P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑The facts giving rise to this civil revision are that Messrs H. A. Hussain, petitioner No. 2, shipped on the 6th of December 1956 from the Port of Karachi to the Port of Chittagong 350 bags of rape seed by S. S. "Anwar Bakhsh", a vessel belonging to the United Oriental Steamship Co., the opponents before us. This vessel arrived at Chittagong on the 31st of December 1956 and the said consignment was found to be short by twelve bags and only three hundred and thirty‑eight bags were delivered to the shippers. The shippers called upon the opponents to deliver the rest of the goods but they repudiated their liability and took up the stand that there was no short delivery and the consignment was landed in full at the Chittagong Port. As a result of this the shippers called upon the Port Authorities to issue a short landing certificate but failed to obtain such a certificate from the Chittagong Port Authorities. Petitioner No. 1 is an insurance company and was also interested in the consignment in dispute. Both the petitioners being uncertain about the parties responsible for the loss caused, were advised to file a suit for the recovery of Rs. 720 as compen sation both against the opponents and Port Trust Authorities. Accordingly the petitioners served a notice under section 80, C. P. C. on the 19th of December 1957 on the Federation of Pakistan for their claim. On the expiry of the period of two months from the date of the said notice the petitioners on the 18th of February 1958 filed Suit No. 129 of 1958 in the Small Causes Court, Karachi, for the recovery of Rs. 720 as compensation for the loss caused to them. During the pendency of the aforesaid suit, the Chittagong Port Authorities issued the short landing certificate and as a result of this the petitioners withdrew their claim against the Federation of Pakistan, but the suit against the opponents remained pending. The main defence of the opponents before the learned Chief Judge, Small Causes Court, Karachi, in the aforesaid suit was that under clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925, the suit against them should have been brought within one year after the delivery of the goods or the date when the goods should have been delivered. According to them, as the suit was filed much beyond one year their liability was completely discharged under the provisions of the Carriage of Goods by Sea Act and the claim was liable to be dismissed. This plea prevailed with the learned Chief Judge, Small Causes Court. He held that the ship arrived at Chittagong on the 31st of Decem ber 1956 and the suit was filed on the 18th of February 1958 and as it was filed beyond one year after the delivery of the goods or the date when the goods should have been delivered, the suit was time‑barred against the opponents. The petitioners being aggrieved by the order of Mr. Ghulam Hassan A. Shaikh, the then Chief Judge, Karachi Small Causes Court, dated the 30th of July 1959, came up In Revision No. 230 of 1959. In the revision application they urged that the view of the learned Subordinate Court that the suit was barred by time was erroneous and the time taken for serving the statutory notice under section 80, C. P. C. on the Federation of Pakistan should have been excluded under section 15 (2) of the Limitation Act for computing the period of limitation prescribed under clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925. The civil revision application came up for hearing on the 14th of March 1960 before Anwarul Haq, J. It was urged before our brother on behalf of the opponents that the Carriage of Goods by Sea Act, 1925, is not a local or special law for the purpose of section 29 of the Limitation Act and the benefit of section 15 (2) of the Limitation Act cannot be availed of by the petitioners. It was further urged that clause (6) of Article III of the Schedule does not merely prescribe the period of limitation but extinguishes the liability of the opponents and section 29 of the Limitation Act was not applicable to such cases. Reliance was placed, in support of this contention, on the decision of our brother Qadeeruddin Ahmed, J. in Issak Haji Shakoor Haji Jamal Co. v. Messrs United Oriental Steamship Co. and others (P L D 1960 Kar. 99). Mr. Sadiq, the learned counsel appearing for the petitioners, contested the correctness of the view taken in the above‑mentioned case. He contended that for the purposes of section 29 (2) of the Limitation Act, it is only to be seen whether the local or special law In question prescribes a period during which the plaintiff must seek his remedy and if it does, then such a law comes within the purview of section 29 of the Limitation Act. According to the learned counsel the further question as to what would be the effect of the non‑prosecution of the remedy by the plaintiff is irrelevant for consideration. The petitioners' counsel cited in support of his contention the case of Koer Durag Pal Singh v. Th. Pancham Singh and others (A I R 1939 All. 403) and Messrs United Oriental Steamship Co. v. Messrs Jamiluddin and others (P L D 1959 Dacca 164). In the last mentioned decision it was observed that the provisions of section 15 (2) of the Limitation Act would apply in the case of a suit against a carrier under the Carriage of Goods by Sea Act, 1925. Anwarul Haq, J. did not feel inclined to follow the view taken by Qadeeruddin Ahmed, J. in P L D 1960 Kar. 99, but was inclined to agree with the view expressed in P L D 1959 Dacca 164 for holding that the provisions of section 15 (2) of the Limitation Act would apply to the case of Carriage of Goods by Sea Act, 1925 for the reason that the Act must be regarded as a special law within the meaning of section 29 (2) of the Limitation Act. But in order to avoid future conflict of decisions which might cause confusion in commercial circles, he referred this case to a larger Bench. It is in these circumstances that this civil revision has come up for consideration before this Bench. The following question falls for consideration in this revision application: "Whether the Carriage of Goods by Sea Act, 1925 Is a local or special law for the purposes of section 29 of the Limitation Act so as to attract section 15 (2) of the Limitation Act." We have at length heard the learned counsel for the parties in support of their respective contentions. Both Mr. Sadiq and Mr. Shah Jamil Alam, the learned counsel for the parties, have out forward their cases very ably before us. Mr. Sadiq, the learned counsel for the petitioners, has strongly urged before us that the provisions of clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925, is a special law and the provisions of section 29 (2) of the Limitation Act are applicable to it. He argued that the word "special" is used in antithesis to "general" and a "special Act" as opposed to a "general Act" is one directed to a special subject or special class of objects. The learned counsel in support of his contention has placed reliance on the case of Kandaswami Pillai v. Kannappa Chetty (A I R 1952 Mad. 186) and an English decision: Edawrd Garnett v. William Bradley ((1878) 3 A C 944 at 850). He further contends that the words "special law" must be understood only in a relative sense and urged that on the question of limitation the Limitation Act would be a general Act and all other Acts so far as they deal with questions of limitation would be a "special law". Similarly, according to him, on a question of civil proce dure the Civil Procedure Code would be a "general law" and all other Acts dealing with civil procedure would be a "special law". In our opinion, it is not necessary in this case to stretch the definition of "special law" to such an extent. In fact this view did not find favour in the above‑mentioned Madras case and we also hold the same view. Unfortunately "special law" is not defined in the General Clauses Act and there is considerable controversy over it. Reference may be made in this connection to Abdul Ganny v. Mrs, I. M. Russell (A I R 1930 Rang. 228); Haji Shakoor Gany Firm v. Firm of Volkart Brothers and another (A I R 1931 Sind 124); Mukand Mahto and others v. Niranjan Chakravarly and others (A I R 1934 Pat. 353); Jog Dhian v. Hussain and another (A I R 1935 Lah. 328); Punjab Co‑operative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. and others (A I R 1941 Lah. 257) and Sitaram Nanasa and others v. Chunnilalsa Bhagehandsa Kalal (A I R 1944 Nag. 155). It however appears to us that if an enactment deals with a special situation or special subject affecting a particular class of person, it is special law. In other words, as gathered from (1878) 3 A C 944 "special Act" as opposed to "general Act" means one directed to a special object or class of objects. Judging the statute under consideration from this point of view, it is plain to us that it deals with the responsibilities and liabilities of the carriers and shippers in respect of goods carried by sea under bills of lading. Thus this statute covers an important part of maritime commerce law, which no doubt is a special subject and affects a particular class of persons. In these circumstances we have no hesitation to hold that it is a "special law" and If other conditions are fulfilled will fall within the provisions of section 29 (2) of the Limitation Act. In fact Mr. Shah Jamil Alam, the learned counsel for the opponents, conceded that section 15 applies to all Acts prescribing limitation. The next question for consideration in this matter is whether the time fixed in clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925 prescribes a period of limi tation for filing suits against carriers in case they fail to deliver the, pods shipped by their vessel. Mr. Sadiq, the learned counsel for the petitioners, contended that under the above provision of law the Legislature has prescribed a period of limitation. According to the learned counsel, if the result of a statutory pro vision is in substance to fix a period within which a person must take appropriate or necessary action to assert his rights in a Court of law, that provision of law prescribes a period of limitation. For this proposition the learned counsel has placed reliance on A I R 1939 All. 403 and A I R 1952 Mad.

186. In these cases it was held that if a law fixes a period after which a suit or proceed ing is not to be entertained by the Court, the period is etymologi cally a period of limitation. This point need not detain us because in Abdul Jalil Chowdhury v. The Muhammadi Steamship Co. and another (P L D 1961 S C 340) their Lordships of the Supreme Court of Pakistan considered the implications of clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, 1925 and observed as under: The provision of law which governs limitation in a suit like the present is contained in the above‑mentioned clause," and further: "In accordance with this clause a suit is to be filed within a year of the `date when the goods should have been delivered'. These words obviously have reference to the time when it was the obligation of the carrier, in accordance with the terms of his contract, to deliver the goods, and this time has to be determined in accordance with the provisions of the Contract Act." Their Lordships later on observed: "These are the considerations which, in our opinion, should govern the determination of the period of limitation in a case arising under clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act. We may point out that Article 31 of the Limitation Act is in almost identical terms with clause (6) and we see no reason to place on this clause an interpretation different from that which has been placed on Article 31." On these observations it cannot be doubted that the period pres cribed under clause (6) of Article III of the Schedule to the aforesaid Act is anything else but a period of limitation prescribed for filing a suit against the carriers. Mr. Shah Jamil Alam, the learned counsel for the opponents, however, has urged before us that besides prescribing the period of limitation under clause (6) of Article III of the Schedule to the said Act, this clause also extinguishes the liability of the carrier and for this reason the provisions of section 29 (2) of the Limitation Act are not applicable. The learned counsel in this connection has invited our attention to the decision of Qadeeruddin Ahmed, J. In P L D 1960 Kar.

99. Qadeeruddin Ahmed, J. on this question observed as under: "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 para graph of Rule 6 of Article III does not merely prescribe 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 provisions of the First Schedule. They merely bar the remedy whereas the said third paragraph extinguishes the liability." The learned counsel further referred us to a decision of the Sind Judicial Commissioner's Court in the case of Haji Shakoor Gany Firm v. Firm of Volkart Brothers and another. In this case Rupchand, A. J. C. made the following observations: "Article 3, clause 6, Schedule of the Carriage of Goods by Sea Act, does not purport to limit the time within which the holder of a bill‑of‑lading may enforce his rights against the carrier; but it goes much further. It extinguishes the right itself which is thereby not only not enforceable by the usual legal pro ceedings in the ordinary Tribunals within the meaning of section 28, Contract Act, but is irretrievably lost." Mr. Shah Jamil Alam further drew our attention to the decision of the Indian Supreme Court in East & West Steamship Co. v. S. K. Ramalingam (A I R 1960 S C 1058). In this decision the Indian Supreme Court held as under: "Clause (3) of paragraph 6 of Article III in the Schedule to the Act provides for the extinction of the right to compensation and not merely a rule of limitation. In view of the international character of the rules, Court should be slow to put on the words `discharged from liability' an interpretation which would pro duce results varying in different countries and thus keeping the position uncertain for both the shipper and the ship-owner. Quite apart from this consideration, however, the ordinary grammatical sense of `discharged from liability does not connote `free from the remedy as regards liability' but are more apt to mean a total extinction of the liability following upon an extinction of the right. Once the liability is extinguished under this clause, there is no scope of any acknowledgement of liability thereafter." Mr. Shah Jamil Alam, the learned counsel for the opponents, therefore, contended that clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act not only prescribed a period of limitation but also totally extinguished the right of the shipper if the suit is not brought within the period of one year of the date on which the goods are delivered or from the date on which the goods ought to have been delivered, and section 29 (2) of the Limitation Act has no application to the cases falling under the above‑mentioned enactment. At this stage it may be pointed out that the question before us was also considered in a Dacca decision reported in the case of Holland‑Bengal‑Burmah Line v. Dawood Corporation Ltd. (P L D 1961 Dacca 39). Akbar, J. as he then was, made the following observation on the question under consideration: "The above decision of Rupchand, A. J. C., was armed by the Appellate Court in Haji Shakoor Firm v. Volkart Brothers Firm and another. In our opinion, the law has been correctly laid down in the above cases. We, therefore, hold that section 28 of the Contract Act does not hit the contract as embodied in the bill of lading, nor does it come within the meaning of local or special law referred to in section 29 of the Limitation Act. We may further observe that the only meaning which the words "The carrier and the ship shall be discharged from liability in respect of loss or damage unless suit is brought within one year" are on the facts of the case capable of hearing is that under the contract they will be totally absolved from liability if the suit was not filed within one year. We may, however, point out that if the port of shipment and port of discharge are in Pakistan the Carriage of Goods by Sea Act, 1925, will be applicable. In that event, the Act can be regarded as local or special law referred to in section 29 of the Limitation Act. We have already pointed out that in this case the port of shipment being a foreign port the Act is not applicable, and hence section 29 of the Limitation Act is not attracted to it." It will thus be seen that the view prevalent in the Dacca High Court is that if a case falls within the Carriage of Goods by Sea Act, 1925, the said Act will be regarded as local or special law referred to In section 29 of the Limitation Act and its provisions will be applicable to such cases. We have given our anxious consideration to the contention of Mr. Shah Jamil Alam, the learned counsel for the opponents, that because under clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act, t 925, the liability of the carrier is totally extinguished, the provisions of section 29 (2) of the Limitation Act cannot be attracted to it. The crux of the matter, however, lies in finding out whether the extinguishment of liability contemplated in the clause under consideration is such that it cannot be waived or privately settled. In other words, whether it bars the remedy and the right itself continues to exist. In our opinion, the mere fact that in the relevant clause it is stated that if the suit against the carriers is not brought within the prescribed period their responsibility will be discharged does not mean that in all circumstances the carriers will be absolved or discharged from their liabilities under the bill of lading. This is apparent from the comments of commentators of international repute on the question under consideration. In Scrutton on Charter Parties at page 478 it is stated thus: "If suit is brought within a year in one jurisdiction it is submitted 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." Similarly in Carver's on Carriage of Goods by Sea, the learned author has stated at page 191 as under: "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 sloes: 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 she performance of a contract pro viding 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." In the case of Muhammadi Steamship Co. v. Keserishih Vallab das (A I R 1957 Trav. 113) it was held that this clause does not lay down that the shippers' remedy by way of compensation for non‑delivery on its term is lost under all circumstances. Iyeagar, J. in this connection observed as under: "It is interesting at this stage to note the treatment of this subject in Carver's Carriage of Goods by Sea, 9th Edition. Dealing with the corresponding provision in the Carriage of Goods by Sea Act, 1924 (14 and 15 George V. Chapter 22) it is said at page 189: `A goods owner will lose any remedy he has against the carrier unless he issues a writ against him within one year, or the carrier waives that requirement' (the italicised herein) is ours and the analogy of clauses limiting time for making claims contained in bills of lading is referred to by the learned author in support of the position. In respect of such clauses it had been held that the party against whom the claim is made may elect to waive such a clause or the parties may by consent enlarge the stipulated time. See Palmer v. Metropolitan Ry. (1862) 31 L J Q B 259 (G) (Vide foot‑note No. 13 at p. 149 of Carver). We hold therefore that there is no substance in the argument of learned counsel that by reason of a condition, express or implied, in the bill of lading issued by the 1st defendant in connection with the instant contract of carriage the plaintiff's remedy by way of compensation for non‑delivery is any way lost." In the light of the above discussion it is thus quite clear that in spite of the fact that under clause (6) of Article III of the Schedule to the Carsiage of Goods by Sea Act, 1925, the liability of the carrier will cease to exist if the suit is not brought within one year of the delivery of the goods or from the date when it ought to have been delivered, yet the carrier could waive this term and in such circum stances the remedy of the shipper or aggrieved party would not o be considered to have been completely lost. This is exactly the view taken by their Lordships of the Supreme Court of Pakistan in P L D 1961 S C

340. Their Lordships on this question at page 346 observed asunder: "Even if we were to hold that as the appellant had given notice of a suit for damages limitation bad once begun to run, there was in this case a fresh agreement by the carrier to deliver the goods and there would be a fresh terminus a quo for filing a suit when the carrier failed to perform that agreement. This fresh agreement was implied in the correspondence subsequent to the notice and was expressly made by the delivery order. It may be pointed out here that the delivery order was within 7 months of the notice sent by the appellant and therefore it would not be possible for respondent No. 1 to argue that by virtue of clause (6) which operates to discharge the carrier from all responsibility after a year, even the right of the appellant had at the time of the fresh agreement been extinguished and a fresh agreement was of no avail. The express agreement bad been made at a time when the right of the appellant had in any case not been extinguished although the correct position is that even the implied agreement contained in the correspondence previous to the delivery order could be the basis of a suit. If a party continues to represent that it is prepared to perform a contract into which it has entered, after the expiry of the period fixed for performance, it cannot contend that it was not bound to perform the contract, in the absence of a legal bar which deprives the undertaking of all legal effect. There is nothing in the Carriage of Goods by Sea Act which prevents the parties from making fresh binding agreements. It would be quite open to the carrier in a case, for instance, where the goods could not be found, to undertake to trace the goods and deliver them at such future date as may be agreed upon. Clause (6) is not intended to force the parties to come to Court. They can adjust their disputes in any manner they like and they can make fresh agreement in any difficult situation like the one that arose in the present case." Thus according to the view of the Supreme Court of Pakistan under this clause even if the limitation had once begun to run and the carrier entered into a fresh agreement to deliver the goods, there would be a fresh terminus a quo for filing a suit when the carrier failed to perform that agreement. According to their Lordships such fresh agreement can be spelled and be implied in the correspondence and in such circumstances the carrier could not say that by virtue of clause (6) his liability was discharged. Their Lordships have clearly laid down in this decision that there is nothing in the Carriage of Goods by Sea Act which prevents the parties from making fresh agreement and adjust their disputes privately. In this connection the following observation of their Lordships is very pertinent: "If a party continues to represent that it Is prepared to perform a contract into which it has entered, after the expiry of the period fixed for performance, it cannot contend that it was not bound to perform the contract, in the absence of a legal bar which deprives the undertaking of all legal effect." Their Lordships in this case dissented from the view taken In the case of East & West Steamship Co. George Town v. Ramalingam Chettiar in respect of the interpretation of the words "date when the goods should have been delivered." In view of these clear observations the view held in the Indian Supreme Court decision and other decisions that the right is irretrievably lost or once the liability is extinguished there is no scope of acknowledgment of liability thereafter cannot hold good in Pakistan. We therefore hold that a case falling under clause (6) of Article III of the Schedule to the Carriage of Goods by Sea Act‑1E 1925 is covered by the provision of section 29 (2) of the Limitation Act. On this view of the matter it was admitted at the Bar that the petitioners were entitled to exclude the time taken in giving notice under section 80 of the Civil Procedure Code to the Federation of Pakistan before filing the suit in the Karachi Small Causes Court. If this time is excluded the suit was clearly within limitation. In these circumstances the learned Chief Judge, Small Causes Court, Karachi, was not justified in dismissing the petitioners' suit on the ground of limitation. Accordingly we set aside the order of the learned Chief Judge, Small Causes Court, Karachi dated the 30th of July 1959 and remand the case for decision on merits. The parties are ordered to bear their own costs. K. B. A. Order accordingly.