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First Appeal No. 60 of 1979, decided on 15th March, 1987.

‑‑‑ Art. 3, R. 6‑‑Hague Rules‑‑Bill of Lading, C1.19‑‑Uamage of goods in transit‑‑Joint survey of consignment showing that goods suffered damage due to rough handling in transit‑‑Trial Court believing report of Surveyors for cogent reasons‑‑State of goods having been subjected to joint survey, non‑service of notice under C1.19 of Bill of Lading, held, would not bar the suit.

‑‑‑ S. 37‑‑Carriage of goods by sea‑‑Custody of consignment‑ Certificate/ receipt under S. 37 not having been obtained, responsibility and liability of shipper did not end‑‑Provision of S. 37 being still on statute book, its requirements, held, could not be dispensed with even by consent of parties.

‑‑‑Art. 3, R. 8‑‑Hague Rules‑‑BW of Lading, Cl. 20‑‑Damage of goods in transit‑‑Extent of liability‑ ‑Quantum and value of damaged goods not disputed by carriers‑‑ Liability of carriers or their agent, held, could not, therefore, be reduced under Cl. 20 of Bill of Lading to an amount less than the amount actually suffered by the consignees as damages.

‑‑‑ Art. 3, R. 6‑‑Damage of goods in transit ‑‑Liability of agent of carriers‑‑ Admissions of witness of appellant‑shipping Company showing that appellant was agent of carriers at the relevant time‑ ‑Subsequent change in agency, held, would not absolve shipping company of its liability which it incurred to a third person as agent of carrier.

‑‑‑ S. 96‑‑Carriage of goods by sea‑‑Damage of goods during transit‑ Liability of carriers for damages‑‑Trial Court decreeing suit for damages against carriers‑‑No reason found, on facts as well as on law, to disagree with Trial Court‑‑Appeal found to be without substance and dismissed.

Mustafa Lakhani for Appellant.

Anwar Hassan for Respondents.

Date of hearing: 10th March, 1987.

This is an appeal under Section 96 of the Civil Procedure Code against the Judgment/Order of learned lst Senior Civil Judge, Karachi, dated 24‑9‑1979, whereby he had decreed the suit of the respondent No.1 against the appellant and respondent No.3.

I have heard the learned counsel for the parties and also perused the record and proceedings of the Court below.

The brief facts of the case are, that the suit consignment viz. 109 packages containing Acetate Filter Rods were received by respondent No.3 for carriage on board their ship m.v. "BETSY", on behalf of the consignee M/s. Premier Tobacco Industries Limited from Bangkok to Karachi, and such bill of lading No.4 dated 1‑10‑1974 was duly issued by the carrier. The above‑said ship discharged the suit consignment at Karachi Port in damaged condition on 9‑11‑1974. The damaged consignment was jointly surveyed and it was found that thirty cartons were totally damaged with no salvage value. This loss was estimated at Rs.34,816. In the second survey conducted at the factory of the consignee, total loss was found to be of the value of Rs.96,416.12. The consignment was insured with the plaintiff respondent No.1, therefore, the respondent No.1 settled the claim of the consignee for Rs.96,416.12, and obtained a deed of subrogation from them. The respondent then took the matter against the appellant ‑defendant No.1 as agent of respondent No.3 claiming Rs.34,816 only from them in accordance with the damages calculated under joint survey. Respondent No.2 was also joined as defendant as during the pendency of the claim as he was appointed as agent in place of appellant by respondent No.3.

In their written statement, appellant /defendant No.1 raised the plea, that the suit consignment was discharged in good condition in which it was received on Board the vessel and further the respondent No.3 had changed his agency and as such he was not liable for any loss or damages. The respondent/ defendants No.2 and 3 filed a joint statement raising the plea, that at the relevant time M/s. Entersee Trading Limited were charterers of the ship m.v. "BETSY" and as such they were the carriers and were liable for damages if any and the suit was bad for non joinder of necessary parties. They denied, that they received consignment at Bangkok and took the plea, that the bill of lading was issued by and on behalf of M/s. Filthai Company Limited. who were the Charters. It was also pleaded that the goods were discharged at Karachi port in good order and condition and there was no loss or damage to the suit consignment. The respondent /defendant No.2, also denied his liability, as he was not agent in respect of the suit consignment at the time, when the damages allegedly occurred.

On the pleadings of the parties the learned trial Judge settled the following issues:

(1) Whether the consignment was delivered for shipment in good order and condition as or bill of lading

(2) Whether any part of the consignment was discharged in defective condition and, or with their contents short .

(3) Whether the report of the survey is binding upon the parties

(4) Whether the plaintiffs are entitled to claim the amount on the basis of letter of subrogation .

(5) Whether the defendants are liable to pay the amount If so, which of them and to what extent

(6) What should the decree be

Learned trial Judge held, that the respondent‑defendant No.2 was not agent of respondent defendant No.3 at the relevant time and therefore was not liable. He dismissed the suit against respondent No.2, while he decreed the suit of the Plaintiff against the appellant as well as respondent No.3.

The issue No.1 was not contested by the appellant before the trial Court and the finding of the trial Court has not been assailed in this Court also.

It is an admitted fact, that the joint survey was conducted of the consignment before the goods left Karachi Port Trust. M/s. Republican surveyors conducted the survey on behalf of the respondent No.1 whereas M/s. National Surveyors jointly conducted the survey on behalf of appellant and respondent No.3. The reports of M/s. Republican surveyors were produced as Exhs. 16 and 17, which show damages to the goods due to rough handling in transit, squashed and torn and due to water stain. The report of National Surveyors have not been produced by the appellant before the learned trial Court. P.W.3. Ahsan Ali, was examined by respondent No.1 to prove the survey reports, as he was also one of the surveyors. This report has been believed by the learned trial Court for cogent reasons and I find no reason to disagree with them. The appellant also does not dispute correctness of report, but learned counsel for the appellant has raised two contentions. Firstly, it is contended, that after the goods were discharged at the Karachi Port Trust, K.P.T. was responsible for their safe custody and the appellants were not responsible for any damage caused during the period consignment was in custody of the Karachi Port Trust. It is, however, admitted, that no receipt under Section 37 of the Karachi Port Trust Act was obtained by the appellant and as such his responsibility and liabilities did not end. It is contended, that the practice of issuing certificate under Section 37 has been dispensed with but no such evidence has been produced. Admittedly, this section is still on the statute book and its requirements cannot be dispensed with even by the consent' of the parties. Next it is contended, that the notice as required under clause 19 of the Bill of Lading was not issued to the appellant within the time specified therein, therefore, no suit can be filed against them. Admittedly, the case of the parties will be governed by Hague Rules. Article 3 rule 6 of these rules provides the notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection".

In the instant case there has admittedly been joint survey, therefore, this non‑service of notice will not bar the suit.

The next point raised is, that under Clause 20 of the Bill of Lading, the liability of carrier is limited only to the invoice value of the damaged goods. It is contended, that as admitted by the witness of respondent No.1, namely, P.W. 2, Khursheed Anwar, the invoice value of damaged goods was Rs.15,970. Therefore, the appellant if at all liable, will be liable only to the above extent. It is contend by the learned counsel for respondent No.1,that Article 3 Rule 8 of the Hague Rules would override the condition contained in Clause 201 of the Bill of Lading. This Article 3 Rule 8 provides "any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability or loss 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".

It is contended on behalf of respondent, that the carriers and their agents are liable to pay the actual damages suffered by the consignee, though it is conceded, that the damages payable by the carriers would not necessarily be the same as may be settled by the Insurance Company. Admittedly, the value of entire consignment which consisted of 109 packages according to invoice value was Rs.70,381. Further freight of 1.084. U.S. was paid on this consignment. The insurance charges were paid amounting to Rs.975 and customs duty were paid on the tune of Rs.35,168 whereas sales tax was paid to the tune of Rs.10,550. The charges of clearing agent were Rs.698. The payment of the above amounts is proved through documents. Thus, the total amount of the expenses incurred by the consignee on the consignment would come to about Rs.1,2‑7.600,whereas the insurance value of the goods was Rs. 1, 21, 000. It is contended, that the insurance value is less than the total value, of the consignment. it is further contended, that the total insurance value of goods consisting of 109 packages was Rs.1,21,000. The value for 30 damaged packages would come to the amount claimed as damages viz. Rs. 34,816.00 which was even less than the total damage actually suffered by the carriers. These figures are not disputed by the carriers. These figures are not disputed by the learned counsel for the appellant, as such the liability of the carriers or the agent cannot be reduced under clause 20 of the Bill of Lading, to amount less than the amount actually suffered by the consignees as damages.

The next point urged by the learned counsel for the appellant is, that the appellant was no more agent of the carrier viz. respondent No. 3 and as such he was not liable.

The appellant examined its Shipping Manager D.W. Habibur Rahman before the trial Court. He has admitted, that the appellants were agents of the respondent No.3, when the ship in question arrived at the port and the appellant had obtained the port clearance of the vessel and, that he continued to be the agent of the vessel even in 1975, when the respondent No.1 plaintiff filed their claim, which was forwarded by them to respondent No.3. It is also admitted by him, that they had not intimated the Customs about transfer of agency of the vessel, though such intimation was to be given during the time, when the vessel was at the port of arrival. It is further admitted by him, that the claim of the plaintiff /respondent No. 1 were not included in adjustment of accounts settled with respondent No.3. In view of these admissions. there can be no dispute, that the appellant was agent of respondent No.3 at the relevant time and as subsequent change in the agency would not absolve him of his liability, which he incurred to a third person as agent of respondent No.3. No other ground has been pressed in this appeal at the time of arguments. On facts as well as on law, I find no reason to disgree with the learned F trial Court and find no substance in this appeal. It is, therefore dismissed with costs.

The appeal was dismissed by a short order dated 10‑3‑1987. Above are the reasons in support of the said order.

S.Q./0‑2/K. Appeal dismissed.

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