P L D 2015 Sindh 221 (PLP)

SYED SAEEDUDDIN NASIR, J.

This order will dispose of an application (C.M.A. No. 10915/2012) under Order I Rule 10, C.P.C. filed by the defendant No 4 viz; China Shipping Container Lines (CSCL) Company Limited, Shanghai China, whereby the said defendant prays that its name be struck off from the array of defendants of the present suit. The learned counsel for the defendant No. 4 Mr. R.F. Virji has inter alia contended that four containers which were imported from the consignees landed in Karachi and were offloaded from the ship owned by defendant No.

4. All the four containers of 40 feet each were loaded on different vehicles for transportation to the destination of the said consignee. Three containers landed at the consignee destination, Anjum Art Press, 76 SITE, Hyderabad, Sindh but the fourth container that was loaded on a rickety, un-road worthy vehicle arranged by the consignee's clearing agents whilst, descending on the Jam Sadiq Ali overhead bridge which were significantly uneven and was punctured with ditches, pits, holds and cracks, toppled on a nearby vehicle, resulting in the death of the occupants therein. The learned counsel for the defendant No. 4 further contended that this transportation vehicle probably did not even have the aperture to fit in the twist locks and the lashing was also incorrect. However, it is not the responsibility of defendant No.4 for once the container is delivered to the consignee or their clearing agents, the responsibility of the carrier or its local agents in Karachi ceases to exist. The learned counsel for the defendant No. 4 further contended that the defendant No 4 has been wrongly and falsely implicated in this case only for the purpose of extorting money of a large denomination, therefore, the name of the defendant No. 4 be struck off, in the interest of justice, as no cause of action has been occurred to the plaintiff against the defendant No. 4 for filing the present suit and the defendant No. 4 is not responsible for any act of negligence committed by the carrier of the container. In support of his arguments he has relied upon PLD 1975 Karachi 647, wherein it is held as under:-- (d) Carriage of Goods by Sea Act (XXVI of 1925) "S. 8

Carrier's liability begins when goods loaded and ends when goods discharged from ship

Provision in bill of lading providing for cesser of liability of carrier as soon as goods discharged from ship or free from ship's tackle

Not inconsistent with, or repugnant to, provisions of Act XXVI of 1925 or Rules framed thereunder. The preponderant view, appears to be that the liability of a carrier for carriage of goods under the said Act for the period from the time when the goods are loaded on to the ship up to the time when they are discharged from the sip and that a provision in the bill of lading providing for the cesser of liability of the carrier in respect of goods carried in his ship as soon as the goods have been discharged from the ship or are free from the ship's tackle is not inconsistent with or repugnant to the provisions of the said Act or the Rules framed thereunder." The second case law relied upon by the learned counsel for the defendant No. 4 is AIR 2009 BOMBAY page 185, in which it is held as under:-- (A) Carriers Act (3 of 1865), Ss. 8, 9

Liability of carrier

Damage caused to transformer during transit as it toppled down from trailer

Transport contractor using vehicle having grossly inadequate carrying capacity compared to weight of transformer

He also not checking surface of Railway yard and taking trailer on uneven surface

Circumstances clearly indicating that Transport Contractor was negligent in handing the transformer, which was very heavy article

Transport contractor liable to pay damages. (B) Carriers Act (3 of 1865), Ss, 8, 10

Liability of carrier

Notice of loss

Limitation

Damages caused to Transformer as it toppled down from trailer

Letter issued to Transport Contractor within prescribed limitation period of six months demanding damages that may be accrued

Exact amount of damages not stated as it was yet to be estimated

Notice was issued within four months after knowing actual amount required for repairs

Transport Contractor cannot avoid his responsi-bility to pay damages on ground that no notice under S.10 was given to him

Letter issued to him was sufficient notice. (C) Insurance Act (4 of 1938), Preamble

Liability of insurer

Insurance taken of Transformer during transport by Maharashtra State Electricity Board

Damages caused to Transformer during transit as it toppled down from trailer

Transport Contractor using trailer of inadequate capacity

It cannot be said that Maharashtra State Electricity Board has not taken necessary precautions and it was at fault and it committed breach of contract of insurance

Moreover, insurance was taken of such commodity during transport, so as to save Board from possible losses

Merely because Transport Contractor was negligent Insurer cannot avoid its liability

At most it will be in a position to recover the amount, if paid, from the transport contractor. In this case-law the Court squarely determined the liability of the carrier to pay damages for not placing the cargo, which was an electricity transformer/ after taking precaution and safety measurers resultantly the same toppled down from the trailer. The Court held that the Transport Contractor cannot avoid his responsibility to pay damages. Learned counsel appearing for the plaintiff has vehemently opposed the instant application and has inter alia contended that the defendant No. 4 is properly joined and is very much necessary and proper party in whose absence no effectual and complete adjudication of the present suit will be made upon questions involved in the suit and the same will not be settled. Therefore, it is incorrect that the name of the defendant No. 4 is liable to be struck out from the plaint. The learned counsel for the plaintiff has further contended that the paper rolls, which were loaded in the said container owned by the defendant No. 4 were not properly tagged and the defendant No. 4 violated the safety and protective measures in this regard and did not take any steps to lash properly the laden rolls properly, which resulted in falling of said container from the trailer and caused the death of deceased. The learned counsel further contended that the defendants including the defendant No.4 are guilty of composite negligence and default, mal-feasnace, non-feasance, misfeasance, breach of performance of duties, dereliction in adhering to the statutory obligations and wrongful act on the part of defendant No. 4 and others, who are liable jointly and severally to pay compensation to the plaintiffs. The learned counsel for the plaintiff has also reiterated the para of the plaint, wherein the plaintiff has narrated the averments according to which cargo is not loaded into the container properly, which caused the toppling down of the carrier along with container loaded on it. He further contended that according to the manual for Container Packing introduced by Messrs Hapag-Lloyd Container Line in order to safe and secure delivery of cargo it is referred therein that while packing a container or securing a cargo, attention should be given to the guidelines for packing and securing cargoes in containers for transport by Land or by Sea (Container Packing Guidelines) issued by International Maritime Organization and International Labour Organization (ILO). These are general rules for packing cargo according to international safety standards that cargo inside the container must be secured against rolling, tipping and shifting. The learned counsel for the plaintiff states that due to lack of observance of the aforesaid rules by the defendant No. 4 by packing the cargo resulted in the incident. In support of his arguments he has relied upon the case of United States District Court Southern District of New York, May 3, 1977 (Re Houlden & Co. Ltd and others v. S.S. "Red Jacket and American Export Lines Ltd; Metal Traders Inc. Third Party; United States Fourth Party the "Red Jacket"). In this case the plaintiffs were the shippers or consignee of the cargo stowed in 50 containers which were loaded on deck of the steamship Red Jacket, owned by the defendant at New York for delivery at Yokohama. Since the containers were eight years old and had been on 20 to 30 voyages already, broke loose and 3 of the containers containing the cargo were swept overboard. The other seven were damaged. The plaintiffs claimed the damages from the defendants. In this case the damage to the goods was caused while the cargo was on board, therefore, the Court held the vessel was liable for damaged caused to the cargo. Since the same had not been discharge from the vessel. However, in the present case the container had been safely discharged from the vessel of the defendant No. 4 and, thereafter, it was loaded on un-road worthy vehicle, which resultantly met with the incident. Therefore, the case is not relevant to the present case. The learned counsel for the plaintiff has also relied upon the 1986 MLD 1433 Karachi, 2006 MLD 1194 Karachi, 2004 SCMR 1627, 2005 YLR 200 Lahore and 2005 MLD 1409 Karachi wherein liability to pay damages was determined on account of direct or indirect, individual or composite negligence. In rebuttal, Mr. R.F. Virgi has stated that there is no hand of the carrier in loading and packaging the cargo into the containers, the entire loading and packaging of the cargo is done by the shippers themselves, for which the carrier is not at all responsible. The learned counsel for the defendant No. 4 further submits that the plaintiff has not even made the consignors/shippers Messrs ZHEJIANG ZHONGYI PAPER Ind. Co. Ltd., as a necessary party, who is apparently responsible for faulty packaging. The learned counsel for the plaintiff has candidly admitted that in the packaging of the cargo, there is no intervention of the carrier, the defendant No. 4, and the entire cargo was loaded and packed by the consignor for which the carrier cannot be held liable for the negligence occurred during handling of the container after it was discharged from the vessel in safe and sound condition. Moreover, in paragraph-3 of the plaint, the plaintiffs have themselves stated that the defendant No. 6 while driving the offending trailer in a rash and negligent manner, having carelessly placed a 40 feet long container attempted to deflect the course due to which the container toppled off the trailer and the trailer itself turned turtle. I have heard the learned counsel for the parties at length, perused the case-law and material available on the record of the case for tentative assessment for the purpose of deciding this application. I am fully in agreement with the arguments extended by learned counsel for the defendant No. 4 that once the cargo was discharged from the ship and freed from the ship's tackle the liability of the carrier ends immediately, therefore, I am of the view that there is no connection of the defendant No.4 with the incident that has taken place resulting in death of the deceased. Consequently, I allow the instant application and order that the name of the defendant No.4 be struck off from the array of defendants from the title of the plaint. AG/A-149/Sindh Order accordingly.