P L D 1961 Dacca 39 (PLP)

AKBAR, J.‑Dawood Corporation, Ltd., hereinafter referred to as the Company, has filed this suit against the owners of vessel S. S. Laagkerk, their local Agent and the Federation of Pakistan, for recovery of Rs. 1,108‑8, being the value of one bale of cotton yarn short‑delivered to them (the plaintiff).

2. The Company imported two consignments of cotton yarn and the said goods were shipped per S. S. Laagkerk belonging to defendant No. 2, Holland Bengal Burmah Line. The said vessel after discharging her cargo at Chittagong Port on 30th January 1952, and 31st January 1952, left the port on 10th February 1952, the Company's case is that the ship had short‑delivered one bale of 21 counts.

3. Defendant No. 1, the Federation of Pakistan, and de fendant No. 3, Messrs M. M. Ispahani, Ltd Agent of the Shipping Company, contested the suit. Defendant No. 1 contended that r the bale in question was not landed from the vessel, and hence they were not liable for the same. The contentions of defendant No. 3 were that the entire consignments were landed ; that under the terms of the contract they were not liable for the short delivery; that the Courts of Pakistan had no jurisdiction to try the suit; and that the claim of the Company, if any, was barred by limitation.

4. The learned Munsif decided the question of jurisdiction against the defendants. He also found that defendant No. I was not liable for the short delivery, loss or damage. He, however, being of opinion that the claim was barred by limitation, dismissed the suit.

5. On appeal, the learned Subordinate Judge upheld the finding of the Munsif on the question of jurisdiction. He also agreed with him that defendant No. 1 was not liable for the claim of the plaintiff. He, however, held that the claim was not barred by limitation. Hence he decreed the suit for Rs. 926, being the invoice value of the bale in question, against defendant No. 2, the Shipping Company, and defendant No. 3, their Agent.

6. The second appeal filed by defendants Nos. 2 and 3 against the judgment and decree of the learned Subordinate Judge was heard by Chowdhury, J. In view of the importance of the question involved in this case to the commercial community, the learned Judge referred the matter to a Division Bench.

7. The main questions for determination in this appeal are: (1) Whether the Shipping Company and its Agent were dis charged from liability of loss or damage under the terms of the bill of lading ? (2) From what date the period of one year for a suit for compensation for goods delivered short should be calculated?

8. The contention of defendant No. 3, the Agent of the Shipping Company was that as this suit was filed more than 12 months after the date of the discharge of the cargo at Chittagong Port, liability of the Shipping Company, and likewise that of the Shipping Company's Agent, if any, was discharged under the terms of the bill of lading. Now, in this case, the contract between the plaintiff Company, and defendant No. 2 the Shipping Company, is the bill of lading. Clause No. 2 of the bill of lading is as follows : "This bill of lading is subject‑ (a) to the Hague Rules of October 1923, unless otherwise provided for in the bill of lading." The Carriage of Goods by Sea Act, 1942, gave statutory effect to what are known as the Hague Rules. Those Rules are set out in the Schedule to the Act. The provision relied upon as regards the alleged liability of the Shipping Company and its Agent is Article 3 clause 6 of the Schedule to the Act, the material parts of which are as follows : "In any event, the carrier and the ship shall be discharged from all liabilities in respect of loss or damage unless suit is brought within one year after delivery‑ of the goods or the date when the goods should have been delivered." At the outset, we may point out that the port of shipment being a foreign port, the Carriage of Goods by Sea Act, 1924 (hereafter referred to as the Act), is not applicable to this case. Now the question is : Shall the above Article 3, clause 6, be construed as an Act laying down rule of limitation or simply as words occurring in the bill of lading?

9. Mr. Pal, the learned Advocate for the defendant appellant has contended that the learned Judge was wrong in holding that it is not a contractual obligation but a rule of the limitation. In support of this contention, he has relied on the following decisions Haji Shakoor Gany Firm v. Firm of Volkart Brothers and another (A I R 1931 Sind 124) Haji Shakoor Gany v. H. E. Hinde & Co., Ltd. (A I R 1932 Bom. 330) and Gladstone Wyllie & Co., Ltd. v. Shahidi Trading Corporation Ltd. and another (P L D 1959 Dacca 73) In the above cases, it was held that such a clause in the bill of lading does not purport to limit the time within which the holder of a bill of lading may enforce his right against the carrier but extinguishes the right to sue. Mr. Sobhan, the learned Advocate for the plaintiff respondent, has contended that it is a rule of limitation and the suit being based on a foreign contract comes under section 11 of the Limitation Act, and is subject to the provision of section 29, read with section 15 of the limitation Act, and, as such, the plaintiff was entitled to add the time require for serving notice under section 80 of the Civil Procedure Code on defendant No. 1, the Federation of Pakistan. In support of his contention, he has relied on the following cases : Messrs Abdur Rahman Abdul Gani v. Messrs Mockinnon Mockenzie & Co. (P L D 1958 Dacca 460) and Messrs United Oriental Steamship Co. v. Messrs Jamiluddin and others (P L D 1959 Dacca 164).

10. The points raised in the instant case did not arise on the facts and circumstances of the above cases, and hence they are not of much assistance to us. We may further point out that in the case of Messrs United Oriental Steamship Co. the goods were shipped at Karachi for Chittagong, and hence the provisions of the Carriage of Goods by Sea Act were applicable to that case.

11. This identical question; however, came up for consideration in the case of Haji Shakoor Gany v. H. E. Hinde & Co. Ltd. In the above case, the defendants contended that, as the suit was not brought within one year after delivery of the goods, they were discharged from liability under the terms of the bill of lading which incorporated Article 3, clause 6 of the Schedule to the Carriage of Goods by Sea Act, 1925. In answer to the contention the plaintiff relied on section 28 of the Contract Act. In other words, according to them, this agreement was void.

12. Blackwell, J., relying on the case of Baroda Spinning and Weaving Co. Ltd. v. Satyanarayan Marine and Fire Insurance Co. Ltd. (A I R 1914 Bom. 225) observed (as page 332) "In my opinion, the effect of the incorporation of Article 3, clause 6 into the bill of lading in this case is that the rights of holders have been extinguished in respect of the claim made in this case. As, therefore, the plaintiffs have no rights to enforce, there is in my view no question of the remedy being barred, and section 28, Contract Act, does not assist the plaintiffs. I think that the principle laid down in the case to which I have referred applies to the facts of the present case, and that the plaintiffs' claim against defendant No. 1 consequently fails." A similar question arose in the case of Haji Shakoor Gany Firm v. Firm of Volkart Brothers and another. Rupchand, A. J. C., after discussing the arguments and the Bombay case referred to above, observed (at page 126) : "For all these reasons I agree with the view taken by his lordship in the Bombay case, that the right of the plaintiffs to claim from the ship the value of the sugar short delivered was extinguished at the expiry of one year from the date when such sugar should, in the ordinary course of events, have been delivered here." It was further contended in the Sind case that in computing this period of one year the plaintiff was entitled to get certain exemp tions. The learned Judge, while dealing with that point, observed (at page 127) "Apart from this there is no scope whatsoever for the plaintiffs to claim such exemption. The Limitation Act does not purport to revive claims which are declared as extinguished by lapse of time. It also does not purport to affect the period of limitation provided by an English statute, nor does an English statute come within the meaning of a local or special law referred to in section 29, Limitation Act." The above decision of Rupchand, A. J. C., was affirmed by the Appellate Court in Haji ShakoorFirm v. Volkart Brothers Firm and another (A I R 1937 Sind 11). In our opinion, the law has been correctly laid down in the above cases. We, therefore, hold that section 28 of the Contract Act does not bit the contract as embodied in the bill of lading, nor does it come within the meaning of local or special law referred to in section 29 of the Limitation Act. We may further observe that the only meaning which the words "The carrier and the ship shall be discharged from liability in respect of loss or damage unless suit is brought within one year" are on the facts of the case capable of bearing is that under the contract they will be totally absolved from liability if the suit was not filed within one year. We may, however, point out that if the port of shipment and port of discharge are in Pakistan the Carriage of Goods by Sea Act, 1925, will be applicable. In that event, the Act can be regarded as local or special law referred to in section 29 of the Limitation Act. We have already pointed out that in this case the port of shipment being a foreign port the Act is not applicable, and hence section 29 of the Limitation Act is not attracted to it.

13. Mr. Pal has next contended that in accordance with the aforesaid term the plaintiff Company should have filed this suit within one year from 10th February 1952, i.e., the date when the ship left the Chittagong Port. As this was not done, the defendants are di3charged from any liability for the loss or damage.

14. Mr. Sobhan, the learned Advocate for the Company, has contended that this period of one year, which is prescribed in Article 3, clause 6, ran, not from 10th February 1952, the date on which the ship left the port, but from 14th February 1952, when the short‑lading certificate was granted or from 25th November 1952, when defendant No. 3, the Agent of the Shipping Company, informed the plaintiff Company that the bale landed under "nill" mark, and they should take delivery of the same from the jetty. Similar contentions were advanced in the case of Haji Shakoor Firm v. Volkart Brothers Firm and another. Davis, J. C., observed (at page 13) "There is nothing on the record to show that this delay was not entirely due to the consignees themselves. But if we accepted the argument of the learned Advocate for the appellants, we should have to admit a position whereby a consignee could delay indefinitely, and thereby extend the period of one year during which their claim against the ship and the ship‑owners' agents could be enforced. The purpose of the period of limitation is perfectly clear, and that is that commerce by sea is of such a nature that it is necessary in the interests of merchants that a time‑limit should be put to claims, and that they should not be allowed to be delayed indefinitely. Therefore the period of one year has been fixed in para. 6, Article 3, Schedule 1, Carriage of Goods by Sea Act, and, in our opinion, that period of one year is to be construed strictly, and is not to be allowed to be ex tended by vague and indefinite arguments and pleas. We think, therefore, that it is clear in this case that when the ship left Karachi on the 2nd May, she had delivered her cargo to the consignees within the meaning of para. 6, Article 3, above referred to, and that it is not open to the appellants to take advantage of a survey, which appears to us to have been unduly delayed, in order to extend the period of time." The date from which the period of one year for a suit for com pensation for goods delivered short should be calculated came up for consideration in the case of The Karachi Steam Navigation Co. Ltd. v. Ebrahim Gani (P L D 1957 Kar. 315). The Court, after referring to certain observations in Haji Shakoor Firm v. Volkart Brothers Firm and another, and in Ladubhai Manekchand & Sons v. New Dholera Steamship, Ltd. (A I R 1952 Saurashtra 104), observed (at page 318) "We are in respectful agreement wish the above‑mentioned observations, and are clearly of the opinion that the date from which the period of one year should be calculated is the date on which the cargo is discharged by the Steamship Company." In the Muhammadi Steamship Company, Limited v. Abdul Jalil Choudhury and others which is not yet reported, a Division Bench of this Court agreed with the decision in the case of The Karachi Steam Navigation Co. Ltd., referred to above. Further, the Court observed: "Certainly, if the Steamship Company had taken the plea that the goods were coming by some other steamship or that delivery would be given after some time, the plaintiff could have legiti mately claimed an extension of time ; but such was not the plea of the steamship Company. Hence no question of extension of time arises in this case."

15. Here also, it is not the plaintiff's case that the Shipping Company, or the Agent had taken the plea that the goods were coming by some other ship. The ship left the Port of Chittagong on 10th February 1952. The plaintiff' Company got delivery of their consignments save and except one bale. The Port Authorities informed them that the said one bale landed short, The Agent, however, insisted that it had landed under "Nil" mark. The Company then got a short‑landing certificate on 14th February 1952. From the above it is clear that both the Port Authorities as well as the Shipping Company and their Agent were denying their liability for this one bale from the very beginning. The letter of the Agent, dated 25th November 1952, cannot, therefore, give them an extension of time. The delay in this case was solely due to the consignees themselves, and hence no question of extension of time arises in this case. Here, we would like to make it clear that such a suit should be brought within one year from the date on which the cargo is discharged. Only in very special circumstances, namely, when the Shipping Company of its Agent informs the consignee that the rest of the consignments were coming at a later date or that delivery would be given after some time, the consignee could claim an extension of time.

16. For the reasons stated above, we hold that, as the suit was not filed within one year from the date when the cargo was discharged at Chittagong Port, the Shipping Company and its Agent were discharged from the liability of short delivery.

17. In the result, we allow this appeal, set aside the judgment and the decree of the lower Appellate Court, and restore that of the Munsif.

18. Having regard to the facts and circumstances of this case, we direct that each party will bear its own costs throughout. KHAN, J.‑I agree. K. B. A. Appeal allowed.