P L D 1967 Karachi 775 (PLP)

"Ordinarily the packages are always unloaded at the place where the aircraft is parked unless there are other circumstances to compel the removal of the aircraft to the hanger or any other place before unloading. In such cases permission is granted by the Superintendent of the Customs on the application of the airlines . . . . . customs sealing means actual and physical sealing of the aircraft " Evidence of Ehsan Ahmed Siddiki Exh. 11 shows that he was on duty when the aircraft in question landed at the airport at about 4‑25 a.m. and "thereafter P. I. A. Engineers arrived at the spot and desired to remove the aircraft to the hanger for some technical reasons. In view of it the Customs Officers sealed the aircraft and then I returned back to my office to prepare the relevant documents. The cargo was not unloaded before the sealing of the aircraft. Unloading of cargo had started at about 6‑30 a.m. in the presence bf Mr. Karamat of the Customs Department and Mr. Hassan Imam an Assistant Station Master of P. I. A. . . . . . Salim Qureshi who has signed the manifest Exh. 10/2 was not present at the time of unloading of the cargo." In his cross‑examination he bad to admit that cargo was brought to customs enclosure at about 8 a.m. "and immediately thereafter it was verified by Salim Qureshi and he then signed Exh. 10/1 and 10/2 . . . . . customs enclosure is about 150 yards away from the hanger . . . . . Both Salim Qureshi and Karamat were inside the customs enclosure when the cargo was brought there. 1 had found the custom seal on the aircraft. It is correct that I had first checked the watches parcel from the rear hold compartment of the aircraft. It is correct that I had stated before the police that first of all I checked the precious consignment of watches from Geneva off loaded from the rear hold compartment." Last witness is Syed Khurshid Ali Exh.

13. He has denied that any complaint was made by the customs department in connection with this aircraft. One Abdul Aziz security guard P. I. A. was examined by the plaintiff but he has not supported his case. His evidence shows that customs authorities were consulted before the aircraft was taken to the hanger. His evidence further shows that customs authorities had sealed the plane. He is falsified by Jafer Raza D. S. P. whose evidence shows that this witness Abdul Aziz had not stated before him that the plane had been sealed. I am satisfied and hold that the aircraft in question had reached Karachi Airport at about 4‑30 on the morning of 31‑3‑62, secondly that after the disembarkation of the passengers this aircraft was removed to the hanger without obtaining the requisite permission from the Customs authorities and before it was sealed by them, thirdly the cargo was unloaded at 10‑30 a.m. in the absence of the customs officers and, lastly, that it was at that time that theft of this parcel was noted. Plaintiff had further pleaded that requisite measures prescribed for handling valuable cargo were not taken in respect of this consignment and 'secondly the off loading had taken place after the shift of duty staff. Evidence on record supports him. Lastly, evidence on record shows that Sahib Zar who was working as loader at the relevant time has disappeared after he had murdered Ghulam Rasul who had given information regarding the theft of this parcel of watches by him. In view of his absconsion the police officer could not send Sahib Zar to stand his trial in the Court for the theft of this parcel. For all these reasons the plaintiff has blamed the defendant for wilful misconduct. This phrase is not defined under the Carriage by Air Act, 1934 or the Schedule attached to it. Chapter 3 of this Schedule deals with the liability of the carrier and its rules 22 and 25 appear to be relevant and were relied upon by the parties and hence these are reproduced below:‑‑ "22. (1) In the carriage of passengers the liability of the carrier for each passenger is limited to the sum of 1,25,000 francs. Where damages may be awarded in the form of periodical payments, the equivalent capital value of the said payments shall not exceed 1,25,000 francs. Nevertheless, by special contract the carrier and the passenger may agree to a higher limit of liability. (2) In the carriage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the actual value to the consignor delivery. (3) As regards objects of which the passenger takes charge himself the liability of the carrier is limited to 5,000 francs per passenger. (4) The sums mentioned in this rule shall be deemed to refer to the French franc consisting of 651 milligrams gold of millisimal fineness 900. (1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct. (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused as aforesaid by any agent of the carrier acting within the scope of his employment. " The phrase "wilful misconduct" has been judicially interpreted and explained by various authors as under: According to Shawcross (vide page 364 of Shawcross and Beaumont on Air Law): " Wilful misconduct means a deliberate act or omission which the person doing or omitting. (1) knows is a breach of his duty in the circumstances; or (2) knows is likely to cause, damage to third parties; or (3) with reckless indifference does not know or care whether it is or is not a breach of his duty or is likely to cause damage. It is essential to remember that "the misconduct not the conduct must be wilful." He has then referred to a recent case in the United States in which the Judge directed the Jury as follows: "Now wilful misconduct is not, as I have said, merely misconduct, but wilful misconduct. So if the carrier, or its employees or agents, wilfully performed any act with the know ledge that performance of that act bras likely to result in injury to a passenger or performed that tier with reckless and wanton disregard of its probable consequences, then that would constitute wilful misconduct . . .... . Wilful misconduct may be compared with criminal negligence." He has then referred to a recent case in Belgium and that Court had held that: "For the unlimited responsibility of the carrier to be involved one of the company's officers must have committed an error with the intention of causing damage to a passenger or have acted with such carelessness or such negligence that such damage became almost certain." I was also referred to a book, namely, "The Law of the Air" by Lord McNair. At, page 191 this phrase is explained in the following words:‑ . "To be guilty of wilful misconduct the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be." He has also referred to one case in United States where it was held that: "wilful misconduct means that in addition to doing the act in question, the person must have intended to do the act, or launched on such a line of conduct with knowledge of what the consequences would be and went ahead recklessly despite his knowledge of these conditions. So you can see that there are three elements to wilful misconduct: the first is an intent to do that act; the second is an awareness of the consequences of the act and a deliberate or reckless determination to do it regardless of the consequences of the act; and the third is the accident must be a result of all the acts." In the case of Horabin v. British Overseas Airways Corporation (1952 All ELR1016) it was held that: "A grave error of judgment, particularly one apparent as such in the light of after events, is not wilful misconduct if the person responsible though he was acting in the best interest of the passengers and of the aircraft." Next case referred to me is reported in 86 L T R

796. The facts of that case show that theft of jewels had taken place as the driver had not taken ordinary care and it was therefore held that .‑ "that it was the duty of the defendant to provide a driver who should take ordinary care of the carriage during the temporary absence of the traveller, and that the theft of the jewels was the natural and ordinary result of a breach of such duty, so as to make the defendant liable for the loss suffered by the plaintiff:" It is now evident that it has been established without doubt that the aircraft in question was removed to the hanger by the defendant without any reason, secondly no permission of the customs authority was obtained, thirdly that it was not sealed before this aircraft was removed to the hanger, and lastly, that the unloading took place six hours later, and during the absence of the customs officers with the result that theft of his parcel took place during this interval. All these facts amount to wilful misconduct on the part of the defendant and I hold it accordingly. These issues are therefore decided in favour of the plaintiff.

9. Issues Nos. 7 and 9.‑I have already reproduced Rules 22 and 25 of Chapter 3 contained in first Schedule attached to the Carriage by Air Act, 1934. Rule 8 deals with particulars which must be mentioned in air consignment note and its clause (m) lays down that the amount of the value must be declared in accordance with rule 22 (2) which deals with the extent of liability and the special declaration. Mr. Ali Ahmed Fazeel, the learned counsel for the plaintiff, had urged before me that provisions of rule (8)(m) read with rule 22(2) have been fully com plied with and in this respect he had relied upon the airway bill Exh. 6/7. He was of view that under rule 8 (m) it was not necessary to make two declarations of value in respect of (1) C customs and (2) for carriage. Relying upon the second part of the Ist clause in Exh. 6/7 he had urged before me that the value had been properly declared and thus provisions of rule 8 (m) have been fully satisfied. He had also relied upon the evidence of two witnesses i.e. the manager and agent of the suppliers in Switzerland who were examined on commission. Relying upon a case reported in 150 E R 756 he had urged before me that if freight money is more but no demand is made by the carrier, he cannot take advantage of this position subsequently. According to him no evidence has been led by the defendant that such a demand had been made and any extra freight was paid by the plaintiff or his suppliers. For all these reasons I decide both these issues in favour of the plaintiff and hold that the jurisdiction of this Court is not ousted by rule 22 (2) of the First Schedule of the Carriage by Air Act, 1934 and further that the defendant cannot disown their, liability for the total loss sustained by the plaintiff and lastly that the offer made by the defendant to pay Rs. 3,397 does not affect the plaintiff's claim in the present suit.

10. Issue No. 8.‑Mr. Abdul Rauf, the learned counsel for the defendant, had urged before me that Exh. 6/7 is a complete contract between the consignee and the carrier. According to him this parcel was consigned to Habib Bank and not to the plaintiff and hence Habib Bank was the necessary party as the cause of action had accrued to him. He had relied upon rule 11 of the First Schedule attached to Carriage by Air Act, 1934. This rule lays down that air consignment note is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of a carriage. He had also referred to me to commentary at page 181‑182 of the Law of the Air by Lord McNair. View taken by Mr. Ali Ahmed Fazeel appears to be correct. According to him Habib Bank is only a banking agent. Letter of credit was opened through it and Exh. 6/7 (airway bill) shows that this parcel was consigned to the bank but it was on account of the plaintiff: Apart from these facts all this correspondence was entered into between the plaintiff and the defendant. It was the plaintiff who was advised by the defendant to file claim, offer of Rs. 3,397 was made by the defendant to the plaintiff and not to the bank. Apart from this fact no suit can be defeated by reason of misjoinder or non joinder of the parties under Order 1, rule 9, C. P. C. However, I have agreed with the plaintiff that Habib Bank is not a necessary party. Finding accordingly.

11. Issue No. 12.‑Details of the claim are fully mentioned in paragraph 17 of the plaint. Total claim of Rs. 68,716.64 includes (a) Rs. 37,000 paid for the purchase of bonus vouchers (b) Re. 86.50 expenses incurred for opening the L/C (c) Rs. 20,113.96 paid to Habib Bank (d) Rs. 63.42 insurance premium and, lastly, (e) Rs. 11,452.76 claimed as loss of profit at 20 %. Items (a) to (d) have been satisfactorily proved and no evidence in rebuttal has‑been led by the defendant. In fact all this evidence has not been disputed, as the plaintiff was not cross -examined on all these points. As regards item No. (e) evidence of the plaintiff shows that he has claimed loss of profit at the rate of 20 %. In his cross‑examination he has stated on oath before me that: "This consignment was insured for Rs. 20,000 on the basis of FOB value. It was insured for the total loss." He has examined one Moinuddin in support of his case. His evidence Exh. 8 shows that the importer of Lanco watches earns a profit from 20% to 25%. No evidence has been led in rebuttal. In fact Moinuddin was not cross‑examined at all on behalf of the defendant. For all these reasons I find no ground to disbelieve this evidence and accordingly this item of Rs. 11,452.76 is allowed.

12. Decree shall therefore follow for Rs. 68,716.64 and costs with running interest at 6% per annum from the date of suit till the date of realisation. K. B. A. Suit decreed.