P L D 1962 (W (PLP)

(m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods ; The general responsibilities of the carrier set out in paragraph 2 of Article III are thus subject to the exception stated in clause (m) of paragraph 2 of Article IV, which means that the carrier is to discharge those duties but there is no liability if loss or damage is caused by an excepted situation. If the carrier proves the latter he can take advantage of it, unless the exception is defeated by proof of the failure of the carrier to discharge the general responsibilities. It is obvious that this proof should be such as to defeat the exception and not irrelevant to it. For instance, it will be useless for the shipper or consignee of the goods to prove that there was negligence of the carrier in the loading of boxes of apples, if no damage was caused to the apples by the negligence and the apples rotted exclusively owing to an inherent vice in them. Carver has expressed the main view of the law in this respect at page 186 of his above‑mentioned book, as follows; "Accordingly, it is submitted, the true view is that if the goods‑owner proves that the goods have not been delivered, or have been damaged after shipment, the onus shifts on to the carrier to bring the cause of damage specifically within Article IV, para.

2. If the cargo‑owner wishes to defeat that plea by proving negligence, the onus is on him to do so."

20. The view appears to be eminently reasonable and almost obviously correct, but in England some difficulty was experienced in arriving at it‑See Gosse Millard v. Canadian Government Merchant Marine, American Can Co. v. Same ((1927) 2 K B 432) apparently because the responsibilities of the carrier are heavier under the common law than those recognised by the Hague Rules on which the English Carriage of Goods Act, 1924 is based as our Act of 1925, and the common law relating to carriers at sea still has its own place in the Courts of law.

21. The passage reproduced above from Carver is to be noted carefully. In the cases which are before me, there was no loss, in my view ; but damage is an admitted fact. In this respect, the words "after shipment" which occur in the quotation should be noted. It is obvious that the carrier cannot be liable for damage caused before shipment, but the carrier is also exempted under the law from liability if the goods suffer at the time of shipment from such inherent defect, quality or vice as F results in damage to the goods after shipment. This raises the question of burden of proof of the condition of the cargo at the time of shipment.

22. If the burden was placed on the shipper or consignee to prove that the cargo was in "good order and condition" at the time of shipment and the carrier was to fail if he failed to prove this or "to give clear and cogent evidence that the damage which ft (the cargo) sustained was traceable to causes for which the ship- owner was responsible", as is generally taken to have been decided in The Ida (1875) 32 L T 541; then the carrier would neither have to prove, for the reasons explained above (paragraph 19), that he discharged his responsibilities under Article III‑2, nor substantially at least to prove any exception under Article IV‑2 of the Carriage of Goods by Sea Act, 1925. I have said that the carrier would not have to prove any exception under Article IV‑2 in view of the real issue that was in that case, and not its language. Though the words used in the judgment are "good order and condition" and reference is made to the "appearance", the reason of the charred look of the cargo, which was seed in that ease, was attributed by the carrier in that case to "bad season for seed" and the internal heating of the seed. This means that the expressions "good order and condition" as well as "appearance" are to be understood with reference to the nature of tire plea raised in defence. If this interpretation Is correct and the meaning generally attributed to the judgment is also correct, then the judgment is an authority for the proposition that the shipper or consignee has to prove the condition of the cargo when shipped as well as to prove that the carrier cannot get the benefit of an exception.

23. I venture to say with utmost respect that their Lordships of the Privy Council have not recognised the principle in the Ida 's case that‑ ". . . . failing proof of the condition of the cargo when shipped, the consignee is bound to show that the damage which It sustained is traceable to causes for which the ship -owner is responsible (Head‑note is Aspinall's Reports of Maritime Cases, Volume 2, page 551). though they have been understood to have done so. This view is not consistent with a later judgment of the House of Lords in Joseph Constantine Steamship Line Limited v, Imperial Smelting Corporation, Limited ((1942) A C 154 at p. 164) and in The Glehdarroch ((1894) 70 L T 344) Carver has commented in his above mentioned book on the Ida's case in a footnote at page 186, as follows:‑ "The Ids (1875) 32 L T 541 (P C) is authority for the proposition that the goods owner must prove that the goods were‑ (i) in good condition on loading and delivered damaged ; or (ii) damaged by causes for which the ship‑owner is responsible. If that is correct, and he cannot prove (i), the burden must be on him to prove that the damage was not caused by an excepted peril, e.g., inherent vice. But quaere: why should it not be enough for him to prove that the goods were damaged when on board? The Ids is unreliable in another respect: supra, pp. 69, 70." At pages 69 and 70 the author's remarks are as follows:-- "If the consignee is also the shipper of the goods, he cannot rely on the statement as to their condition contained in the bill of lading as conclusive, though it would be some evidence against the ship‑owner. The latter, as against the shipper, would not be estopped from showing what in fact their condition was on shipment. In The Ids, under such circumstances, the Court held that the plaintiff was bound to make out a prima facie case; either by showing that the cargo was in good condition when shipped, or that the damage could be traced to some default of the ship‑owner. But that decision proceeded on the ground that, the master had written across the bill of lading `ignoro qualita a quantita,' thereby preventing its constituting any admission by him of the state of the cargo. It seems difficult to reconcile with the latter authorities cited above, at pp. 67 and 68." I am led to conclude as far as the proof of an exception is con cerned from the peculiar circumstances of The Ida's case that the observations of the Privy Council were apposite in respect of them. How they influenced thought is clear from the following passage of the judgment:‑ "Their Lordships cannot, indeed, suppose that the learned Judge intended to lay down, as the marginal note to that case represents him, that there is a rule of law which requires that a plaintiff in such a case as this must show, in the first instance, that the goods were shipped in good order and condition, or fail in his suit. Undoubtedly there is no such rule of law. But their Lordships think that in this case, considering that the plaintiffs must have known how material it was to prove the condition of the cargo, that they abstained from calling witnesses who knew its condition and called a witness who was ignorant of it, when further it appears, from evidence uncontradicted, that a great number of cargoes arrived at this time fn a heated and damaged condition from Port Said, and that this would seem to have been a bad season for seed, their Lordships think it not too much to say that there appears a good deal of reason to suspect that this seed was in a condition at the time of its being shipped which would account for its appearance when unloaded ; and that the plaintiffs having failed to show its condition on loading, were bound to give very clear and cogent evidence that the damage which it sustained was traceable to causes for which the ship‑owner was responsible." (Page 554, Aspinall's Reports of Maritime Cases Vol. 2). The true view of the law, therefore, at least on the provisions of the English Carriage of Goods by Sea Act, 192Cand our Act of 1925 is as summarised by Carver (at page 186 and reproduced above) with regard to the burden of proof of an exception which falls under Article IV‑2 of the Acts. The carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defeat it is on the shipper or consignee.

24. Owing to the uncertainty in the minds of counsel for the parties about the burden of proof, the plaintiffs in their suits have alleged, as pointed out above, that they had selected rape‑seed carefully and all the plaintiffs have led oral evidence: (Abdullah, P. W. 2, Abdul Ghaffar P. W. 4 in Suit No. 250 of 1955 ; Hussain Mian DIM P. W. 8 in Suit No. 409 of, 1955 ; Abdul Rahim P. W. 5, Muhammad Hasan, P. W. 6 and Haji Rahmatullah P. W. 7 in Suit No. 410 of 1955 ; Hussain Mian Bhai .P. W, 6 in Suit No. 411 of 1955) to prove that good seed was bought as usual, dried and properly kept before it was shipped. I take this evidence to be in rebuttal of the plea of the defendants that the seed suffered from inherent defect, quality or vice which caused internal heating and find that it is of no value because the seed was bought at Karachi after it was transported here from distant places and could have imbibed moisture at any time commencing right from the day on which it was harvested. Moreover, the evidence of the plaintiffs is not that extra moisture was evaporated by seiving and drying the seed in the sun but that it had no extra moisture in it when it was brought by them. The usual care which they gave to the seed after buying it was, therefore, not intended to be adequate as a treatment to cure the defect that is alleged by the defendants and cannot be held to be so. The existence of extra moisture in the seed, if the plea of the defendants be correct, was neither avowedly known to the plaintiffs nor have they at any time been prepared to recognise it. They have tried only to prove that as a rule rape‑seed is treated by them in a certain manner which does not meet the defendants' case that there was excessive humidity in the relevant season.

25. The defendants have examined Dr. Abdus Sattar, Deputy Director, Agriculture, and former Principal, Agricultural College and Research Institute, Lyallpur and Hasmatullah Khan, Regional Director, Regional Meteorological Centre, Lahore, to establish their plea of inherent defect, quality or vice. The relevant portions of Hashmatullah Khan's statement (Exh. 36 in Suit No. 250 of 1955) are as follows:‑ "

5. There was large excess of rainfall and excess cloudiness, during the period October 1953 to March 1954 at the following stations included in the statement Exh. C. W. 1. (i) October 1953:‑The cloudiness was in excess in Sialkot. (ii) November 1953:‑The rainfall was in large excess at Khushab. There was excess cloudiness at all the eight stations. (iii) December 1953:-‑The cloudiness was in excess at Lahore, Sialkot and Lyallpur. (iv) January 1954:-‑The rainfall was in large excess at Rawalpindi and Khushab. There was excess cloudiness at Sialkot. (v) February 1954:--‑There was large excess of rainfall at all the eight stations. Cloudiness was in excess in Lahore, Sialkot and Multan. (vi) March 1954:‑Cloudiness was in excess in Sialkot only. . . . . . . . . . . . (1) Gross‑examination.‑(a) it gives meteorological conditions prevailing at eight stations therein referred (to) during the period October 1953 to March 1954. (b) It relates to eight stations of the former Province of West Punjah. (c) No. This cannot be applied to the whole of West Pakistan. The reasons are that Meteorological conditions vary from place to place." The relevant parts of Dr. Abdus Sattar's statement (Exh. 37 in Suit. No. 250 of 1955) are as follows:‑ "(8) In different years the moisture content of Toria and Sarson seeds vary considerably. If at the time when the crop is nearing maturity the weather is cloudy, the percentage of moisture may be as high as 15%. At the time of harvesting, the moisture content in Toria and Sarson is generally 6 to 8%. At Lyallpur, the moisture in Toria and Sarson seeds during the time of harvest is 6.83 and 4.91 per cent. respectively. Should February and March months be cloudy it may rise to above 10% in Sarson and if the weather is cloudy in the end of December and beginning of January, it may be 10 to 12% in Toria. (9) Toria seed must be sun dried before storage so that the percentage of moisture is reduced and thereafter it should be stored in cemented rooms with concrete floors. (10) The statement of Exh. C. W. 1 clearly shows that the months of January and February 1954 have been very cloudy, for instance, in Lahore the number of cloudy days are 21 mornings and 23 afternoons, 25 mornings and 27 after noons; in February. At Lyallpur in January there were 16 cloudy days and 0.18 Inches of rain and in February there were 22 cloudy days and 3.43 Inches of rain. This shows that the weather during the period under review was exceptionally humid. I must mention here that it is the frequency of drizzlings and the lack of sunshine which can increase the moisture content of the seeds and not the total rainfall during any period. (11) In the absence of proper precautions relating to storage, the percentage of moisture increases as even during storage, if the store rooms are humid, the seeds absorb moisture which may go up to 15%. (Note.‑I am speaking from memory. Again said, I am definite now.) With high moisture content rape‑seeds generally start fer menting when they are stored, during which process a consider able amount of heat is produced, the grains from collective masses, the percentage of oil decreases considerably and after about a fortnight give a charred appearance. . . . . . . . . . . . (13) The percentage of moisture in Toria seed harvested in the winter of 1953‑54 should be high due to the abnormal weather condition prevailing then. (14) The weather was exceptionally cloudy during the season. (15) The sunshine during January and February 1954 was not sufficient to make Toria seeds dry enough to withstand the long sea voyage, which would ordinarily last for 20 or more days. I may state that during a voyage even, Toria seeds are apt to absorb moisture. Drying of Toria seeds consignment in March or April would have been essential before shipping these seeds, but again, thereto, it would have absorbed moisture during the voyage, as this is characteristic of rape‑seeds. (16) There would not be any spontaneous heat, but the beat would be produced during fermentation which would increase gradually and become so excessive that one would not be able to place one's hand in the stored rape‑seeds. (17) During fermentation the heat which is produced would cause discolouration of Toria and Sarson seeds. It can also cause staining of storage bags. Laboratory experiment carried out by me for about three years showed that the seeds which had rotted in such cases gave a charred look and the oil content in them stood reduced. Answers to Cross‑interrogatories (4) The moisture content will not decrease unless seeds are sun‑dried. If stored in cemented godowns, it will remain constant; but if stored in kutcha stores, it will increase, as it will absorb moisture. If stored under humid conditions, the moisture content will increase. (5) The period is 1 to 2 months before harvesting till thrashing i.e., beginning of December to beginning of February in the case of Toria seeds and beginning of February to end of March in the case of Sarson seeds." Further, his statement in Suit No. 410 of 1955 (Exh. 15/2) "(16) If Toria and Sarson are stowed in closed holds or moist holds near about the beat‑generating Installations how will they re‑act and what time would it take to so re‑act? Will be liable to rot, which may be complete within14‑21 days."

26. This evidence has been supplemented by the proof

(See Muhammad Ibrahim, D W. 10, and Amir All Memani, D. W. 12 in Suit No. 250 of 1955, Hussain, P. W. 8 in Suit No. 409 of 1955)‑that rape‑seed sent In a number of consign ments other than those which are the subject‑matter in these suits from Karachi to Chittagong In 1954 was also damaged and that the nature of damage to it was never before or afterwards the same as in 1954‑(See Cyrus Cowasjee, D. W. 4 in Suit No. 4C9 of 1955‑‑), claims for the recovery of damages were, therefore, made against insurance and shipping companies which have been settled or are still pending (See Exh. 71, which is a list of 19 such suits, and Exhs. 72 to 80, which are copies of such plaints and written statements, which have all been produced in Suit No. 250 of 1955.)

27. The evidence of damage to rape‑seed mentioned in the preceding paragraph has not been questioned by counsel for the plaintiffs but the evidence of Dr. Abdus Sattar and Hashmatullah Khan has beep criticised by them as inconclusive because there is no satisfactory evidence of the localities where the rape‑seed, which is the subject‑matter of these suits, was grown. Some of the witnesses have mentioned‑(See Abdul Ghaffar, P. W. 4 in Suit No. 250 of 1955, Mahmood Ahmad, P. W. 5 in Suit No. 409 of 1955 and Abdul Rahim, P. W. 5, Muhammad Hassan, P. W. 6, and Haji Rahmatullah P. W. 7, In Suit No. 410 of 1955) the localities but their statements are un supported by documents and do not disclose the source of their knowledge.

28. This criticism is correct but the defendants could not produce more satisfactory evidence because they did not have knowledge of the names of those from whom the plaintiffs had purchased the rape‑seed at Karachi, nor were the sellers likely to assist the defendants in investigating the names of those from whom they had purchased the seed or the names of the localities where the rape‑seed sold by them to the plaintiffs was grown. The evidence brought on record is, therefore, sufficient to shift the burden to the plaintiffs to disprove the evidence produced by the defendants that the rape‑seed was defective because the relevant crop was generally bad.

29. The plaintiffs have not produced any evidence to disprove this, but they have tried to meet It by arguing that the bags would have been (i) hot and stained at the time of loading, according to the evidence of Dr. Abdus Sattar, if the seed which is the subject‑matter of these suits had excessive moisture in it when it was harvested and by proving she negligence of the defendants (ii) In defectively stowing the rape‑seed, (iii) in not taking care to maintain proper ventilation during the voyages as well as (iv) by relying on the fact that the cargo was discharged in lighters at the destination.

30. The last objection was not pressed because counsel conceded that it is usual at the Chittagong Port to discharge the cargo in lighters. The question of ventilation is not material in these suits because there is no satisfactory evidence to prove whether more ventilation or less than what was arranged was proper. The objection to stowage consists of three parts, namely that spacing in between the piles of the bags was not sufficient, that some of the rape‑seed was stored near the engine‑room (See the stowage plan of ss. "AI‑Hassan" Exh. 64) where there was more heat than in the other holds (See the statement of Statement of Hayat Khan, D. W. 9 In Suit No. 250 of 1955) and that some of the cargo was stored above rock‑salt and some by the side of alum (See the stowage plans of ss. "Al‑Hassan" Exh. 64 and of ss. "Fakirjee Cowasjee" Exh. 38) which com modities create conditions of dampness and which moisture could have been absorbed by the rape‑seed thus adding to or causing its decomposition. There is no evidence that spacing was defective, nor is there any evidence of the amount of heat. More over, there is no evidence that the beat to which objection is taken was harmful particularly in view of the defence that there was exces sive moisture in the seed. In support of the argument that damp conditions were created references have been to the book called Stowage by Capt. R. E. Thomas‑1961 Edition

and it is left to me, without expert evidence in favour of the plaintiffs and without sufficient data, to conclude that rock‑salt and alum did or did not produce the alleged action. This is not helpful to the Court for coming to a correct conclusion. It is noteworthy that there is no disclosure in the plaints of the nature of negligence which was sought by counsel to be attributed to the defendants on the basis of unexpected portions of the statements of witnesses and incomplete information gathered from the stowage plans. For instance, counsel for the plaintiffs did not think of heat until Hayat Khan mentioned it in answer to a question of mine but was unable to state the degree of temperature.

31. The argument advanced on behalf of the plaintiffs that the bags ought to have been hot and stained at the time of loading appeared to me to be weighty in the beginning because on the one hand two to three weeks could have been spent from the time of harvesting rape‑seed at the fields, transporting it to marketing centres to sell them, if it was sent there, trans porting it to Karachi, its treatment here and shipment; and on the other hand, Dr. Abdus Sattar has stated that (i) decom position is complete, within 14 to 21 days and (ii) that seed is so hot in advanced stages of decomposition that one cannot place one's hand on it. But in these cases, the bags could not be stained and hot because the seed was unbagged, aired and re‑packed in double bags before shipment. Moreover, the argument unwarrantedly presumes the existence of an extremely high degree of moisture in the seed at the harvesting time so as to cause immediate commencement of the process of decomposition. Decomposition could have commenced a some what later.

32. A suggestion has been made (See Hussain, P. W. 8 in Suit No. 409 of 1955) on behalf of the plaintiffs that they could not ship bad seed because they had to sell it in East Pakistan on credit. As against this, the defendants have led evidence to suggest (See Kassim, D. W. 11 in Suit No. 250 of 1955) that the plaintiffs were careless because the rate of freight had dropped. The answer to the plaintiffs' suggestion is that they could be unaware of or uncertain of the bad quality of the crop or merely hoped for the best when they shipped the seed. The answer to the defendants' suggestion is that freight is a very small fraction of the total capital that was involved. Moreover, neither of these suggestions or arguments is valuable for deciding whether the seed that was shipped actually suffered or did not suffer from inherent defect, quality or vice.

33. If the seed did not suffer from it, then there is no other reason nearly as cogent, convincing and fairly conceivable as inherent vice to enable one to attribute to it the serious damage that was admittedly done to the seed. The crop was without doubt generally bad and the only explanation deducible from the state of evidence that is on record is that the rape‑seed that was shipped was damaged during the voyages owing to its inherent vice in which no negligence of the defendants was involved. Both issues are, therefore, decided against the plaintiff.

34. Issues Nos. 3, 6 and 7.‑In view of the above decision It Is unnecessary to discuss and decide issues Nos. 5, 6 and 7.

35. Issue No. 8.‑In conclusion of all that has been said above, the suits are dismissed with costs. K. B. A. Suits dismissed.