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Civil Suit No. 292 of 1955, decided on 5th October 1961.
---‑Plaintiff's vessel chartered by defendant who failed to provide cargo‑Terms of contract allowing plaints to recover demurrage "for default of loading by defendant"‑Plaintiff cannot be permitted to claim demurrage for "delay occurring in securing fresh cargo."
(
‑"Dead‑weight" capacity of ship-- Ship's lifting or weight‑carrying capacity "in abstract" but "guarantee" as to weight is to be read with reference to circumstances contemplated by parties‑[Carver's Carriage of Goods by Sea (10th Edition pp. 243, 474 ref.)].
----‑Report of survey of ship in regard to carrying capacity of vessel‑Report consisting of mere scribblings made by surveyor on piece of paper‑Report, held, of no value.
---Parties to contract taking for granted that plaint's ship had a certain load capacity‑Burden of proof on defendant that ship was not of such capacity‑Evidence Act (I of 1872), S. 102.
Noorul Arifin for Plaintiff.
Syed Riaz Ahmed for Defendant.
Dates of hearing : 2nd and 22nd October 1959 ; 29th Sep tember and 5th October 1961.
This is a suit for the recovery of Rs. 1,17,316‑10‑7 with interest from the date of the suit till realization of the claim. The facts which form the back ground of this suit are that the parties entered into a contract by which the defendant agreed to charter a ship of the plaintiff company known as s. s. "Safina‑e‑Tariq" to transport by it his cargo of "cotton‑seed oil cakes undecoaticated" from Karachi to three ports of U. K. The three ports were Avonmouth, Liverpool and Manchester or Glasgow. The choice between Manchester and Glasgow was of the defendant. The contract (Exh. 6/1) was made on the 11th of December 1954, and four of the clauses of the contract which are important for the present purposes are as follows:‑
"(1) That you (charterer) will undertake to give a full load to the vessel .upto a maximum of 4,000 tons dead‑weight.
(3) That you (shipowner) will have no objection to our carrying a part of the cargo on deck on the usual on deck' terms and conditions.
(4) . . . . . The freight will be paid to us (shipowner) by you (Charterer) in Pakistani currency as follows
(a) 25% of the estimated freight in advance on confirming this arrangement.
(5) That in case you fail to provide the cargo as per clause (2) above, you will be responsible to pay us a demurrage of Rs. 2,000 per day and that if you fail to supply the required full quantity, you will pay dead‑freight for the space left unutilised."
On the date of the agreement the defendant gave a cheque for Rs. 40,000 to the plaintiff. It is Exh. 6/9. On the 14th of December 1954, the defendant stopped payment of the cheque and wrote a letter to the plaintiff (Exh. 6/5) in which he stated as follows:‑
"With reference to our conversation to‑day your unbusiness -like behaviour was highly regretting and your threat to cancel your undertaking to carry our goods had to be reluctantly accepted by us . . . . Immediately after accepting your threat to cancel your undertaking we phoned to Mr. Rafiq that you should not send the cheque of Rs. 40,000 which we, in good faith, issued to you ; the payment of which after knowing from the bank that it had been produced for payment, had to be stopped."
The defendant did not utilise the agreement (Exh. 6/1) and the plaintiff loaded some other party's cargo on the ship. The quantity of that cargo was only 2,686 tons. The plaintiff gave a legal notice to the defendant on the 15th of January 1955, to claim loss incurred by non‑availability of full toad of cargo, which was replied by the defendant's counsel vide the letter dated the 10th of February 1955, (Exh. 6/15). It says inter alia as follows:‑
"My clients received information that oil cakes of 4,000 tons could not be loaded in s. s. "Safina‑e‑Tariq." My clients on 13‑12‑54, insisted on your clients to disclose the port of destination and to intimate whether the information that the said s. s. Safina‑e‑Tariq' cannot carry more than 2,700 tons of oil cakes was correct or not . . . . . My clients were very much disappointed from the unbusiness-like attitude of your clients, hence Mr. Siddiqui (the defendant) took every pre caution that the cheque obtained by your clients by suppression and misrepresentation of facts may not be cashed and Messrs National Bank Ltd., Karachi were accordingly directed . . . . . Your clients contention that the said s. s. "Safina‑e‑Tariq" could not load more than 2,686 tons and in this way there was a loss of 1,314 tons and as a result your clients have suffered loss of Rs. 79,316‑10‑7 is also wrong and baseless. . . . . .
Your clients have obtained the signature of Mr. Bashir Husain Siddiqui (the defendant) and got a cheque for Rs. 40,000 on misrepresentation of facts with respect to the loading capacity of the ship and by making my clients believe that 4,000 tons of oil cakes could be loaded in s. s. "Safina‑e Tariq."
The defendant further alleged in the notice that he had suffered damages on account of the conduct of the plaintiff in the amount of Rs. 77,158‑5‑4.
2. After the receipt of the above reply the plaintiff has instituted this suit on the 4th of February 1955, in which he has claimed Rs. 79,316‑10‑7 on account of the loss alleged to have been suffered by it owing to its inability to secure for carriage of the entire quantity of 4,000 tons and demurrage in the amount of Rs. 38,000 as follows:‑
Ship loading should have started from 16‑12‑54, at rate of 500 tons per day. 4,000 tons would have been completed in 8 days i.e., upto 23‑12‑54. Vessel had to wait for cargo and sailed on 11‑1‑55; thus demurrage at rate of Rs. 2,000 per day for 19 days."
3. The defendant has resisted the suit on various grounds. On the pleas of the parties 11 issues were framed on the 16th of January 1956.' The plaintiff has produced six witnesses and the defendant has produced three witnesses. Both parties have proved a number of documents in support of their respective contentions. At the time of arguments counsel for the parties realized that a number of the issues that were framed were not material, as a result of which they dropped issues Nos. 1, 2, 4, 5 and 6 and have modified issue No. 10. Now the issues are as follows:‑
"(1) Whether s. s. Safina‑e‑Tariq' could load 4,000 tons of undecoaticated oil cake bags
(2) Whether the defendant has committed any breach of contract, if so, what actual losses the plaintiff has sustained
(3) Whether the condition of demurrage at Rs. 2,t00 per day was by way of penalty or by way of liquidated damages
(4) What measures the plaintiff adopted to minimize the losses
(5) Whether the plaintiff is entitled to any demurrage
(6) General.
4. Issues Nos. 3, 4, and 5 can be disposed of easily because there is practically no evidence to support the plaintiff's claim for demurrage. This claim is based on clause No. 5 of the contract (Exh. 6/1). The plaintiff has stated in the plaint that the ship had to wait for getting cargo beyond the time within which it was to be loaded by the defendant. There is no evidence on record as to when the plaintiff commenced loading or com pleted it. There is no evidence as to why the plaintiff had to wait for loading the ship beyond the contemplated time nor is there any evidence as to when the new contract for loading was secured. In these circumstances the claim for demurrage is without any factual basis. I am further inclined to think that this claim which is based on clause 5 of the contract (Exh. 6/1), under which the plaintiff could recover demurrage for default of loading by the defendant cannot be the basis for claiming demurrage for delay alleged to have occurred in securing fresh business because the meaning of the word "demurrage" and the object of clause 5 of the contract .needs much distortion before the present claim of the plaintiff can be supported by the clause. Mr. Nurul Arifin conceded that the necessary evidence to support this claim is not on record anti refrained from pressing the claim though he did not say that he was giving it up. Issue No. 5 is, therefore, decided against the plaintiff. Issues Nos. 3 and 4 do not arise.
5. Issue No. 1.--‑This is the only important issue in the suit and Mr. Riaz Ahmad has argued it with much keenness. The amount of 4,000 tons of dead‑weight is mentioned in the contract (Exh. 6/1) but the contention of the defendant is that this was a misrepresentation and Mr. Riaz Ahmad suggested during arguments that the use of the word "dead‑weight" was itself capable of creating a misgiving because he thought that the expression "dead‑weight" referred to the total weight of the ship, but it is not so as the following passage at page 243 of Carver's Carriage of Goods by Sea (10th Edition) will show:--
"The expression dead‑weight capacity', which is frequently used in such guarantees, has reference primarily to the ship's lifting or weight‑carrying capacity in the abstract but the guarantee must be read with reference to the circumstances contemplated by the parties."
Mr. Riaz Ahmad, therefore, further argued that the reference to carrying capacity in the abstract did not amount to a guarantee by the plaintiff that the ship could carry 4,000 tons of the cargo of the defendant. The plaintiff's ship, according to counsel, could not carry this amount of the defendant's cargo. The argument, therefore, has two aspects, one of which is an abstract capacity of "Safina‑e‑Tariq" for carrying cargo and the other is its capacity to carry the cargo which the defendant proposed to load on it.
6. The evidence of the parties on this issue can accordingly be classified under two heads‑namely; the capacity of the ship to carry the cargo generally and the stowage factor determined by the nature of the cargo of the defendant. On the first head the entire evidence of the parties consists of the statements of J. C. Thompson (Exh. 5) who was examined de bene esse, Abdul Hamid Ismail (P. W. 1) ; John Johnson (D. W. 3), the Lloyds Register of shipping, Volume II (Exh. 15/1) and an extract from the statement of Ships' Registration in the port of Karachi (Exh. 10/t). The Lloyds Register of Shipping (Exh. 15/1) which has been produced on behalf of the defendant is the most reliable piece of evidence. According to it the capacity of the ship "Safina‑e‑Tariq" is 1,80,000 cubic feet. I accept this correct particularly because Mr. Nurul Arifin has not questioned it.
7. This capacity, however, does not include the "on deck" capacity of the ship as pointed out at page 2 of the Register. Under the contract (Exh. 6/1) the defendant could not object to the plaintiff carrying a part of his cargo on deck. The question, therefore, arises as to how much more space was available in the ship in addition to the capacity mentioned in the Register.
8. J. C. Thompson (Exh. 5) has stated that this capacity was 38, 184 cubic feet but Mr. Riaz Ahmad has criticised this witness as unreliable on the ground that he was an employee of the plaintiff at one time and was examined when he happened to be in Karachi "casually". Moreover, there is no explana tion as to why the witness surveyed the ship, nor is there any record of the survey. He has given detailed evidence from memory without any document to support it excepting a few scribblings made on a piece of paper (Exh. 5/1). Mr. Riaz Ahmad has criticised these scribblings as of no value and as a document which has not been legally proved. If this document was written by the witness then technically it has been proved, but it is obvious that this is a scrap of paper to which no value can be attached. The survey report, if any, of the survey made by the witness has not been brought on record. I agree with' counsel that the evidence of this witness is not credit‑worthy.
9. Abdul Hamid Ismail, the Managing Director of the plaintiff, P. W. 1, has stated that "on deck" capacity of the ship is 38,000 cubic feet. Mr. Riaz Ahmad has criticised his statement on the ground that he is contradicted by John Johnson (D. W. 3) who is described by counsel to be an expert. He has given the capacity to be the same as stated in the Lloyds Register and has questioned the "on deck" capacity of the ship as follows:‑
"This cargo must not be carried on deck. The reason is that in the first instance exposure to weather renders the cargo to be stained and rotten ; secondly, if the cargo is covered with tarpaulin then there is no ventilation and the cargo will get rotten; thirdly, the vessel was proceeding to the U. K. and would be in the Atlantic Ocean in February‑March and the cargo would be washed aboard. There is another reason it would be impossible to ensure the cargo on deck."
The witness in making the above statement has pretended to be wiser than the parties and laid emphasis on his opinion that cargo "must no;" be carried on deck. If the parties agree to transport cargo on deck it is not open to the witness to express himself against it with a prohibitive definiteness. Moreover, his view is not correct because the correct position is as stated by Carver at page 474 of his above‑mentioned book as follows:‑
"Goods ought not to be carried on deck, if they are there exposed to a greater risk than when stowed in the usual carrying part of the ship, unless the shipper has assented to their being so carried, or unless a custom to carry in that way exists in the particular trade."
In one particular the statement of the witness is false. He has stated that it is impossible to ensure the cargo that is carried on deck. Mr. Riaz Ahmed has conceded that cargo carried on deck can be ensured although it entails the payment of heavier premium. I do not, therefore, consider the evidence of John Johnson (D. W. 3) to be trustworthy.
10. According to Exh. 10/1 the total cubic capacity of the ship is 2,19,000 cubic feet. Mr. Nurul Arifin attempted to assign statutory authority to this document but gave up that stand because he realized that it is not the copy of that register which is maintained under the Merchant Shipping Act, 1894. It is, however, significant that the total of the under‑deck capa city of the ship as given in the Lloyds Register plus the on deck' capacity of the ship as given by Abdul Hamid Ismail, P. W. 1, comes to 2,18,000 cubic feet. This capacity is the same as stated in Exh. 10/1 with the difference of a small margin. I am, therefore, inclined to believe, that on‑deck capacity of the ship is about 38,000 cubic feet.
11. I would, however, like to consider to examine the question from the angle from which Mr. Riaz Ahmad would like me to see it. According to him there is no reliable evidence on record of the "on deck" capacity of the ship. He has, therefore, argued, on the assumption that the onus of proving the capacity of the ship is on the plaintiff, that the conclusion should be drawn against the plaintiff. This assumption no doubt finds some support from the form of the issue. The difficulty in the way of counsel, however, is that the capacity on which the plaintiff relies is in consonance with the terns of the contract (Exh. 6/1) and the defendant wants to justify the avoidance of the contract on the ground that it is a misrepresentation. The contract is signed by him and, therefore, the onus of proof is on him to establish the existence of a different state of affairs In my opinion, if there is no reliable evidence on record of on deck' capacity of the ship, the defendant would fail because in that event he has not been able to justify his conduct in avoiding the contract.
12. Mr. Riaz Ahmad tried to meet this situation when I put it to him by contending that the plaintiff should fail because the plaintiff's allegation is that the contract has not been performed because the defendant had made an unreasonable demand to include a new port in the contract and that allegation has not been as much as referred to by Mr. Nurul Arifin in his address. This stand of Mr. Riaz Abmad appears to me to be misconceived. The plaintiff slid gave a reason for the non‑performance of the contract. That reason has not been substantiated but the fact remains that the defendant did not perform the contract for a different reason. If he fails in establishing his justification, it is no argument to say that the other reason which was ascribed to the defendant's act by the plaintiff has not been established.
13. The conclusion, therefore, that the under‑deck capacity of the ship has been established to be according to the Lloyd's Register (Exh. 15/1) to be 1,18,000 cubic feet and its "on deck" capacity has been established to be about 38,000 cubic feet.
14. Turning now to the other aspect of the question, namely the stowage factor, I may mention that the entire evidence of the parties on this aspect consists of tile statements of J. C. Thompson (Exh. 5), Captain A. Mihal‑Ovitz (D. W. 2), John Johnson (D. W. 3), survey reports Exhs. 15/2 and 15/3 and the contract Exh. 13/1. Mr. Riaz Ahmad has argued as pointed out above that the statement of J. C. Thompson is not reliable. I have agreed with him and therefore need not refer to his statement. The statement of John Johnson is not considered by me to be reliable as pointed out above and therefore I need not refer to it. Captain A. Mihal‑Ovitz has stated as follows:‑
"I have no personal experience about the cargo in dispute manufactured in Pakistan."
His statement, therefore, is of no value. Eliminating the state ments of these three witnesses the three documents Exhs. 15/2, 15/3 and 13/1 become valueless because there is no mention in them of the stowage factor. They were intended to be used with the help of the evidence of the witnesses. In consequence I am left to draw my conclusions from reliable literature.
15. There are two books to which references have been made. One of them is "Stowage Notes" by James Knox, Licensed Measurers' Department, Bengal Chamber of Commerce, Second Edition, 1918 and the other is "Stowage" by Captain R. E. Thomas, assisted by Captain O. O. Thomas, 4th Edition, 1957. The relevant portion at page 272 of the Stowage Notes is as follows:
| "Oil Cake (Bags) | Cwts. | Qr. | lbs. |
|
5'‑6" x 21‑10 " x 2'‑7" | 2 | 0 | 6 |
| 2 | 0 | 7 | |
| 2 | 0 | 6 | |
| 2 | 0 | 6 | |
| 2 | 0 | 5 | |
| 2 | 0 | 6 | |
| 2 | 0 | 5 | |
| 2 | 0 | 5 | |
| 8 Bags Oil Cake weighing 1838 lbs. stowed in 40 c. ft. 10.18 inch=49 c. ft. |
|
|
|
| 9 3/2 Bags per ton of 50 c. ft. |
|
|
|
| 9 3/4 Bags per ton of 20 c. w. t." |
|
|
|
| and the relevant portion from page 162 of Stowage is as follows:‑ | |||
| "Cotton Seed Cake 48/55 Bales56/60 Loose. | Is readily damaged by mois ture and susceptible to tainting damage if stowed near or with odorous goods. Particular care should be observed if loading in Southern U.S.A. ports to keep this cargo clear of turpentine fumes. Usually put up in bales covered with gunny or in bags, but at times shipped in the loose condition. Re quires to be well damaged and well ventilated." | ||
The stowage factor given in the latter quotation is higher but it is sufficiently low to enable the ship to carry 4,000 tons of the defendant's cargo.
16. Mr. Riaz Ahmad has argued that these Books give the stowage factor of oil cakes generally and not of oil cakes "undecoaticated." The distinction drawn by counsel is not supported by any evidence and does not appear to be material on the basis of any reference to any authoritative book brought to my notice by counsel. The mere fact that the word "undecoa ticated" is used in the contract (Exh. 6/1) does not enable me to come to the conclusion that the space required for oil akes in general would be less than for oil cakes "undecoati cated."
17. My overall conclusion is that the under‑deck and on -deck carrying capacity of "Safina‑e‑Tariq" is about 2,18,000 cubic feet. The stowage factor of oil cakes is between 48 and 55 cubic feet which means that it had the capacity to carry 4,'000 tons of the defendant's cargo. The issue is decided accordingly.
18. Issues Nos. 2 & 6.--‑It follows from the above discussion that the defendant has committed breach of the contract and that plaintiff is entitled to a decree for Rs. 79,316‑10‑7 with propor tionate costs and interest from the date of the suit until recovery at the rate of 6% per annum. I decide accordingly.
A. H.
Order accordingly.
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