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Second Appeal No. 236 of 1979, decided on 5th October, 1986.

‑‑Sched.‑‑Bill of lading‑‑Short landing of goods‑‑Liablity for loss/ damages‑‑Cargo, according to conditions printed at reverse of Bill of Lading carried on Deck and at shipper /consignor's risk‑‑Notice regarding such conditions appearing in red type on front of Bill of Lading‑ Insurance Company subrogee of consignor, held, could not in circumstances, say that its attention was not drawn to such conditions and that same being comprehensive in nature would not absolve carriers of liability.

Pakistan International Airlines Corporation v. Salahuddin Ahmed P L D 1962 Kar. 399; 1915 A C 740 and 1918 A C 837 held not applicable.

‑‑‑Ss. 151 a 152‑‑Carriage of Goods by Sea Act (XXVI of 1925), Sched., Art. l(c)‑‑Carriage of goods by sea‑‑Cargo carried on deck and at consignor's risk short landing at destination‑‑Liability for loss‑ Liability of carriers not governed by Ss. 151 a 152, Contract Act, 1872‑‑Word 'goods' in Art. 1(e) of Sched. to Carriage of Goods by Sea Act‑‑Connotation‑‑Cargo not governed by provisions of said Act‑ Negligence alleged by substitute of consignor denied by carrier in written statement‑‑Carrier bringing evidence to show that goods were damaged due to act of God‑‑Contention that provisions of Ss. 151 s 152, Contract Act were applicable in .instant case not tenable.

Transoceanic Steamship Company Ltd., Karachi and another v. Abdul Razak Abdul Kader and another P L D 1960 Dacca 147; Transoceanic Steamship Company Limited v . Islamic Republic of Pakistan P L D 1959 Dacca 848 distinguished. Kariadan Kumber v. The British India Steam Navigation Company Ltd. I L R 38 Mad. 941; Bombay Steam Navigation Co. Ltd. v. Basudev Baburao Kamat A I R 1928 Bom. 5; Haji Shakoor Gany v. Firm of Volkart Brothers and another A I R 1931 Sind 124; Irrawaddy Flotilla Company Limited v. Bugwandass 18 I A 121; British India Steam Navigation Company Ltd. v. T.P. Sokkalal Ram Sait A I R 1953 Mad. 3; Armour and Company, Limited v . Leopold Walford (London) Limited (1921) 3 K. B. 473 and Halabury's Laws of England 3rd Edition, Vol. 4 , 413 ref.

M.H. Siddique for Appellant.

Ibrahim Pishori for Respondents.

Date of hearing: 8th September, 1986.

This second appeal calls in question the judgment passed by the Vth Additional District Judge, Karachi, dated 30‑1‑1979, dismissing the appellants first appeal against the respondents.

2. The facts of the case are that a consignment of 124 drums containing Thinner and Undercoat and Nitro Cellulose was imported by Messrs Wazir Ali Industries. Hyderabad from U.K. The consignment was shipped on board the vessel S.S. "Somali" under Bill of Lading No. 576, dated 14‑2‑1969. When the vessel arrived at the port of Karachi it was discovered that twelve drums of Varnish and twelve drums of Thinner had short landed. As the consignment was insured with the appellants under their Marine Policy No. IGW/770/1263 for Rs.33,196 the consignee lodged a claim with the appellant as well as the respondents Nos.l and 2 who were owners of the vessel and their shipping agents respectively. The respondents refused to settle the claim which the appellant settled under a letter of subrogation and then filed Suit No.623 of 1970 for recovery of Rs.8,414.41 in the Civil Court, Karachi. The respondent No.2 being the local agents of respondent No.l contested the suit on the ground that the consignment in suit was "Deck Cargo" and therefore, no liability was attached to the same and, therefore, the respondents were not liable for any loss or damage to the consignment. The suit was dismissed by the trial Court whereupon the appellants preferred First Appeal No. 250 of 1975 which was also dismissed by the learned Vth Additional District Judge, Karachi holding that since the goods had been shipped on Deck and at the consignee's risk the carrier was immune from liability, for any loss and hence this second appeal.

3. Mr. M.H. Siddiqui, learned counsel for the appellants has now contended that the respondents were liable to pay the amount claimed by the appellants in the suit because (1) the consignors did not have sufficient notice in respect of the conditions printed on the Bill of Lading and (2) the consignors were responsible under sections 151 and 152 of the Contract Act to take due and proper care of the goods as bailees. Sections 151 and 152 of the Contract Act, inter alia, provide as follows:‑

"151. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed."

"152. The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section 151."

The contention of Mr. Ibrahim Pishori on the other hand was that liability of common carrier by sea is not governed by the provisions of the Contract Act but by the English law according to which, the carrier can contract himself out of any liability.

4. As far as the first contention of Mr. Siddiqui is concerned, it may be pointed out that the cargo, according to the Bill of Lading, was being carried on Deck and at the shipper's risk and there has been in fact, no contest on this point but what has been contested by Mr. Siddiqui now is that the same did not constitute sufficient notice a as to the conditions printed at the reverse of the Bill of Lading, which purported to completely absolve the shippers from responsibility in respect of any loss or deterioration or damage to the goods. The contention of Mr. Siddiqui has been that in absence of proper notice, the respondents cannot claim immunity from responsibility. Reliance in this respect has been placed on Pakistan International Airlines Corporation v. Salahuddin Ahmed P L D 1962 Kar. 399. In that case the question was whether the conditions printed in English language on the passengers' tickets had been brought sufficiently to the notice of the passengers and it was held by Wahiduddin Ahmed, J. (as he then was) that failure to print such conditions in Urdu and Bengali languages which were recognized languages of Pakistan was bound to cause trouble to the parties concerned and it would be impossible for the Court of law to hold that the conditions excluding liability had been brought with sufficient care to the notice of the passengers.

5. The argument of Mr. Ibrahim Pishori, learned counsel for the respondents however, has been that the facts of this case are distinguishable as on the Bill of Lading were printed in red type the words "See conditions of carriage and other conditions on reverse" which gave sufficient notice to the consignor of the goods in respect of those conditions, therefore, the decision of this Court in the case of Pakistan International Airlines Corporation was not attracted to the facts of the instant case. Reliance in this respect was placed by the learned counsel on 1915 A C 740 and 1918 A C 837. In the second case, a ticket on the front of which was printed in capital letters a notice requesting the passengers to read the conditions of the enclosed contract, was held by the House of Lords to give reasonable notice about the existence of conditions contained in the contract.

6. A perusal of the Bill of Lading in the instant case makes it sufficiently manifest that notice to the consignors about there being certain conditions printed on the reverse of the Bill of Lading, was B clearly given by the Shippers. The notice is in red type on the front of the Bill of Lading which, I am certain, could not have been missed[ by the consignors. Therefore, if the consignor failed to read such conditions on the reverse of the Bill of Lading, they certainly took risk and now when the goods have been lost the appellant which now steps into the shoes of the consignor cannot turn back and say that its attention was not drawn to the conditions on the Bill of Lading. I, therefore, cannot agree with Mr. Siddiqui that the appellant had no proper notice in regard to the conditions printed on the Bill of Lading. The conditions are comprehensive in nature and it has not been contested by the appellant that they absolve the respondents of liability.

7. Turning to the second contention of the learned counsel for the appellant that the provisions of sections 151 and 152 of the Contract Act are applicable in the instant case, although the consensus of e authorities in this regard is against the contention but the argument o Mr. Siddiqui still is that the instant case is governed by the said provisions of the Contract Act. Two cases have been relied upon by Mr. Siddlqui in this regard namely, Transoceanic Steamship Company, Ltd., Karachi and another v. Abdul Razak Abdul Kader and another PLD 1960 Dacca 147 and Transoceanic Steamship Company Limited v. Islamic Republic of Pakistan P L D 1959 Dacca 848. In the first case it was held that the words in the Bill of Lading "at shipper's risk" did not excuse the carrier of loss of goods due to negligence on its part and the expression did not amount to making of any special contract between the shipping company and the plaintiff of such a comprehensive nature as to absolve the shipping company from all liabilities so as to exclude sections 151 and 152 of the Contract Act. In the second case it was held that where shipping company takes its stand on its right as a common carrier, it cannot, in the absence of anything to show as to how it dealt with the goods of what care it took of the goods in question, claim exemption from liability for loss of goods on one of the terms of the contract namely that the goods were shipped or carried on Deck at the owner's risk.

8. Although on first impression the two cases cited by Mr. Siddiqui appear to be supporting his contention but Mr. Pishori has vehemently argued that besides the fact that these cases are distinguishable, there is plethora of authorities against the view taken in those cases and the first cited by him in this regard is that of Pakistan International Airlines Corporation v. Salahuddin Ahmed, the case to which I have already referred, although in a different context. In this case it was held that the liability of a common carrier by sea is not governed by the Contract Act but by the English common law since adopted in India. Reliance was placed in this case on various earlier decisions of the Indian Courts such as Kariadan Kumber v. The British India Steam Navigation Company Ltd. I L R 38 Mad. 941, Bombay Steam Navigation Co. Ltd. v. Basudev Baburao Kamat A I R 1928 Bom. 5 and Haji Shakoor Gany v. Firm of Volkart Brothers and another A I R 1931 Sind 124. In all these cases it had been held that the duties and liabilities of common carrier by sea are governed in India by principles of English law on the subject and that notwithstanding some general expressions in the Chapter of Bailments, a common carrier's responsibility is not within the Contract Act. The Courts in these cases had followed an earlier decision of the Privy Council in Irrawaddy Flotilla Company Limited v. Bugwandass 18 I . A . 121. In that case a dispute had arisen over damage caused to bales of cotton destroyed by fire whilst on board a steamship belonging to the defendant Company. The question arose whether the defendant's goods were goods on hire or bailed as required by sections 151 and 152 of the Contract Act. The Privy Counsel answered the question in the following terms:‑

"These considerations lead their Lordships to the conclusion that the Act of 1872 was not intended to deal with the law relating to common carriers, and notwithstanding the generality of some expressions in the chapter on bailments, they think that common carriers are not within the Act. They are, therefore, compelled to decide in favour of the view of the High Court of Calcutta, and against that of the High Court of Bombay."

Another case cited on the point is the case of British India Steam Navigation Company Ltd. v. T.P. Sokkalal Ram Sait A I R 1953 Mad. 3. In this case goods were sent by ship on high seas as Deck Cargo on the contract embodied in the Bill of Lading which contained a clause that the contract was not governed by the Carriage of Goods by Sea Act but by the terms of the Bill of Lading and that the carriers and their agents or servants or any of them would not be liable for loss even if the same was due to negligence on their part or on the part of their servants. It was held that Deck Cargo by virtue of definition of "goods" contained in Article 1(c) in the Schedule to the Carriage of Goods by Sea Act, 1925 was not covered by the said Act nor by sections 151 and 152 of the Contract Act, but by the English common law, i.e. by the terms of the contract embodied in the Bill of Lading. It was also pointed out that prior to the passing of Carriage of Goods by Sea Act in 1925, the common law of England was applicable to common carriers and not the provisions of the Contract Act relating to Bailments. Besides these cases Mr. Pishori has also referred to Armour and Company Limited v. Leopold Walford (London) Limited 1921 3 KB 473. All these authorities clearly show that the liability of the carriers is not governed by sections 151 and 152 of the Contract Act.

9. Turning to Mr. Siddiqui's contentions in the instant case, it has not been disputed by him that by virtue of definition of "goods" in Article 1(c) in the Schedule to the Carriage of Goods by Sea Act the Cargo in question was not governed by the provisions of the said Act. There is also no contest on the point that before the said Act came into force in 1925 the liability of carriers was governed by the English law and not by the provisions of the Contract Act. Nonetheless Mr. Siddiqui has placed reliance on the two cases of the High Court of Dacca.

10. In these two cases reported in P L D 1960 Dacca 147 and P L D 1959 Dacca 848 respectively, no doubt the shipping company was made liable for the loss of goods in spite of the fact that the goods were being carried at shipper's risk, but even if I agree with the respective views expressed in those cases, the cases are distinguishable. In the first case the shippers claimed exemption from liability only by virtue of the words 'at shipper's risk' written on the Bill of Lading therefore, it was held by the Dacca High Court that such expression did not make the special contract between the shipping company and the plaintiff of such a comprehensive nature as to absolve the shipping company from all liability so as to exclude sections 151 and 152 of the Contract Act. Moreover, in that case the goods were shipped at Karachi to be delivered to the consignee at Chittagong which was then in Pakistan, therefore, it appears, it was held that the provisions of the Contract

Act were applicable because all contracts executed in Pakistan are ordinarily governed by the provisions of the said Act which was not the case in the instant case. In the other case cited by Mr. Siddiqui negligence on the part of the shippers had been established and the defendants had claimed exemption on account of special condition of owner's risk in the bill of lading, it was, therefore, held that onus under such circumstances was on the defendants to explain as to how the goods were dealt with ‑and why they were lost and whether that was despite their taking such reasonable care of the goods as could be taken of goods carried on Deck of the ship. Reliance in that case was also placed on the following passage from Halsbury's Laws of England 3rd Edition, Volume 4 Article 413:

"The onus of proving misconduct is on the party alleging it and misconduct will not be presumed from the mere fact of mis delivery or of unreasonable delay or of unexplained injury or failure to give timely notice of arrival but, when goods are not delivered at all, and it is to be inferred that they are in the carrier's possession, the unaccounted for refusal to deliver them to the consignee may amount to wilful misconduct Curran v. Midland Great Western Rail Co. of Ireland (1896) 2 1 R 183."

In the instant case, although negligence was alleged by the appellant but the same was denied by the respondents in their written statement and thereafter no evidence was led on the point by the appellant. On the other hand the respondents brought evidence to show that the goods were damaged due to act of God. Therefore, the facts of the present case are clearly distinguished and the two cases cited by Mr. Siddiqui are not attracted to the facts of the instant case. The second contention of Mr. Siddiqui is also not acceptable.

For the aforesaid reasons, I find no substance in this appeal and the same is dismissed.

S. Q. Appeal dismissed.

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