Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Suit No. 68 of 1963, decided on 15th August 1966.
Sch. I, Ch. 3, rr. 11, 25 & 8‑" Wilful misconduct" ‑Interpretation ‑ Rule 8 (m) read with r. 22 (2)‑Making two declarations of value in respect of Customs and carriage‑Not necessary.
The phrase "wilful misconduct" has not been defined under the Carriage by Air Act, 1934. However the judicial interpre tation received by this phrase shows that wilful misconduct' means a deliberate act or omission which the person doing or omitting (1) knows is a breach of his duty in the circumstances; or (2) knows is likely to cause damage to third parties; or (3) with reckless indifference does not know or care whether it is or is not a breach of his duty or is likely to cause damage. It is the misconduct and not the conduct which must be wilful. Wilful misconduct may be compared with criminal negligence.
Where, in contravention of regulations, the aircraft on landing was removed to hanger without any reason and without obtaining the necessary permission of the customs authority; the aircraft was not sealed before its removal to the hanger; unloading took place six hours later and during the absence of customs officer with the result that theft of a parcel containing valuable consignment took place, it was held that all these facts amounted to wilful misconduct on the part of the Air transport company and the company was liable to make good the loss sustained by person importing the goods.
Shawcross and Beaumont on Air Law, p. 364; "The Law of the Air" by Lord McNair at p. 191 ; Horabin v. British Overseas Airways Corporation 1952 E L R 1016; 86 L T R 796 and 150 E R 756 ref.
O. I, r. 9‑Suit cannot be defeated by mere non joinder of parties‑Suit by importer of goods against Air transport Company for non‑delivery- Mere fact that the Bank through which teller of credit was opened was not made party‑‑Does not render suit defective or not maintainable.
A. A. Fazeel for Plaintiff:
A. Rauf for Defendant.
Dates of hearing: 26th and 27th May 1966.
Sheikh Muhammad Younus (plaintiff Sole Proprietor of Moulana Watch Company, Bunder Road, Karachi) has filed this suit for the recovery of a sum of Rs. 68,716.64 against the defendant (Pakistan International Airlines, Karachi) and his case is as follows:
2. Plaintiff had purchased bonus vouchers of the value of Rs. 20,000 for Rs. 37,000 on 3‑3‑62 and thereafter had obtained import licence on 6‑3‑62 for the import of watches from Switzerland. Letter of Credit was established by him on 7‑3‑62 through Habib Bank Ltd. of the value of 1494‑15‑10 (equivalent to Rs. 19,931) in favour of his suppliers, namely, Langendof Watch Company, Langendorf, Soleure, Switzerland for the import of watches. which were to be shipped by the defendant from Geneva to Karachi. He received the advice from his suppliers on 26‑3‑62 regarding the shipment of 1118 watches and intimation regarding the arrival of this consignment at Karachi Airport was received by him on 31‑3‑62 from his clearing agents Wilson and James. He obtained bank delivery order in the name of defendant on 2‑4‑62 against the payment of Rs. 20,113.96 from Habib Bank Ltd. and when all the relevant documents were presented to the defendant he was informed that the consignment in question had not arrived. He wrote, a letter to the defendant on 3‑4‑62 about 'this consignment and was informed on 10‑4‑62 that the parcel of watches in question was short landed and he was advised by the defendant to file his claim. Consequently such claim was filed by the plaintiff on 23‑5‑62, but he was offered Rs. 3,397 only. Thereafter the defendant was served with legal notice which is followed by the present suit.
3. While disputing the claim of the plaintiff, main pleas raised by the defendant in its written statement are, (1) consign ment in question had never reached Karachi, (2) plaintiff is entitled to Rs. 3,397 only as there was no special declaration under rule 22 (2) of, 1st Schedule of the Carriage by Air Act, 1934, (3) denial of misconduct and involvement of its loaders. On these pleadings following issues have been framed with the consent of the parties.
"(1) Whether the plaintiff purchased bonus voucher of Rs. 20,000 for a sum of Rs. 37,000 for import of watches from Switzerland
(2) Whether the plaintiff established L/C through Messrs Habib Bank Ltd., for the value of 1494‑15‑10 in favour of Langendorf Watch Co., for import of watches
(3) Whether 1118 watches were shipped by the supplier through the defendant, if so when
(4) Whether the defendant did not lodge report with police asserting the despatch of the said consignment from Geneva and ‑its arrival at Karachi in Elt No. RK‑702 and its having been stolen If so, what is its effect
(5) Whether the loss of consignment in question was caused by the wilful misconduct and default of the defendant
(6) Whether the consignment in question contained 1118 wrist watches and was valued at Rs. 18237.46 Swiss Francs
(7) Whether the jurisdiction of the Court is ousted by rule 22 (2) of the First Schedule of the Carriage by Air Act and the defendant is entitled to disown their liability for the total loss sustained by the plaintiff
(8) Whether the suit as framed is not maintainable and is bad for non‑joinder of the necessary parties
(9) What is the effect of the offer of Rs. 3,397 by the defendant to the plaintiff in total satisfaction of the loss sustained
(10) Whether the plans in question was not off loaded at the place of landing at the Airport If so, what is its effect
(11) Whether the defendants are not liable for the total loss sustained by the plaintiff
(12) Relief, if any, to which the plaintiff is entitled
The only issues which were vehemently argued on behalf of the defendant are Nos. 5, 10 and 11. However, I find it expedient to give my findings on the remaining issues.
4. Issue No. 11.‑Muhammad Siddik is working as an accountant with Sulaiman Bawani from whom the plaintiff is alleged to have purchased bonus vouchers on 3‑3‑62 of the value of Rs. 20,000 for a sum of Rs. 37,000. His evidence Exh. 5 shows' that such bonus vouchers were purchased by the plaintiff. Bill is Exh. 5/1 while the entry from his account book is Exh. 5/2. Thereafter he had obtained import licence which is Exh. 6/l. Plaintiff (Muhammad Younus Exh. 6) has reiterated all these facts on oath. I have already pointed out that this fact is not disputed by the defendant. For all these reasons I decide this issue in favour of the plaintiff. Finding accordingly.
5. Issue No. 1.‑Exh. 6/2 is the Letter of Credit and all the necessary particulars are mentioned in it. Evidence of plaintiff Exh. 6 shows that after he had purchased bonus vouchers he had obtained import licence Exh. 6/1 and thereafter letter of credit Exh. 6/2 was established by him. All these facts are not disputed by the defendant. For all these reasons I decide this issue in favour of the plaintiff. Finding accordingly.
6. Issues Nos. 3 and 6.‑The first relevant document is Exh. 6/4 dated 26‑3‑62. In this letter, suppliers (Langerdorf Watch Company Laogendorf, Soleure, Switzerland) had informed the plaintiff about the shipment of 1118 watches against the above stated letter of credit. Next document which supports the case of the plaintiff is Exh. 6/5 dated 24‑3‑62, i e , the invoice sent to the plaintiff by the suppliers. It mentions the number of watches at 1118 as well as total price. Exh. 6/6 is‑the arrival advice dated 31‑3‑62 received by the plaintiff from his clearing and forwarding agents Karachi, namely, Wilson and James, while Exh. 6/7 is the Airway bill. Two witnesses i.e. the Sales Manager and agent of the suppliers who were examined on commission have fully supported the plaintiff's case on all these points. In his evidence of plaintiff has reiterated all these facts. No evidence has been adduced by the defendant in rebuttal of all this evidence. I therefore find no reason or ground to disbelieve all this evidence. Both these issues are accordingly decided in favour of the plaintiff and (hold that 1118 watches worth Rs. 18,236.47 Swiss Francs were despatched to the plaintiff on 26‑3‑62. Finding. accordingly.
7. Issue No. 4 ‑‑Exh. 6/26 is the report in respect of theft of. this parcel of watches lodged on behalf of the defendant with the Superintendent of Police (East) Karachi on 24‑4‑62. Its recital shows that this is a case of theft and not of short landing of this parcel. This first report further recites that the aircraft had reached Karachi Airport at 4.15 hours on the morning of 31‑3‑62 and further that it was off loaded at 10.30 hours. Jafer Raza who was then D. S. P., Karachi, had made inquiries into this report. His evidence Exh. 9 shows that be had examined witnesses and on the basis of statement made by Abdul Rasul be had gone to Swat to secure Sahib Zar, who, at the relevant time was working as loader with the defendant. This loader had proceeded there on long leave after this theft. Jaffar Raza tried to secure him through Wali of Swat and when Sahib Zar learnt about his mission he disappeared, visited Karachi secretly and murdered Abdul Rasul and thereafter this police officer made his final report under section 173, Cr. P. C. in February 1963. His evidence further shows that all the evidence collected by him connected Sahib Zar with the theft of this parcel. Plaintiff Exh. 6 in his evidence has referred to all these facts. Syed Shah Imam who had lodged this report with the police on behalf of the defendant has not been examined for reasons best known to them. Evidence (Exh. 13) of Syed Khurshid Ali, Station Manager, P. I. A shows that this Syed Shah Imam was no longer in Service With the defendant and his cross‑examination shows that he had issued no instructions to him for filing this report and further that he might have received instructions from the head office in this respect. However, nobody from the head office has been examined. For all these reasons I hold that defendant had lodged report Exh. 6/26 with police regarding theft of this consignment of watches. Finding accordingly.
8. Issues Nos. 5, 10 and 11. These are the important issues and consequently were argued at great length by the parties' Advocates. Case of the plaintiff, in this respect, is that theft of this valuable parcel containing 1118 watches was the result of "wilful misconduct and default" on the part of the defendant and details of which are fully described in paragraphs 13, 14 and 15 of the plaint. The aircraft is question had reached Karachi Airport at 4‑15 on the morning of 31st March 1962, that it was removed to the hanger after all the passengers had disembarked and, lastly, that the cargo was unloaded at about 10‑30 a.m. all these facts are not open to dispute. Plaintiff has further led evidence to prove that tae aircraft was removed to the hanger without the consent of the Custom authorities, secondly that it was not sealed and lastly, that the cargo was unloaded in the absence of customs officers. Evidence led by the defendant shows that after the passengers had disembarked, P. I. A. Engineers had found it necessary to remove the aircraft to the hanger. This explanation appears to be false and is an after‑thought story. In the first place, names of the engineers who bad given this advice have riot been disclosed. No evidence has been brought on record to show what was the reason or the technical grounds for removing the aircraft to the hanger. Apart from these facts, none of the engineers in question has been examined to prove this explanation furnished on behalf of the defendant. For all these reasons I am not prepared to accept or believe this story given by defendant Karamatali, the Preventive Officer, Customs Department, Karachi, was on duty x when the aircraft in question bad landed at about 4‑30 a.m. His evidence Exh.‑12 shows that the cargo is off loaded at the same place where the aircraft is parked after the disembarkation of the passengers but in this particular case this practice was not followed. He had further added that his permission which was necessary under the rules was not obtained for removing this aircraft to the hanger. He had also stated that he was not present when the cargo was unloaded at the hanger. In his cross‑examination be had added that he had reported to his department about the contravention of this rule. To rebut his evidence, defendant had examined Khurshid Ali Khan (Senior Preventive Officer, Customs), Ehsan Ahmed Siddiki (Traffic Supervisor P. I. A.) and Syed Khurshid Ali (Station Manager P. I. A.). Khurshid Ali Khan Exh. 10 had brought the relevant files and produced cargo summary Exh. 10/1 and manifest Exh. 10/2 to prove short landing of this package. His evidence shows that this package had not been cleared from the Customs Department as it was short landed because it was not found in the aircraft. His evidence further shows that:‑
"Ordinarily the packages are always unloaded at the place where the aircraft is parked unless there are other circumstances to compel the removal of the aircraft to the hanger or any other place before unloading. In such cases permission is granted by the Superintendent of the Customs on the application of the airlines . . . . . customs sealing means actual and physical sealing of the aircraft "
Evidence of Ehsan Ahmed Siddiki Exh. 11 shows that he was on duty when the aircraft in question landed at the airport at about 4‑25 a.m. and
"thereafter P. I. A. Engineers arrived at the spot and desired to remove the aircraft to the hanger for some technical reasons. In view of it the Customs Officers sealed the aircraft and then I returned back to my office to prepare the relevant documents. The cargo was not unloaded before the sealing of the aircraft. Unloading of cargo had started at about 6‑30 a.m. in the presence bf Mr. Karamat of the Customs Department and Mr. Hassan Imam an Assistant Station Master of P. I. A. . . . . . Salim Qureshi who has signed the manifest Exh. 10/2 was not present at the time of unloading of the cargo."
In his cross‑examination he bad to admit that cargo was brought to customs enclosure at about 8 a.m.
"and immediately thereafter it was verified by Salim Qureshi and he then signed Exh. 10/1 and 10/2 . . . . . customs enclosure is about 150 yards away from the hanger . . . . . Both Salim Qureshi and Karamat were inside the customs enclosure when the cargo was brought there. 1 had found the custom seal on the aircraft. It is correct that I had first checked the watches parcel from the rear hold compartment of the aircraft. It is correct that I had stated before the police that first of all I checked the precious consignment of watches from Geneva off loaded from the rear hold compartment."
Last witness is Syed Khurshid Ali Exh. 13. He has denied that any complaint was made by the customs department in connection with this aircraft. One Abdul Aziz security guard P. I. A. was examined by the plaintiff but he has not supported his case. His evidence shows that customs authorities were consulted before the aircraft was taken to the hanger. His evidence further shows that customs authorities had sealed the plane. He is falsified by Jafer Raza D. S. P. whose evidence shows that this witness Abdul Aziz had not stated before him that the plane had been sealed. I am satisfied and hold that the aircraft in question had reached Karachi Airport at about 4‑30 on the morning of 31‑3‑62, secondly that after the disembarkation of the passengers this aircraft was removed to the hanger without obtaining the requisite permission from the Customs authorities and before it was sealed by them, thirdly the cargo was unloaded at 10‑30 a.m. in the absence of the customs officers and, lastly, that it was at that time that theft of this parcel was noted. Plaintiff had further pleaded that requisite measures prescribed for handling valuable cargo were not taken in respect of this consignment and 'secondly the off loading had taken place after the shift of duty staff. Evidence on record supports him. Lastly, evidence on record shows that Sahib Zar who was working as loader at the relevant time has disappeared after he had murdered Ghulam Rasul who had given information regarding the theft of this parcel of watches by him. In view of his absconsion the police officer could not send Sahib Zar to stand his trial in the Court for the theft of this parcel. For all these reasons the plaintiff has blamed the defendant for wilful misconduct. This phrase is not defined under the Carriage by Air Act, 1934 or the Schedule attached to it. Chapter 3 of this Schedule deals with the liability of the carrier and its rules 22 and 25 appear to be relevant and were relied upon by the parties and hence these are reproduced below:‑‑
"22. (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. Where damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 1,25,000 francs. Nevertheless, by special contract the carrier and the passenger may agree to a higher limit of liability.
(2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor delivery.
(3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 5,000 francs per passenger.
(4) The sums mentioned in this rule shall be deemed to refer to the French franc consisting of 651 milligrams gold of millisimal fineness 900.
(1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct.
(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. "
The phrase "wilful misconduct" has been judicially interpreted and explained by various authors as under:
According to Shawcross (vide page 364 of Shawcross and Beaumont on Air Law):
" Wilful misconduct means a deliberate act or omission which the person doing or omitting. (1) knows is a breach of his duty in the circumstances; or (2) knows is likely to cause, damage to third parties; or (3) with reckless indifference does not know or care whether it is or is not a breach of his duty or is likely to cause damage. It is essential to remember that "the misconduct not the conduct must be wilful."
He has then referred to a recent case in the United States in which the Judge directed the Jury as follows:
"Now wilful misconduct is not, as I have said, merely misconduct, but wilful misconduct. So if the carrier, or its employees or agents, wilfully performed any act with the know ledge that performance of that act bras likely to result in injury to a passenger or performed that tier with reckless and wanton disregard of its probable consequences, then that would constitute wilful misconduct . . .... . Wilful misconduct may be compared with criminal negligence."
He has then referred to a recent case in Belgium and that Court had held that:
"For the unlimited responsibility of the carrier to be involved one of the company's officers must have committed an error with the intention of causing damage to a passenger or have acted with such carelessness or such negligence that such damage became almost certain."
I was also referred to a book, namely, "The Law of the Air" by Lord McNair. At, page 191 this phrase is explained in the following words:‑
.
"To be guilty of wilful misconduct the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be."
He has also referred to one case in United States where it was held that:
"wilful misconduct means that in addition to doing the act in question, the person must have intended to do the act, or launched on such a line of conduct with knowledge of what the consequences would be and went ahead recklessly despite his knowledge of these conditions. So you can see that there are three elements to wilful misconduct: the first is an intent to do that act; the second is an awareness of the consequences of the act and a deliberate or reckless determination to do it regardless of the consequences of the act; and the third is the accident must be a result of all the acts."
In the case of Horabin v. British Overseas Airways Corporation (1952 All ELR1016) it was held that:
"A grave error of judgment, particularly one apparent as such in the light of after events, is not wilful misconduct if the person responsible though he was acting in the best interest of the passengers and of the aircraft."
Next case referred to me is reported in 86 L T R 796. The facts of that case show that theft of jewels had taken place as the driver had not taken ordinary care and it was therefore held that .‑
"that it was the duty of the defendant to provide a driver who should take ordinary care of the carriage during the temporary absence of the traveller, and that the theft of the jewels was the natural and ordinary result of a breach of such duty, so as to make the defendant liable for the loss suffered by the plaintiff:"
It is now evident that it has been established without doubt that the aircraft in question was removed to the hanger by the defendant without any reason, secondly no permission of the customs authority was obtained, thirdly that it was not sealed before this aircraft was removed to the hanger, and lastly, that the unloading took place six hours later, and during the absence of the customs officers with the result that theft of his parcel took place during this interval. All these facts amount to wilful misconduct on the part of the defendant and I hold it accordingly. These issues are therefore decided in favour of the plaintiff.
9. Issues Nos. 7 and 9.‑I have already reproduced Rules 22 and 25 of Chapter 3 contained in first Schedule attached to the Carriage by Air Act, 1934. Rule 8 deals with particulars which must be mentioned in air consignment note and its clause (m) lays down that the amount of the value must be declared in accordance with rule 22 (2) which deals with the extent of liability and the special declaration. Mr. Ali Ahmed Fazeel, the learned counsel for the plaintiff, had urged before me that provisions of rule (8)(m) read with rule 22(2) have been fully com plied with and in this respect he had relied upon the airway bill Exh. 6/7. He was of view that under rule 8 (m) it was not necessary to make two declarations of value in respect of (1) C customs and (2) for carriage. Relying upon the second part of the Ist clause in Exh. 6/7 he had urged before me that the value had been properly declared and thus provisions of rule 8 (m) have been fully satisfied. He had also relied upon the evidence of two witnesses i.e. the manager and agent of the suppliers in Switzerland who were examined on commission. Relying upon a case reported in 150 E R 756 he had urged before me that if freight money is more but no demand is made by the carrier, he cannot take advantage of this position subsequently. According to him no evidence has been led by the defendant that such a demand had been made and any extra freight was paid by the plaintiff or his suppliers. For all these reasons I decide both these issues in favour of the plaintiff and hold that the jurisdiction of this Court is not ousted by rule 22 (2) of the First Schedule of the Carriage by Air Act, 1934 and further that the defendant cannot disown their, liability for the total loss sustained by the plaintiff and lastly that the offer made by the defendant to pay Rs. 3,397 does not affect the plaintiff's claim in the present suit.
10. Issue No. 8.‑Mr. Abdul Rauf, the learned counsel for the defendant, had urged before me that Exh. 6/7 is a complete contract between the consignee and the carrier. According to him this parcel was consigned to Habib Bank and not to the plaintiff and hence Habib Bank was the necessary party as the cause of action had accrued to him. He had relied upon rule 11 of the First Schedule attached to Carriage by Air Act, 1934. This rule lays down that air consignment note is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of a carriage. He had also referred to me to commentary at page 181‑182 of the Law of the Air by Lord McNair. View taken by Mr. Ali Ahmed Fazeel appears to be correct. According to him Habib Bank is only a banking agent. Letter of credit was opened through it and Exh. 6/7 (airway bill) shows that this parcel was consigned to the bank but it was on account of the plaintiff: Apart from these facts all this correspondence was entered into between the plaintiff and the defendant. It was the plaintiff who was advised by the defendant to file claim, offer of Rs. 3,397 was made by the defendant to the plaintiff and not to the bank. Apart from this fact no suit can be defeated by reason of misjoinder or non joinder of the parties under Order 1, rule 9, C. P. C. However, I have agreed with the plaintiff that Habib Bank is not a necessary party. Finding accordingly.
11. Issue No. 12.‑Details of the claim are fully mentioned in paragraph 17 of the plaint. Total claim of Rs. 68,716.64 includes (a) Rs. 37,000 paid for the purchase of bonus vouchers (b) Re. 86.50 expenses incurred for opening the L/C (c) Rs. 20,113.96 paid to Habib Bank (d) Rs. 63.42 insurance premium and, lastly, (e) Rs. 11,452.76 claimed as loss of profit at 20 %. Items (a) to (d) have been satisfactorily proved and no evidence in rebuttal has‑been led by the defendant. In fact all this evidence has not been disputed, as the plaintiff was not cross -examined on all these points. As regards item No. (e) evidence of the plaintiff shows that he has claimed loss of profit at the rate of 20 %. In his cross‑examination he has stated on oath before me that:
"This consignment was insured for Rs. 20,000 on the basis of FOB value.
It was insured for the total loss."
He has examined one Moinuddin in support of his case. His evidence Exh. 8 shows that the importer of Lanco watches earns a profit from 20% to 25%. No evidence has been led in rebuttal. In fact Moinuddin was not cross‑examined at all on behalf of the defendant. For all these reasons I find no ground to disbelieve this evidence and accordingly this item of Rs. 11,452.76 is allowed.
12. Decree shall therefore follow for Rs. 68,716.64 and costs with running interest at 6% per annum from the date of suit till the date of realisation.
K. B. A.
Suit decreed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer