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First Appeal No. 23 of 1954 and First Appeal No. 25 of 1954, decided on 16th February, 1959.
Art. IV, r. 5 & Art. III, r. 8‑Clause in Bill of lading lessening maximum liability of 100 provided by r. 5, Art. IV‑Null and void and repugnant to r. 8, Art. III.
Rule 5 of Article IV of the Carriage of Goods by Sea Act, 1925 only provides that the shipper cannot recover exceeding 100; but there is nothing to show that he cannot recover less. If there is no declaration by the shipper, he can recover damages for goods not exceeding 100 per package or unit but if the value of the package or unit is below 100 then there is no restriction and if any agreement is made in the Bill of Lading restricting the shipper's claim that would be repugnant to Rule of Article III of the Act.
Where the shipping company by inserting a clause in the Bill of Lading limited its liability to a sum below 100, it was held that the clause was null and void being contrary to rule 5 of Article IV and repugnant to Rule 8 of Article III of the Act.
Karachi Steam Navigation Co., Ltd. v. Abdul Sattar Bros., Original Decree No. 80 of 1954 (unreported) not foll.
, Art. III, r. 6‑Application‑Limited to contract of carriage‑Goods con tinuing to remain in custody of carrier after being discharged by ship‑Carrier incurs new liability and period of limitation for filing suit would be 3 years under Art. 115, Sch. I, Limitation Act, 1908.
Rule 6 of Article III of the Carriage of Goods by Sea Act, 1925 is limited to the contract of carriage which ends with the discharge of cargo by the ship at the place of landing and, after the contract of affreightment ends, the carrier incurs a new liability as bailee if the goods still continue to remain in his custody, and the limitation for bringing a suit in such a case would be 3 years under Article 115 of the Limitation Act, 1908.
Messrs Abdur Rahman Abdul Gani v. Messrs Mackinnon Mackenzie & Co. of Chittagong and another P L D 1958 Dacca 460 rel.
Karachi Steam Navigation Co., Ltd. v. Ebrahim Gani P L D 1957 Kar. 315 and Haji Shakoor Gany Firm v. Firm of Volkart Brothers and others A I R 1931 Sind 124 distinguished.
S. K. Sen for Appellants in Appeal No. 23 of 1954 and for Respondents in Appeal No. 25 of 1954.
R. K. Bhattacharyya for Respondents in Appeal No. 23 of 1954 and for Appellants in Appeal No. 25 of 1954.
.‑These two appeals arise out of the same judgment and the suit was one for compensation for short‑delivery of goods shipped by the plaintiff Company in the vessel belong ing to the defendant and to be discharged at the Port of Chittagong. In First Appeal No. 23 of 1954, the plaintiffs are the appellants and in First Appeal No..25 of 4954, the defendants are the appellants.
2. The facts on which the suit was brought may be briefly stated as follows : The plaintiffs who carry on a partnership business shipped 475 drums of cocoanut oil marked 'Ahmed' and 304 drums of cotton‑seed oil marked Gani', covered by Bill of Lading No. 17, dated 17‑I 1‑51, and 2,800 bags of rape seeds marked Arag', covered by Bill of Lading No. 18, dated 17‑11‑51, by the defendants' vessel S. S. Euthalia to be delivered at the Port of Chittagong. The ship arrived at the Port of Chittagong on 3‑12‑51 and discharged her cargo. After a series of corres pondence and enquiries, the plaintiffs got delivery only of 465 drums of cocoanut oil, 287 drums of cotton‑seed oil and 2,649 bags of rape seeds by 28‑12‑51 and 10 drums of cocoanut oil, 17 drums of cotton‑seed oil and 151 bags of rape seeds were not delivered to the plaintiffs as they could not be traced. The plaintiffs' representative went to the defendants' office on 28‑12‑51 and told them about the short‑delivery of the goods aforesaid and served a notice on them on 31‑12‑51. The defen dants later on, by their letter No. 196/52, dated 16‑12‑52, requested the plaintiffs to send a representative and to take delivery of the balance of the drums of oil from their godown at Messrs A. K. Khan's Jetty, Chittagong. The plaintiffs intimated the defendants that they were prepared to take delivery of those drums provided the contents and seals were intact. To this the defendants did not reply. The plaintiffs thereafter got delivery of 60 bags of rape seeds on 25‑3‑52 but 91 bags could not be traced. The plaintiffs allege that the defendant Company was solely responsible for the shortage and then submitted their claim bills for the aforesaid loss.
3. The plaintiffs served notice on the defendants finally on 15‑12‑52 demanding delivery within a week and, in default, claiming the price of the said drums of oil and 91 bags of rape seeds and they filed the present suit on the 27th of December, 1952. The plaintiffs claimed Rs. 7,166‑4‑0 as the value of 10 drums of cocoanut oil, Rs. 6,375 as the value of 17 drums of cotton‑seed oil and Rs. 3,914 as the value of 91 bags of rape seeds and further Rs. 1,845‑8‑0 as the loss of profit at 10% and Rs. 49‑4‑0 as incidental costs for notices, correspon dences, etc. In all, the plaintiffs claimed Rs. 20,350 from the defendants.
4. The suit was contested by the defendants. They con tended inter alia that the ship discharged all the goods of the plaintiffs covered by their Bills of Lading in due course and the plaintiffs took delivery only of a part of their goods and they failed to take delivery of the balance in site of repeated requests. It was ‑ also alleged by the defendants that the plaintiffs in their letter, dated 22‑3‑52, made a false statement that their agent went to their office and refused to take delivery as the drums offered were empty or half empty. According to the defendants, the drums were not empty or half empty and the contents and the seals were intact. The defendants further contended that the drums were all broken, second‑hand and repaired with dim marks and the rape seeds bags were also second‑hand and torn and accordingly there was an agreement that the ship would not be responsible for any shortage of contents. So, even if there was any shortage of contents, that was due to the wretched condition of the drums and bags for which the defendants were not responsible. It was also contended on behalf of the defen dants that they did not make any declaration of the value of the goods before shipment and hence they were not entitled to lay any claim against the terms and conditions of the Bills of Lading agreed to between the parties.
5. On the pleadings, as many as six issues were framed. The learned Subordinate Judge, however, found that it was clear that the plaintiffs' men did not take delivery of the drums only because they were found to be empty and half empty and that there was some sort of leakage which caused the drums to be empty and half empty for which the defendant Company was not liable. The learned Subordinate Judge further found that the plaintiffs in the above circumstances had no justification for refusing to take delivery of 10 drums of cocoanut oil and 17 drums of cotton‑seed oil and, therefore, they were not entitled to any compensation for these two items. But as regards the 91 bags of rape seeds, according to the learned Subordinate Judge, there was nothing on record to show why the defendants who, both as ship‑owners as well as bailees, did not deliver the same to the plaintiffs.
6. The defendants in this case also raised a question of limitation ; but the learned Subordinate Judge found that the last delivery of 60 bags of rape seeds was made on 25‑3‑52, and the notice of claim was sent by the plaintiffs to the defendants on 27‑3‑52, and, therefore, the claim regarding the rape seeds was not barred. On the question of declaration, he also found that the value of each bag of rape seeds being only Rs. 54 i. e. far below Rs. 250, as provided in clause 9 of the Bills of Lading, the question did not arise at all. The suit was accordingly decreed in part for a sum of Rs. 5,420 for the value of 91 bags of rape seeds short‑delivered with proportionate costs and interest at 6 per cent. per annum till realisation.
7. The plaintiffs have thereafter preferred the First Appeal No. 23 of 1954 for the entire value of 10 drums of cocoanut oil, 17 drums of cotton‑seed oil not delivered to them, as the claim regarding these items was dismissed by the learned Subordinate Judge.
8. The defendants have also preferred First Appeal No. 25 of 1954 against the decree of the learned Subordinate Judge for the value of 91 bags of rape seeds which was decreed against them.
9. Mr. S. K. Sen appeared for the plaintiffs‑appellants in First Appeal No‑ 23 of 1954 and for the respondents in First Appeal No. 25 of 1954, while Mr. R K. Bhattacharyya appeared for the respondents in First Appeal No. 23 of 1954 and for the appellants in First Appeal No. 25 of 1954.
10. Mr. Sen contended before this Court that the defendants are bailees and they were responsible for the short‑delivery of 10 drums of cocoanut oil and 17 drums of cotton‑seed oil. He also contended before us that the defendants did not make out any case in the written statements that the drums were empty or half empty and that there was any leakage and, as such, the Court below erred in refusing the value of those drums of oil. He further contended that the learned Subordinate Judge was entirely in error in holding that the loss was due to some sort of leakage, for, this was merely a surmise and not supported by any evidence on record.
11. Mr. Bhattacharyya, on behalf of the respondents in First Appeal No. 23 of 1954, however, raised three points before us. Firstly, be contended that, according to the Bills of Lading, the drums were second‑hand, repaired, marks dim, and broken, and accordingly there was a clause in the Bill of Lading that the ship would not be responsible for any shortage, damage and leakage of the contents. As regards the rape seed bags also, the bags were second‑hand arid torn and the agreement was that the ship would not be responsible for shortage of contents. Mr. Bhattacharyya's contention is that in view of these clauses in the Bills of Lading the plaintiffs were not entitled to claim any damages from the defendants. He next contended that under clause 9 of the Bill of Lading, as there was no declaration before the shipment, the plaintiffs could not claim more than Rs. 250 for any one package or unit. His last contention is that the suit is barred in view of the fact that the claim was not made in time.
12. Mr. Bhattacharyya, on behalf of the appellants in First Appeal No. 25 of 1954, also contended that the Court below erred in holding that clause 9 of the Bill of Lading is repugnant to clause 5 of Article 4 of the Carriage of Goods by Sea Act and was not enforceable and further the Court below ought to have held that the plaintiffs were not entitled to get a decree for non‑delivery of 91 bags or any quantity of rape seeds, as the plaintiffs did not take delivery of the same for a long time and the Court below should have held that the plaintiffs did not take delivery of the rape seeds on the pretext that the seeds had formed into cakes. Mr. Bhattacharyya further contended that the damage, if any, in the rape seeds was due to delay and negligence on the part of the plaintiffs in taking delivery and hence they were not entitled to any compensation according to the Bills of Lading. He also objected to the Court below decree ing 10% damages over the invoice price on the oral testimony of the only witness for the plaintiffs although there was evidence on the side of the defendants that the market price came down.
13. There is no dispute about the fact that the plaintiffs shipped by the defendants' vessel465 drums of cocoanut oil, 287 drums of cotton‑seed oil and 2,649 bags of rape seeds to be delivered at the Port of Chittagong. The consignments in question bore specific marks as detailed in the plaint. It is also not disputed before the Court that the plaintiffs did not get delivery of 10 drums of cocoanut oil and 17 drums of cotton seed oil as well as 91 bags of rape seeds. The plaintiffs have claimed the value of those goods and have also claimed Rs. 1,845‑8‑0 on account of their loss of profit and Rs. 49‑4‑0 as incidental costs. The case of the defendants in the written statement is that it is the plaintiffs who are responsible for not taking delivery of their goods. The series of correspondence between the parties would show that the plaintiffs were making demands of their goods and the plaintiffs admit that they received a letter from the defendants on 16‑2‑52 to take delivery of the balance of their goods, but the defendants' story is that the plaintiffs did not turn up, but, on the other hand, 'they made an allegation in their letter, dated 22‑3‑52, that a representative of theirs went to take delivery but, as most of the drums were empty or half empty, the representative refused to take delivery. The defendants asserted that the drums were .not empty and half empty and the contents as well as the seals were all intact. In spite of the definite case in the written statement, the learned Subordinate Judge was clearly in error in holding that there had teen some sort of leakage which caused the drums to be empty or half empty and if there was any shortage of any contents in cue drums, this must be due to some sort of leakage for which the defendants were not responsible. It is true that in the Bills Lading the drums were described to be second‑hand with marks dim, broken anal repaired but, if the drums of oil, according to the defendants, were not empty or half empty and if the contents and seals were intact, then this clause cannot help the defendants. In the Bill of Lading, as regards the rape seeds bags also, there was an agreement that the ship would not be responsible for the shortage of contents as all the bags were second‑hand and cover torn but there is no case here that the contents of the bags were coming out because of the fact that the covers were torn. On the other hand, in spite of the above condition of the drums and the bags, the carriers definitely admitted in the Bills of Lading that the goods were shipped in apparent good order and condition by the plaintiffs on board the steamer S. S. Euthalia and they would be delivered in the like good order and condition at the Port of Chittagong. As I have already stated, there was no case of leakage. There is no evidence in this case how the goods were stored in the ship and there was also no survey. It is not a question of any damage to the goods but this is a case where the goods were not delivered. Only one witness was examined for the plaintiffs who is Muhammad Saleh, an Assistant Manager of the plaintiff's firm. His evidence is that they got delivery only of 465 drums of cocoanut oil, 287 drums of cotton‑seed oil and 2,649 bags of rape seeds by 28‑12‑51. By letter, Exh. 3 (c), the plaintiffs intimated the defendant that they received short‑delivery of 17 drums out of the consignments and they requested the defendants to treat their letter as a notice of claim or, in the alternative, arrange for early delivery of the short‑delivered drums. On 25‑3‑52, the plaintiffs further received 60 bags of rape seeds and the other goods could not be delivered and the plaintiffs again served a notice on 27‑3‑52, Exh. 3 (e), in which they stated that the defendants had only delivered 60 bags by 25‑3‑52 and accordingly they claimed Rs. 4,914 as the price of the remaining 91 un delivered bags. P. W. 1 further stated that, two or three months after, the defendants had informed them that some goods were lying in the godown and on inspection he found them damaged, without marks and not belonging to them. There were some good drums also but he was not allowed to take them and was asked to take the damaged and empty drums. The witness was asked to take delivery of drums which were all broken and he noticed 15 or 20 drums there. D. W. 1, the only witness for the defendants, however, stated before the Court that the plaintiffs did not lift their goods as the price came down but this was absolutely a new story made out in his evidence and no such case was made out in the written statement. The plaintiffs' witness categorically denied the above statement of the defendants' witness that the prices went down and so the plaintiffs did not take delivery. The defendants' witness further admitted in his evidence that "all the goods landed to their godown" and they wrote three letters to the plaintiffs for taking delivery of the same but they did not lift the goods as the price came down but he again stated that the drums were not broken and the rape seeds had not become cakes. If that is so, there is absolutely no reason why the plaintiffs should not take delivery of the balance of the goods as stated by D. W. 1. There is no case by the defendants that the loss was due to any insufficiency of packing or that this was due to any "perils, dangers and accidents of the sea or other navigable waters". The Carriage of Goods by Sea Act, Article 111, sub‑clause 3, reads as follows :‑----
" After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things‑
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods, if un covered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage ;
(b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper ;
(c) The apparent order and condition of the goods :"
Clause 4 provides:
"Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3 (a), (b) and (c)".
14. Article IV, sub‑clause 2, of course provides that neither the carrier nor the ship shall be responsible for loss or any damage arising from perils, dangers and accidents of the sea or other navigable waters and insufficiency of packing. The defen dant as a bailee is bound to take reasonable care of the goods entrusted to their custody. The case for the defendants is that due to heavy draft, as the ship would not come to harbour, the cargo was taken by lighters to their godown by arrangement with the Port Authorities and all the goods landed to their godown and they saw that the drums were not broken and the rape seeds did not become cakes. In the above circumstances, the learned Subordinate Judge was in error in refusing, to decree the value of 10 drums of cocoanut oil and also 17 drums of cotton‑seed oil not delivered to the plaintiffs. As regards the 91 bags of rape seeds, the learned Subordinate Judge has held that there is nothing on record to show why the defendants as bailees did not deliver the remaining 91 bags of rape seeds to the plaintiffs. There is also no evidence in this case to show that on account of the fact that the covers were torn and bags being second‑hand, the rape seeds came out or that no delivery could be made for that reason. I have already stated that even in spite of these conditions all these goods were admitted to be in apparent good order and condition and the defendants promised to deliver the goods in the like condition at the Port of Chittagong. There is also no reliable material in this case to uphold the defendants' contention that the short‑delivery was due to any negligence on the part of the plaintiffs.
15. Mr. Bhattacharyya on behalf of the Shipping Company contended before us that the damage to the rape seeds was due to delay and negligence of the plaintiffs in taking delivery ; but the evidence of D. W. 1 himself clearly shows that the rape seeds were not damaged. The learned Subordinate Judge has therefore, rightly decreed the value of the yl bags of rape seeds, with 10% more on account of loss of profit to the plaintiffs. On the pleadings and the evidence before the Court, the learned Subordinate Judge was clearly in error in refusing to decree the value of the 10 drums of cocoanut oil and 17 drums of cotton seed oil short‑delivered to the plaintiffs. There is evidence in this case that the market price in December, 1951, and thereafter was more than 10% higher than the invoice price in each case and there is no denial on that point on the side of the defendants. The plaintiffs are, therefore, entitled to recover 10% over the purchase price on account of loss of profit and further Rs. 49‑4‑0 was incidental costs as deposed to by P. W. 1 Mohammad Saleh.
16. The next question for consideration is whether the plaintiffs' claim should be restricted to Rs. 250 (sic) per package or unit. This contention was also overruled by the learned Subordinate Judge. In case of rape seeds, the value was Rs. 54 per bag but, as regards the drums of cocoanut oil and cotton seed oil, each drum of cocoanut oil, not delivered, contained 6 mds. 33 seers, each maund valued at Rs. 105. So the value of each drum of cocoanut oil is Rs. 716‑10‑0 and the value of each drum of cotton‑seed oil, each drum containing 5 mds. @ Rs. 75 per maund, is Rs. 375.
17. Mr. Bhattacharyya has referred to clause 9 in the Bill of Lading which reads as follows :‑---
"The Company will not be accountable for gold, silver, bullion, specie, jewellery, precious stones, precious metal, plated ware, documents, works of art, watches, silk or other precious or valuable articles, in any respect, or for goods of any description whatever, beyond a value of five hundred rupees per freight ton, and relatively for any portion thereof or beyond the amount of the hundred and fifty rupees for any one package and relatively for any portion thereof unless a declaration of the value of such goods has been made prior to shipment, and a special written shipping order or Advice Note granted for the same and unless the Bill of Lading be signed for such goods and the value declared therein,"
and he has contended that, in any case, for such drums of cocoanut oil and cotton‑seed oil the plaintiffs cannot recover more than Rs. 150 per package or unit.
18. Mr. Sen appearing on behalf of the plaintiffs has, however, urged before us that this clause in the Bill of Lading relied on by Mr. Bhattacharyya is repugnant to Rule 5 of Article IV of the Carriage of Goods by Sea Act and Rule 8 of Article III of the said Act. Rule 8 of Article III reads as follows:
"Any clause, covenant or agreement in a contract of carriage relieving the carrier. or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability, otherwise than as provided in these Rules, shall be null and void and of no effect."
Paragraph 1 of Rule 5 of Article IV provides:
"Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with goods in an amount exceeding 100 per package or unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the Bill of Lading."
19. Mr. Sen has contended before us that if there is no declaration by the shipper, he can recover damages for goods not exceeding 100 per package or unit but if the value of the. package or unit is below 100 then there is no restriction and if any agreement is made in the Bill of Lading restricting the shipper's claim, that would be repugnant to Rule 8 of Article III. The Rule has already been quoted and it distinctly provides that the liability of the shipowner cannot be lessened otherwise than as provided in these Rules. At one stage, Mr. Sen laid stress on paragraph 3 of Rule 5 of Article IV. That paragraph provides:
"By agreement between the carrier, master or agent of the carrier and the shipper, another maximum amount than that mentioned in this paragraph may be fixed, provided that such maximum shall not be less than the figure above‑named."
This paragraph has no application to our present case, for, here there is no question of any agreement providing any maximum beyond 100. So, we have to go back to paragraph 1 of Rule 5 of Article IV where only it is provided that the shipper cannot recover exceeding 100 ; but there is nothing to show that he cannot recover less. Scrutton on Charter‑parties and Bills of Lading, 16th Edition, at page 481 observed:
"Art. IV, Rule 5, imposes a maximum limit on the ship owner's liability of 100 per package or unit, unless the nature and value of goods exceeding that sum have been declared and inserted in the bill of lading. It also provides that another maximum than 100 may be agreed, provided it is not less than 100".
According to Scrutton, clauses contrary to rule 5, Article IV, above‑mentioned, would appear to lessen the maximum liability provided by Article IV, Rule 5, and thus will be rendered null and void by this Rule. The author makes this observation in his commentary on Rule 7, Article III. There is no dispute about the fact that the value of each drum of cocoanut oil and cotton seed oil is less than 100 per package or unit.
20. Mr. Bhattacharyya has, however, drawn our attention to an unreported decision of a Division Bench of this Court in the case of Messrs Karachi Steam Navigation Co. Ltd. v. Abdul Sattar Brothers Nagaria and others in appeal from Original Decree No. 80 of 1954, disposed of on the 28th of May, 1958. In that case, the plaintiff sued to recover Rs. 6,000 from the shipping Company for short‑delivery of two packages of cotton piece‑goods out of a consignment of 19 packages shipped at Karachi to be carried to Chittagong. The defence was that there was no short-landing at all and the 19 packages of the plaintiffs were duly discharged at the jetty and that under clause 9 of the Bill of Lading the defendant's liability was limited to Rs. 250 per package. Their lordships Akbar and Baquer, JJ., have held in agreement with the learned Subordinate Judge that there was a short‑delivery as alleged by the plaintiffs and the plaintiffs were entitled to claim damages for the loss of two packages from the shipping company. But on the question whether the plaintiffs were entitled to claim the value of the missing goods in view of clause 9 of the Bill of Lading, which is to the same effect as in this case, their lordships referred to Rule 5 of Article 1V of the Carriage of Goods by Sea Act and held:
"The above section does not forbid the contracting party to limit his liability to a sum below I00. Hence it cannot be said that clause 9 being contrary to law is not enforceable. The plaintiff did not declare the value of his goods and thus paid freight at a lower rate. He now cannot be heard to say that he is not bound by this clause 9. Hence we hold that in accordance with the provisions of clause 9 of the Bill of Lading he is entitled to get Rs. 250 only per package."
Mr. Bhattacharyya on the authority of this decision argues before this Court that in the case of drums of oil, the plaintiffs could not recover more than Rs. 250 (sic) per package or unit. But, on reading the judgment of their Lordships, it does not appear that the attention of their Lordships was drawn to Rule 8 of Article III of the Carriage of Goods by Sea Act.
21. Mr. Sen has argued before us that the facts of that case are distinguishable from our present case.
22. The plaintiffs in that case did not declare the value of the goods and paid freight at a lower rate and, having taken that advantage, they were not permitted to say that they were not bound by clause 9 of the Bill of Lading. We, therefore, hold that there is no substance in the contention raised by Mr. Bhattacharyya and that the plaintiffs are entitled to recover the value of the drums of oil as claimed in the plaint.
23. During the further hearing of these appeals, Mr. Bhattacharyya has also raised a question of limitation. He has contended before us that under Article III, Rule 6. " The carrier in the ship will be discharged from all liabilities in respect of loss or damage unless the suit is brought within one year after delivery of the goods or the day when the goods have been delivered". He has cited the case of the Karachi Steam Navigation Co. Ltd. v. Ebrahim Gani (P L D 1957 Kar. 315), where Constantine and Wahid uddin, JJ., were of opinion that the period of limitation would be one year which would be calculated from the date when the cargo is discharged by the Steamship Company. Mr. Bhattacharyya has also referred to the case of Haji Shakoor Gany Firm v. Firm of Volkart Brothers and others (A I R 1931 Sind 124), which has been discussed in details by their Lordships in the decision referred to above.
24. Mr. Sen, on the other hand, has contended on the authority of the case of Messrs Abdur Rahman‑Abdul Ganf v. Messrs Mackinnon Mackenzie & Co. of Chittagong and another (P L D 1959 Dacca 961) that the period of limitation is three years.
25. It is the plaintiff's case that the drums of oil after they were discharged by the ship were stored in the defendants' godown and they were not given delivery when sought for and they were delivered piecemeal and the last delivery was made on the 25th of March, 1952, and the defendants having failed to deliver the goods, the plaintiffs have brought the suit for recovery of compensation for the loss sustained by them.
26. The defendants' case was that the plaintiffs failed to take delivery of the balance of the goods and D. W. 1, the only witness examined by the defendants, sought to make out the case that the plaintiffs did not lift the goods as the price came down. The defendants' story is not believable and we have accented the plaintiffs' version. It has been held in the case reported in P L D 1959 Dacca 961.
"At Common Law, after the contract of affreightment ends, the common carrier incurs a new liability as an involuntary warehouseman or a bailee, if the goods still continue to 'remain in his custody".
Then again at page 972, it was held in that case (in which one of us was a party) that:
"Since the liability did not arise under the bill of lading but apart from it by implication, under the principles of the English Common Law, the said special limitation did not apply in the present case and that the suit must be held to be governed by the general law of limitation and, in our opinion, Article 115 of the First Schedule to the Limitation Act applied in the present case."
27. The application of Rule 6 of Article III of the Carriage of Goods by Sea Act was overruled by their Lordships. The case cited by Mr. Bhattacharyya does not help us so far as the facts of the present case are concerned. This was a case where, out of the consignment, 15 packages were short‑landed. The plaintiff, there fore, claimed compensation for non‑delivery of the said 15 packages. The claim of the plaintiff arose directly out of the contract embodied in the Bill of Lading but here the case is that the consignments were discharged by the ship and there is no question of any short‑landing and the defendants stored the goods in their own godown and could not deliver all the drums which were shipped by the plaintiffs. Rule 6 of Article III of the Carriage of Goods by Sea Act obviously is limited to the contract of carriage and, as laid down by their Lordships in P L D 1959 Dacca 961 after the contract of affreightment ends, the carrier incurs a new liability and the limitation would be three years. The present suit was filed on the 27th of December 1952, and, as the cause of action, according to the plaintiffs, arose from the date of last delivery, namely, 28th December 1951, and 25th of March 1952 the suit is within time. It is also not disputed that within three days of the short‑delivery on the 28th December 1951, the plaintiffs served a notice of claim on the defendants for short -delivery of durms. As regards rape seeds, the last delivery was made on the 25th of March 1952, and, for the remaining 91 bags, a notice of claim was served by the plaintiffs on the defendants on the 27th March 1952. The learned Subordinate Judge, therefore, rightly held that the claim was not barred for want of any legal notice.
28. In the result, Appeal from Original Decree No. 23 of 1954 succeeds and is allowed and the judgment and decree of the learned Subordinate Judge are modified to this extent that the plaintiffs will get a decree for the entire claim of Rs. 20,350 as the value of 10 drums of cocoanut oil, 17 drums of cotton‑seed oil and 91 bags of rape seeds for which a decree has already been passed by the learned Subordinate Judge and also for loss of profit and incidental costs as detailed in the plaint, with costs. Appeal from Original Decree No. 25 of 1954 preferred by the Shipping Company is dismissed without costs.
.‑I agree.
K. B. A. Appeal accepted.
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