P L D 1967 Dacca 792 (PLP)

"In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless the suit is brought within one year after delivery of the goods of the date when the goods should have been delivered." After discharging the cargo, the ship left Chittagong port on 11‑5‑

57. The plaintiff did not lay any claim upon the carrier within one year from the said date. It was only on 19‑8‑58, vide Exhs. 1(S) and A(5) that the plaintiff for the first time laid claim upon Messrs James Finley & Co., Ltd., agents of the carrier, which was far beyond the period of one year from the date of departure of the ship. In reply to this claim, the carrier's agents denied the liability on 4‑9‑1958 on the ground that the claim had already become time‑barred, vide Exh. 1(1') which is the same as Exh. A(4). It thus appears that the plaintiff or his agents, namely, Bird & Co. (Pakistan) Ltd., did not act with reasonable despatch in accordance with the condition contained in the policy of insurance. The first letter addressed by the plaintiff to the Insurance Company is Exh. 1(U), dated 7‑4‑

58. It was urged before the lower appellate Court and also in this Court that the letter Exh. I(U) which was sent to the Insurance Company by toe plaintiff within a period of the year from the date of departure f the ship was a claim on the Insurance Company and as such the Insurance Company should have advanced a loan and taken steps for bringing a suit against the carrier for recovery of compensation for the lost bundles of M. S. Angles. This contention was rejected by the lower appellate Court. The plaintiff's letter to the Insurance Company Exh. 1 (U) read thus: "Dear Sirs, Enclosed please find letters which we have received from Messrs Bird & Co., (Pak.) Ltd. which are self- explanatory. The total of these losses add up to good amount. We shall refer to this topic again and in the meantime we would request you to make a note of the situation." In this letter, the plaintiff requested the Insurance Company only to take note of the situation, but did not, in fact, lay any claim upon it. In continuation of the said letter of 7‑4‑1958, the plaintiff wrote another letter to the Insurance Company on 10‑6‑1958 Exh. 1(W) which is as follows: "Dear Sir, Please refer to your letter No. JA/I. D. S/6280, dated 7‑4‑

58. Our clearing Agents Messrs Bird & Co. have not been able to deliver us above goods, in spite of our frequent reminders. We would request you to kindly pay our claim (bill enclosed in triplicate) for non‑delivery of entire four bundles of M. S. Angles and two lifts of B. P. sheets." It is thus clear that the claim upon the Insurance Company was made for the first time on 10‑6‑1958 and not earlier. By that date, the period of one year bad already expired. After laying a claim upon the Insurance Company on 10‑6‑1958 the plaintiff addressed a letter to his own clearing agents on 15‑7‑1958, a copy of which was Endorsed by him to the insurance Company which was marked Exh. A(9). The plaintiff's attitude in regard to the lost four bundles as expressed in the said letter Exh. A(9) is significant. The relevant part of that letter runs thus: "The undersigned has been reminding you about these materials and requesting you for immediate action every time be has visited you, which is no less than 30 times during last one year. In spite of all these we were informed on telephone sometime back (after expiry of one year) to institute a case against the parties. Obviously it was already time‑barred and there was no sense in instituting cases. There is no escape from the conclusion that it is a case of neglect on your part " After the plaintiff bad already taken such attitude in respect of the maintainability of his claim, he thought of sending the short landing certificate Exh. 9 to the Insurance Company and he did actually send it to that company only on I1‑8‑1958, vide Exh. A (7). By then, further time elapsed after the expiry of one Sear from the date of departure of the ship. After some correspondence between the plaintiff and the Insurance Company a reply came from the Insurance Company on 28‑3‑1958 denying its liability for the time‑barred claim. The denial was made by the Insurance Company in its letter to the plaintiff of the said date marked Exh. 1 (i) which is in the following terms; "Please refer to your claim preferred under the above policy. As our rights of recovery from the steamer Agents have not been protected we regret v6 e are unable to settle your claim in full. You are therefore requested to submit a revised claim bill for the difference between the C. I. F. and Insured value." It is thus abundantly clear from the foregoing discussion that whatever claim was made either upon the carrier or the Insurance Company was made after the expiry of the period of one year from the date of departure of the ship and that the plaintiff himself was clearly of the view that the claim had become time barred. Mr. Kamal Hossain, learned counsel for the plaintiff‑appel lant submits that although the claim was made beyond the period of one year, a suit by the plaintiff against the carrier could not have been barred by limitation because of the endorsement made by the carrier's agents on the bill of lading, it appears that Messrs James Finley & Co., Ltd., as agents of the carrier made an endorsement on 20‑6‑1958 on the body of the short landing certificate Exh. 9 that "4 bundles short landed by mark." Apparently, this endorsement was made as a counter blast against the grant of short landing certificate. But it does not, in our opinion, mean an assurance by the carrier or its agents to the plaintiff that the goods short landed would be delivered to the plaintiff in future. The learned counsel then refers to the Insurance Company's letter, dated 18‑8‑1958 to the plaintiff Exh. A(6). That letter was sent in reply to the plaintiff's letter, dated I1‑8‑1958 Exh. A (7) together with which the short landing certificate was sent to the insurance Company. In its reply Exh. A(6), the Insurance Company simply stated that when the four bundles, according to the endorsement on the short landing certificate "Short landed by mark", it was up to the plaintiff to take delivery thereof from the carrier's agents. The carrier or its agents were in no way concerned with the letter Exh. A(6) which was one by the Insurance Company to the plaintiff. Any thing said in that letter can never be taken as an assurance from the carrier or its agents that the lost bundles would be delivered to the plaintiff. In spite of the period of limitation under the contract of affreightment, the parties to the contract of affreight ment could extend the time of delivery of goods by agreement as has been held in the case of Abdul Jalil Choudhury v. The Muhammadi Steampship Company (PLD1961SC340). The facts revealed in this case do not show if the carrier or its agents ever extended any hope to the plaintiff or his agents that the lost bundles would be delivered to them in future. In the absence of any such assurance on the part of the carrier or its agents, the suit by the plaintiff against the carrier for compensation for loss or goods if any in the circumstances of the case, would have been barred by the time the plaintiff laid claim upon the Insurance Company. The plaintiff did not act diligently and with reasonable despatch as was required in accordance with the condition of the contract of insurance, The plaintiff having failed to take appropriate steps well in time as required under the `bailee clause' in the insurance policy cannot enforce his claim against the Insurance Company whose right to recover any compensation from the carrier by a suit in the plaintiff's name became time‑barred and was not, therefore, protected. Hence, the view taken by the Courts below, in the facts and circumstances of the case is correct. In the result, we dismiss the appeal but leave the parties to bear their own costs. MAKSUM‑UL‑HAKIM, J.‑I agree. K. B. A. Appeal dismissed.