1987 PLP 2767 (MLD)

(16) Whether the defendant No.3 colluded with the other defendants? ISSUE N0.1. There is no dispute that the goods were carried under bills of lading issued by the defendant No.1 for and on behalf of defendant No.2. The terms and conditions of carriage are mentioned in the bill of lading which have been admitted by the parties. Therefore, he goods were carried on the terms and conditions mentioned in the bill of lading. From the bills of lading it is clear that they were issued by the defendant No.1 for and on behalf of defendant No.

2. The defendant No.1 has thus acted as agent of the defendant No.2. My finding is in the negative. ISSUE N0.3. There is no dispute about the nature of goods. The bill of lading is the main document to show the nature and conditions of the goods at the time of loading. From the bill of lading it is clear that the goods were Ceylon black tea packed in chests. So far the condition of these goods are concerned the defendant No.1 has issued a clean bill of lading without any qualifying remark with regard to the contents or the external condition of the chests. As a clean bill of lading has been issued and no evidence in rebuttal has been produced Lay the carrier to show otherwise my finding is that chest contained tax and were shipped in good order and condition. ISSUE NOS. 4 &

8. As the plea of the defendant is contained in issue No.8 it will be convenient to deal with both these issues together. There is not dispute that the vessel berthed on 31-12-1972. P.W.1 has not been able to state when the consignments were discharged but according to Ex.P-1/1 it had been discharged on 1-1-1972. The goods were removed in the Godown where they were stored. The, survey was, held on 22-1-1972 and continued intermittently a to 17-3-1972 seems that delivery of the goods was taker without any notice ox loss ho the carriers and that no short landing certificate was obtained from the Karachi Port Trust. It has been contended that consignees had appointed General Superintendence to supervise the discharge and removal of goods, but they have not been examined, nor their report has been produced to, show in what conditions the goods were discharged. The admitted position is that no notice of survey was served on the carrier either at the time of discharge on at the time of removal of goods, nor even at the time when tactual survey was to be held in the godown of the consignee's clearing agent. Mr. Rauf the learned counsel for the plaintiff has referred to section 37 of the Karachi Porn Trust Act and contended that the carriers should have obtained a receipt of discharge in good order and\ conditions before leaving the Pert and as they have failed to obtain KPT's delivery receipt the burden is on them to show that the goods, were discharged in good order and conditions. Reliance has been paced on P T D 1982 Kar.327. On, the other hand Mr. Iqbal Ahmad Siddiqui the learned counsel for the defendants Nos.1 and 2 has contended, that as after the discharge the', defendants have removed the goods without any notice of loss such removal is a prima facie evidence of the fact that the goods were discharged in good order and condition or in the same order and conditions in which they were loaded. A perusal of Article III clause (6) of Carriage of Goods by Sea Act makes it clear that unless notice of loss or damage is given in writing, to the carrier or his agent before of at the time of removal of goodie such removal shall be prima facie evidence of delivery of the goods by the carriers as described in the bill of lading. This provision further contemplates that if the loss or damage is of such a nature which is root apparent then such notice can be given within three days of such removal. In the absence of any notice as contemplated by Rule 6 the burden shifts on the consignee to establish that the goods were not discharged as described in the bill of lading or in damaged or in damaged condition. It is true that the carrier had not obtained the KPT goods delivery receipt therefore a rebuttable burden was cast on the carrier to prove that the goods were discharged in good order and condition. In the present case the intervening factor is that consignees have taken delivery of the goods without any objection or notice to the carrier, removed them in their godown and have surveyed without any notice to the carrier or their agent. The consignees, had the opportunity to first serve a notice of loss and damage before removal of goods and call upon the carrier for a joint survey of the goods. But none of these opportunities were availed of by the consignees. Although much emphasis has been ,placed on the fact that M/s. General Superintendence Co. (Pakistan) Ltd. were appointed as surveyor to Supervise the discharge and survey the goods, neither they have been examined, nor their survey report has been produced. Mr. Rauf has contended that this Company has been wound up, but the plaintiff or the consignees ought to have obtained a survey report which would have been submitted by the surveyor after survey was carried out by them. As the burden had shifted on the plaintiff and consignee to establish that the goods had been discharged in damaged conditions I have now to consider the evidence produced on this issue. The admitted position is that the survey by Madinawala surveyors was without any notice to the carriers. Such survey report is not binding on the carriers, and therefore, there is no evidence to establish that the goods were discharged in damaged condition and the extent of damage and short-landing. So fax the claim for short-landing is concerned the consignees could have obtained a short-landing certificate from KPT but that has also not been obtained or produced in Court. In vie of this discussion my finding is that the plaintiff has failed to establish that the goods were discharged in' damaged condition from the ship. ISSUE NO.5. Not pressed ISSUE NO.6. In view of the above discussion in issue No 4 my finding is in the negative. In view of the discussion in issue No.4 the finding is in the negative. The plaintiff has filed this suit as subrogee. According to the plaintiff as the defendants Nos.1 and 2 failed to satisfy the claim of the consignees, being an insurer settlement of claim it obtained a letter of subrogation from TCP and has thus stepped in their shoes and is entitled to file the suit. Mr. Iqbal Siddiqui the learned counsel for the defendants Nos.1 and 2 has pointed out that Syed Feroz Anwar P.W.2 an employee of the Trading Corporation has stated that Pakistan' Tea Board had got the consignment insured with Pakistan Insurance Corporation. Due to war in 1971 the Ministry of Commerce Government of Pakistan ordered the diversion of this consignment to Karachi for .delivery to Trading Corporation of Pakistan. In the bill of lading the consignees are Unto order of Bank of Ceylon. Colombo and the notifying party is M/s. Pakistan Tea Board, Dacca. In the bill of lading produced by the plaintiff there is no endorsement by the consignees or even the notifying party assigning the same to Trading Corporation of Pakistan. It seems that under the orders of the Government the Trading Corporation of Pakistan took delivery and the same was complied with by the carriers. In these circum stances, the Trading Corporation of Pakistan cannot be treated as a consignee or assignee of the bill of lading. Furthermore, the learned counsel for the defendants Nos.1 and 2 has pointed out that this witness has admitted that he did not know if the insurance policy was, assigned by Pakistan Tea Board in favour of the Trading Corporation of Pakistan. He has further stated that TCP has not received any payment while signing the letter of subrogation. Therefore, on plaintiffs own showing the letter of subrogation has been obtained from TCP which is not the insured and without payment of any amount towards the claim suit has been filed. Ex.2/6 was produced by the plaintiff from which it is clear that Pakistan Tea Board were the insured. Section 135-A provides that where the policy of the Marine Insurance has been assigned so as to pass the beneficial interest therein, the assignee of the policy is entitled to sue in his own name, Under subsection (2) of section 135-A where the insurer pays for a total loss or any apportionable part of subject matter insured he becomes entitled to take over the interest of the interest of the insured person and subrogated to the rights and remedies of the insured person as from the time of causing the loss. Subsection 3 deals with claim regarding partial loss. In such case also if the insurer pays for any partial loss then on payment he is subrogated to all the rights and remedies of the insured as from the time of causing the loss of the extent the insured has been indemnified. Therefore, in both the situations whether it is a case of a total loss or a partial loss, the insurer can acquire a right by subrogation if he pays to the insured. In the present case, although the letter of subrogation Ex.5/2 speaks of paying for the loss in respect of goods P.W.2 has clearly stated that it has not been' paid. In the presence of these contradictory evidence of the plaintiff it was the duty of the plaintiff to have established by producing receipt and account books to show that payments have been made. In my view in these facts and circumstances, the plaintiff is not a valid subrogee and, has no locus standi to file the suit. Moreover assignment of the policy has also not been proved. My finding is in the negative. ISSUE NO.10. Not pressed. ISSUE NO.11. Not pressed. ISSUES NOS.12, 13, 14 AND

15. The plaintiff has made a claim against the defendant No.3 that as Gearing agent they were bound to serve notice of survey as well as the notice for removal of goods from port, but the same was not done, and therefore, the plaintiff has suffered a loss. Mr.S.Hasan Zafar the learned counsel for the defendant No.3 has contended that the goods were to be discharged under the supervision of General Superintendence (Pakistan) Co. Ltd. and it was their duty to have served the notice. It is further contended that as they were to survey the cargo also they should have served notice on the relevant parties. According to the learned counsel the defendant No.3 were merely a clearing agent and after taking delivery were to store the goods in their godown. They were not required to serve any notice. The plaintiff has not produced the terms of appointment as clearing agent. It seems reasonable that if General Superintendence were appointed to supervise the discharge and to survey the cargo they should have served notice on the carriers which may have included the notice of loss before removal of goods as well as notice for survey of goods at the port or at the godown. Nothing has been done and therefore; my finding is as follows:- Issue No.12. Affirmative. Issue No.13. Affirmative. Issue No.14. The issue as pressed is redundant. Issue No.15. Not proved. ISSUE No.16. There is no evidence on record to show that the defendant No.3 had colluded with other defendants, therefore, the finding is in the negative. The suit is, therefore, dismissed with no order as to cost. M.Y.H./P-33/K Suit dismissed.