1992 PLP 1766 (MLD)

(5) Whether the consignees and/or persons acting on their behalf removed their bales from the Landing Shed without notice of loss and/or damage to the Defendant No.1 and/or their Agents and if so what is its effect? (6) Whether the contents of the alleged survey report of M/s. John Hudiq & Son are correct and binding on the defendants? (7) Whether the alleged damage to bales, if any, was pre‑shipment damage or damage arising and/or resulting from inherent vice and nature of goods and if so are the defendants liable? (8) What were the contents of the bales, their condition, quality, quantity, weight and value at the time of shipment? (9) Whether the plaintiffs committed breach of provisions of Foreign Exchange Regulation Act, 1947? (10) Whether the Defendants committed breach of the contract of affreightment? (11) To what reliefs, if any, are plaintiffs entitled? ISSUE NO.1. On this issue the learned counsel for the plaintiff has submitted that the consignment in suit was insured with the present plaintiff and that the present plaintiff have paid the amount to the consignee in foreign currency for the loss/damage sustained. The learned counsel has further submitted that the present plaintiff as subrogatees are entitled to file the present suit. He has placed reliance on the documents produced as Exh.5/9. This document is a subrogation receipt signed by the consignee in favour of the present plaintiff. As against this Mr. Nasimuddin Shaikh, appearing for the present defendants has submitted that this in fact is not a letter of subrogation but is a receipt given by the consignee. He has further submitted that the plaintiff have not produced the insurance policy and, therefore, it cannot be said as to what were the terms and conditions of the insurance policy. Reference has been made to the provisions of section 135‑A of the Transfer of Property Act. Sub‑clause (2) of the above section reads as under: "(2) Where the insurer pays for a total loss, either of the whole, or in the case of goods, of any apportionable part, of the subject‑matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject‑matter so paid for, and he is thereby subrogated to all the rights and remedies of the insured person in and in respect of that subject‑matter as from the time of the casualty causing the loss." It is not denied by the defendants that the said amount has been paid by the plaintiff to the consignee. It is also not the case of the defendants that the consignment was not insured‑ with the plaintiff. Under these circumstances I am inclined to hold that plaintiff have right to sue provided the consignment was insured with them. ISSUE No.2. It is an admitted position that the defendant No.2 have acted as agents of defendant No.1 at Karachi Port and issued bills of lading bearing Nos.31 and 32 dated 21‑7‑1973 which fact is also not denied by the defendants. Under these circumstances I would answer this issue in negative and hold that they have been rightly impleaded as party to the suit. ISSUES NOS. 3 &

4. These issues involved common point. I therefore, take the same together. The admitted facts show that the vessel had reached at the destination i.e. Rotterdam on or about 12‑9‑1973 and discharged the consignment between the period 12 to 14th September 1973. The present suit has been instituted on 8‑3‑1975 which is beyond a period of 1 year. The case of the plaintiff as per paragraph 15 of the plaint is that the defendants did not repudiate their liability but proceeded to grant extension of time upto 12‑3‑1975 and the suit is, therefore, within time. The plaintiff have failed to produce any document in support of their contention. No letter of any sort from the defendants' side purporting to have granted extension of the period of limitation has been produced on record but on the contrary two letters Exh.5/14 and 5/15 dated 18‑10‑1974 and 3‑12‑1974 show that the defendants have specifically denied their liability and have contended that the damage caused to the consignment was an internal damage in the packing and the same had been pre‑shipment damage. It would not be out of place to quote herein below one paragraph from the letter Exh.5/14 which reads as under:‑ "It is very common that cargo loaded in apparent good order and condition is discharged in outward less good condition, since after a voyage of several weeks originally invisible wetness has become visible". Under these circumstances where no such extension of time has been shown or proved the suit would be governed under provisions of Article III, clause VI of the Carriage of Goods by Sea Act and Article 30 of the Limitation Act. The above‑cited provisions provide that in such cases the period of limitation for filing of the suit is one year from the date when the loss or injury occurred whereas under the provisions of Article 31 of the Limitation Act the period of limitation would commence within one year from the date when the goods ought to be delivered. In the present case it is an admitted position that the vessel had reached at the destination on 12‑9‑1973 and the goods were discharged within a day or two. The plaintiff have not produced any documentary evidence to show as to when the delivery of goods was made but the witness of the defendants namely Mr. J. Den Duben (of M/s. Rotterdamshe Expertise Bureau, Marine Surveyors) of Rotterdam, states that his company was appointed as surveyors by M/s. Ruys & Co. B.V. to carry out the survey of the above‑cited consignment at the godown of consignee. He has stated that the consignment was discharged on 13/14‑9‑1973 whereafter the goods were removed from the port area. He has also placed on record the survey report of his company which is dated 31‑1‑1974 and shows that the survey in fact was taken on 25‑9‑1973 at the consignee's `premises at VEENENDAAL in the interior. In view of the above evidence even if the period of limitation is computed from the date of report then also the suit having been instituted on 8‑3‑1975 would be beyond the period of one year and, therefore, hit by law of limitation. Reliance may be placed on the case of Modern Textile Mills Ltd. v. National Shipping Corporation PLD 1991 Kar.

275. I would, therefore, answer these issues in affirmative and hold that the suit is barred by limitation. ISSUE NO.5. There. is nothing on record produced by the plaintiff to show if any notice was given to the defendants before removal of the bales from the landing shed. The first letter produced on record by the plaintiff is dated 25‑7‑1974 written by M/s. W.K. Webster & Co. to the defendant No.1 which shows that they are investigating this matter elsewhere. As against this the evidence of the surveyor Mr. J. Den Duben (Exh.13) and report produced by him show that survey had taken place on 25‑9‑1973 at the consignee's premises. In view of the above evidence I am inclined to hold that the plaintiff have failed to prove that they had removed the goods after notice of loss to the defendant No.1. Issue, therefore, is answered in favour of the defendants. ISSUE N0.6. The plaintiff hive not produced survey report of M/s. John Hudig & Sons. This issue is accordingly answered as not proved. As already discussed in earlier issues, the defendants have examined their surveyor Mr. J. Den Duden who has also produced the survey report p which shows that the consignment had already suffered damage before the shipment. There being no contrary evidence I would answer this issue in favour of the defendants. ISSUE No.8 There is no dispute over the contents of the bales and their quantity, weight, value etc. However, the condition of the consignment is disputed and as already held above on the basis of the evidence of the surveyor (Exh.13) and report, I have held that the goods suffered from damage prior to shipment, this issue is answered in favour of the defendants. This issue has not been pressed by the learned counsel for the parties. In view of the findings on the issues discussed above the present suit is dismissed with no order as to costs. Above are the reasons for the short order announced in Court on 22‑8‑1991. A.A./C‑255/K Suit dismissed,