against defendants Nos.3 and 4 for reasons to be recorded. Following are the detailed reasons for the same.
2. ' Brief facts of the case are that on 23-6-1978 the plaintiff finalised the purchase of 2500 M.T. Crude palm oil from an Indonesian Company. Later, on 12-7-1978 the plaintiffs invited offers for carriage of the said quantity of palm oil from Indonesia to Karachi. In response the defendant No,2 on behalf of the defendant No,1, offered to carry the said quantity of palm oil at the rate of US $ 17.49 per M.T., which offer was accepted by the plaintiffs and the deal was confirmed. Consequently, defendant No,1 arranged for vessel M.T. Victory belonging to defendant No,3 to carry the said oil. Pursuant thereto, the said vessel called the port of Belawan on 17-8-1978, but could not complete the loading of the cargo within the lay time due to delay in the grant of quarantine and immigration clearance to the vessel. Even though the delay in loading was due to the fault and/or negligence of the vessel and/or defendant No,1, the defendant No,3 claimed demurrages of US $ 13310 which claim was passed by the defendant No,1 to the plaintiffs with remarks that the demurrages was incorrect and exaggerated. After completing the loading of the oil cargo the vessel left Belawan on 17-8-1978 but instead of proceeding directly to Karachi, as per clause 18 of plaintiffs' contract with defendant No,1, the vessel called at Bombay where due to some reason or the other it was delayed by four months and eventually reached Karachi on 12-12-1978 i,e, after full four months from the time of leaving Belawan. The plaintiffs claimed that the time taken by the vessel to reach Karachi as per terms of the contract from Belawan was much in excess of the normal passage of time between two ports.
3. Thus, according to them, the defendants have failed to deliver the cargo within reasonable time as they are bound to do under the law and also under the terms of the agreement between defendant No,1 and the plaintiffs. The plaintiffs contend that due to this inordinate delay in the delivery of the oil cargo, they have suffered losses which they claim from the defendants in this suit.
4. ' Amongst the defendants only the defendant No,1 has filed a written statement which also covers the role of defendant No,2 who are the local sub-agent of the defendant No,1. Through their written statement, the defendant No,1 claimed to be merely the ship brokers, that is to say, the agent who brought the defendant No,3, the owners of the vessel in question in contact with the plaintiffs and that the defendant No,2 were merely their co-broker and sub-agent. The defendant No,1, therefore, aver that having performed their functions of bringing defendant No,3 and the plaintiffs together they had fulfilled their responsibilities under the agreement between the plaintiff and themselves and thereafter, the rights and liabilities of the parties would be governed by a charter party that was entered into between the plaintiffs and the defendant No,3. The defendant No,1 also disclosed that the defendant No,4 were in fact, the owners of the vessel and hence they too were subsequently added as a party to these proceedings. In so far as the delay in the delivery of the cargo is concerned, the defendant No,1 maintained that the liability for this would be that of the ship owners and not of the defendant No,1.
5. ' Based on the pleadings of the parties the following issues were framed to which additional issues were added. A consolidated list of the issues framed is given below:---
(1) Whether the suit is bad for non-joinder of owners of the vessel and its local agents?
(2) Whether the plaintiff has any contractual relationship with the defendants?
(3) Whether the defendants Nos.1 and 2 have acted as broker and sub-broker?
(4) What were the terms and conditions under which the goods were carried to Karachi on board the vessel?
(5) Whether there is customary permissible handling loss of oil in transportation up to 1.5%? If so, what is its effect?
(6) Whether the plaintiff has suffered any loss? If so, to what extent?
(7) Whether the suit is barred by limitation?
(8) Whether the defendant No,3 is discharged of its liability under Article III, Rule 6 of the Carriage of Goods by Sea Act, 1925? If so, its effect?
(9) Whether loss or damages, if any was caused before or after the discharge of the cargo from the vessel and who is responsible for it?
(10) Whether the plaintiff is entitled to relief, if so, against which defendants?
6. ' The evidence in this matter was recorded by a Commissioner before whom the plaintiffs' witness filed his affidavit in evidence, who was then cross-examined by the defendants Nos.1. And 2's counsel but the defendants Nos.1 and 2 themselves did not bring any evidence on record. In so far as the affidavit in evidence is concerned, it was substantially a repetition of the contents of the plaint. During the course of arguments, the defendants were not represented and only the counsel for the plaintiffs appeared.
7. ' ISSUE NO.1 ' The learned counsel for the plaintiff did not address me on this issue at all. In any case, I find there was no necessity for the local agent of the owners of the vessel to be impleaded in this case because primarily in this suit plaintiffs' claim is against the defendants Nos.1 and 2 under the terms of agreement between them. In so far as, impleading of the owners of vessel is concerned, the plaintiff had impleaded defendant No,3 as the owners, later, upon disclosure that in fact defendant No,4 were the owners, they too were added. My findings, therefore, for this issue are in the negative.
8. ' ISSUES NOS.2 AND 3 ' The defendants have led no evidence at all, consequently, in deciding these issues I will have to consider their averments in their pleadings. It is an admitted position that the defendants Nos.1 and 2 did act as brokers to fix this vessel for carriage of oil cargo from Indonesia to Karachi. To this extent, there is no doubt that there is contractual relationship between plaintiffs and the defendants. As to when this contractual relationship ended, is a question which could have been debated upon but since the defendants have chosen not to lead any evidence on this question, I have no option but to accept the plaintiffs' version and, therefore, my findings in respect of these issues are in the affirmative.
9. ' ISSUE NO.4 ' The terms and conditions of the carriage of the oil cargo from Indonesia to Karachi are substantially contained in the freight tender, which is annexed as Annexure "B" to the plaint. In the absence of any evidence of the defendants and also any denial of this document the presumption would arise that this document indeed contained the agreement between the plaintiffs and the defendants Nos. 1 and 2. The clause 18 of the this agreement clearly states as under:--- "Vessel to sail directly for Karachi Port from last port of loading unless otherwise mutually agreed."
10. ' There is no need for me to go into other terms and conditions of the Agreement because they are not relevant for the purpose of decision in this suit.
11. ' ISSUE NO.5 It has been recently held by me in a judgment in Suit No,386 of 1982 that in case of edible oil a transportation loss of 0.25% is permissible. Consequently, any short landing proved has to be adjusted by that amount to determine the exact quantity of cargo snort landed. However, in this case loss of 7.857 M.T. Is not claimed by way of short landing but due to contamination and hence this allowance for transportation loss will not be applicable in this case.
12. ' ISSUE NO.6 ' It is clear that there was an agreement between the defendants Nos.1 and 2 and the plaintiff that the vessel would sail directly from the Port of Belawan to Karachi and it is an admitted position that the vessel was delayed by about three months due to the intervening call by her to Bombay.
13. Considering that passage time from Indonesia to Karachi is not more than ten days, it is obvious that there was inordinate delay and that the cargo was not carried to Karachi within a reasonable period. The plaintiffs have alleged that due to this delay the cargo had deteriorated and was contaminated and because of that they have suffered a loss of 7.857 M.T. As a result of contamination and 87.942 M.T. As a result of loss of quality, which when quantified in terms of money, amounts to US $ 56,582.47 equivalent to Rs,5,62,814.51. Since the defendants have not brought any evidence on record to rebut this claim, of the plaintiff I have no option but to accept the plaintiffs' evidence and, therefore, I find that the plaintiffs have suffered a loss of US $ 56,582.47.
14. ' ISSUE NO.7 ' The defendants have contended in their written statement that this suit is barred by limitation because it was brought after one year of cargo being discharged. The contention of the defendants would have been correct, if the plaintiffs' claim arose from Contract of Carriage by Sea, which is governed by the Heague Rules under which as per Article III, Rule 6 limitation period is one year but that is not the case here. Plaintiffs' claim is clearly under a Contract with the defendants Nos.1 and 2 for which the limitation period is three years and consequently, I find that the suit is within time.
15. ' ISSUE NO.8 ' This issue is based on misconception of provisions of Article III, Rule 6 of the Heague Rules. Article III, Rule 6 of the Heague Rules reads as under: "6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
16. ' The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.
17. ' In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
18. ' In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods."
19. It is now well-settled that the provision for giving notice for loss or damage to the carrier within three days is not a mandatory provision particularly when the consignment has been subjected to a survey, which happens to be the case here. My findings, therefore, in respect of this issue are in the affirmative.
20. ' ISSUE NO.9 ' From the pleadings of the parties it is clear that the loss claimed by the plaintiffs arose from the delay in delivery of the cargo in violation of the contract of freightment between the plaintiff and the defendants Nos.1 and 2. The loss itself occurred because of the resulting contamination and deterioration in quality of the cargo. Consequently, it is of no relevance whether the loss or damage was caused before or after the discharged of the cargo from the vessel. In so far as the responsibility for the loss is concerned, I find that since the defendants Nos.1 and 2 have failed to fulfil the terms of the agreement between them and the plaintiffs inasmuch as they failed to ensure the vessel sailing directly to the port of Karachi from the port of loading, the responsibility for the loss of the plaintiff is entirely attributed to the breach of contract by the defendants Nos.1 and 2. In so far as the other defendants i,e,, owners of the vessel are concerned, they would be bound by terms and conditions of any agreement that the defendants Nos.1 and 2 had entered with the ship owners. Since the defendants Nos.1 and 2 have not brought on record these terms and conditions it is not possible for me to hold the ship owners i,e,, defendants Nos.3 and 4 responsible for this loss. In any case the proximate cause of plaintiffs' loss is the vessel not aiding by the term of the agreement between plaintiff and defendants Nos.1 and 2 whereby it was to sail directly from Indonesia to Karachi.
21. ' In view of the discourse above, I find that the plaintiffs have not been able to make out a case against the defendants Nos.3 and 4 but they have proved their claim against the defendants Nos.1 and 2 for the loss due to contamination and deterioration in quality of the oil cargo and consequently, I decree the suit against the defendants Nos.1 and 2 in the sum of US $ 56,582.47 along with interest at the rate of 10% per annum and dismiss it against the defendants Nos.3 and 4.