P L D 1957 (W (PLP)

CONSTANTINE, J.

The appellant sued the defendant shipping Company for the' value of 10 drums of eaustic soda which the Shipping Company had failed to deliver to him. It is common ground that the appellant was the consignor of 400 bags of turmeric, 150 bags of soda-ash, 260 bags groundnut, 32 bags cardamum and 10 drums caustic soda by the steamship S. S. Virginia May of the respondents sailing on the 10th of February 1948 from Bombay to Karachi. A bill of lading Exh. 6 was issued the same day and the appellants were also the consignees. All the goods were delivered except the 10 drums of caustic soda, hence the suit. At the trial the learned judge decreed the suit to the extent of Rs. 2,500 because the bill of lading in clause 9 contained the following words: "The company will not be accountable for gold, silver, bullion, specie, jewellery, precious stones, precious metal, plated ware, documents works of art, watches, silk or other precious or valuable articles in any respect or for goods of any description whatever beyond a value of five hundred rupees per freight ton, and relatively for any portion thereof, or beyond the amount of two hundred and fifty rupees for any one package, and relatively for any portion thereof, unless a declaration of the value of such goods has been made prior to shipment, and a special written Shipping Order of Advice Note granted for same and unless the Bill of lading be signed for such goods and the value declared therein." It is common ground that the value of the drums exceeded the valuation mentioned in this clause (9). The learned Judge found that the appellants had not proved that the goods had not been lost before loading or after loading, but in the present Court Dr. Mahmud has been forced to agree that in fact the appellants had brought sufficient evidence on this point. Before loading, the appellants had "shipped" bill of lading which was conclusive admission on the part of the shipping company that they had received the goods on board, and as regards discharge, there was on record a short landing certificate issued by the Karachi Port Trust. This was the only evidence orb record and should have been accepted. The appellants contended that clause 9 of the Bill of Lading was null and void under the provisions of the Carriage of Goods by Sea Act. This Act requires that every Bill of Lading issued in Pakistan (and it is common ground that a similar provision exists in India and that the parties are bound by that provision) shall contain an express state ment that it is to have effect subject to the provisions of the said rules as applied by this Act. The rules are set out in the schedule. Article 3 is headed "Responsibilities and Liabilities". In the second para of this Article, it is stated that the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried subject to the provisions of Article IV. In this case we are not concerned with the provisions of Article IV as regards this paragraph. Then we have paragraph 8 of Article 3 which reads as follows: "Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these rules, shall be null and void and of no effect." Article IV is headed "Rights and Immunities", and para 5 of Article IV reads as follows: "Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with goods in an amount exceeding 100 per package or unit or the equivalent of that sum on other currency unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration if embodied in the bill of lading shall be prima facie evidence, but shall not be binding or conclusive on the carrier. By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed provided that such maximum shall not be less than the figure above named. Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connextion with goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading." There are few rulings upon the question involved in this case : one has been quoted by Dr. Mahmud from Chitleys Digest, but we have not got the original authority. It is an unreported case dated 1949. The other cases quoted by him are 1917 2 K B 420 and 1938 1 K B

459. Both these cases are decisions upon the Harter Act of America, and that Act differs, as is pointed out by Scrutton on Charter Parties at p. 463, 15th Edition. Firstly, the Harter Act contains no words like "or lessening such liabilities " which occur in clause 8 of Article 3, and secondly, the Harter Act has nothing corresponding to para 5 of Article IV. We consider that para 5 of Article IV is conclusive of the ques tion here. This paragraph, in our opinion, first of all gives a benefit to the carrier or shipper that he shall not be liable for more than 100 per package or unit, unless the nature or value of the goods have been declared by the shipper. But then we get the 3rd Clause of the same paragraph which states that another maximum amount than that mentioned in this paragraph may be fixed by agreement, but only if this maximum is more than E 100 per package. It prohibits any agreement for a maximum less than

100. The argument of Dr. Mahmud for the Shipping Company is that the Shipping Company is entitled to protect itself in order to insure against exceptionally valuable goods. We do not think, however, that this has any real bearing upon the interpretation of the material paragraphs of the schedule. Dr. Mahmud has argued that this clause 9 would not apply in any and every case, but we consider that whether it applies in every case or not, it still offends against the prohibition in para 5 of Article

4. The result is that this clause 9 of the bill of lading in so far as it relieves the ship from liabilities or lessens of its liability was null and void. The ordinary liability of the shipper as of any bailee is for the value of the goods. It is common ground between the parties that the balance after deducting the Rs. 2,500 which had been awarded in the Court below is Rs. 6,542-5-0. The decree of the lower Court will therefore be amended by inserting Rs. 9042-5-0 instead of Rs. 2,

500. The respondents do pay the appellants the cost of this appeal. A. H. Appeal accepted.