' This suit is by a consignee for recovery of the sum of Rs, 1,28,398 as damages to a consignment of Refrigerators shipped under a Bill of Lading for carriage by sea from the Port of Triest (Italy) to Karachi.
2. The plaintiff's claim is directed against the Shipping Company, Messrs Sachillae Lauro, Naples (Italy), the defendant No, 1 (hereinafter referred to as "the Carrier"), and against the defendant No, 2, Crescent Shipping Lines Ltd., the Carrier's agent at Karachi. The claim is also directed against the Premier Insurance Co. Ltd., the defendant No 3, (hereinafter referred to as "the Insurance Company") with whom the cargo was insured. It is also directed against the Trustees of the Port of Karachi, the defendant No, 4 (hereinafter referred to as "the K. P. T.").
3. The plaintiff's case in the plaint and as it appears from the evidence, is that 110 crates declared by the shippers to contain "Zanussi" Refrigerators of various models were shipped in the vessel "Laura Lauro" belonging to the Carrier under a "clean on board" Bill of Lading dated 5.7-1965 for carriage from Trieste Port to Karachi. The Refrigerators were packed in card-board cases and were re-enforced in wooden crates, which mode of packaging was allegedly sufficiently strong to withstand the sea voyage. The consignment was imported on "Draft on acceptance" basis, under which arrangement, the plaintiff had to make payment to the Exporters within 120 days of the date of issue of the invoice. As the consignment was also not covered by an import license, the plaintiff had to purchase the Bonus Vouchers from the market and then obtain an import licence. The consignment was insured by the plaintiff with the Insurance Company, the defendant No, 3 under a Policy of Insurance dated 19-7-1965 in the sum of Rs, 2,00,000 covering All Risks as per Institute Cargo Clauses (All Risks) attached thereto for the period from warehouse to warehouse or until expiry of 60 days after completion of discharge of the goods over side the vessel, whichever is earlier. The vessel landed at Karachi Port on 4-8-1965 and discharged the cargo on or about 6-8- 1965 on the berth, from where it was removed by the Karachi Port Trust into the Transit Shed and, as it remained unclear it was removed to the Central Shed, Keamari on 17-8-1965, and then a few months later, finally to the K. P. T. Auction Shed, M. I. Yard, where the consignment remained for nearly eight months until 18-4-1966, when the plaintiff's clearing Agents took delivery of the consignment from the Karachi Port Trust. The plaintiff pleaded that the delay in clearing the goods was beyond its control as it received no prior advice of shipment from the Exporters, with the result that the plaintiff could not arrange to buy the Bonus Vouchers and obtain the necessary import licence in time. As time was consumed in obtaining the import licence, the goods were detained in the Customs until a release order was obtained on 6-4-1966. The plaintiff further pleaded that as requested by it in its letter dated 13.11-1965, the Carrier as well as the Insurance Company agreed to depute their respective Surveyors to survey the goods at the K. P. T. Landing Shed, but the K. P. T.
Declined to permit Survey at that Shed as the goods had already been removed to the Auction Shed some 1 miles away. Therefore, no survey was held. Ultimately, the plaintiff obtained permsssion of the Insurance Company to have the goods removed under the supervision or Surveyors appointed by the Insurance Company, namely Messrs Lobo & Co. The goods were removed to the plaintiff's go down on 18-4-1966, where Messrs Lobo & Co., conducted the survey.
Their Survey Report showed on examination that the contents of 103 Refrigerators were damaged.
The plaintiff claimed a sum of Rs, 1,28,398 as damages against the defendants, which sum comprised of the cost of repairs and loss on re-sale of the Refrigerators at depreciated prices.
4. The plaintiff's claim against the carrier is that the Carrier is liable for the damage caused to the consignment due to misconduct or negligence of its servants, who had failed to take proper care while the goods were in its custody. The plaintiff claimed in the alternative against the K. P. T. That if it is established that the goods were not damaged while they were in the custody of the Carrier, then the K. P. T. Is responsible for the damage caused due to mishandling and negligence of its servants and agents during the shifting of the cargo from place to place. The plaintiff's case against the Insurance Company is that it is bound by the report of its Surveyors and is therefore, liable to indemnify the plaintiff for the damage caused to the insured goods.
5. Each of the defendants has denied liability to the plaintiff. In their joint written-statement, the Carrier and its Agents, the defendants Nos. 1 and 2, have pleaded that the vessel had discharged the goods in good order and condition and the goods were removed from the custody of the K. P. T.
By the plaintiff's Clearing Agent on l8-e-1966, against a clean receipt without holding survey before removal; that the alleged damage to the goods was not caused while they were in the custody of the vessel, and further that the report of the Insurance Company's Surveyors was not binding on them and that they had therefore, rightly repudiated the claim of the plaintiff.
6. In its written-statement, the K. P. T. Pleaded that the goods were delivered to the plaintiff's Clearing Agent on 18.4-1966 against a clean receipt in the same good order and condition in which they were discharged by the vessel without holding a Survey before removal; that the K. P. T. Took all the proper care of the goods required of them under the law as baileys. In the circumstances, the responsibility for the alleged damage to the goods was denied. Finally, it was pleased that the suit against the K. P. T. Was not maintainable under the K. P. T. General Bye-Laws as well as under the provisions of Karachi Port Trust Act, 1886.
7. The Insurance Company denied that the alleged damage occurred during the currency of the policy which expired on 6-10-t955, that is after 60 days from the date of discharge of the goods It also denied that the period of the policy was extended or that the defendant was bound to extend the same or that delay in taking delivery of the goods within 60 days after the discharge was beyond the control of the plaintiff." Accordingly, it repudiated its liability for the alleged damage.
8. On these pleadings, several issues were adopted by the Court, but at the time of hearing arguments, counsel agreed to drop the remaining issues except the following: -
(1) Is the suit against defendants Nos. 1 and 2 time-barred?
(2) What goods were shipped under the Bill of Lading, and whether their packing was strong enough to withstand the voyage by sea?
(3) Whether defendants Nos. 1 and 2 are bound by the Survey Report?
(4) Did the defendant No, 4 refuse before plaintiffs to carry on the survey at K. P. T. Warehouse?
(5) Were the goods damaged while they were in the custody of defendant N o. 1 ?
(6) Whether the goods were damaged while they were in the custody of defendant No, 4?
(7) Whether defendant No, 3 is liable under the Policy of Insurance?
(8) Whether the defendant No, 3 was bound in law to extend the period of insurance as requested by the plaintiff?
(9) Whether the suit is maintainable in view of sections 49 and 87 of the K. P. T. Act and the Bye- Laws 43 and 46 of the K. P. T.
9. In support of its case, the plaintiff examined Ghafoor Victor (P. W. 1), an Assistant employed by Messrs Joseph Lobo, the Surveyors to prove the survey report Exh. 7/1 dated 30-4-1966 Syed Iqbal Rizvi (P. W. 3), the Managing Director of the plaintiff was examined generally on the case. The plaintiff also examined witnesses to establish damage to the cargo, Zafar Mohammad Pal (P. W.)
(but this witness was discharged as be had admitted that he had no personal knowledge), Mohammad Kamel (P. W. 4) repairer of Refrigerators and Saeedulla Jan (P. W. 5) also employee of Modern Comforts, Lahore, a firm of Refrigerator repairs. On behalf of the defendant No, 1, the Carrier, Mr. Luciano Stalin, an Accountant of Messrs Industry Zanussi, the manufacturer of the Refergerators was examined on Commission in Italy. On behalf of the ' defendant No, 2, Mohammad Sadiq (D. W. 1), the Claims-In charge employed by the Agent, was examined. No witness was examined by the Insurance Company. On behalf of the K. P. T., Mohammad Qadeer, Traffic Inspector was examined.
10. The provisions of the rules to the Carriage of Goods by Sea Act, 1925 do not apply in relation to carriage of goods by sea in a ship carrying goods from a foreign port to a port in Pakistan, as is the present case. Therefore, the rights and liabilities of the parties have to be ascertained by reference to the proper law of the contract, which in this case, is the Pakistan law.
11. I have examined the oral and documentary evidence on record and have heard the counsel for the parties. My findings on the issues are as follows-
12. Issues Nos. 1 and 2.-These issues were not pressed.
13. Issue No, 3.-The submission of Mr. A. Rauf for the plaintiff is that as the request for the survey was made before removal of the goods, the Carrier and its Agent were bound by the Survey Report Exh.
7/1. In this connection Mr. A. Rauf referred to the plaintiff's letter dated 13-11-1965 (Exh. 9/27) requesting the Carrier's Agent (the defendant No, 2) to depute their Surveyor to survey the goods at their earliest and the Agent's reply dated 19-11-1965 (Exh. 12/3) appointing Messrs Bhomal & Co. To survey the alleged damaged consignment in the K. P. T. 1 ending Shed. Although the request for the survey was granted, the plaintiff never approached the surveyors and the survey was never held before the goods were removed from the pert because, according to the plaintiff, the K. P. T.
Declined to B give permission to hold the survey in the Landing Shed where the Carrier's Agent demanded it, which fact the plaintiff failed to prove, as discussed under the next issue. Therefore the plaintiff contended that it was constrained to get the goods surveyed in its own go down, where they were removed oni 18-4-1966. But it was the plaintiff who was to blame for the failure to have the goods surveyed, before removal. Syed Iqbal Rizvi (P. W. 3),1 the Managing Director of the plaintiff in his deposition in Court admitted that he noticed the alleged damage at the time of the discharge of the goods on 6-8-1965. And yet, the request for the survey was not made until 13-11- 1965, by which time the goods had been removed by they K. P. T. From Transit Shed to another warehouse, some four or five furlongs away. He stated- "On receiving intimation of the arrival of the goods, I personally went to the docks and inspected the packing. These goods were lying in the K. P. T. Shed, but I do not remember which precise Shed.
The packages were apparently damaged. Some of the wooden crates were broken and some of the card-board cases were torn. The goods remained in the custody of K. P. T. For approximately eight months from August, 1965 to April, 1966."
No further attempt was made by the plaintiff to have the goods surveyed before removal.
Moreover, neither the Carrier, not its Agents received any notice of the proposed survey which was to be conducted at the plaintiff's godown on 18.4-1966. As rightly submitted by Mr. Saleem Akhtar, Advocate, for the defendants Nos, 1 and 2, the first intimation of the particulars of the alleged damage was conveyed to the Carrier's Agent on 7-6-1966 just before the suit was filed, by the plaintiff's legal notice Exh. 12/7 claiming an estimated loss of Rs, 1,28,385. Counsel cited Central Insurance Co. Ltd. v. Chittagong Steamship Corporation Ltd, and another (1) which held that in the absence of notice of the survey, the Carrier is not bound by the Survey Report. I therefore, hold that the first twa defendants are not bound by Survey Report.
14. Issue No, 4.-The burden of proof on this issue is on the plainti to prove that the K. P. T. Refused to grant permission to the plaintiff to carry out a survey at the K. P. T. Warehouse. In my opinion, the plaintiff has failed to discharge this burden. The only evidence upon which the plaintiff relied is a copy of a letter dated 13-12-1975 Exh. 9/26 addressed to the Dy. Traffic Manager, K. P. T. Inviting attention to a previous letter and a reminder requesting for the said permission. As the required notice under section 65 of the Evidence Act, 1872, was not given to the K. P. T. To produce the original in It possession. Secondary evidence of the copy was inadmissible. Neither copies of the previous letter and reminder were produced, nor the postal registration slip to prove posting The K.
P. T. Witness Mohammad Qadeer (D. W. 4), the then Dy. Traffic Inspector, to whom the alleged request was made, has denied that any such request was received, and there is not even any suggestion in his cross-examination to the contrary. Mr. Zaheeruddin Khan, Advocate, for the K. P. T.
Referred to rule 103 and Note (3) thereto in Chapter 8 of the K. P. T Manual for the Traffic Department, which shows that the plaintiff had to obtain the prior permission of the Customs Authority for opening dutiable packages, and as admittedly, the plaintiff did not obtain Customs clearance until 6-4-1966, no such permission could have been given. My finding on this issue is therefore in the negative.
15. Issues Nos. 5 and 6.-These issues will be discussed together as they raise the questions whether the goods were damaged while they were in the custody of the Carrier or the K. P. T. And are the most important issues in the case Mr. A. Rauf's submission with regard to the responsibility of the Carrier, is that the statement in the Bill of Lading that the crates had been shipped "clean on board", amounts to an admission and raises the presumption that they were received by the Carrier in good order and condition and the burden shifts upon the Carrier to show that they were discharged in the like good order and condition, and as the goods had been found damaged, the Court ought to presume that the goods were damaged while they were in its custody. In support of ins contention, Mr. A. Rauf cited Messrs Tar Mohamwd Janoo & Co.,41. Messrs Maldivian National Corporation (Ceylon) Ltd. And another (2) to the effect that the statement in the Bill cf Lading is prime facie evidence against the Carrier, which if not rebutted by evidence, is binding against the Carrier. The principle in that case was stared in relation to the Article III. 3 of the Rules to the Carriage of Goods by Sea Act, 1925 which as rightly submitted by Mr. Saleem Akhtar, does not apply. That case is distinguishable and, in any case, even if a presumption applied against the Carrier, it has been rebutted on the evidence. The Preliminary Out-turn Report of the damaged cargo Exh 12/t discharged the vessel, delivered to the ship's Agent, does not mention any of 110 cratcs discharged. Moreover, this fact is corroborated by the clean receipt Exh. 130 delivered to the K. P. T. By the plaintiff's Clearing Agent on 18-4-1966, when he took delivery of the 110 crates from the Delivery Clerk of the K. P. T. I have no reason to disbelieve this documentary evidence,
(1) PLD 1968 Kar. 252 (2) PLD 1969 Kar. 49S ' whose credit has not been shaken by the plaintiff. Therefore, in my opinion, it is not impossible that the external damage to some of the crates may have been caused during transit from the K. P. T.
Shed to the 'plaintiff's go down on 18-4-1966.
16. As far as the alleged damage to the contents of the Refrigerators is concerned, Mr. Saleern Akhtar's submission is that there is not even presumption with regard to the condition of the contents of the Refrigerators In the first place, the Bill of Lading has been endorsed: "Acknowledged without responsibility for contents". By issuing a clean B11 of Lading there can be no presumption as to contents which were not apparent on inspection. In this connection the observation of Stratton L.
J. In New Chinese Antimony Company Ltd. v. Ocean Steamship Co. Ltd. (I) are relevant: "Suppose a box, described as a "box of Jewels" were deposited for safe custody at a bank, and a receipt were given for it in the words "received. Contents unknown", theta would be no evidence of the receipt of the Jeweler. "Therefore whatever the contents, the burden of proof Wig on the plaintiff to show that the damage to the contents was caused by the negligence of the servants of the Carrier while the crates were in its custody. No such evidence has been produced by the plaintiff and merely, because some of the wooden crates were externally broken and some card-board case torn, as stated in the Survey Report, it cannot be inferred, nor is there any evidence to show, that the external damage must have resulted in damage to the contents. The Surveyor, Ghafoor Victor (P.
W. 1) does not even say so. The Report states that "some crates/planks were broken, other crates satisfactory" without specifying how many crates were externally damaged. It is hard to believe that as many as 103 crates out of 11 were externally damaged merely because the contents of 103 crates were reported damaged.
17. As far as the responsibility of the K. P. T. Is concerned, Mr. A. Rauf submitted that assuming that the ship had discharged the goods in undamaged condition, the goods remailvd in the custody of the K. P. T. As bailee, and that the burden shifted to the K. P. T. Of showing that it had taken proper care of the goods, which according to counsel, it had failed to show. Mr. Zaheeruddin. Khan on the other hand reliecll strongly on the fact that no survey was held by the plaintiff' before removal' of the goods while the goods were in its custody as required under K. P. T. By-law 43 which required that damage is to be ascertained and pointed out to the wharfage officer before removal of the goods, and also on the Out-turn report Exh. 12/1 and the Clean Receipt Exh. 13/2 which show G that the goods were discharged and were delivered in undamaged condition, to the plaintiff's Clearing Agent. As stated earlier, these facts have not been controverted by toe plaintiff. 1, would, therefore, hold that the plaintiff has failed on the ultimate burden of establishing that the goods were damaged while they were in toe custody of the K. P. r. Both issues are therefore, decided in the negative.
18. Issues Nos. 7 and 8.-This raises the question as to the liability of the Insurance Company and whether the latter was bound to extend the period of insurance on the plaintiff's request. The main question is whether the damage occurred during the period when the insurance policy was in force. As stated earlier, as per "Institute Cargo Clauses' (All Risks)", Clause l the period of the insurance was from warehouse top's?
(1) (1917) 2 K B 664 ' warehouse or on expiry of ( 0 days after completion of discharge of the goods over side the vessel, whichever shall first occur. In the event that happened, the policy expired on 4-10-1965, unless the insurance is deemed to have remained in force during delay "beyond control of the Assured" as stated in the said clause or unless the insurance is renewed for a further period. As discussed earlier, the plaintiff has failed to establish that the alleged damage occurred prior to 4- 0-1965.
However, Mr. A. Rauf's submission is that the insurance remained in force because the delay in taking delivery of the goods was beyond the control of th Consignee as the plaintiff did not obtain Customs clearance until 6-4.1966. But as rightly submitted by Mr. Mansoorul Arfin, firstly, the plaintiff Itself was responsible for the delay in clearing the goods, and secondly, such delay is not contemplated in the Clause as extending the insurance, whic is limited to deviation, force discharge, re-shipment or transhipment and during any variation of the adventure of the voyage.
In this connection, Mr. Mansoorul Arfin referred to Safadi v. Westren Assurance Company (1) where, on similar facts, the Consignee could not recover on the policy because, he had left the goods in the Customs house beyond the maximum period of 30 days, for business reasons, as he did not wish to pay for the goods for which he had obtained credit. In the instant case, the goods were imported without a license and the plaintiff could not obtain a licence without purchasing the Bonus Vouchers in the market which delayed the clearance of the goods. Mr. A. Rauf submitted that the plaintiff had requested for extension of the policy and bad paid additional premium of Rs, 527,2 for extending the policy and referred to a copy of the plaintiff's letter to the Insurance Company Exh. 9/10 dated 11-2-1966. But, as rightly submitted by Mr. Mansoorul Arfin, the alleged payment referred to some other policy and was irrelevant. It is preposterous to suggest that any insurance company would have agreed to insure damaged goods. I hold that the plaintiff has failed to prove that the policy bad been extended. My findings on these are, therefore, in the negative.
19. Issue No, 9.-The statutory notice to the K. P. T. Under section 87 of the K. P. T. Act was served on 5- 7-1966, and the suit was filed within six months of the accrual of the cause of action, which the plaintiff has stated accrued on 18-4-1966 when the contents of the goods were discovered to be damaged. The suit is accordingly in time. Mr. Zaheeruddin referred to Messrs Eastren Insurance Co.
Ltd. v. Trustees of the Port of Karachi (2) but the same is distinguishable, as in that case, the suit was filed beyond six months from the accrual of the cause of action.
20. Although there is no specific issue on what damages, if any, the plaintiff has suffered, I have considered the evidence and find that the plaintiff has not proved damages. Mr. Syed Iqbal Riavi (P.
W. 3), the Managing Director of the plaintiff failed to produce any reciept for the cost of repairs said to have been paid to Messrs Modern Comforts Limited, Lahore and to Mohammad Kamel (P. W. 4), nor any bill or other voucher to prove the price at which the Refrigerators were allegedly sold at depreciated prices. In cross-examination, he admitted that he did not know even the precise amount of his claim. Saeedullah Jan (P. W. 5) employee of Modern Comforts, Lahore produced ledger Exh. 1111, but it neither shows what repairs were carried out or the cost of repairs.
(1) 46 Lloyd's List Law Rep. 140 (2) PLD 1975 Kar. 425 ' He admitted that he had no personal knowledge of the receipt of Rs, 89,000 said to have been paid by the plaintiff for repairs. No other documentary proof has been produced by this witness.
Similarly, Mohammad Kamel (P. W. 4) produced no receipt or any book of accounts to prove payment to him of the cost of repairs.
21. For the foregoing reasons, I hold that the plaintiff has failed to establish its case against any of the defendants. The suit is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.