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Suit No. 250 of 1955, decided on 31st October 1961.
‑Suit for recovery of loss on short landing of goods‑Burden lies on plaintiff to prove loss-- Non‑production of record and non production of evidence proving loss of cargo‑Weigh against plaintiff and not against defendant-- Claim in respect of alleged loss treated, in circumstances of case, as claim arising from damage to cargo.
Sch., Art. IV, para. 2 (c)‑Cargo stored near engine room‑Damage to cargo caused by heat from engines and boilers‑Exception, when operative.
Where cargo is stored near engine room and damage to cargo is caused by beat from engines and boilers, exemption under the exception provided by para. 2 (c) of Article IV to the Schedule of the Carriage of Goods by Sea Act, 1925 can be claimed only if the heat generated by the engines and boilers did not pass away as usual owing to the necessity of closing the ventilators during prolonged bad weather and not otherwise. In such cases it is not the lack of ventilation but the perils of incursion of sea water against which ventilators are closed which is to be considered as the "peril of the sea".
Carver's Carriage of Goods by Sea, 10th Ed., p. 117 ref.
Sch., Art. III, para. 2 and Art. IV, para. 2 (m)‑Burden of proof re: exception falling under Art. IV, 2‑Carrier to prove exception when loss or damage takes place after shipment and before delivery to consignee‑Burden of proving negligence under Art. III, 2 to defeat exception under Art. IV, 2‑Lies on shipper or consignee.
The general responsibilities of the carrier set out in para graph 2 of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925 are subject to the exception stated in clause (m) of paragraph 2 of Article IV of the Act, which means that the carrier is to discharge those duties but there is no liability if loss or damage is caused by an excepted situation. If the carrier proves the latter he can take advantage of it, unless the exception is defeated by proof of the failure of the carrier to discharge the general responsibilities. This proof should be such as to defeat the exception and not irrelevant to it. For instance, it will be useless for the shipper or consignee of the goods to prove that there was negligence of the carrier in the loading of boxes of apples, if no damage was caused to the apples by the negligence and the apples rotted exclusively owing to an inherent vice in them. If the goods -owner proves that the goods have not been delivered, or have been damaged after shipment, the onus shifts on to the carrier to bring the cause of damage specifically within Article IV, para. 2 of the Carriage of Goods by Sea Act, 1925. If the cargo‑owner wishes to defeat that plea by proving negligence, the onus is on him to do so. The carrier cannot be liable for damage caused before shipment, but the carrier is also exempted under the law from liability if the goods suffer at the time of shipment from such inherent defect, quality or vice as results in damage to the goods after shipment. The true view of the law, therefore, at least on the provisions of the English Carriage of Goods by Sea Act, 1924 and that of the Carriage of Goods by Sea Act, 1925 with regard to the burden of proof of an exception which falls under Article IV‑2 of the Acts is that the carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defeat is on the shipper or consignee.
Gosse Millard v. Canadian Government Merchant Marine, American Can Co. v. Same (1927) 2 K B 432; The Ida (1875) 32 L T 541; Joseph Constantine Steamship Line Limited v. Imperial Smelting Corporation Limited 1942 A C 154; The Glendarroch (1894) 70 L T 344 ; Carver's Carriage of Goods by Sea, 10th Ed., pp. 184 and 186 and Aspinall's Reports of Maritime Cases, Vol. 2, p. 551 ref.
Suit No. 250 of 1953
M. H. Memon for Plaintiff.
S. M. Hassan for Defendant.
Suit No. 409 of 1955
F. W. Yellani for Plaintiff.
Dora6 F. Patel for Defendant.
Suit No. 410 of 1955
Noorul Arifin for Plaintiff.
Dorab F. Patel for Defendant No. 1.
S. M. Hassan for Defendant No. 2.
Suit No. 411 of 1955
F. W. Vellant for Plaintiff.
S. M. Hassan for Defendant.
Dates of hearing: 15th, 16th, 17th, 18th, 22nd, 25th, 30th and 31st August. 1961 and 1st. 6th and 7th September 1961.
Suits Nos. 250 of 1955, 409 of 1955, 410 of 1955 and 411 of 1955 will be disposed of by this judgment. In all of them the plaintiffs have claimed from the steamship companies damages for loss of or damage to rape‑seed which was shipped from Karachi to Chittagong in February 1954. In Suit No. 410 of 1955 the claim is against an insurance company also. The main defences of the steamship companies are common, but in Suit No. 410 of 1955 the insurance company has raised additional defences to suit its status. Evidence was recorded on commission in each suit separately, but it was later agreed that the evidence produced in Suit No. 250 of 1955 should be read as evidence in Suit No. 411 of 1955 also, because both suits relate to the same voyage of ss. "Al‑Hassan" of the Muhammadi Steamship Company Ltd. which took place in February 1954. As all the four cases were proceeding together it became clear that the essential questions involved in all of them were the same because Suits Nos. 409 and 410 of 1955 relate to one voyage of ss. "Fakirjee‑Cowasjee" of the East and West Steamship Company, which also took place in February 1954. Counsel for all the parties, therefore, agreed on the 18th of August 1961 as follows:
". . . . that the evidence recorded in all of them should be read as evidence in one another to the extent that it is relevant to the individual cases."
The justification of this agreement will become clearer when the pleadings of the parties and the issues are dealt with hereafter.
2. I shall refer to the pleadings first. In Suit No. 250 of 1955 the plaintiff has alleged that 2,500 bags of rape‑seed were shipped by it out of which 529 bags of the value of Rs. 31,7 40 at Rs. 60 per bag were not delivered to the plaintiff; therefore, the plaintiff is entitled to recover this amount from the steamship company.
3. The plaints in Suits Nos. 409 of 1955, 410 of 1955 and 411 of 1955 were prepared by M. Ahsanullah & Co., Advocates and are mostly the same. The substantial common allegations made by the plaintiffs in all the three of them are that the plaintiffs had selected rape‑seed carefully with a view to protect it from damage during the voyages and that the steamship companies did not discharge the cargo uniformly or in proper time and manner. Reference is made in this respect to the discharge of cargo in lighters. The allegations of the plaintiffs, which are peculiar to each suit, relate to the quantity of the lost or damaged cargo, the money claimed as damages, and in one suit there is an allegation in addition to the above‑mentioned claim for damages against an insurance company, that damage was caused to the cargo by the negligence of the steamship company.
4. The material details of the allegations, which are peculiar to each of the three plaints, are as follows: In Suit No. 409 of 1955 it is alleged that 3,000 bags of rape‑seed had been shipped, out of which 809 bags of the cargo were damaged and 68 were lost. Rs. 36,293‑1‑3 are claimed on account of the damage and Rs. 4,051‑5‑0 for loss. Rs. 120‑0‑0 are claimed as charges paid for getting the damaged cargo surveyed. The total claim is for Rs. 40,464-6-3. In Suit No. 410 of 1955 the allegation is that 2,000 bags rape‑seed were shipped out of which 1,430 bags were damaged, for which Rs. 84,370 are claimed as damages at Rs. 59 per bag. In this suit the amount is also claimed from Norwitch Union Fire Insurance Society Ltd., and a specific allegation is made that the damage to the cargo of the plaintiff was caused by the negligence of the steamship company. In Suit No. 411 of 1955 the allegation is that 1,520 bags of rape‑seed were shipped out of which 440 bags of the seed were damaged and 295 bags were lost. Rs. 35,683‑9‑6 are claimed at Rs. 57‑1‑6 per bag.
5. Mr. Hassan has conducted the defence on behalf of the Muhammadi Steamship Co. in Suits Nos. 250 and 411 of 1955 as well as for Norwitch Union Fire Insurance Society Ltd., which is defendant No. 2 in Suit No. 410 of 1955. Mr. Patel has conducted the defence on behalf of the East and West Steamship Co. in Suits Nos. 40) and 410 of 1955. In so fat as the steamship companies are concerned, both counsel relied on four defences. They are, firstly, that the rapeseed that was shipped suffered from inherent defect, quality or vice of the goods. This defence is based on Article IV, paragraph 2 (m) of the Carriage of Goods by Sea Act, 1925. The second defence is that no part of the cargo was lost but that the bags had become unidentifiable because they had become charred owing to Internal heating of the rape‑seed, and that the plaintiffs did not accept them because they were not prepared to take steps to get them identified. The third defence is that damage was caused to the cargo owing to perils, dangers and accidents of the sea, for which the companies were not responsible. The fourth defence is that the shipping companies, their agents and servants were in no way negligent in discharging their obligations. This defence is based on paragraph 2 of Article III of the Carriage of Goods by Sea Act, 1925. Mr. Hassan has contended on behalf of the insurance company (defendant No. 2 in Suit No. 410 of 1955) in addition to the above defences that the risk of loss or damage resulting from inherent vice or the nature of the cargo that was insured was not covered by the insurance policy.
6. In Suit No. 410 of 1955 Mr. Patel further contended that the plaintiff has specifically alleged negligence of the steamship company in paragraph 9 of the plaint, but has failed to prove it. This alone, counsel argued, is sufficient to unsuit the plaintiff. Moreover, counsel argued that the plaintiff has claimed damages in this suit although the plaintiff is not the consignee and the shipping documents have not been assigned to the plaintiff on the assumption that the consignee was an agent of the plaintiff who paid the price of the consignment to the plaintiff merely as an agent of the plaintiff, therefore, whatever loss has been occasioned has been suffered by the plaintiff and not by the consignee ; but the evidence shows that the consignee was not an agent ; therefore, the consignee has suffered the loss, if any, and not the plaintiff. Thus the plaintiff cannot recover the amount claimed as damages. Mr. Hassan, counsel for the insurance company (defendant No. 2 in this suit) has also, relying on these facts, argued that the plaintiff has not suffered loss : (See In this connection my order in this suit dated the 1st of September 1961).
7. Counsel for all the parties agreed that the measure of damages should be Rs. 57 per bag of two maunds. They agreed, also that the bags which were shipped contained rape‑seed, and that the total loss in terms of bags to the plaintiffs was as alleged by them, though they did not agree on whether the cause of the alleged loss of cargo was short‑landing or damaged condition of the seed.
8. I have stated those defences and contentions only on which counsel for the defendants have relied in order to eliminate from discussion those pleas on which reliance was not placed and arguments were not addressed. Issues were originally framed in each of the four suits separately and have been later simplified by counsel for the parties, but it appears that a simpler and more effective method of examining the pleas on which reliance has been placed as well as the evidence of the parties, is to frame one set of issues. I, therefore, frame the issues in one set so as to bring within them all the outstanding contentions, as follows:‑
(1) Whether any part of the cargo was short‑landed as distinguished from being damaged
(2) Whether any loss of or damage to the goods resulted from perils, dangers and accidents of the sea
(3) Whether the goods that were damaged because they suffered from inherent defect, quality or vice If they did, was the defect, quality or vice discoverable by due diligence
(4) Whether any loss of or damage to the goods was caused by the negligence of the steamship companies, their servants or agents If the answer be in the negative, what is its effect
(5) Has the plaintiff in Suit No. 410 of 1955 suffered any damages If not, what is its effect
(6) Whether defendant No. 2 in Suit No. 410 of 1955 Is liable to pay damages, if any, in terms of the insurance policy
(7) To what amount of money as damages, If any, are the plaintiffs entitled
(8) General.
9. Issue No. 1.‑The Importance of the first issue lies in the difference of the nature of the defences that are relevant to justify loss of goods as distinguished from damage to them. This distinction has a value because loss cannot be justified by the defendant's plea that the goods suffered from inherent defect, quality or vice, nor by the evidence of the plaintiffs, whatever It maybe, that the goods were not properly stowed or care for maintaining proper ventilation was not taken by the steamship companies. This issue does not arise in Suit No. 410 of 1955, as there is no allegation of loss in it.
10. The burden of proving loss is on the plaintiffs. The evidence on which reliance has been placed by the plaintiffs toll prove it are mainly the Short Landing Certificates (or Short Certificates) which are Exh. 40 (in Suit No.250 of 1955), Exh. 71/45 (in Suit No. 411 of 1955) and Exhs. P. 48 and P. 44 (in Suit No. 409 of 1955). They were sought to be supported by the entries in the Out‑turn Report of ss. "Al‑Hassan", Exh. 71/46 (in Suit No. 411 of 1955), as well as two arguments: firstly, that there is no sufficient proof that the entire quantity of the cargo was landed from the vessels ; secondly, that the steamship companies did not take steps to get the damaged cargo identified as the cargo of the plaintiffs.
11. The Short Landing Certificates appear to support the contention of the plaintiffs that in all 892 bags were short‑landed, but, as explained by Aziz Asif, Superintendent of Jetties, Chittagong (Exh. 6 in Suit No. 409 of 1955), Wazir Ali, Manager of Muhammadi Steamship Co. at Chittagong at the relevant time (D. W. 13 in Suit No. 250 of 1955) and S. M. Maroof, Deputy Traffic Manager, Chittagong Port (Exh. 38 in Suit No. 250 of 1955), these certificates were prepared from the entries previously made in the Out‑turn Reports to show what cargo was not delivered to the consignees. The cargo shown in the Short Landing Certificates as short-landed is, therefore, shown as such in them in the sense that it did not bear the marks on it which it was expected to bear according to the Import Manifest. In other words, the corgo was expected to bear those marks on it which were made by the consignors at the time of shipment ; therefore, that part of ft was not delivered on which those marks were obliterated or became unidentifiable during the voyages. That part was declared as short‑landed. This does not prove that the cargo was not discharged from the vessels.
12. The Out‑turn Report of ss. "Al‑Hassan" has been used to show that the total number of rape‑seed bags which were in ss. "Al‑Hassan" are not accounted for by the number of unidentifiable bags and the amount of loose cargo mentioned in it. The inherent weakness of this argument of the plaintiffs is that the weight of loose cargo, or sweepings, is not stated in the report.
13. There is evidence on the contrary of Dr. Jalllur Rahman, Health Officer, Chittagong Port at the relevant time (D. W. 6 in Suit No. 250 of 1955) in which he has proved his report Exh. 41/9 in Suit No. 411 of 1955‑and has stated that he had inspected bags of damaged rape‑seed by taking "random samples" and had declared them to be unfit for human consumption. According to his report, 1,706 bags of rape‑seed discharged from ss. "AI‑Hassan" were condemned. Objection has been taken to the report on the ground that it is only a copy; but the original was produced by Dr. Mahfooz Ali (Exh. 41 in Suit No. 411 of 1955) but it was not left by him on this record and its copy, Exh. D. 9 was left for use. Exhibit 41/9 is the same as Exh. D. 9. The objection, therefore, is not substantial. The evidence of Dr. Rahman has been criticised on behalf of the plaintiffs on the ground that he did not count the bags but had accepted the information which was given to him by the officers of the shed where the bags were stored. Counsel for the plaintiffs have further argued that his evidence should not be accepted because in the shed there was other cargo also and that a record was maintained of the contents of the shed which has not been produced. It is unnecessary to examine these arguments in detail because counsel did not seem to attach due Importance to the situation that the burden of proving loss being on the plaintiffs, non‑production of the record and for that matter non‑production of any evidence to clearly prove loss of cargo, should weigh against them and not against the defendants.
14. I may refer to one more argument in this connection because a good deal of time was spent on it although it is of no consequence. Mr. Hassan argued on behalf of the defendants that the plaintiffs in reality referred to the cargo which was identifiable by marks when they demanded delivery of undelivered cargo from the defendants after the goods were discharged from the vessels, and were not prepared to accept the cargo without such marks. This contention of counsel is supported by letters such as Exhs. 10 and 11 (in Suit No. 250 of 1955) and Exhs. P. 20 and P. 21‑A (in Suit No. 409 of 1955) and Exhs. 46 and 44 (in Suit No. 411 of 1955). Counsel, therefore, further argued that had the plaintiffs been prepared to accept the damaged goods, they would have taken steps to get the damaged goods identified by other means than marks. They did not do so because they did not desire to accept damaged goods and are now trying to make use of the absence of identification by other means, which is the result of their own insistence on marks, to support the stand taken by them, as an after‑thought, that a part of the cargo was not at all discharged from the ships. Counsel for the parties were prepared for this argument because evidence had been led by them to prove whether the plaintiffs or the defendants were bound to take steps to get the goods identified. I have referred to this contention only to reject it as irrelevant because in reality the case of the parties is neither that the defendants refused to deliver the goods; nor that the plaintiffs declined to accept delivery owing to the procedure that is said to have been involved in the delivery. In truth, they are alleging and disputing loss and disagreeing on the causes of damage.
15. The conclusion is that the plaintiffs have failed to discharge the burden of proving that any part of the cargo was lost as distinguished from being damaged. The Issue Is decided against the plaintiffs.
16. This does not defeat the plaintiffs' claims for damages relating to the bags that are alleged to have been lost because, in the circumstances of these suits, their claims for damages in respect of the alleged loss take the shape of claims for damages arising from damage done to their cargo. This is the result, in these suits, of the facts admitted in defence in explanation of the plaintiffs' claims, which facts do not bring about any change in the relief s that have been claimed. I would not like to take too strict a view of the pleadings for granting the relief of damages particularly because uncertainty about facts can be said to have existed.
17. Issue No. 2.‑The second issue ought to have been dropped by counsel for the defendants, because there is no evidence whatsoever to support this plea. Counsel for the defendants did not support the issue but were not prepared to give it up. They were right in not pressing the issue because apart from the absence of any unusual incident during the voyages to support it, an attempt to attribute damage to the plaintiffs' cargo to perils, dangers and accidents of the sea, would have created the necessity of evidence to enable apportion ment of damages between this issue and issue No. 3 ; as well as indirectly added difficulties in supporting the third issue. I have, therefore, tried to guess the reason for not giving up issue No. 2, and the only justification for expressly not giving up this issue which strikes to me, is that there is evidence that some cargo was stored near the engine room and counsel wished to have the argument available that damage caused by heat from engines and boilers is exempt under the exception provided by Article IV, 2 (c) of the Carriage of Goods by Sea Act, 1925. If so, I should reproduce the following passage from page 117 of Carver's Carriage of Goods by Sea (10th Ed.):
"In The Thrunscoe the cargo was damaged by heat from the engines and boilers, which did not pass away as usual owing to the necessity of closing the ventilators during prolonged bad weather. The damage was held to be by "accidents of the seas, rivers and steam navigation. But in such cases it is not the lack of ventilation but the peril of incursion of sea water against which the ventilators are closed' which is to be considered as the peril of the sea'."
The issue is decided against the defendants.
18. Issues Nos. 3 and 4.‑Taking up the question of damage, I should point out that the rape‑seed in these suits was of Toria quality that is grown In the area that was formerly known as the Punjab. The third and fourth issues relate to damage to it during the voyages. The third issue is based upon clause (m) paragraph 2 of Article IV and the fourth issue is based on paragraph 2 of Article III of the Carriage of Goods by Sea Act, 1925. The fourth issue emphasizes the duty of the carrier to "properly and carefully" discharge the general responsibilities stated in the relevant provision and the third issue embodies the main plea of the defendants. I felt during the trial that counsel for both sides were very uncertain about their clients' burden of proof. I, therefore, gave them time and heard arguments on this question while evidence was yet being recorded by me. I would like to express my views before discussing the evidence.
19. The provisions of the Carriage of Goods by Sea fact, 1925 which were discussed at that time are as follows :‑
"Article III
2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.
Article IV
2. Neither the carrier nor the ship shall be responsible for loss or ‑damage arising or resulting from‑
(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods ;
The general responsibilities of the carrier set out in paragraph 2 of Article III are thus subject to the exception stated in clause (m) of paragraph 2 of Article IV, which means that the carrier is to discharge those duties but there is no liability if loss or damage is caused by an excepted situation. If the carrier proves the latter he can take advantage of it, unless the exception is defeated by proof of the failure of the carrier to discharge the general responsibilities. It is obvious that this proof should be such as to defeat the exception and not irrelevant to it. For instance, it will be useless for the shipper or consignee of the goods to prove that there was negligence of the carrier in the loading of boxes of apples, if no damage was caused to the apples by the negligence and the apples rotted exclusively owing to an inherent vice in them. Carver has expressed the main view of the law in this respect at page 186 of his above‑mentioned book, as follows;
"Accordingly, it is submitted, the true view is that if the goods‑owner proves that the goods have not been delivered, or have been damaged after shipment, the onus shifts on to the carrier to bring the cause of damage specifically within Article IV, para. 2. If the cargo‑owner wishes to defeat that plea by proving negligence, the onus is on him to do so."
20. The view appears to be eminently reasonable and almost obviously correct, but in England some difficulty was experienced in arriving at it‑See Gosse Millard v. Canadian Government Merchant Marine, American Can Co. v. Same ((1927) 2 K B 432) apparently because the responsibilities of the carrier are heavier under the common law than those recognised by the Hague Rules on which the English Carriage of Goods Act, 1924 is based as our Act of 1925, and the common law relating to carriers at sea still has its own place in the Courts of law.
21. The passage reproduced above from Carver is to be noted carefully. In the cases which are before me, there was no loss, in my view ; but damage is an admitted fact. In this respect, the words "after shipment" which occur in the quotation should be noted. It is obvious that the carrier cannot be liable for damage caused before shipment, but the carrier is also exempted under the law from liability if the goods suffer at the time of shipment from such inherent defect, quality or vice as F results in damage to the goods after shipment. This raises the question of burden of proof of the condition of the cargo at the time of shipment.
22. If the burden was placed on the shipper or consignee to prove that the cargo was in "good order and condition" at the time of shipment and the carrier was to fail if he failed to prove this or "to give clear and cogent evidence that the damage which ft (the cargo) sustained was traceable to causes for which the ship- owner was responsible", as is generally taken to have been decided in The Ida (1875) 32 L T 541; then the carrier would neither have to prove, for the reasons explained above (paragraph 19), that he discharged his responsibilities under Article III‑2, nor substantially at least to prove any exception under Article IV‑2 of the Carriage of Goods by Sea Act, 1925. I have said that the carrier would not have to prove any exception under Article IV‑2 in view of the real issue that was in that case, and not its language. Though the words used in the judgment are "good order and condition" and reference is made to the "appearance", the reason of the charred look of the cargo, which was seed in that ease, was attributed by the carrier in that case to "bad season for seed" and the internal heating of the seed. This means that the expressions "good order and condition" as well as "appearance" are to be understood with reference to the nature of tire plea raised in defence. If this interpretation Is correct and the meaning generally attributed to the judgment is also correct, then the judgment is an authority for the proposition that the shipper or consignee has to prove the condition of the cargo when shipped as well as to prove that the carrier cannot get the benefit of an exception.
23. I venture to say with utmost respect that their Lordships of the Privy Council have not recognised the principle in the Ida 's case that‑
". . . . failing proof of the condition of the cargo when shipped, the consignee is bound to show that the damage which It sustained is traceable to causes for which the ship -owner is responsible
(Head‑note is Aspinall's Reports of Maritime Cases, Volume 2, page 551).
though they have been understood to have done so. This view is not consistent with a later judgment of the House of Lords in Joseph Constantine Steamship Line Limited v, Imperial Smelting Corporation, Limited ((1942) A C 154 at p. 164) and in The Glehdarroch ((1894) 70 L T 344) Carver has commented in his above mentioned book on the Ida's case in a footnote at page 186, as follows:‑
"The Ids (1875) 32 L T 541 (P C) is authority for the proposition that the goods owner must prove that the goods were‑
(i) in good condition on loading and delivered damaged ; or
(ii) damaged by causes for which the ship‑owner is responsible. If that is correct, and he cannot prove (i), the burden must be on him to prove that the damage was not caused by an excepted peril, e.g., inherent vice. But quaere: why should it not be enough for him to prove that the goods were damaged when on board The Ids is unreliable in another respect: supra, pp. 69, 70."
At pages 69 and 70 the author's remarks are as follows:--
"If the consignee is also the shipper of the goods, he cannot rely on the statement as to their condition contained in the bill of lading as conclusive, though it would be some evidence against the ship‑owner. The latter, as against the shipper, would not be estopped from showing what in fact their condition was on shipment. In The Ids, under such circumstances, the Court held that the plaintiff was bound to make out a prima facie case; either by showing that the cargo was in good condition when shipped, or that the damage could be traced to some default of the ship‑owner. But that decision proceeded on the ground that, the master had written across the bill of lading ignoro qualita a quantita,' thereby preventing its constituting any admission by him of the state of the cargo. It seems difficult to reconcile with the latter authorities cited above, at pp. 67 and 68."
I am led to conclude as far as the proof of an exception is con cerned from the peculiar circumstances of The Ida's case that the observations of the Privy Council were apposite in respect of them. How they influenced thought is clear from the following passage of the judgment:‑
"Their Lordships cannot, indeed, suppose that the learned Judge intended to lay down, as the marginal note to that case represents him, that there is a rule of law which requires that a plaintiff in such a case as this must show, in the first instance, that the goods were shipped in good order and condition, or fail in his suit. Undoubtedly there is no such rule of law. But their Lordships think that in this case, considering that the plaintiffs must have known how material it was to prove the condition of the cargo, that they abstained from calling witnesses who knew its condition and called a witness who was ignorant of it, when further it appears, from evidence uncontradicted, that a great number of cargoes arrived at this time fn a heated and damaged condition from Port Said, and that this would seem to have been a bad season for seed, their Lordships think it not too much to say that there appears a good deal of reason to suspect that this seed was in a condition at the time of its being shipped which would account for its appearance when unloaded ; and that the plaintiffs having failed to show its condition on loading, were bound to give very clear and cogent evidence that the damage which it sustained was traceable to causes for which the ship‑owner was responsible."
(Page 554, Aspinall's Reports of Maritime Cases Vol. 2).
The true view of the law, therefore, at least on the provisions of the English Carriage of Goods by Sea Act, 192Cand our Act of 1925 is as summarised by Carver (at page 186 and reproduced above) with regard to the burden of proof of an exception which falls under Article IV‑2 of the Acts. The carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defeat it is on the shipper or consignee.
24. Owing to the uncertainty in the minds of counsel for the parties about the burden of proof, the plaintiffs in their suits have alleged, as pointed out above, that they had selected rape‑seed carefully and all the plaintiffs have led oral evidence: (Abdullah, P. W. 2, Abdul Ghaffar P. W. 4 in Suit No. 250 of 1955 ; Hussain Mian DIM P. W. 8 in Suit No. 409 of, 1955 ; Abdul Rahim P. W. 5, Muhammad Hasan, P. W. 6 and Haji Rahmatullah P. W. 7 in Suit No. 410 of 1955 ; Hussain Mian Bhai .P. W, 6 in Suit No. 411 of 1955) to prove that good seed was bought as usual, dried and properly kept before it was shipped. I take this evidence to be in rebuttal of the plea of the defendants that the seed suffered from inherent defect, quality or vice which caused internal heating and find that it is of no value because the seed was bought at Karachi after it was transported here from distant places and could have imbibed moisture at any time commencing right from the day on which it was harvested. Moreover, the evidence of the plaintiffs is not that extra moisture was evaporated by seiving and drying the seed in the sun but that it had no extra moisture in it when it was brought by them. The usual care which they gave to the seed after buying it was, therefore, not intended to be adequate as a treatment to cure the defect that is alleged by the defendants and cannot be held to be so. The existence of extra moisture in the seed, if the plea of the defendants be correct, was neither avowedly known to the plaintiffs nor have they at any time been prepared to recognise it. They have tried only to prove that as a rule rape‑seed is treated by them in a certain manner which does not meet the defendants' case that there was excessive humidity in the relevant season.
25. The defendants have examined Dr. Abdus Sattar, Deputy Director, Agriculture, and former Principal, Agricultural College and Research Institute, Lyallpur and Hasmatullah Khan, Regional Director, Regional Meteorological Centre, Lahore, to establish their plea of inherent defect, quality or vice. The relevant portions of Hashmatullah Khan's statement (Exh. 36 in Suit No. 250 of 1955) are as follows:‑
"5. There was large excess of rainfall and excess cloudiness, during the period October 1953 to March 1954 at the following stations included in the statement Exh. C. W. 1.
(i) October 1953:‑The cloudiness was in excess in Sialkot.
(ii) November 1953:‑The rainfall was in large excess at Khushab. There was excess cloudiness at all the eight stations.
(iii) December 1953:-‑The cloudiness was in excess at Lahore, Sialkot and Lyallpur.
(iv) January 1954:-‑The rainfall was in large excess at Rawalpindi and Khushab. There was excess cloudiness at Sialkot.
(v) February 1954:--‑There was large excess of rainfall at all the eight stations. Cloudiness was in excess in Lahore, Sialkot and Multan.
(vi) March 1954:‑Cloudiness was in excess in Sialkot only.
(1) Gross‑examination.‑(a) it gives meteorological conditions prevailing at eight stations therein referred (to) during the period October 1953 to March 1954.
(b) It relates to eight stations of the former Province of West Punjah.
(c) No. This cannot be applied to the whole of West Pakistan. The reasons are that Meteorological conditions vary from place to place."
The relevant parts of Dr. Abdus Sattar's statement (Exh. 37 in Suit. No. 250 of 1955) are as follows:‑
"(8) In different years the moisture content of Toria and Sarson seeds vary considerably. If at the time when the crop is nearing maturity the weather is cloudy, the percentage of moisture may be as high as 15%. At the time of harvesting, the moisture content in Toria and Sarson is generally 6 to 8%. At Lyallpur, the moisture in Toria and Sarson seeds during the time of harvest is 6.83 and 4.91 per cent. respectively. Should February and March months be cloudy it may rise to above 10% in Sarson and if the weather is cloudy in the end of December and beginning of January, it may be 10 to 12% in Toria.
(9) Toria seed must be sun dried before storage so that the percentage of moisture is reduced and thereafter it should be stored in cemented rooms with concrete floors.
(10) The statement of Exh. C. W. 1 clearly shows that the months of January and February 1954 have been very cloudy, for instance, in Lahore the number of cloudy days are 21 mornings and 23 afternoons, 25 mornings and 27 after noons; in February. At Lyallpur in January there were 16 cloudy days and 0.18 Inches of rain and in February there were 22 cloudy days and 3.43 Inches of rain. This shows that the weather during the period under review was exceptionally humid. I must mention here that it is the frequency of drizzlings and the lack of sunshine which can increase the moisture content of the seeds and not the total rainfall during any period.
(11) In the absence of proper precautions relating to storage, the percentage of moisture increases as even during storage, if the store rooms are humid, the seeds absorb moisture which may go up to 15%.
(Note.‑I am speaking from memory. Again said, I am definite now.)
With high moisture content rape‑seeds generally start fer menting when they are stored, during which process a consider able amount of heat is produced, the grains from collective masses, the percentage of oil decreases considerably and after about a fortnight give a charred appearance.
(13) The percentage of moisture in Toria seed harvested in the winter of 1953‑54 should be high due to the abnormal weather condition prevailing then.
(14) The weather was exceptionally cloudy during the season.
(15) The sunshine during January and February 1954 was not sufficient to make Toria seeds dry enough to withstand the long sea voyage, which would ordinarily last for 20 or more days. I may state that during a voyage even, Toria seeds are apt to absorb moisture. Drying of Toria seeds consignment in March or April would have been essential before shipping these seeds, but again, thereto, it would have absorbed moisture during the voyage, as this is characteristic of rape‑seeds.
(16) There would not be any spontaneous heat, but the beat would be produced during fermentation which would increase gradually and become so excessive that one would not be able to place one's hand in the stored rape‑seeds.
(17) During fermentation the heat which is produced would cause discolouration of Toria and Sarson seeds. It can also cause staining of storage bags. Laboratory experiment carried out by me for about three years showed that the seeds which had rotted in such cases gave a charred look and the oil content in them stood reduced.
Answers to Cross‑interrogatories
(4) The moisture content will not decrease unless seeds are sun‑dried. If stored in cemented godowns, it will remain constant; but if stored in kutcha stores, it will increase, as it will absorb moisture. If stored under humid conditions, the moisture content will increase.
(5) The period is 1 to 2 months before harvesting till thrashing i.e., beginning of December to beginning of February in the case of Toria seeds and beginning of February to end of March in the case of Sarson seeds."
Further, his statement in Suit No. 410 of 1955 (Exh. 15/2)
| "(16) If Toria and Sarson are stowed in closed holds or moist holds near about the beat‑generating Installations how will they re‑act and what time would it take to so re‑act | Will be liable to rot, which may be complete within14‑21 days." |
26. This evidence has been supplemented by the proof ---(See Muhammad Ibrahim, D W. 10, and Amir All Memani, D. W. 12 in Suit No. 250 of 1955, Hussain, P. W. 8 in Suit No. 409 of 1955)‑that rape‑seed sent In a number of consign ments other than those which are the subject‑matter in these suits from Karachi to Chittagong In 1954 was also damaged and that the nature of damage to it was never before or afterwards the same as in 1954‑(See Cyrus Cowasjee, D. W. 4 in Suit No. 4C9 of 1955‑‑), claims for the recovery of damages were, therefore, made against insurance and shipping companies which have been settled or are still pending (See Exh. 71, which is a list of 19 such suits, and Exhs. 72 to 80, which are copies of such plaints and written statements, which have all been produced in Suit No. 250 of 1955.)
27. The evidence of damage to rape‑seed mentioned in the preceding paragraph has not been questioned by counsel for the plaintiffs but the evidence of Dr. Abdus Sattar and Hashmatullah Khan has beep criticised by them as inconclusive because there is no satisfactory evidence of the localities where the rape‑seed, which is the subject‑matter of these suits, was grown. Some of the witnesses have mentioned‑(See Abdul Ghaffar, P. W. 4 in Suit No. 250 of 1955, Mahmood Ahmad, P. W. 5 in Suit No. 409 of 1955 and Abdul Rahim, P. W. 5, Muhammad Hassan, P. W. 6, and Haji Rahmatullah P. W. 7, In Suit No. 410 of 1955) the localities but their statements are un supported by documents and do not disclose the source of their knowledge.
28. This criticism is correct but the defendants could not produce more satisfactory evidence because they did not have knowledge of the names of those from whom the plaintiffs had purchased the rape‑seed at Karachi, nor were the sellers likely to assist the defendants in investigating the names of those from whom they had purchased the seed or the names of the localities where the rape‑seed sold by them to the plaintiffs was grown. The evidence brought on record is, therefore, sufficient to shift the burden to the plaintiffs to disprove the evidence produced by the defendants that the rape‑seed was defective because the relevant crop was generally bad.
29. The plaintiffs have not produced any evidence to disprove this, but they have tried to meet It by arguing that the bags would have been (i) hot and stained at the time of loading, according to the evidence of Dr. Abdus Sattar, if the seed which is the subject‑matter of these suits had excessive moisture in it when it was harvested and by proving she negligence of the defendants (ii) In defectively stowing the rape‑seed, (iii) in not taking care to maintain proper ventilation during the voyages as well as (iv) by relying on the fact that the cargo was discharged in lighters at the destination.
30. The last objection was not pressed because counsel conceded that it is usual at the Chittagong Port to discharge the cargo in lighters. The question of ventilation is not material in these suits because there is no satisfactory evidence to prove whether more ventilation or less than what was arranged was proper. The objection to stowage consists of three parts, namely that spacing in between the piles of the bags was not sufficient, that some of the rape‑seed was stored near the engine‑room (See the stowage plan of ss. "AI‑Hassan" Exh. 64) where there was more heat than in the other holds (See the statement of Statement of Hayat Khan, D. W. 9 In Suit No. 250 of 1955) and that some of the cargo was stored above rock‑salt and some by the side of alum (See the stowage plans of ss. "Al‑Hassan" Exh. 64 and of ss. "Fakirjee Cowasjee" Exh. 38) which com modities create conditions of dampness and which moisture could have been absorbed by the rape‑seed thus adding to or causing its decomposition. There is no evidence that spacing was defective, nor is there any evidence of the amount of heat. More over, there is no evidence that the beat to which objection is taken was harmful particularly in view of the defence that there was exces sive moisture in the seed. In support of the argument that damp conditions were created references have been to the book called Stowage by Capt. R. E. Thomas‑1961 Edition---and it is left to me, without expert evidence in favour of the plaintiffs and without sufficient data, to conclude that rock‑salt and alum did or did not produce the alleged action. This is not helpful to the Court for coming to a correct conclusion. It is noteworthy that there is no disclosure in the plaints of the nature of negligence which was sought by counsel to be attributed to the defendants on the basis of unexpected portions of the statements of witnesses and incomplete information gathered from the stowage plans. For instance, counsel for the plaintiffs did not think of heat until Hayat Khan mentioned it in answer to a question of mine but was unable to state the degree of temperature.
31. The argument advanced on behalf of the plaintiffs that the bags ought to have been hot and stained at the time of loading appeared to me to be weighty in the beginning because on the one hand two to three weeks could have been spent from the time of harvesting rape‑seed at the fields, transporting it to marketing centres to sell them, if it was sent there, trans porting it to Karachi, its treatment here and shipment; and on the other hand, Dr. Abdus Sattar has stated that (i) decom position is complete, within 14 to 21 days and (ii) that seed is so hot in advanced stages of decomposition that one cannot place one's hand on it. But in these cases, the bags could not be stained and hot because the seed was unbagged, aired and re‑packed in double bags before shipment. Moreover, the argument unwarrantedly presumes the existence of an extremely high degree of moisture in the seed at the harvesting time so as to cause immediate commencement of the process of decomposition. Decomposition could have commenced a some what later.
32. A suggestion has been made (See Hussain, P. W. 8 in Suit No. 409 of 1955) on behalf of the plaintiffs that they could not ship bad seed because they had to sell it in East Pakistan on credit. As against this, the defendants have led evidence to suggest (See Kassim, D. W. 11 in Suit No. 250 of 1955) that the plaintiffs were careless because the rate of freight had dropped. The answer to the plaintiffs' suggestion is that they could be unaware of or uncertain of the bad quality of the crop or merely hoped for the best when they shipped the seed. The answer to the defendants' suggestion is that freight is a very small fraction of the total capital that was involved. Moreover, neither of these suggestions or arguments is valuable for deciding whether the seed that was shipped actually suffered or did not suffer from inherent defect, quality or vice.
33. If the seed did not suffer from it, then there is no other reason nearly as cogent, convincing and fairly conceivable as inherent vice to enable one to attribute to it the serious damage that was admittedly done to the seed. The crop was without doubt generally bad and the only explanation deducible from the state of evidence that is on record is that the rape‑seed that was shipped was damaged during the voyages owing to its inherent vice in which no negligence of the defendants was involved. Both issues are, therefore, decided against the plaintiff.
34. Issues Nos. 3, 6 and 7.‑In view of the above decision It Is unnecessary to discuss and decide issues Nos. 5, 6 and 7.
35. Issue No. 8.‑In conclusion of all that has been said above, the suits are dismissed with costs.
K. B. A.
Suits dismissed.
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