1997 PLP 447 (CLC)

9. In support of their case plaintiffs examined Abdul Wakeel, an officer in the Industries Department, defendant No. l examined its Manager Qamruddin, D.W.1 whereas Ayan Ahmed, D.W.2, Claims Officer was examined on behalf of defendants Nos.3 and 4.I have heard learned counsel for the parties and with their assistance gone through the relevant evidence on record. REASONS: Issues Nos. l and 3:

10. These issues are inter‑related and may be discussed together for the sake of convenience and in order to avoid repetition of reasons. Obviously the onus of proof of both the issues rests on defendants to show that the vessel s.s. "Miss Papalios" was seaworthy and capable of undertaking the voyage in question at the relevant time. Defendant No.3 who are charterers of the vessel and defendant No.4 as their agents have placed on record certified copy‑ of Certificate from Lloyd's Register of Shipping Exh.9/1 and Cargo Ship Safety Construction Certificate Exh.9/2 issued under the provisions of International Convention for the Safety of Life at Sea. 1960. In order to examine these documents, their legal effect, value and importance, it may suffice to observe that both the documents are relevant and admissible under sections 2 and 3 of the Commercial Documents, Evidence Act, 1939. For the sake of advantage and in order to comprehend the issues both these provisions of law may be reproduced as under:‑‑ "

2. Notwithstanding anything contained in the Evidence Act, 1872, statements of facts in issue or relevant facts made in any document included in the Schedule as to matters usually stated in such document shall be themselves relevant facts within the meaning of that Act.

3. For the purpose of the Evidence Act, 1872, and notwithstanding anything contained therein, a Court‑‑ (a) shall presume, within the meaning of that Act, in relation to documents included in Part I of the Schedule, and (b) may presume, within the meaning of that Act, in relation to documents included in Part II of the Schedule,‑‑ that any document purporting to be a document included in Part I or Part 11 of the Schedule, as the case may be, and to have been duly made by or under the appropriate authority, was so made and that the statement contained therein are accurate." Both the certificates produced in this Court are included in Part I of the Schedule.

11. The certificate in respect of load line capacity of the ship Exh.9/1 indicates that the ship had been surveyed and the free‑boards had been assigned and load lines shown had been marked in accordance with the International Convention on Load Lines, 1966. It was issued at London on 24th December, 1974, valid until 7th June, 1978 with a further averment that Lloyd's Register of Shipping is duly authorised by the said Government to issue this certificate. Cargo Ship Safety Construction Certificate Exh.9/2 on the other hand issued under the authority of the Government of Republic of Cyprus, certifies that the survey of ship showed that the condition of the hull, machinery and equipments, as found in the above Regulation was in all respects satisfactory and that .the ship complied with the applicable requirements of Chapter II.

12. As observed hereinabove, both these documents are relevant to the issues and for the purpose of the Evidence Act, 1872 (since repealed) and substituted by Qanun‑e‑Shahadat, 1984, the Court shall presume in relation to the Lloyd's Register of Shipping that it has been duly made by or under the appropriate authority and that the statement contained therein is accurate. As this CLC presumption of law has not been rebutted and there is not an iota of evidence to establish the contrary, it is highly difficult to hold that the vessel in question was not seaworthy or that it was not capable of undertaking the voyage in question at the relevant time. As regards defendant No.2 having shipped the goods on board the vessel, there is no controversy and the fact that the defendant No.2 through defendant No. l forwarded the shipping documents to all concerned speaks for itself. Bill of Lading Exh.7/5 reflects the shipment of goods in unequivocal terms on board the vessel. Both the issues are answered accordingly. Issue No.2:

13. As the liability of defendants Nos. l and 2 is confined to the shipment of the goods on board the vessel with defendant No.3 stationed at Tientsin, Peoples Republic of China, their obligation under the contract is over after they shipped the goods through s.s. "Miss Papalios". The issue appears to be improperly settled as these defendants under the contract are not by themselves obliged to deliver the goods at Karachi. Responsibility for the delivery of goods at Karachi would arise only against the carrier/owner of the ship. Indeed defendants Nos.3 and 4 as charterers and agents of the charterers respectively are under a contractual liability to effect the delivery of goods at Karachi. The issue is answered accordingly. Issue No. 4:

14. It is not disputed that the defendant No.2 was entitled to appropriate the value of the goods in question under the letter of credit opened in their favour and once they shipped the goods on board the vessel their obligation stood duly performed. Under the law of contract they are entitled to receive and appropriate the value of the goods for the supply of goods which they received by encashment of letter of credit. Indeed they received payment through the bankers of the plaintiffs on the strength of shipping documents and according to C & F Value of the goods in question. No exception can be taken to this act on the part of these defendants and I am at loss to comprehend the logic behind the argument of the plaintiffs reflected in this issue which is otherwise redundant. The issue is answered accordingly. Issue No.

15. In view of conditions of the Bill of Lading issued by defendant No.3 and in the event of non‑delivery of the consignment, defendant No.3 and their agents defendant No.4 would be ordinarily liable to make good the loss‑to plaintiffs. After the acceptance of the goods for shipment to the port of destination they cannot escape their liability under the contract as under Condition No.3 of the Bill of Lading responsibility of the carrier shall commence from the time when the goods are loaded on board the ship and shall cease when they are discharged from the ship. However, from the evidence adduced by the plaintiffs as well as defendants Nos.3 and 4 if transpires that the vessel in question went aground in the South China Sea and the plaintiffs were required by public notice to register their claim with their insurance company who would notify the same to the salvors but it is evident that the consignment was not insured by the plaintiffs with the consequence that they could not lodge their claim with the Insurance Company.

16. There is no denial of the fact that the vessel carrying the goods went aground South China Sea and Solicitors on behalf of the owners of the vessel vide letter, dated 28th June, 1976 Exh.7/15 notified to the plaintiffs Government that it may be interested in cargo laden on board the vessel "Miss Papalios". It was further pointed out that the costs of repairing the ship will greatly exceed her value when repaired, hence the owners were compelled to treat the contracts of carriage as frustrated and to give notice of abandonment of the voyage. Alongwith this letter solicitors, enclosed a formal notice to the owners of and those interested in the cargo on the vessel that the vessel was a commercial total loss and that contracts of carriage were accordingly frustrated. Besides on plaintiffs' own showing M/s. Burjorjee Cowasjee & Company, Karachi being the shipping agents for defendant No.3 issued a notice to consignees notifying to all concerned that the contracts of carriage in respect of cargo laden on m.v. "Miss Papalios" were frustrated and that the owners were compelled to abandon the voyage calling upon the owners of cargo to give their own instructions and make their own arrangements in regard to the cargo and provision of security to salvors. By this notice consignees were notified to take the matter of their claim with their underwriters immediately. Admittedly this circular letter was forwarded to the plaintiff‑Government by defendant No. l vide its letter, dated 15th July, 1976 Exh.7/12 but the plaintiffs were unable to lodge their claim with the insurance company as the goods were not insured.

17. Be that as it may, with regard to the frustration of contract of affreightment, a reference may be had to Scrutton on "Charter Parties and Bills of Lading", 17th Edition, 1964 in which vide Article 31 at page 95 the author writes as under: "Even where there is no breach of contract on the part of either party to the contract of affreightment, circumstances which delay its performance or render its performance impossible may under a different principle from that discussed in Article 30 discharge the parties. This, in regard to charter parties, is commonly referred to under the phrase 'frustration of commercial purpose of the adventure', but is really a particular application of the more general principle that a contract which by supervening and unforeseen circumstances, arising without default on the part of either party becomes impossible of performance may cease to bind either party to it. If the frustrating event is proved, the onus of proving that it arose through the default of either party rests upon the party alleging such default. The contract in such a case comes to an end not by reason of any absolving power in the Court but by virtue of an implied term in the contract itself."

18. Sir William R. Anson in his treatise on "Principles of the English Law of Contract", Twenty‑second Edition, Oxford University Press, 1964 under Chapter XV writes as under:, "Most legal systems make provision for the discharge of a contract where, subsequent to its formation, a change of circumstances renders the contract legally or physically impossible of performance. In English Law, such a situation is provided for by the 'doctrine of frustration'. Originally, this term was confined to the discharge of maritime contracts by the 'frustration of the adventure', but it has now been extended to cover all cases where an agreement has been terminated by supervening events beyond the control of either party. This development is no mere linguistic accident, for it is not strictly necessary that performance should have become literally impossible, provided that it cannot be properly demanded in the fundamentally different situation which has unexpectedly occurred. "

19. Citing various instances of the doctrine of discharge by frustration, learned author on page 457 writes as under:‑‑ "We come to those cases concerning the commercial 'frustration of the adventure'. These are by far the most frequent and most important instances of the application of the doctrine. Here the question to which the Courts address themselves is whether supervening events have frustrated the object of both parties by so changing the circumstances in which a promise fails to be performed that to hold the promisor to it would be to hold him to something which, though it may not be impossible, is something different from that which he originally promised to do. In Nicoll v. Ashton, Edridge & Co. (1901) 2 KB 126) for example, a cargo sold by the defendants to the plaintiffs was to be shipped 'per steamship Orlando

during the month of January without default on the defendants' part the ship was so damaged by stranding as to be unable to load in January, and the Court held that in these circumstances the contract must be treated as at an end."

20. To my mind, since the contract of carriage was frustrated as a total loss and voyage was abandoned, none of the carriers or their agents can be held liable for payment of compensation. For the aforesaid facts and reasons, the suit must fail and is accordingly dismissed with no order as to costs. A.A./P‑28/K Suit dismissed