P L D 1971 Karachi 99 (PLP)

(i) act or omission of the shipper or owner, of the goods, his agent, or representative; (j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; (k) riots and civil commotions; (l) saving or attempting to save life or property at sea; (m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the Goods ; (n) insufficiency of packing ; (o) insufficiency or inadequacy of marks ; (p) latent defects not discoverable by the diligence; (q) any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage." The relevant clause which is material for the present case is clause (b) which runs :- "fire, unless caused by the actual fault or privity of the carrier." This clause may be divided into two parts. The first part relates to the fire and the second part relates to the fault or privity of the carrier. The bare reading of this clause clearly dispels the contention raised by the learned counsel for the plaintiff that the burden of proof lay upon the defendant. The rule contained in clause (b) is the exception introduced for the benefit of the carrier. It isl no doubt true that whenever protection is claimed under any exception the burden is upon the party seeking the protection A but in the present case the exception consists of two parts as pointed out, first part relates to the fire and certainly the burden is upon the defendant to prove that the goods were damaged by fire and once that has been established the second part comes into play and the burden shifts to the plaintiff to prove that fire had broken out on account of actual fault or privity of the defendant. The use of the word "unless" clearly supports this position. No other interpretation is possible. This opinion of mine is further fortified by clause (q) of the Article which reads as under :- "(q) any other cause arising without the actual fault or privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage." It is clear that in the above clause the burden of proof of the absence of actual fault or privity has been placed upon the carrier but that has not been the case so far clause (b) is concerned. In case the Legislature intended to throw the burden of disproof of actual fault or privity on the carrier relating to clause (b), nothing prevented the Legislature to adopt the same rule as was done in the case of clause (q). Thus the Legislature intentionally exempted the carrier from disproving the actual fault or privity in case of fire. What is not intended by the Legislature can not be introduced by an interpretation which is not warranted by the bare reading of the provisions of law. Support may also be sought from paragraph 1 to Article IV which reads as under :- "Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and coot chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this section." In this too the burden of proving the exercise of due diligence has been placed upon the carrier or any other person claiming the exemption thereof. The consideration of the various provisions of law leaves no doubt in my mind that the burden of proof of actual fault or privity of the defendant lies on the plaintiff. This is confirmed by the authority in the case of Adam Ltd. v. Muhammadi Steamship Co. Ltd. (P L D 1962 Kar. 227) The conclusion observation appearing at page 237 reads as under: "The true view of the law, therefore, at least on the provision of the English Carriage of Goods by Sea Act 1924, and our Act of 1925 is as summarised by Carver (at page 196 and reproduced above) with regard to the burden of proof of an exception which falls under Article IV-2 of the Acts. The carrier has to prove exception whenever loss of or damage to cargo is proved to have taken place after shipment and before delivery to the consignee, and the burden of proving negligence to defect it is on the shipper or consignee." Thus his Lordship made it clear that if the exception was claimed the burden would be upon the shipping company and with regard to negligence, the burden would be upon the shipper or consignee. So it becomes clear that the defendant has to establish that the goods were damaged by fire but to hold him B liable to the burden rests upon the plaintiff to rove that the fire was due to the actual fault or privity of the defendant. "However, the learned counsel for the plaintiff placed reliance upon two English authorities. In the case of Learned's Carrying Company Ltd. v. Asiatic Petroleum Company Ltd. (1915 A C 705) and Standard Oil Company of New York v. Clan Line Steamers Ltd. (1924 A C 100). But both these authorities are clearly distinguishable and do not cover the present case. In the first place in both of those cases damage to the cargo was caused by unseaworthiness of the ship as special precautions were not taken and on evidence the negligence of the ship owners was established. It was in these circumstances that it was held that the ship owners had failed to discharge the onus which lay upon them of proving that the loss occurred without their actual fault or privity. Secondly those authorities are based on section 502 of the Merchant Shipping Act, 1894 which reads as under:- "The owner of a British sea-going ship, or any share therein, shall not be liable to make good to any extent whatever any loss or damage happening without his actual fault or privity in the following cases, namely:- (i) where any goods, merchandise, or other things what soever taken in or put on board his ship are lost or damaged by reason of fire on board the ship; or (ii) where any gold, silver, diamonds, watches, jewels, or precious stones taken in or put on board his ship, the true nature and value of which have not at the time of shipment been declared by the owner or shipper thereof to the owner or master of the ship in the bills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with, or secreting thereof." In this section the word "without" has been used, and therefore, it necessarily places the burden to prove the absence of actual fault or privity upon the carrier, whereas in the present case the word "unless" has been used. The contention of the learned counsel for the plaintiff that there existed no distinction between the words "unless" and "without" cannot be accepted. It was further urged by the learned counsel for the plaintiff that the defendant had appointed James Finlay & Co, to hold inquiry in order to ascertain the cause of fire and report was also received but that report bad been withheld and, therefore adverse inference should be drawn against the defendant and on the basis of this it should be held that the fire was actual fault and privity of the defendant. I am unable to accept this contention. Even the plaintiff did not call upon the defendant to produce the report. Moreover, as already held, the burden of proof lay upon the plaintiff and he failed to discharge it, and therefore, there was nothing on record for the defendant to rebut. Turning to the loss by fire it is an admitted position that 12 bales were affected by fire. Each bale contained 40 bundles, so the total number of bundles amounts to 480 bundles. It is also an admitted position that out of them 246 bundles had caught fire and the remaining 234 bundles were damaged by water used to extinguish the fire. Thus with regard to 246 bundles there is no dispute that the plaintiff is not entitled to claim anything by way of damage or contribution on the basis of general average, as it is not established, as already held, that the fire was as a result of actual fault or privity of the defendant. So far the remaining 234 bundles are concerned the learned counsel for the plaintiff claimed compensation on the basis of general average and this question will be dealt with in the next issue, which deals with general average. Issue No. 2.

This issue relates to the question of general average. The law of general average is well established and it is not necessary to dwell upon it. It will suffice to say that general average is a contribution towards all the losses which arise in a consequence of extraordinary sacrifice made or expenses incurred for the preservation of ship on cargo and must be borne proportionately by all who are interested, that is to say, some C part of the cargo is sacrificed to save the remaining cargo or ship and the lives of the people on board. In order to secure the contribution it is the duty of the ship-owner to declare general average and if the ship-owner fails to declare it he becomes liable to the cargo owner so far the cargo has been sacrificed.1 In the present case it is an admitted position that the defendant whose duty it was to declare general average did no; do so and, therefore, he is liable to compensate the plaintiff for any loss caused to the plaintiff for the portion of the cargo which was damaged by water. I have already pointed out that there were 15 bales which were exclusively damaged by water and it was conceded by the learned counsel for the defendant that the defendant was liable to p-3y for these 15 bales. Taking up the 234 bundles which were damaged by water, as referred to in the previous issue, there exists a dispute between the parties. It was contended by the learned counsel for the plaintiff that there were separate bundles in each bale and, therefore, the bale must be divided into bundles and each bundle must be treated as separate unit for the purpose of assessing damage. According to him the bundles which were damaged by water only should be brought under the general average. On the other hand, it was contended by the learned counsel for the defendant that each bale must be treated as a separate unit irrespective of the fact that some of the bundles were not burnt, and, therefore, all those bales must be excluded for the purpose of general average. In this connection reference may be made to the bill of lading. It contained a clause that general average shall be payable according to York Antwerp Rules, 1950. The rule which is relevant for consideration is Rule 3 of York Antwerp Rules, 1950 which reads as under: "Damage done to a ship and cargo, or either of them, by water or other%vise, including damage by beaching or scuttling a burning ship, in extinguishing a fire on board the ship, shall be made good as general average; except that no compensation shall be made for damage to such portions of the ship and bulk cargo, or to such separate packages of cargo, as have been on fire." In interpreting this rule it was contended by the learned counsel for the plaintiff that each bale could be treated as bulk cargo and, therefore, the portion which was damaged by water could be treated under general average or in the alternative the words "separate packages" should be referred as separate bundles contained in the bale. On consideration of the aforesaid rule I find considerable force in the contention raised by the learned counsel for the plaintiff. In the Law of General Average by Lowndes & Rudolf (Vol. VI1 of the British Shipping Laws 1964, 9th Edition) this question came under discussion and at page 140 paragraph 140, it was observed as under: "Yet the loss by fire of the rest of the cargo might have been inevitable if the water had not been poured over it; and the argument that the water had on the whole done no harm might equally well be advanced in such a case with regard to that part of the cargo. If the package which has been on fire has retained some value, and the damage done by the water can be separated from that done by the fire. It seems more in accordance with principle to allow the former." The decision of Channell, J. in Greenshields v. Stephens was challenged in appeal but it was affirmed as reported in (1908) 1 K B

51. It was observed that the words "such portion of bulk cargo as have been on fire" in the exception in rule 3 of the York Antwerp Rules did not refer to physical division of the means of bulkheads so as to constitute the entire contents of each hold "one portion" within the meaning of the rule, but meant so much of the coal on board the ship as had been actually ignited. This decision was also confirmed by the House of Lords as reported in 1908 A C

431. Although in the above case the coals were not packed in bales and there were no separate packages, having been kept loose in the holds of the ship but the principle laid down by the aforesaid authority is the same and is fully applicable to the present case. I, therefore, hold that the bundles which were damaged by water only must be separated and be brought by under general average for the purpose of compensation. As regards the amount which can be claimed on the basis of general average it was contended by the learned counsel for the defendant that there was no satisfactory proof of it. On consideration of the evidence brought on record I am unable to support this contention. The plaintiff produced the invoices Exhs. 5/ 12, 5/ 13 and 5/ 14 which give full description of the goods as well as the rate and valuation. According to the evidence of Mr. Najimul Ilassan witness for the plaintiff, the invoices were handed over by the plaintiff before the insurance policies were issued. The correctness of these invoices was also established by the evidence of Naseem and Muhammad Siddik. Nothing was brought on record to treat their evidence as unworthy of credence. On the basis of these invoices the learned counsel for the plaintiff produced a statement during the course of the arguments which shows the value of the bales which were affected by fire or water at Rs. 21,613.90 ands out of this amount Rs. 6,261 has to be deducted being the value of the bundles which were burnt, and, therefore, the balance comes to Rs. 15,452.90 and to this an amount of Rs. 160, as survey fee has to be added. So this amount works out to Rs. 15,612.90. Issue No. 3.

It was conceded by the learned counsel for the defendant that the defendant was liable for the short delivery of 7 bales but he disputed the value of those bales. According to him their value was to be taken as Rs. 5,720 being the loss incurred as there was no satisfactory proof to arrive at the value of those bales. On the other hand the plaintiff claimed Rs. 93,20 as price of those bales. On the basis of the evidence on record I accept the claim made by the plaintiff. This is supported by the evidence of Muhammad Nazim who stated that three bales were of 40/S Talpur 4 bales were of 40/2 of Valika Mills. These bales are shown in invoices Exhs. 5/12 and 5/13 valuing Rs. 4,200 at the rate of Rs. 35 per bundle and Rs. 5,120 at the rate of Rs. 42 per bundle respectively. Nothing has been brought in cross-examination to discredit the testimony of the witnesses. Consequently the plaintiff is entitled to claim Rs. 9,320 on the basis of short landing of 7 bales. Issue No. 4.

In view of the above findings the plaintiff is entitled to claim the following amount: (1) goods damaged by water Rs. 15,352.90. (2) 7 bales short landed Rs. 9,320. (3) survey fee Rs.

160. In the result the suit is decreed for Rs. 24,832.90 with costs thereon and running interest at 6%. A. E.Suit decreed partly.