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Suit No. 244 of 1955 decided on 25th January 1963.
(Consolidation of cases)‑Four suits heard together (by agreement)‑Evidence recorded used in all four cases to extent relevant to each.
Admitted with consent of parties without formal proof.
(Loss of goods)‑(Damage to goods)‑Causes different for each result‑To be separately pleaded.
Loss‑Damage‑Burden of defence against claim for loss or damage‑On shipowner, once owner of goods has proved loss or damage, unless case excepted by Art. IV, Sched., Carriage of Goods by Sea Act (XXVI of 1925)‑[Carver's "Carriage of Goods by Sea", 10th Ed., at p. 186; Ibrahim v. State P L D 1961 S C 200 and Hari Baksh v. Babu Lal A I R 1924 P C 126 ref. ; Ida's case (1875) 32 L T 541 considered.]
"Import Mani fest"‑Goods (rape‑seed) entered in "Import Manifest" found on board ship not in identifiable but in unidentifiable condition (deteriorated seed in rotten state)‑No action taken against Master of ship for short‑landing‑Goods not deemed to have been short landed‑Evidence Act (I of 1872), S. 2.
Suit No. 244 of 1955
M. H. Memon for Plaintiff.
S. M. Hassan for Defendant.
Suit No. 412 of 1955
F. W. Vellani for Plaintiff.
S.M. Hassan for Defendants.
Suits Nos. 796 and 823 of 1955 Tariq Ihsanullah for Plaintiff.
S. M. Hassan for Defendants.
Dates of hearing : 3rd, 4th, 5th, 9th January 1962 ; 10th, 11th, 25th, 26th, 30th, 31st October ; and 1st, 2nd, 7th and 9th November. 1962.
Suits Nos. 244, 412, 796 and 823 of 1955 will be disposed of by this judgment. They are for recovery of damages and belong to the series of cases out of which four suits were previously dismissed by my judgment in Adam Limited v. Muhammadi Steam ship Company Limited (P L D 1962 Kar. 227). The plaintiffs have preferred Letters Patent Appeas against that judgment and the appeals are still pending. All the parties to these suits were parties to the former suits and those counsel who have taken the main part in these suits had also appeared in them. Additionally, some of the most important witnesses examined in these suits were produced in the former suits. I would have therefore preferred these suits to be decided by some other Judge of this Court. They were actually fixed for hearing before Sir George Constantine when he was a Judge of this Court and before A. S. Faruqui, J., but in the ordinary course of disposal of cases, have finally come back to me for decision.
2. These circumstances have nevertheless not been without the advantage that arguments had been addressed in these suits on behalf of the parties from different angles as compared to the arguments which were addressed in the former suits, a good many of the minor contentions were not repeated and agreement was arrived at between counsel for the parties on several points to save time. Mr. F. W. Vellani addressed arguments for all the plaintiffs and Mr. Hassan again defended the Muhammadi Steamship Company Limited with the able assistance of Mr. Ismail Tejani.
3. I note with gratification that the arguments were well prepared and displayed the care of counsel to precise in their submissions and to be fully helpful. Counsel have prepared and submitted lists of all the witnesses and documents as well as written arguments. It was agreed, amongst them in the interest of justice, that these four suits should be tried together and that all the evidence brought on the record should be used in all the cases to the extent that it might be relevant in each case. All the documents produced by the parties were by consent of counsel admitted in evidence without formal proof excepting for two survey reports (Exhs. 97 and 98) in Suit No. 412 of 1955 and a letter (Exh. 34) dated the 4th May 1954 in Suit No. 796 of 1955. About 500 documents were exhibited and 36 witnesses were examined on commission and in Court. Some of the witnesses produced before the Commissioners were repeatedly examined because the agreement to which reference has been made above was reached later on the 20th of September 1961. Counsel for the parties had also agreed on that date that the value of one bag of two maunds of rape‑seed should be taken to be Rs. 57,00 and that damages, if any, should be awarded on this valuation.
4. All of these four suits relate to one voyage of the vessel called as "Al‑Saiyedah" which belongs to the Muhammadi Steamship Company Limited. It had, along with other cargo, carried the rape‑seed that belonged to the plaintiffs, sailed from Karachi for Chittagong on the 5th of March 1954, and reached the outer anchorage of that port on the 18 th of March 1954. After discharging some cargo there, it moved on to the Mooring Jetty and disch.irged the cargo on various dates until the entire cargo was discharged on the I lth of April 1954. The discharged cargo was stored in sheds and left in the custody of the Port authorities who had to deliver it to the consignees.
5. The plaintiffs bad consigned in Suit No. 244 of 1955, 18250 bags of rape‑seed ; in Suit No. 412 of 1955, 1128 bags of that commodity ; in Suit No. 796 of 1955, 2000 bags of the same goods and in Suit No. 823 of 1955, 893 bags of that merchandise. The plaintiffs' claim in Suit No. 244 of 195 is that 44 bags were not delivered to them. In Suit No. 412 of 1955 they allege that 615 bags were not delivered to them and that 340 bags were delivered to them in a completely damaged condition. In Suit No. 796 of 1955 their stand is that 362 bags were not delivered to them and in Suit No. 823 of 1955 their allegation is that 186 bags were not given back to them at the destination. This shows that Suit No. 412 of 1955 is different from the other three suits in one respect, which is that in this suit delivery of damaged cargo has also been alleged.
6. There is no allegation of the negligence of the defendants in the plaints of Suits Nos. 244 and 412 of 1955 with respect to the non‑delivery of the goods to the plaintiffs. In the plaint of Suit No. 412, it is alleged in paragraph 8 that
"damage was caused by the negligence of the defendants, the servants of the defendants and the agents of the defendants."
In paragraph 8 of the plaints of Suits Nos. 796 and 823 the allegation is that
"the said non‑delivery of the goods was caused by the negligence of the defendants, its servants and agents."
7. These pleadings should be noted because Mr. Hassan for the defendants has rightly contended that the plaintiffs have alleged in two suits, the negligence of the defendants in not delivering goods to them and in one suit negligence without specifying its nature which has according to the plaintiffs caused damage to the cargo, but this state of the pleadings was lost sight of on behalf of the plaintiffs during the trial and at the time of the arguments, because an effort was made to establish (i) in terms of paragraph 2 of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925, that those goods which were not received by them were not discharged from the ship, or (ii), in the alternative, in terms of Article II of the Schedule to the Act that the defendants were negligent in relation to stowage, custody and care of the goods at the commencement of and during the voyage. As one comes to see the difference between delivery of damaged goods and non‑delivery of goods, one can notice that there is an anomaly in the two stands taken by the plaintiffs during the trial and at the time of the arguments. As their pleas are that in all 1207 bags were not delivered to them and, also in one suit, that 340 bags were completely damaged,1 the caused leading to these two results ought to have been shown to be of different nature, but this distinction was not kept into mind and a common attack consisting of two alternative pleas has been made against the defendants. As damage to the rape‑seed could not cause its disappearance, the alleged damage could not be the cause of the defendants' failure to discharge the cargo from the ship. Its result could be expected on the contrary to be that damaged cargo be discharged from the ship because if only damage had occurred to the goods, the damaged goods should have been available to be offered to the plaintiffs, though not the goods as they were loaded on board the ship. There is thus an inconsistency between the alternative contentions that the goods were either damaged during the voyage or that they were missing.
8. This criticism, with which I agree, perfectly suits the defendants whose case is that the entire cargo was discharged from the ship but the rape‑seed had been damaged in terms of paragraph 2 (m) and (p) of Article IV of the Schedule to the Carriage of Goods by Sea Act, 1925, owing to "inherent defect, quality or vice of the goods" which was "not discoverable by due diligence". As a result of this defect, quality or vice, the seed was, according to them, internally heated and outwardly burnt and charred, whereby the bags in which it was contained were also charred, the marks that were made on them by the plaintiffs were obliterated and the seed was spilled because the fabric of the bags became too weak to contain the load of the seed. The damaged seed, which was lying at the sheds, was thus partly loose and partly in bags without identifiable marks on them. It was offered to the plaintiffs, but they were not prepared to accept it because they insisted that it should be offered to them in bags which had the original marks. This is the reason why some amount of the seed could not be delivered to the plaintiffs. The damage alleged by the plaintiffs had, with a difference as to the cause, admittedly taken place. As the cause, according to the defendants, was inherent defect, quality or vice of the goods which was not discoverable by due diligence, the defendants were not responsible for the loss or damage, in terms of the exceptions contained in paragraph 2 (m) and (p) of Article IV of the Schedule to the Carriage of Goods by Sea Act, 1925, unless the plaintiffs negatived the relieving effect of these exceptions by alleging and proving the suggested negligence of the defendants in stowage, custody or care of the cargo at the commencement of or during the voyage. The stand of the plaintiffs throughout the trial having been that the seed did not suffer from any inherent defect, quality or vice, they could not plead and have not pleaded that any extra care in stowage and custody was needed ; from which omission it follows that no more than the care that is ordinarily required for the carriage of rape‑seed was needed. The ordinary care was bestowed because the same methods of stowage and custody were employed by the defendants which were employed by them on previous voyages at the end of which rape‑seed was delivered to the consignees at the destination without that kind of damage to it which has occurred to the seed of the plaintiffs during this voyage or which had occurred during other voyages of this season. Ordinary care combined with a special kind of damage to the seed of this season necessarily leads to the conclusion that reasonable care was taken and that there was no other reason of the damage that has occurred during this voyage than inherent defect, quality or vice of the goods themselves. It is not enough in these circumstances, according to Mr. Hassan, that Mr. Vellani who has argued the cases for all the plaintiffs, should contend that negligence of the defendants was inferable from the fact that the goods were damaged without specifying accurately as to what negligence could have been committed by the defendants in stowing the goods or carrying them on the sea. Mr. Vellani has urged that the hatches ought to have been kept open for longer periods to provide better ventilation in the holds and that the bags ought to have been stowed with more space among the piles, but the usual methods were followed which were adequate for normal seed. They would have been adequate for the plaintiff's seed also if it was normal.
9. The above statements make the stands of the opposing parties fairly intelligible. It is unnecessary to set out the pleas of the parties contained in the plaints and the written statements because all of them are not of decisive importance and because the issues that were framed and which will be presently set out below will give a good idea of the pleadings on which the parties finally went to trial ; but it is convenient to state here that the respective pleas and contentions which have been set out above, have been supported by the defendants mainly by placing on record their documentary and oral evidence of the manner in which the plaintiffs' goods were stowed and then cared for and also by producing evidence that the seed of the season was defective ; and by the plaintiffs by producing evidence that the cargo for which damages are claimed, was not received by them or had been spoiled, that good seed was consigned by them as usual and by criticising the evidence of the defendants relating to the alleged inherent vice in the seed of the season.
10. This is the essence of the four cases. Looked at from this point of view, the decision of these suits rests on the assessment of the evidence of the parties. I shall recall here that the documents, excepting for three of them which are mentioned in paragraph 3 above, have been exhibited by the consent of counsel for the parties ; therefore, criticism of the manner of their proof is not material.
11. Legal questions have, however, been raised and argued by counsel for the parties with keenness and care. I shall, therefore, deal with them now so that they may serve as the background of the decision of the issues.
12. Mr. Hassan has contended that the following statement of law contained in Carvc,r's book on "Carriage of Goods by Sea" (10th Ed.) at p. 186, which I have adopted in my judgment in Adam Limited is not correct :
"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, rule 2. If the cargo‑owner wishes to defeat that plea by proving negligence, the onus is on him to do so."
He argued that the Privy Council have taken the contrary view in Ida's case ((1875) 32 L T 541) as has been disapprovingly recognised by Carver in his above‑mentioned book in foot‑note No. 19, at page 186, and as has also been noticed by Scrutton in his book on "Charterparties" (17th Ed.) at page 177. The Privy Council's view is that the shipper should give "the prima facie evidence of the condition of the cargo", but my interpretation of that judgment, which is found on the facts of that case, is neither sound nor conducive to justice in so far as the ship‑owners' interest is concerned. I do see that my interpretation would be questionable if the judgment is accepted literally, because their Lordships have concluded it by saying
"Under these circumstances, their Lordships have come clearly to the conclusion that the plaintiffs have failed to make out their case by prima facie evidence of the condition of the cargo, and they have certainly not adduced any evidence at all conclusive, or even cogent, for the purpose of showing that the damage which the cargo sustained on the voyage was due to the fault of the ship‑owner."
(page 555, "Maritime Law Cases" Vol. 11)
But I believe, as pointed out by the Supreme Court in Ibrahim v. State (P L D 1961 S C 200 at p. 205) that
"everything said in a judgment is to be evaluated in relation to the particular facts and circumstances of the case thereby decided."
The Privy Council have themselves observed in Hari Baksh v. Babu Lal (A I R 1924 P C 126) that
"to understand and apply a decision of the Board or of any Court, it is necessary to see what were the facts of the case in which the decision was given and what was the point which had to be decided."
This method is much more reasonable than the treatment which has resulted in the rather severe criticism of the Privy Council's judgment by Carver.
13. Scrutton has adopted the method of explaining the judgment by adding (foot‑note at page 177) that the shipper need not "prove affirmatively good condition on shipment. He must prima facie negative inherent vice of the goods, which he can do by showing that the damage is obviously due to an external cause". This emphasis on the distinction between affirmative and negative proof is noteworthy because it is a departure from the language of the Privy Council's judgment. The negative proof according to Scrutton, may be that "prima facie" there was an "obvious" external cause of the damage. This attempt at maintaining a doubtful balance between what is obvious and its prima facie proof is understanda5le for reconciling the views of English common law, but as suggested by me in Adam Limited, my work is lighter because the final authority for me is the Carriage of Goods by Sea Act, 1925. That Act places the entire burden of defence on the ship‑owner once loss or damage is proved by the shipper excepting when the case falls under any of the exceptions specified in Article IV of the Schedule 1 to the Act. If a ship‑owner means to take advantage of an exception, he must establish that exception. The exception will nevertheless be of no value to him if he was negligent in per forming his appropriate duty because he is under no circumstances given the freedom to be negligent in doing his duty.
14. There is no injustice to the ship‑owners in this view because in terms of paragraph 2 (p) of Article IV of the Schedule to the Carriage of Goods by Sea Act, 1925, they are not responsible for any damage or loss to the cargo which may result from
"latent defects not discoverable by due diligence."
Unless they themselves accept a greater responsibility in the bills of lading or by doing some other act. Mr. Hassan had the impression that the discussion in Minister of Food v. Reardon Smith Lines Ltd. ((1951) 2 Lloyd's Rep. 265) was helpful to him, but that case relates to unseaworthiness and is neither relevant nor helpful to him.
15. Mr. Vellani's legal contentions are more complicated. He argued that the damaged seed was not offered properly and that the value of the entire amount of seed which had shortlanded was payable to the plaintiffs in each of the four suits. I shall explain and examine these arguments in the three paragraphs that follow.
16. He conceded, in view of the out‑turn report (Exh. B‑369 in Suit No. 412) that out of the entire cargo that was on board the ship the seed belonging to the plaintiffs only had been short landed. This necessarily leads to the conclusion that 1350 bags of rape‑seed had been short‑landed in the sense of the out‑turn report which is that they were not identifiable by the original marks, but does not prove loss because a huge quantity of unidentifiable rape‑seed was lying in rotten condition in the sheds. Mr. Vellani calculated, in his address, that taking every amount into account, there was still a shortage of 653 bags. He con tended in the first place that it was the duty of the defendants to sort them out and then offer that seed to the plaintiffs in each of the four suits which separately belonged to them. This only would have been the proper offer of the damaged seed. As to the missing quantity, he contended in the second place that the defendants were liable to pay its value four times over because the four plaintiffs in the four suits were entitled in each case to get the whole value.
17. In support of the first argument he referred to the following passage from paragraph 645 in Volume 35 of the Halsbury's "Laws of England" (3rd Ed.)
"Where the marks become obliterated during the voyage, so that it is no longer possible to identify the several consignments, either wholly or m part, the ship‑owner must deliver to each consignee such portion of the goods as may remain identifiable and, therefore, specifically deliverable ; but he is not entitled, as of right, to apportion the mast which cannot be identified between the different consignees ; and in so far as he is not in a position to deliver to each his proper goods, he is guilty of a breach of contract, for which he is liable in damages unless excused by the terms of his contract."
He also cited Sandeman & Sons v. Tyzack and Branfoot Steamship Company Limited (1913 A C 680). These statements of the law, however, do not take into consideration a situation in which the goods may be confused or mixed owing to the fault of the consignors themselves, as would be the situation in these four cases if the seed that was consigned by the plaintiffs suffered from inherent vice and, therefore, became mixed up. Moreover, the Sandeman's case was an a‑.tion by a ship‑owner for the recovery of freight in which the defence of the consignee was that its six bales were missing. The ship‑owner offered to pay for those bales after eleven bales which were available but were unidentifiable were proportionately allocated among this consignee and three other consignees who too had disputes with the ship‑owner for short deliveries. This offer of the ship‑owner had a compli cation, which was that fourteen bales were missing altogether. The Privy Council held
"Why then, should the appellants be bound to treat their six bales as included in the eleven which have arrived rather than in the fourteen which did not arrive My Lords, it appears to me that a fallacy underlies the reasoning of Mr. Horne in the able argument he addressed to us on behalf of the respondents. He assumed that the six bales missing could be identified as forming part of the eleven which arrived. But they may have been among the fourteen which did not arrive. Your Lordships will observe that this being an action for freight, the respondents have to prove that they duly tendered the goods shipped at the termination of the voyage. But this is just what they cannot do. It follows, not only that they must fail in their action for freight in respect of the six bales, but that the appellants are entitled to say to them that, having failed to prove their delivery, a counter‑claim lies for the value of the goods."
18. This judgment was pressed into use by Mr. Vellani to support his contention that each of the plaintiffs in these four suits should be paid the value of 653 bags separately. This argument is not only not supported by the judgment but it is also not supported by reason. As against the above two arguments of Mr. Vellani, Mr. Hassan has cited Spence v. Union Marine Insurance Co. (1868‑3 C P 427) from which passages have been reproduced by Carver in his above‑mentioned book at pp. 744‑45 in support of his statement of the law that where marks are obliterated, separations are broken or packages are burst resulting in the confusion of goods,
"the rule to be adopted is that the several owners become tenants in common in the confused or mixed goods, in pro portion to the quantities which should have been delivered to them respectively."
There can be no doubt about the soundness of this rule in those cases, in which the ship‑owner is not responsible for the cause of the confusion and the shipper is.
19. The above discussion, I believe, will be helpful in easily appreciating the issues, except the first of them. They are as follows
(1) (a) whether the goods were not delivered to the plaintiffs.
(b) If they were not delivered, whether the reason was that the plaintiffs refused to accept them
(c) If the plaintiffs refused to accept them, whether the reason was that the goods had short‑landed and therefore the plaintiffs' goods could not be offered or that the marks of identification had been obliterated
(d) If the goods had not short‑landed but the marks of identification were obliterated making the goods unidentifiable, whether this was the result of damage caused to the goods and their packing on account of inherent defect, quality or vice from which they suffered
(2) Whether any loss of or damage to the goods was caused by the negligence of the steamship Company its servants or agents If the answer be in the negative, what is its effect
(3) Whether the damaged goods delivered to the plaintiffs were damaged because they suffered from inherent defect, quality or vice
(4) Whether the inherent defect, quality or vice mentioned in the above issues was discoverable by due diligence
(5) Whether Suits Nos. 796 and 823 of 1955 are barred by time
(6) To what amount of money as damages, if any, are the plaintiffs entitled
(7) General
20. I had proposed the first issue to be the same as in Adam Limited, as follows
"Whether any part of the cargo was short‑landed as dis tinguished from being damaged."
Mr. Vellani objected to it by saying that it wrongly placed the onus on the plaintiffs to prove that the cargo had short‑landed, and was not damaged. He proposed that it should be
"Whether the goods were not delivered to the plaintiffs."
In deference to his objection, and with the following expla nation (order dated 3‑1‑62) I have framed the first issue as it is now ;
"The proposed issue may represent a part of the pleadings correctly, but does not represent the true state of the pleadings. This can be understood if the following chain of reasoning is kept in mind. The plaintiffs have alleged that the goods were not delivered to them, but the defendants point out that the goods were offered to the plaintiffs, but they did not accept them. The reply of the plaintiffs is that the goods which ‑were offered were not the same as were consigned. To this the reply of the defendants is that they were damaged owing to inherent vice, which resulted in the obliteration of marks. This means that the question of non‑delivery is linked up with the question of inherent vice ; therefore, the real issue between the parties is : Whether the cargo was short‑landed or was merely damaged. In view of this situation of the pleadings, Issue No. 1 was framed to represent the true state of affairs.
(2) To avoid the chances of misconceived criticism, I would like to change it by setting out of the steps from the beginning to the point at which the true state of the pleadings may be represented. I, therefore, recast the issue as follows :"
21. Taking up the issues, with the background of all that has been said above, I proceed to decide them as follows hereafter
Mr. Hassan, counsel for the defendants has conceded this issue subject to the reservation that the goods could not be delivered owing to their inherent vice, in the condition in which they were loaded on the ship. The reservation is the subject‑matter of Issue No. (1) (d).
‑Mr. Vellani has conceded this issue subject to the reservation that the undelivered goods were either not discharged from the ship and were missing or were damaged owing to the defendant's negligence. The reservation is the subject‑matter of Issues Nos. (1) (c) and 2. .
‑The parties do not dispute that the goods that were offered to and were not accepted by the plaintiffs were damaged and were not identifiable by marks ; therefore the real fact to be found under this issue is whether the seed that was not delivered to the plaintiffs was or was not discharged from the ship.
25. Whatever amount of the seed is proved to have been discharged from the ship but not received by the plaintiffs can be taken to have formed a part of the damaged seed that was laying at the sheds, without discovering its exact amount because it was in the custody of the Port authorities whose negligence is not in issue. Moreover, an emphasis on this method of calculation appears to my mind to be more satisfactory than attempting to correctly assess the weight of the utter rubbish that the damaged seed was and, therefore, at least partly deserving to be treated by the Port authorities with a careless regard for it. It was in such a bad state that the Health Officer had found it to be unfit for human consumption (See Exhs. A‑1 and A‑3 and the statement of Dr. D. Rehman, D. W. 5 in Suit No. 4 1 2) and had ordered it to be dumped (into the sea) to get rid of it. Mr. Vellani has rightly pointed out that the defendants have produced no evidence that the damaged cargo, which was lying at the sheds in loose state or in rotten bags, was either weighed or that the bags were counted by anybody and that counting the bags would also have been unsatisfactory without weighing them, because the fabric of the bags was weak ; therefore, they could have been torn and bleeding'. The existence of a loose quantity of the seed, assessed on behalf of the defendants to be 170 maunds (See Annexure B t3 the defendants' written arguments), proves that the seed was dripping from the charred bags. Mr. Vellani has further criticised the defendants for not producing as a witness the officer who was in charge of the sheds ; but the officer could not give satisfactory evidence about the storage of 4172 maunds of seed unless there was a proper record of all the contents of the sheds (See Annexure B to the defendants' written arguments). There is no evidence that a record was maintained and, if it was maintained, that it was maintained satisfactorily with respect to a cargo that was waste‑material and litter. The defendants, in any event, were not responsible for its custody or for maintaining its record after it was discharged from the ship.
26. The landing tally slips (Exhs. B‑1 to B‑362 in Suit No. 412) prepared jointly by the ship‑owners and the Port authorities of Chittagong are the first record of the cargo that was discharged from the ship and the (Out‑turn Report Exh. B‑368 in Suit No. 412) is the record prepared on their basis of the cargo that was identified and delivered to the consignees, as well as indirectly, the record of the cargo that was not identifiable by marks and, therefore, could not be delivered to the consignees (See U. A. Asif, P. W. 1 and Ramzan Ali D. W. 4, both in Suit No. 412). It is not a document which may be used to prove whether all the carges that was placed on board the ship was discharged from it or not. Mr. Vellani has, therefore, rightly criticised the landing tally slips as incomplete in com parison with the Out‑turn Report, but he has also criticised the defendants for withholding some of them. It was not in the interest of the defendants to do so and their explanation is that their former agents at Chittagong had last them (see the statement of Ramzan Ali D. W. 4 m Suit No. 412). The tally slips which have been exhibited were produced by Mr. S. M. Maroof, Deputy Traffic Manager (D. W. 2 in Suit No. 412) at the instance of the defendants. The inescapable conclusion, however is that neither the tally slips nor the Out‑turn Report establish con vincingly as to how much seed was discharged at the Port of destination.
27. Mr. Vellani seemed to entertain the view that the short‑landing certificates (Exh. 53 in Suit No. 244, Exh. 10 in Suit No. 512, Exh. 8 in Suit No. 796 and Exhs. 33 and 34 in Suit No. 823) positively proved that the goods shown in them as short‑landed were not discharged from the ship but, as explained by me in Adam Limited, and by Mr. Ramzan Ali, D. W. 4 in Suit No. 812, they do not prove this. The explanations show that the undelivered goods could, in spite of these certificates, have been rotting in the sheds without identifiable marks on them, and as explained by the Jetty Superintendent of Mr. U. A. Asif (P. W. 1 in Suit No. 412) might have been roughly "connected" with the invoices of the plaintiffs, if somebody was interested in taking this wasteful trouble.
28. I must, therefore, turn to another aspect of the evidence. An Export General Manifest is the document in which all the cargo that is loaded on a ship at the port of export is entered and an Import General Manifest is the document in which the cargo that arrives on board ship at the port of destination is shown. The latter and, for the present purposes, the more material document is Exh. 68 (in Suit No. 412). This is a document that is prepared under section 55 of the Sea Customs Act, 1878, and "if any goods entered in the import manifest of a vessel are not found on board of vessel", then under section 167 (17) of the Sea Customs Act, 1878, the Master of the ship is liable to be punished. Mr. Ramzan Ali, D. W. 4 (in Suit No. 412), who was the local Manager of the Muhammadi Shipping Agencies Limited, the agents of the defendants at the time of the arrival of the ship, has stated that "no objection was taken by the Customs Authority in this casal against the steamship company on account of the short‑landing of cargo." There is no suggestion to the contrary from the side of the plaintiffs, which indicates that the Port Authorities did not hold the defendants responsible for the shortage of the cargo.
29. On this evidence I have to decide whether the plaintiffs' goods had not arrived and were missing, or that they were unidentifiable and as such not deliverable by marks. There is no evidence to mathematically or logically establish as to how much of the plaintiffs' seed was or was not discharged from the ship and as to how much of it was stored at the sheds, but, as has been pointed out by philosophers and mathematicians, nothing can be fully proved except in mathematics ; for logic too is handicapped by the vagaries of language. This kind of strict proof is, however, not demanded by law, for a fact is taken under section 2 of the Evidence Act as "proved" when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist."
30. Such material is on the record of these suits. To appreciate it I should note firstly, that there is no suggestion and nothing on the record to indicate that any part of the cargo was removed from the ship by plunder, theft, act of the enemy or by being jettisoned. Secondly, it is admitted by the plaintiffs as well as by the defendants that a part of the seed had deteriorated. The process of deterioration could undoubtedly result in the reduction of its bulk because it could be "com pletely baked to ashes" (See the letter of the Health Officer regarding seed carried by ss. Pakistan Prosperity in the same month Exh. A‑4 in Suit No. 412). There is, of course, no measure by which one might tell as to what proportions in bulk it should have assumed after deterioration so that the actual available quantity could be compared with that standard, but it was equally futile for Mr. V ellani to contend that a part of the seed was missing on the ground that its bulk was smaller, and for Mr. Hassan to attempt to justify the defendants' plea that no part of it was missing by trying to argue that there was no reduction in its volume as compared to what it was when outwardly sound bags of seed were loaded on the ship. The deteriorated condition of the seed itself was the explanation of obliteration of the marks as well as of its shrinkage in volume. This appears to be the reason why the Port Authorities did not take action against the ship‑owners under section 167 of the Sea Customs Act, 1878.
31. The conclusion, therefore, is that the plaintiffs refused to take delivery of the damaged seed owing to its unidentifiability only.
32. Issue No. (1) (d).‑The most important dispute between the parties is on another question which is : whether the deteriora tion of the seed was the result of inherent defect, quality or vice of the seed or not This inherent vice is to be distinguished from a defect that might have been created during the voyage owing to negligent treatment of the seed by the defendants, because the seed could be internally heated if the holds in which it was stowed were not sufficiently ventilated and, perhaps, could also deteriorate by too much ventilation because, according to Dr. A. Sattar (D. W. 9 in Suit No. 412) it could absorb moisture during the voyage. The plaintiffs have not given, and could not give valuable evidence on this question, because they have never acknowledged that they suspected it to be defective. The expert evidence (Dr. Abdus Sattar, formerly Deputy Director of Agriculture and at the time of his evidence Principal, Agri cultural College, Lyallpur D. W. 9 in Suit No. 412) shows that rape‑seed can absorb extra moisture at time of its maturity when the crop is still standing if. the weather is cloudly and needs to be cured by proper storage and exposure to the sun. The plaintiffs did not even know the places where this seed had grown so that they could think of the possibility of extra moisture in it, and could not treat it with special care because they never doubted its quality. They have described the usual care with which they are said to have treated seed in every season, but this is not an answer to the charge that this seed was not treated by them for curing it of its vice. The defendants were able to think of its quality probably because they were receiving claims for damages from the shippers and did apply in Suit No. 412 for particulars of the places of its origin. The plaintiff position with respect to that application is explained in my note of the 3rd of January 1962, recorded in that suit, as follows :‑
"Mr. Vellani admits that it is not possible to give more information than to say that it had grown in the area of the former Punjab, but even this fact was not disclosed in answer to the request (of the defendants) for better particulars."
33. The defendants were, therefore handicapped in making a selection of precise evidence to prove the quality of the seed. They had the alternative to produce all possible evidence but they did not adopt it and Mr. Hassan convincingly pleaded that they were excusable because the magnitude of the task with its obvious wastefulness was the creation of the plaintiffs' own inadequate information. They have produced two meteorological statements, examined Mr. Abdul Haye, Regional Director, Regional Meteorological Centre, Lahore (D. W. 10), Mr. Hashmatullah, Regional Director, Regional Meteorological Centre, Lahore (D. W. 4), Dr. Abdus Sattar (mentioned above) as an expert on the behaviour and characteristics of the rape‑seed and Mr. S. M. Maroof, Deputy Traffic Manager, Chittagong Port (D. W. 2) who has stated that
"it is correct that in or about March 1954, huge quantities of rape‑seed were discharged in damaged condition also by ss. Al‑Hassan and other Karachi Steamers. I did see there damaged rape‑seed personally both in the hatches and on shore. The nature of damage to the rape‑seed discharged by the Karachi vessels during that period was of similar nature."
These are all disinterested witnesses. Mr. Abdul Haye has not supported the defendants, because he could net do so on the basis of the meteorological statement which was shown to him, but Mr. Hashmatullah has corrected the statement with the help of the official record and stated that there was excessive rainfall, humidity and cloudiness in Sialkot, Lahore, Jhelum, Rawalpindi, Khushab, Lyallpur, Montgomery and Multan in various months from October 1953 to March 1954. Dr. Abdus Sattar has stated that rape‑seed, called "Toria", which is grown in the area of the former Punjab, is harvested in December and January and is ready for marketing in March. He explained that
"the weather was exceptionally cloudy during the season. The sunshine during January and February 1954, was not sufficient to make Toria seed dry enough to stand the long sea voyage, which would ordinarily last for 20‑30 days. I may state that during the voyage also Toria seed is apt to absorb more moisture. Drying of this Toria seed consignment in March or April would have been essential before shipping, but there too, it would have absorbed moisture during voyage, as this is the characteristic of rape‑seed."
34. This evidence shows that the rape‑seed suffered from inherent vice before it was loaded on the ship, but it has been criticised by Mr. Vellani as imperfect as well as incomplete. It is imperfect because Mr. Hye has not supported the defendants, and incomplete, because Toria' is grown at many more than the eight places named above. The criticism is correct but inconclusive because the seed was certainly damaged when it was discharged from the ship which indicates that defect must have been either existing in it before it was loaded on the ship or was created in it during the voyage. Mr. Vellani has suggested that it was created during the voyage as a result of the defendants' negligence and that the defendants have not produced evidence to avoid this conclusion. I have therefore, to examine whether he is right.
35. The defendants have placed on record the stowage plan (Exh. 75 in Suit No. 412), the log‑books (Exhs. 69 and 70 in Suit No. 412) and examined Muhammad Hayat Khan, their Cargo Supervisor (D. W. 6 in Suit No. 412) who has stated
"the method of stowing the cargo, which was adopted for the voyage to which this suit relates of ss. AI‑Saiyedah was same as adopted for stowing cargo in other vessels on other voyages."
They have produced a number of plaints and written state ments (Exhs. 77 to 94 in Suit No. 412) from other suits to show that there was litigation in this period owing to damage to the seed. Their evidence read with the statement of Mr. S. M. Maroof (reproduced above in paragraph 33) has become con vincing, because Hussain Mian Bhai (P. W. 8 in Suit No. 412) has stated on behalf of the plaintiffs that
"from 1951 onwards we have been regularly shipping large quantities of rape‑seed from Karachi to Chittagong. During the period beginning from 1951 to 1961 we have shipped rape‑seed from Karachi to Chittagong in more vessels than one or two dozens. We have been shipping about one lac of bags of this seed every year. I have a recollection that in March 1954 we had consigned rape‑seed from Karachi to Chittagong in ss. Fakirjee Cowasjee', ss. 'At‑Hassan' and ss. Pakistan Prosperity'. A small portion of the consignments sent by all the three ships was found to have been damaged. The rape‑seed consigned by us from Karachi to Chittagong in other years was also damaged, but the nature of the damage was different. The damage was caused by sea water."
36. Mr. Vellani has criticised this evidence also as incomplete and urged that stowage must have been defective and that ventilation of the holds must have been improper. To quote him from his written arguments, he has further said
"the only way in which accurate information could have been obtained as to proper ventilation and stowage was by arranging a hatch survey when damage was found. This is sound practice‑See Thomas, page 58. But no hatch survey report has been produced, although such survey appears to have been held as per entry in log‑book dated 2‑4‑1954.
As to inherent vice
As to inherent vice, there is no direct evidence that the goods did in fact suffer from inherent vice. Plaintiffs in Suit No. 412/1955 requested chemical examination of the damage rape‑seed‑See Exh. 18, but this was declined‑See Exh. 22. Yet the damaged goods appear to have been analysed chemically, as would appear from Mr. Hemain, D. W. 7, Exh. 76, lines 174 to 178, and an application by defendants for examination of an expert in London filed in Suit No. 412/1955, which was dropped on 22‑8‑1960. The interro gatories show that the expert had examined damaged rape‑seed of the season 1953‑54. This direct evidence is withheld by the defendants."
A reference to the book on Stowage by Thomas (4th Ed.) at page 58, shows that the author has pointed out the advisability of surveys only. There is no positive or satisfactory evidence that hatch surveys were held on behalf of the defendants and that the reports were deliberately withheld by the defendants. As to direct evidence of inherent vice, the application for examining an expert witness in London was withdrawn because no report came from there for two years. The suspicion expressed regarding defective stowage and improper ventilation is removed, because stowage was as usual and because no definitely correct method of ventilation to suit this seed has been proved.
37. I am, therefore, satisfied that the seed suffered from inherent vice before it was loaded on the ship and that this inherent vice has resulted in the damage which has occurred.
38. Issues (2) and (3).‑The above discussion leads to the conclusion that these two issues be decided against the plaintiff's. They are decided accordingly.
39. Issue (4).‑The inherent vice was not known to the plaintiffs and was obviously not discoverable by the defendants who accepted the bagged cargo for transportation.
40. Issue (5).‑This issue was not pressed.
41. Issue (6).‑This issue does not arise in view of the above decisions.
42. Issue (7).‑In conclusion of all the foregoing facts and discussion this issue is decided against the plaintiffs. The suits are accordingly dismissed with costs.
A. H.
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