P L D 1969 Karachi 495 (PLP)

(a) Carriage of Goods by Sea Act (XXVI of 1925), Sched., Art. III,‑ rr. 3 & 4‑Weight of consignment in bill of lading --Prima facie evidence against carrier‑Carrier not repudiating state ment in bill of lading‑Bill of lading, in circumstances, conclusive proof in support of claim of shipper or consignee. A carrier who accepts freight on the basis of a statement in a bill of lading issued by him should not be allowed to repu diate that statement after he has accepted freight, at least in those cases where he has not expressly reserved the right to repudiate that statement. It is said that such a view would be inconvenient to carriers because they would be compelled to weigh the cargo received for shipment. But it is relevant to remember that the Carriage of Goods by Sea Act, 1925 was promulgated to curtail the immunities of the carrier and to impose on him an obligation to take reasonable care of the cargo in his custody. The position before the said Act was passed was that carriers enjoyed complete freedom of contract which they had used to their advantage. The resulting position was so unsatisfactory that it used to be said that the only obli gation of a carrier under a bill of lading was the obligation to accept freight. As this position was extremely unsatisfactory, a conference on maritime law was held in Brussels in October 1922, and as the preamble to the said Act declares, the said Act was promulgated to give effect to the recommendations of the Brussels Conference. The object of these recommendations was to strike a statutory bargain between carriers and shippers, there fore, in construing the validity of any clause in a bill of lading after the said Act, it is necessary also to consider the interests of shippers and consignees and to bear in mind the fact that a bill of lading is in the nature of a negotiable document, therefore the interests of endorsees of bills of lading, who are third parties, should not be allowed to be prejudiced lightly. The proviso to rule 3 of Article III of Carriage of Goods by Sea Act of 1925 states that a carrier is not required "to state or show in the bill of lading any marks, numbers, quantity or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has no available means of checking". The effect of this proviso is two fold. Firstly, the words in the proviso are "state or show" therefore they are clearly intended to cover the shipper's declara tion on the bill of lading issued by the carrier. Secondly, if a carrier does not avail himself of his rights under the proviso and slows both the number of packages and their weight in the bill of lading, then by virtue of rule 4 of Article III, the statement shown in the bill of lading becomes prima facie evidence of the goods received. Accordingly, if despite the provisions of the said rule 3 and its proviso the carrier shows the weight of the goods in the bill of lading, this means that he has had reasonable means of checking the cargo received under the bill of lading and that he has no reason to suspect the correct ness of the shipper's declaration, therefore he has allowed the shipper's declaration to be shown on the bill of lading, and is estopped from repudiating against‑ the endorsee of a bill of lading. An endorsee of a bill of lading is an innocent third party, the carrier should not be allowed to repudiate against the endorsee the statements shown on the bill of lading issued by him. In a suit by the endorsee of a bill of lading against the carrier, the declaration of the weight of the cargo in the bill of lading is prima facie evidence against the carrier. The statement in the bill of lading being prima facie evidence only, the carrier could give evidence to show that this statement of the weight was not correct. Where they have not given any evidence in rebuttal, it follows that the consignee has proved the weight of consignment. New Chinese Antimony & Company v. Ocean Steamship Company (1917) 2 K B 664 and Attorney‑General of Ceylone v. Scindida Steam Navigation Co. (1961) 3 A E L R 684 ref. (b) Evidence Act (I of 1872), S. 67‑Carriage of goods by sea‑Suit for damages‑Invoice‑Shipper not examined to prove his invoice‑Invoice, held, nor admissible in evidence. (c) Karachi Port Trust Art (VI of 1886), S. 37‑Karachi Port Trust‑Statutory bailee of carrier‑Goods received by consign, less in weight than given in bill of lading‑Carrier, and not Port Trust, in circumstances, held, liable for loss. Karachi Steam Navigation Co. Ltd. v. Ibrahim Ghani P L D 1957 Kar. 315 ref. Abdul Jalil v. Muhammadi Steamship Co. and another P L D 1961 S C 340 fol. M. H. Memon for Applicant. This is a revision Application under section 25 of Provincial Small Causes Courts Act, 1887 against the judgment of the Judge, Small Causes Court, Karachi dated the 27th November 1965 by which the learned Judge dismissed the applicants claim for Rs. 469.37. The amount ‑involved in this appeal is very small but the appeal involves important questions of shipping law.

2. The facts out of which this application has arisen are as follows. The applicant is the consignee of 200 bags of copra shipped under a bill of lading dated the 14th September 1964, issued by the first respondent for goods shipped on the s. s. Maldive Crescent, a ship owned by the ship respondent. Accord ing to the Bill of Lading, the copra was bagged in strong seaworthy jute bags, each bag weighing under 112 tbs. However, according to the printed terms of the said Bill of lading, the particulars of the consignment stated in the bill were declared by the shipper whilst, according to clause 6 of the bill the weight, contents and value of the consignment was not known to the carrier (the first respondent). The s. s. Maldive Crescent arrived in Karachi in the third week of September 1961, and unloaded its entire cargo between the 22nd and 24th September which was delivered by the second respondent to the Karachi Port Trust. When the applicant went to clear its consignment from the Karachi Port Trust, it found that 5 bags were damaged and part of the contents thereof were missing, therefore it wrote 10 the second respondent and asked for a survey of the damaged bags. By its reply dated the 29th September 1964, the second respondent refused to hold a survey on frivolous grounds, there fore the applicant had the damaged goods surveyed by two independent surveyors of Karachi, Messrs Bhombal & Co. and Messrs J. B. Stevensons & Company, and according to both the surveyors there was a total shortage of 254 lbs. in these 5 bags. The applicant valued its loss at Rs. 469.37 and called upon the respondents to pay the said amount, but as this was not paid, it filed a suit in the Karachi Small Causes Court for the recovery of the said amount of Rs. 469.37.

3. According to the applicant's plaint, the first respondent had undertaken the safe carriage of its consignment, and the damage to its bags was caused whilst they were in the fist respondent's custody, therefore, the first respondent was liable to compensate the applicant for the loss caused by the damage to the said 5 bags. The second respondent was sued in its capacity as agent of the first respondent on the basis of its undertaking under section 85 of the Sea Customs Act, 1878. Both the respondents denied their liability to the applicant for its loss. In the written statement the first respondent relied on the terms and conditions of its bill of lading and did not admit the quantum of loss suffered by the applicant. It also denied that the loss had occurred whilst the applicants bags were in its custody and submitted that the loss had occurred whilst these bags were in the custody of the Karachi Post Trust, therefore on this ground also it repudiated liability. In its written statement the second respondent also denied all the allegations in the applicant's plaint and relied on the written statement of the first respondent.

4. In support of its claim, the applicant examined P. W. Tar Muhammad, its Manager, who produced the bill of lading and the invoice which the applicant had received from its ship pers. However, P. W. Tar Muhammad admitted that he was not present when the bags of copra were shipped from Colombo. The applicant also examined P. W. Muhammad Aslam, a traffic inspector of the Karachi Port Trust who stated that the Karachi Port Trust had received the goods in a damaged condition from the ship. Finally, the respondent examined P. W. Farooq Beg who proved the survey report dated the 7th October 1965 of Messrs Bhombal & Co. The respondents examined their Stevedores to show that the s. s. Maldive Crescent had landed the entire consignment of the applicant in sound condition so that the loss or damage that occurred had taken place after delivery of the consignment to the Karachi Port Trust.

5. The learned Judge, Small Causes Court, has accepted the respondent's evidence and held that the loss to the applicant's bags had occurred whilst they were in the custody of the Karachi Port Trust. He has also held that, in view of its terms and con ditions, the bill of lading was not prima facie evidence of the weight of the bags shipped to the applicants, therefore because the applicant had not given evidence of the weight of the bags at the time of shipment he held that it had failed to prove its loss, and he dismissed the applicant's suit. Aggrieved by this judgment the applicant has filed a revision application which has now come up for hearing before me.

6. P. W. Farooq Beg, who surveyed the damaged goods, has admitted that the loss assessed in the survey report, which is the basis of the applicant's claim had been calculated by comparing the difference between the weight of the bags as stated in the invoice and the actual weight of the bags examined by him and not by comparing the weight of the damaged bags with that of the sound bags. I have observed that the invoice was produced by the applicant's Manager. But the respondents had recorded their objection when this invoice was produced. As the appli cant did not examine his shipper to prove his invoice, it follows that the invoice was not admissible in evidence. However, A the weight in the invoice is the same as the weight declared in the bill of lading issued by the first respondent which is an admitted document therefore, learned counsel submitted that the bill of lading was prima facie evidence of the weight of the sound bags of the applicant's consignment, that the respondents had not produced any evidence in rebuttal, therefore the statement in the bill of lading (Exh. 16) that each bag weighed net 112 lbs. should be accepted, and if it was accepted it followed that the applicant had proved its claim.

7. However, I have observed that, according to the bill of lading, the particulars of the consignment set out in the bill are stated to have been declared by the shipper. Similarly, there is another printed clause, in very small print on the reverse of the bill of lading, which states: "Weight, contents and value when shipped unknown." The contention of learned counsel for the respondents is that, in view of these conditions in the bill of lading, the bill of lading, is not even prima facie evidence of the weight of the applicant's consignment, and in support of his submission he relied on a judgment of the English Court of Appeal in New Chinese Antimony & company v. Ocean Steamship Company ((1917) 2 K B 664).

8. The facts of this case were that 937 tons of oxide ore had been shipped from an inland port in China on a vessel owned by the Ocean Steamship Co. The bill of lading issued by the carrier contained a type written clause, "A quantity said to be 937 tons" and in the body of the bill of lading was printed in ordinary type the clause: "Weight, measurement, contents and value (except for the purpose of estimating freight) unknown." Thus, the condition of this bill of lading were similar to those in the bill of lading issued to the applicant before me. When the quantity of iron oxide reached London there was a shortage of 76 tons. Sankey, J., who heard the case in the trial Court, found that 53 tons of the deficiency was due to wastage of the ore due to the ordinary causes in the process of handling and transhipment, but the loss of 23 tons was not accounted for by the carrier. Therefore on the basis of the weight declared in the bill of lading he held that the carrier was liable for this loss. The carrier filed an appeal which was allowed by the Court of Appeal. The contentions of the carrier was that the effect of the printed conditions on its bill of lading, which I have quoted, was that the bill of lading was not even prima facie evidence of the weight of the consignment it had received for shipment. In allowing this appeal Scrutton, L.J. stated at page 673 of the judgment in reference to the terms and conditions of the bill of lading, as follows:‑ "But, in my view, this particular bill of lading is not prima facie evidence of any weight at all. Suppose a box, described as a "box of jewels", were deposited for safe custody at a bank, and a receipt were given for it in the words "received, contents unknown" there would be no evidence of the receipt of any jewellery. The learned Judge starts with the assumption that the bill of lading is prima facie evidence of the shipment of 937 tons; I start with the assump tion that it is no prima facie evidence of it. It is pressed upon us that our view is very inconvenient to shippers; but the answer is that some nations have by statute provided for such a state or things, as the United States has done by section 4 of the Harter Act and Canada in the Dominion of Canada Act, 1910."

9. If this judgment is good law it follows that the appli cant's claim was rightly dismissed. Therefore learned counsel for the applicant ably argued that this judgment had ceased to be good law after the enactment of the Carriage of Goods by Sea Act, 1925 (hereafter called the said Act). His argument was based on the provisions of Rules 3 and 4 of Article III of the said Act which state as follows: (3) After receiving the goods into his charge, the carrier or the master or agent of the carrier shall, on demand of the, shipper, issue to the shipper a bill of lading showing among other things‑

(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; (b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper; (c) The apparent order and condition of the goods: Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking. (4) Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3 (a), (b) and (c)." According to rule 4, a bill of lading is prima facie evidence of the receipt by the carrier of the goods as described therein. In the instant case the weight of each bag of the applicant's con signment has been declared in the bill of lading, therefore learned counsel for the applicant submitted that by virtue of rule 4, the statement of the weight in the bill of lading was prima facie evidence in support of the applicant's claim, and because no evidence in rebuttal bad been given this statement was conclusive evidence. However sub‑clause (b) of rule (3) gives the carrier an option to state either the weight of the packages or the number of the packages. The question for determination therefore is whether in the instant case the carrier is bound by the statement both of the weight and the number of packages in the bill of lading issued by him, and if he is free to accept either the weight or the number of packages shipped, is he free to do so at any time he chooses? Learned counsel .for the applicant submitted that, as the first respondent had not stated in its written statement that it accepted only the statement in the bill of lading as to the number of packages shipped, it could not now repudiate the weight of the packages declared in the bill of lading. Additionally, he argued that, as the first respondent had taken freight from the shipper on the basis of the statement of the weight in the bill of lading, it could not now repudiate that statement against the applicant who was the consignee of the bill of lading. The argument is attractive because it is based both on reason and equity. Why should a carrier who accepts freight on the basis of a statement in a bill of lading issued by him be allowed to repudiate that state ment after he has accepted freight, at least in those cases where, t unlike the Ocean Steamship Company in the New Chinese Antimony case, he has not expressly reserved the right to repudiate that statement It is said that such a view would be inconvenient to carriers because they would be compelled to weigh the cargo received for shipment. But it is relevant to remember that the said Act was promulgated to curtail the immunities of the carrier and to impose on him an obligation to take reasonable care of the cargo in his custody. The position before the said Act was passed was that carriers enjoyed complete freedom of contract which they had used to their advantage. The resulting position was so satisfactory, that it used to be said that the only obligation of a carrier under a bill of lading was the obligation to accept freight: As this position was extremely unsatisfactory, a conference on maritime law was held in Brussels in October 1922, and as the preamble to the said Act declares, the said Act was promulgated to give effect to the recommendations of the Brussels Conference. The object of these recommendations was to strike a statutory bargain between carriers and shippers, therefore in construing the validity of any clause in a bill of lading after the said Act, it is necessary also to consider the interests of shippers and consignees and to bear in mind the fact that a bill of lading is in the nature of a negotiable document, therefore the interests of endorsees of bills of lading, who are third parties, should not be allowed to be prejudiced lightly. In the instant case the applicant is not the shipper, but the endorsee of the bill of lading issued by the first respondent. The first respondent was required under Article III, rule 3 of the said Act to declare on the bill of lading of either the number of packages shipped or their weight, yet because it suited him, he took no objection to the shipper's declaration both of the number of packages and of their weight. Similarly, lie did not avail himself of his rights under the proviso to rule 3 of Article III. This proviso states that a carrier is not required "to state or show in the bill of lading any marks, numbers, quantity or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has no available means of checking." The effect of this proviso is two‑fold. First the words in the proviso are "state or show" therefore they are clearly intended to cover the shipper's declaration on the bill of lading issued by the carrier. Secondly if a carrier does not avail himself of his rights under the proviso and shows both the number of packages and their weight in the bill of lading, then e by virtue of rule 4 of Article III, quoted above, the statement shown in the bill of lading become, prima facie evidence of the goods received. Accordingly, if despite the provisions of the said rule 3 and its proviso the carrier shows the weight of the goods in the bill of lading, this means that he has had reasonable means of checking the cargo received under the bill of lading and that he has no reason to suspect the correctness of the shipper's declaration, therefore lie has allowed the shipper's declaration to be shown on the bill of lading, and is estopped from repudiating it against the endorsee of a bill of lading.

10. I also do not think that the interests of the endorsee can be defeated by the printed clause "weight, contents . . . . unknown", because this, clause must be deemed to have been superseded by the statement of the weight shown in the bill of lading which has been type written subsequently to the printed clause. I may observe here, as 1 have already pointed out, that in New Chinese Antimony c& Company v. Ocean Steamship Company the carrier had expressly stated that the shipper's declaration was not accepted except for the purpose of estimating freight, and further the words "said to be" which qualified the shipper's declaration of the weight of the cargo in that case were type written, and not printed, as in the instant case. The judgment cited is therefore not on all fours with the case before me. Having given anxious thought to this judgment I am of opinion that, in view of the objects of the said Act, the principles laid down in this judgment should not be extended to those cases where, as in the instant case, the carrier has not expressly stated that the shipper's declaration was accepted only for the purpose of collecting freight. Further it is true that the printed clause on which the respondents rely in the instant case "weight, contents unknown" is identical to the printed clause in the judg ment cited. But at least in the view of Scrutton, L. J., whose observations I have quoted in para. 7, the printed clause might not have been valid under this Harter Act of the U. S. A. The provisions of Article III of the said Act are identical to the relevant provisions of the Harter Act, therefore the observations of Scrutton, L. J. lend some support to my view that the New Chinese Antimony & Company v. Ocean Steamship Company, requires reconsideration after the promulgation of the said Act.

11. I am however aware that, although the English Carriage of Goods by Sea Act is identical to the said Act, the judgment in New Chinese Antimony v. Ocean Steamship Co. has not been challenged in the English Courts. Further I find that the provisions of the said Act have been considered by the Privy Council in Attorney‑General of Ceylon v. Scindhia Steam Naviga tion Co. ((1961) 3 A E L R 684). The facts of that case were that the Food Commissioner of Ceylon on behalf of the Government of Ceylon had shipped a consignment of 100,652 bags of rice from Rangoon to Colombo, and when the cargo was landed there were short delivery of 235 bags of rice. Therefore, the Government filed a claim against the carrier for the short landing of the said bags. The terms of the bill of lading were identical to the bill of lading under consideration before me. As in the instant case, the bill issued by the Scindia Steam Navigation Company showed, both the number of bags and their weight but stated that they were declared by the shipper. The bill of lading also contained a printed clause "weight, contents and value when shipped unknown". Reversing the judgment of the Ceylon High Court which had dismissed the suit filed against the Carrier, the Judicial Committee allowed the claim of the appellant and held that the evidence established that the carrier had short landed 235 bags of rice. Apparently, although there was suffi cient evidence to prove the short landing, the appellant had sought to base its claim on the statement in the bill of lading and contended that the statement of the weight shown on the bill of lading was evidence of the correct weight. In repelling this argument at page 691 of the judgment the Judicial Committee observed as follows:‑ "Though by relying on the bills of lading the appellant presented prima facie evidence that 100,652 bags (marked and numbered as in the margins of the bills) were shipped, the bills of lading were not even prima facie evidence of the weight or contents or value of such bags. This was the result of the incorporation in the bills of lading of the provisions previously referred to. (See New Chinese Antimony Co. Ltd. v. Ocean Steamship Co. Ltd.). It was for the appellant to prove the contents of the bags and, the weight or the bags and it was for him to prove his loss by proving what it was that the bags contained and by proving what was the value of what the bags contained." As the Judicial Committee held that the appellant had proved its claim on the evidence on the record, the observations quoted were strictly not necessary for the determination of the issue of short landing before the Judicial Committee, so that the differences between the bill of lading in the New Chinese Antimony case and that in the case before the Judicial Committee, were not considered. However, in view of the very great respect for the judgments of the Judicial Com mittee, I would be loath to dissent from the observations quoted on the ground that they were obiter dicta. But the equities between the shipper and the carrier are different from he equities between the endorsee of a bill of lading and the carrier. In my humble opinion, as an endorsee of a bill of lading is innocent third party the carrier should not be allowed to repudiate against the endorsee the statements shown on the bill of lading issued by him. But the case before the Judicial Committee involved dispute between the shipper and the carrier, therefore, it seems to me that the judgment is distinguishable on the facts also. Having given anxious thought to the case I am therefore of opinion that in a suit by the endorsee of a bill of lading) against the carrier, the declaration of the weight of the cargo in the bill of lading is prima facie evidence against the) carrier.

12. According to the bill of lading issued by the first res pondent each of the appellant's bags weighed net 112 lbs. This statement in the bill of lading being prima facie evidence only, the respondents could have given evidence to show that this statement of the weight was not correct. As they have not given any evidence in rebuttal, it follows that the applicant has proved the weight of the bags of its consignment. According to the invoice produced by the applicant, the weight of the bags was also under 112 lbs. As the surveyor has assessed the loss by calculating the difference between the weight of the five bags surveyed by him and the weight of the bags as declared in the invoice, this means that the applicant has proved its loss as on 3rd October 1964, when his loss was assessed by the surveyor. The question for consideration which arises then is whether (lie carrier is responsible fur this loss.

13. The practice of the Port of Karachi is regulated by the Karachi Port Trust Act, 1886, and under the provisions of the said Act, whenever any ship arrives in Karachi, delivery of cargo is given by the carrier and not to the consignee but to the Karachi Port Trust and it is from the Karachi Port Trust that consignees clear their cargo. Therefore, in the instant case also, the applicant had obtained delivery of its consignment from the Karachi Port Trust. "The contention of the respondents is that the entire consignment of the applicant was landed undamaged by them. In support of this contention they had examined two representatives of their stevedores, namely, 1). W. Nasir Hussain and Mahboob Ali both of whom have said that the 200 bags of the applicant were discharged in sound condition and delivered to the Karachi Port Trust. In view of this evidence learned counsel for the respondents submitted that the loss to the applicant's cargo had occurred whilst it was in the custody of tile Karachi Port Trust and that the Karachi Port Trust way the statutory agent of the applicant under the provisions of section 37 of the Karachi Port Trust Act, therefore the respondents were not responsible for the applicants loss.

14. Section 37 of the Karachi Port Trust Act states as follows:‑ "

37. Whenever any goods are handed by the Board from any vessel, the Board shall, if so required, give to the toaster of such vessel a receipt in the form or to the effect set forth in Schedule C, and may in any such receipt include all goods landed from such vessel during one day. No master or owner of a vessel from which the goods in respect of which such receipt is given may have landed shall be liable for any loss or damage to such goods which may occur after they have been so landed." In Karachi Steam Navigation Co. Ltd. v. Ibrahim Ghani (P L D 1957 Kar. 315) a Division Bench of this Court has considered the provisions of the Karachi Port Trust Act especially section 37, and held that when a carrier delivers cargo to the Karachi Port Trust, the Karachi Port Trust holds it as a statutory bailee on behalf not of the carrier but of the consignee. Learned counsel for the respondents therefore submitted that the evidence produced by the respondent proved that the Karachi Port Trust were respon sible for the damage in dispute and, as the Port Authorities were the applicant's agents, the respondents were not liable for the said loss. However, the judgment of this Court in Karachi Steam Navigation Co. v. Ibrahim Ghani, was considered by the Supreme Court in Abdul Jalil v. Muhammadi Steamship Co. and another (P L D 1961 S C 340)) and their Lordships were pleased to observe that the proposition laid down by this Court in the said case was not correct. In reference to the said judgment, at page 349, Kaikaus, J., who delivered the judgment of the Supreme Court, stated as follows:‑ "We have to observe, however, that there is in this case a reference to the Karachi Port Trust Act and it is stated that the Karachi Port Trust is a statutory bailee and that delivery to such statutory bailee amounts to delivery of the goods to the consignee. Reference in support of the proposition that the Trust holds on behalf of the consignee has only been made to section 47 of the Act wherein it is provided that in the Warehouse of the Karachi Port Trust goods are kept at the risk of the owner. This provision is not by itself sufficient to make the Port Trust the agent of the consignee." Learned counsel for the respondents argued that the judgment of the Supreme Court was distinguishable because the case before the Supreme Court involved the construction of the Chittagong Ports Act and not of the provisions of the Karachi Port Trust Act. However, the relevant provisions of the Chitta gong Port Trust Act are similar to section 37 of the Karachi Port Trust Act, which I have quoted above. In any case, I am bound by the observations of the Supreme Court, and I respect fully follow them. Therefore, I hold that in the instant case the Karachi Port Trust was the statutory bailee of the first respondent, and not of the applicant, and the first respondent is liable to the applicant for the loss claimed even though it may have t occurred whilst the applicant's cargo was in the custody of the Karachi Port Trust. Accordingly it is not necessary to consider, the question whether the loss occurred on account of the negli gence of the Karachi Port Trust as alleged by the first respondent. The first respondent is responsible in any case for that loss.

15. The only question that remains for consideration is whether the second respondent is also liable to the applicant for the loss claimed. It is submitted before me that the second respondent is only the agent of the first respondent, however, the applicant seeks to make it liable on the ground that it had executed a guarantee under section 85 of the Sea Customs Act, 1878. The second respondent has disclaimed liability and the bond alleged to have been executed by it has not been produced. Learned counsel for the applicant has therefore not pressed his claim against the second respondent. Accordingly the claim against the second respondent is dismissed.

16. In the result I set aside the judgment and decree of the trial Court and allow the applicant's claim against the first respondent in the sum of Rs. 469.37 with interest thereon at 6% per annum from the date of the suit till the date of the realization of the decretal amount. In the circumstances of the case I do not make any order as to costs. A. E./K. B. A. Revision accepted. Claim allowed.