P L D1960 (W (PLP)

(17) Whether the suit is within time ? (18) Whether the suit, as far as defendants Nos. 4 and 5 are concerned, is barred and not maintainable as alleged in para. 21 of the written statement of defendant No. 4 ? (19) Whether the suit is bad for multifariousness ? Issues No. 1 & 17 relates to the same objection, i.e. that the liability of the defendants has been extinguished in terms of Rule 6 of Article III of the Carriage of Goods by Sea Act, 1925, I pro ceed to discuss these two issues first :‑

2. Issues No. I & 17.‑The third paragraph of Rule 6 of Article III of the Carriage of Goods by Sea Act, 1925, on which reliance has been placed by the defendants, is as follows :‑ "In any event the carrier and the ship shall be discharged of all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods of the date when the goods should have been delivered." The period of one year is to be computed, for the purpose of the above provision, from the 26th of April 1954, when the cargo was completely discharged from the ship. The plaint was presented at Karachi on 10th of April 19.17, and it being a fresh institution bf suit is apparently out of time in terms of the above quoted provision. ‑ Mr. Sharifuddin, counsel for the plaintiffs, contended that the institution of the suit at Chittagong being within time the provision did not bar the suit. He argued that the words "shall be discharged from all liability" did not mean that liability was extinguished and that therefore the provision was the same in character as that of the Articles of the Limitation Act. The Carriage of Goods by Sea Act, 1925 could thus be treated as a special or local law for purposes of section 29 of the Limitation Act and the benefit of section 14 of the latter Act could be granted to the plaintiff. In other words, counsel contended that the time during which the plaintiff presented the suit at Chittagong should be excluded. In support of this contention he cited Scrutton on Charter Parties and Carver on Carriage of Goods by Sea. The passage in Scrutton's book on which he has relied appears at page 478 and is as follows :‑ "If suit is brought within a year in one jurisdiction it is sub mitted that this should be sufficient to satisfy the paragraph and would justify the goods‑owner's succeeding in a suit started after a year in another jurisdiction. If a bill of lading provides for arbitration, it may nevertheless. be necessary to issue a writ in view of the wide language of the paragraph. It is, however, possible that by agreeing to arbitration the carrier would be held to have surrendered the immunity given him by the Rule." From Carver's book he relied on the following two foot notes which appear at page 191 :‑ "It has been held in the United States that the proper plaintiff need not serve within the year provided someone interested in the goods at some stage of the carriage does : Firestone v. United States 1949 A M C

746. The year only begins to run when the last of a lot of cargo has been delivered: Ungar v. The Urola 1946 A M C 1663. "cf. : Supra, p.

145. In Son Shipping Co. v. De Fossee and Tanghe 199 Fed. Rep. (2nd) 687 ; 1952 A M C 1093 the United States Court of Appeal held that, where an arbitration clause in a Charter party was incorporated in bills of lading, there was no time bar 'because arbitration is not within the term `suit' as used in' section 3 (6) of the United States Act. `Instead it is the performance of a contract provid ing for the resolution of controversy without suit.' That is only common‑sense, but the difficulty is that the Act says: `the carrier . . . . . . shall be discharged from all liability . . unless suit is brought within one year.' It is therefore desirable that parties submitting to arbitration should expressly agree to waive this requirement, though a Court (it is to be hoped) would readily infer such waiver from the inception of arbitration proceedings. It is absurd that the law should require a writ to be issued, even if there is no provision for arbitration ; but is possible that that is the position." From the above he inferred that the liability of the carrier was not meant to be extinguished ; for had the liability been extinguished after one year it was impossible that a proper plaintiff should be able to institute a fresh suit or that a new suit should be started in another jurisdiction after the expiry ofs one year. The gist of his argument is that it was possible for the parties to waive their objection to the limitation of one year and to contract out of it which was inconsistent with the interpretation that the liability itself was discharged after the lapse of tile prescribed period. He refer red to Haji Shakoor Gany v. Firm of Volkart Brothers and another(A I R 1931 Sind 124) and contended that the observations made therein that Rule 6 of Article III of the Carriage of Goods by Sea Act, 1925 extinc'nished "the right itself" and that section 29 of the Limitation Act was not applicable, were not relevant because they basically related to an English statute. He cited Mulaammadi Steamship Compatry v. Keserishin Vallabadas (A I R 1957 Trav. Co. 133) and contended that it was in his favour, because after considering the Sind Case and a decision of the Bombay High Court; Haji Shakoor Gany v. H. E. Hinde & Co. (A I R 1932 Bom. 330) as well as certain comment, made in Carver's Carriage of Goods by Sea the learned Judges came to the conclusion that the require ment that a suit should be instituted within one year in terms of Rule 6 of Article III of the Carriage of Goods by Sea Act, 1925, could be waived.

3. Counsel was right in contending that the requirement could be waived for, as pointed out by Mr. Hassan, advocate, a carrier is at liberty under the first paragraph of Article V of the Carriage of Goods by Sea Act, 1925, itself "to surrender in whole or in part all or any. of its rights and immunities or increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper." Reading the third paragraph of Rule 6 of Article III and the first paragraph of Article V of the Carriage of Goods by Sea Act, 1925. I come to the conclusion that the carrier and the ship is "dis charged from all liability in respect of loss or damage" if a suit is not brought within one year as provided unless the carrier as a matter of fact surrenders the immunity in whole or in part. The Carriage of Goods by Sea Act, 1925 cannot be treated as a local or special law for purposes of section 29 of the Limitation Act, and the benefit of section 14 of the Limitation Act cannot be granted to the plaintiff because the third paragraph of Rule 6 of Article III does not merely prescribed a period of limitation different from the period prescribed therefor by the first schedule of the Limitation Act but is different in character from the provi sions of the first schedule. They merely bar the remedy whereas the said third paragraph extinguishes the liability.

4. It is basically a question of fact whether or not the carrier in this case wholly or partly surrendered the immunity arising from the limit of time prescribed by the said third paragraph. 1 there fore leave the issues undecided to be determined at the conclusion of the trial.

5. Issue No. 2.‑Defendants Nos. 2 and 3 have been implead ed as the local agents of defendant No. 1 and relief iv sought against them equally. They are obviously not liable personally B and the principal itself is a defendant. There is thus no cause of action against them. The issue is decided against the plaintiff and the suit is dismissed against defendants Nos. 2 and 3 with half off prescribed costs.

6. Issue No. 18.‑The objections raised in paragraph 20 of the written statement of defendant No. 4 is founded on the view that the Court at Chittagong had the jurisdiction to try this suit, and therefore had no jurisdiction to return the plaint. We have seen that the order of the Court was based on the view of the High Court of East Pakistan by which it was bound. The order of the Chitta gong Court returning the plaint is thus not questionable in this Court. The issue is decided in favour of the plaintiff. A. H. Order accordingly.