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Civil Revision Application No. 58 of 1985, decided on 5th March, 1987.

---S.25--Consignment of drugs and medicines--One of packages found to have landed from vessel in damaged condition and on survey 45 bottles of drugs found broken and another 150 were short--Trial Court decreeing suit for damages--Neither any question found to have been put to respondent Insurance Company witness suggesting that there was loose packing nor any evidence to that effect produced by applicant shipping Company--Such question of fact, held, could not be agitated in revision application without evidence in-record- R-:vision application dismissed.

William Tetley Q.C. on Marine Cargo Claims, 2nd Edn., p. 232 ref.

S. Hamid Hussain for Petitioner.

Ghulam Muhammad Ebrahim for Respondent.

Date of hearing: 5th March, 1987.

This Revision Application is directed against the order of the learned Judge Small Causes Court, Karachi, dated 28-8-1984, decreeing the suit of the respondent/Plaintiff for Rs.1,980 against the applicant/ defendant.

The facts of the case are, that consignment of 36 packages containing drugs and medicines imported by M/S. Iffnar Traders, Karachi, was insured with the Respondent company. The said consignment was received on board the applicant's vessel Bagh-e-Dacca from Hamburg to Karachi. The vessel arrived at Karachi on 11-8-1982 and discharged its cargo under bill of lading under index No.21. However, when the consignee's clearing agent went to Karachi Port for taking delivery, it transpired that one package out of the total consignment had landed from the vessel in damaged condition. Therefore, the clearing agent of consignee served a notice of survey on the respondent as well as the applicant. The survey was conducted by M/S Bhumal & Co. appointed by the applicant at the request of respondent. In the joint survey, it was found, that from the manifested quantity of 2250 bottles of the said packages 45 bottles were broken and 150 were short. The claim was settled by the Respondent in terms of insurance policy and having been subrogated they then lodged claim with the applicant which was not settled or paid by the applicant, therefore, they filed suit for recovery of the said amount. The respondent in the written statement denied the alleged claim. According to them entire consignment was discharged by the said vessel in the same order and conditions in which it was shipped. The learned trial Court framed the following issue:,

"Whether the plaintiffs are entitled to the amount claim in the suit

Giving findings in affirmative, the learned trial Court decreed the suit. Hence this Revision Application.

The only ground raised by Mr. S. Hamid Hussain in this Revision Application is, that as the goods were kept in the container by the shipper, which may have been damaged because of loose packing, therefore, the carriers cannot be held responsible and burden of proof, that the goods were properly packed was upon shippers. He has relied upon the observation made by William Tetley Q.C. in his book Marine Cargo Claims; second edition at page 232, where it is observed as under:

"The carrier cannot determine the sufficiency of packing of individual cartons within a container. Thus, the principle of estoppel in respect of insufficiency of packing and a clean bill of lading does not apply to containers. Nevertheless, the packing is important.

In Guadano v. S.S. Cap Cincent Antiques, furniture, porcelain and crystal had been shipped in containers. The porcelain and crystal which had been packed in cartons suffered no damage, but the furniture and antiques which had only been wrapped in paper were damaged. The carrier was not held responsible as the packing was deemed to be insufficient."

In other case reported in 1971 E T L 461, it is held in the vein, that there was insufficient packing when packages in struck one another and the sides of container.

The above citations have not been produced, but it appears from observations made by the learned author, that there was certain evidence in these cases to show, that there was improper packing. It is admitted by Mr. Hamid Hussain, that neither any question was out to the respondent's witness suggesting, that there was loose packing, nor was any evidence to that effect produced by the applicant/defendant. As such this question of fact cannot be agitated in this Revision Application without evidence on record. This Revision Application, therefore, dismissed with no orders as to costs.

Mr. Ghulam Muhammad Ebrahim, learned counsel for the respondent, requested, that the amount deposited by the appellant in this case may be ordered to be given to the respondent to which Mr. Hamid Hussain has no objection. The amount is ordered to be given to the respondent after due verification.

S.Q./P-9/K Application dismissed.

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