P L D 1962 Dacca 676 (PLP)

(7) Have the plaintiffs any cause of action against defendant No. 3.

6. The trial Court accepting the case of the plaintiffs decreed the suit in part against defendant Nos. I and 2 and dismissed the suit against defendant No. 3 with costs amounting to Rs. 200 consolidated to be paid by defendants Nos. 1 and

2. Hence the present appeal at the instance of defendants 1 and 2.

7. Mr. Md. Mozammel Huq, the learned Advocate for the appellants, has placed the following points : The first ground is that the defendants Nos. 1 and 2 cannot be held res ponsible for 141 bags as they were landed under "Nil" mark. In support of this contention he has relied on a letter written by defendant No. 2 to the plaintiffs on the 9th August 1952, showing defendant No. 2's readiness to replace the shortage. It appears that this letter was written by defendant No. 2 to the plaintiffs in reply to a letter written by the plaintiffs to the defendant No. 2 on the 7th August 1952. The said letter written by defendant No. 2 has been marked as Exh. A‑

1. The learned Advocate for the appellants has also relied on Exh. A‑2 dated the 20th June 1952, an amended out‑turn report of the S.S. "Ocean Endeavour." The relevant portion of Exh. A‑1 runs as follows: "With reference to your No. 57/IC/15 of the 7th instant regarding the caption subject we are to advise you that at our recent discussions with your representative we confirm having offered to replace your shortage from the unmanifested excess a/c this vessel from the Agent's Godown. Kindly let us know whether you are agreeable to this proposal." This letter does not clearly show that the 141 bags were landed at the Jetty but it only goes to show that defendant No. 1 was ready to replace the shortage from the unmanifested excess a/c to that vessel from the Agent's Godown. Exh. A‑2 dated the 20th June, 1952, an amended out‑turn report of the S.S. "Ocean Endeavour" conclusively goes to show .hat there were 6 consignments and short delivery was 2,205 and that 141 bags of rape‑seeds were not landed at the Jetty to be delivered to the plaintiffs. Out o f the short delivery described in this exhibit it appears that out of 18,200 maunds of salt, 18,60 maunds of salt were not landed and out of 52,27 bags, 350 bags were not landed. At the middle of Exh. A‑2 the following writing is seen : "Cargo landed with mark & no mark not appearing in the Import Manifest. "The number of bags under this heading comes to 183; of which 40 bags of rape‑seeds have been shown with remark "sweeping" and 7 Drs. in empty condition. It further appears that the word "rape‑seed" has been only written against 82 bags, 4 bags and 40 bags but as against other 50 bags there is no note showing whether they were bags of rape‑seed or not. But from the evidence of D. W. 1, who has been examined by Jetty authorities it appears that 9 bags of rape‑seeds were handed over to Khalil Valley subsequently. So it can be taken that 1,805 bags of rape‑seeds were sent by Khalil Valley and there was short landing of 41 bags. We also find short landing of 161 bags against 2 T. M. & Co. From this the argument that has been advanced by the learned Advocate for the appellants that all the bags sent by the plaintiffs per S.S. "Ocean Endeavour" were landed at Chittagong, is not borne out. It is the plaintiffs' case that all these bags were sent under the mark "GANI". It is not the defendants' defence that those marks were any where defaced by water or anything else. So the note given in Exh. A‑2 that the "Cargo landed with mark & no mark not appearing in the Import Manifest" does not go to prove that 141 bags as shown in that Exh. as short landing were that of the plaintiffs and were included in those items. No evidence has been given by defen dants 1 and 2 to show that the bags that have been shown under "cargo landed with mark & no mark not appearing in the Import Manifest' included 141 bags belonging to the plaintiffs under the mark "GANI". These two documents relied on by the learned Advocate for the appellants do not go to show that 141 bags belonging to the plaintiffs were landed at the Jetty. Furthermore, from the evidence of D.W. 1, it is clear that 141 bags of the plaintiffs were not landed. It also appears from Exh. 5, short landing certificate, that 141 bags under the mark "GANI" were not landed at Chittagong. Exh. A‑2 also goes to show that those 141 bags were not landed at Chittagong. So on the evidence it has been sufficiently proved by the plaintiffs that there was short landing to the extent of 141 bags, and as such we do not find any reason to interfere with the finding of the trial Court to the effect that there was a short landing of 141 bags.

8. In this connection the learned Advocate for appellants has relied on the explanation to section 73 of the Contract Act and 2 passages from Carver Carriage of Goods by Sea, Tenth Edition, at pages 972 and

973. Section 73 of the Contract Act provides for compensation for loss and damage caused by the contract. Explanation to that section provides: "In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconven ience caused by the non‑performance of the contract must be taken into account." The passages relied on Carver Carriage of Goods by Sea go to show that the plaintiff must mitigate loss and the plaintiff must take reasonable steps to mitigate loss. We accept the aforesaid principle as a sound one. Now we are to see whether the said principle is applicable to the case before us.

9. It is contended by the learned Advocate that in view of the Explanation to section 73 of the Contract Act and also the observation made in those passages, the plaintiffs are not entitled to a decree for 141 bags as they did not take the goods by which the defendant No. 2 wanted to replace the plaintiffs' loss.

10. The applicability of the Explanation is dependent on the facts of each case. In the present case it is the plaintiffs' case that they asked the defendant No. 2 to make good the loss they incurred but the defendant did not take any steps to replace their goods : that at some stage the defendant No. 2 offered to replace which was accepted by the plaintiffs and that the plaintiffs sent a man to have that but the defendant No. 2 did not hand over any goods to their man. This has been proved by P. W. 1, an officer of the plaintiffs. We do not find any justification in rejecting his evidence. This evidence of P. W. 1 has not been categorically challenged by the defendants. Furthermore, D. W. 2 who has been examined by the defendants Nos. 1 and 2 has not stated on oath that defendant No. 2 offered to replace 141 bags of rape‑seeds and the plaintiffs did not take delivery of the same. It is also seen from the written statement filed by the defendants Nos. 1 and 2 that no case has been made out to the effect that the defendant No. 2 wanted to replace the 141 bags and the plaintiffs refused to take. Rather from paragraph 8 it appears that their definite case is that 141 bags were landed and the plaintiffs have not given any explanation why they did not take delivery of those bogs of rape‑seeds. In these circumstances it cannot but be held that there is no laches or negligence or refusal on the part of the plaintiffs to take delivery of any bags of rape‑seeds offered by the defendant No. 2, if there be any, and that there was no delivery, though the plaintiffs were willing to accept the replacement.

11. The next ground is directed against the 60 bags of rape‑seeds, which have been damaged. It is contended on behalf of the appellants that as soon as 60 bags of rape‑seeds were landed, the shippers responsibility ceased ; that the plaintiffs had no right to refuse to take delivery of the 60 bags ; that extent of damage had not been proved ; that the defendants are protected by rule 2 (c) of Carver Carriage of Goods by Sea ; that there was no allegation of negligence by the plaintiffs and as such the defendants had no opportunity to meet the same and that the 60 bags were damaged by salt water. In the present case it has been sufficiently proved by the defendants' witness No. 1 and other evidence that the 60 bags were damaged while they were in lighters belonging to defendant No.

2. So, assuming that there was damage, whatever that might be there is no doubt that it occurred when in charge of the defendant No. 1 and that the damage did not take place while in custody of the Jetty authority. Furthermore on learning that the 60 bags were damaged, the plaintiffs requested defendant No. 2 to have ‑a survey of these goods. It also appears from the plaintiffs' witness No. 1 that defendant No. 2 appointed a surveyor who submitted a report showing that 58 bags which were available were of no market value. It further appears that at some stage of the proceeding, the plaintiffs filed an application before the Court for directing the defendants Nos. I and 2 to produce the report submitted by the surveyor but the defendants Nos. 1 and 2 without submitting the report filed an application stating their inability to produce. The learned lawyer for the appellants also contended that no surveyor was appointed but it appears from the evidence of plaintiffs' witness No. 1 and the defendants' witness No. 2 that a surveyor was appointed. In cross‑examina tion of defence witness No. 2 he has categorically stated in an unguarded moment to the effect: "I can't say if we have sent the survey report to our principal" thereby admitted that there was a survey and the report was submitted to them by the surveyor. Furthermore it has been categorically stated by the plaintiffs in their plaint as well as in the evidence that the goods surveyed were of no marketable value and as such they refused to take delivery of these goods; that they directed defendant No. 2 to take delivery of those goods. Defence witness No. 2 has deposed that defendant No. 2 are the agents of defendant No. 1 who are the owners of S.S. "Ocean Endeavour" and that all bags of plaintiffs' consignment as well as other consign ments were landed to the Jetty. He does not speak of the damaged 60 bags. He is silent about that. But from the evidence of D. W. 1 we find that the 60 bags were landed in damaged condition in the Jetty that the Jetty Authority is not liable to the plaintiffs; that other unconnected and undisposed of goods had been taken to the K. Shed by the steamer Agents ; that shortage of 141 bags has been shown in the auction report which has been accepted by the steamer agents ; that rape‑seeds of other consignees were also landed with shortage ; and that damage might have been caused in the lighters of the steamer agents. So, in our opinion, in such circumstances, the plaintiffs were justified in refusing to take delivery of 60 bags of rape‑seeds.

12. In this connection it has teen further contended that by virtue of the contract in the bill of lading, the defendants Nos. 1 and 2 are not responsible for any loss or damage and for this purpose the learned Advocate for the appellants has relied on conditions 1, 2 and 4 of the bill of lading and also some portion of the second paragraph. As to the contention that the defendants will not be responsible for non‑delivery or any damage we find at the beginning of this bill of lading a passage which is most material for the purpose of decision on this contention. The paragraph runs as follows: "All the terms, provisions and conditions of the Indian Carriage of Goods by Sea Act, 1925, and the Schedule thereto are to apply to the contract contained in this Bill of Lading and the Company are to be entitled to the benefit of privileges, rights and immunities contained in such Act, and the Schedule thereto as if the same were herein specifically set out. If any thing herein contained be inconsistent with the said provisions, it shall to the extent of such inconsistency and no further be null and void. It is hereby expressly further agreed in pursu ance of the provisions of Article 7 of the Schedule to the said Act that the carrier's liability prior to the loading on, and subsequent to the discharge from the ship shall be governed by the conditions and exception of this Bill of lading." Now a similar case came up before another Division Bench of this Court for consideration and the following observation after considering the aforesaid passage was made in the case of Trans‑Oceanic Steamship Company Limited and another v. Abdul Razak‑Abdul Kader and another (P L D 1960 Dacca 147). "In view of this paramount clause, this Shipping Company cannot escape liability for loss due to their negligence. We are, therefore, unable to accept the extreme argument of Mr. Pal that the shipowner was exempted from all liability whatsoever for the loss of 9 drums, and that they were also excused from giving any explanation for the loss."

13. We fully endorse the aforesaid view. Furthermore in our opinion, when a shipping Company accepts some goods at a Port to be delivered to its destination ordinarily it takes the responsibility to deliver in the condition in which it took delivery. If there be damage or loss, the Shipping Company cannot escape liability unless they can give reasonable explanation for it, or they are otherwise relieved of, or the consignor lives the obligation of the Shipping Company by contract. In the present case, the aforesaid passage conclusively goes to show that the plaintiffs by the terms of the contract in the bill of lading did not relieve the Shipping Company of its obligation to deliver the goods in the condition in which the Shipping Company re ceived from the plaintiffs. If the defendants want to get rid of the liability they must give sufficient explanation but they have given none. Defendants 1 and 2 have not given any cogent reason how the damage occurred and how the goods were lost. It is in the evidence of defendants' witness No. 1 that there was short landing of 141 bags of rape‑seeds and that the damage might have been caused while in the lighters belonging to defen dant No. 2, the agents of defendant No. 1 and that damage was not caused at the Jetty but the 60 bags were landed in a damaged condition. So we find that there is no explanation enabling the defendants Nos. 1 and 2 to get rid of the liability for the damage caused to 60 bags and for the non‑delivery of 141 bags to the plaintiffs. Hence we find that the defendants 1 and 2 are responsible for the short landing and also for the damage caused to the said bags of rape‑seeds.

14. Next it has been contended that there is no evidence adduced by the plaintiffs as to what was the market price at the time the goods were to be landed at its destination and that in the absence of any evidence in support of that the plaintiffs are not entitled to get any decree for any amount. For this reliance has been placed on some passages of Carver's Carriage of Goods by Sea, 10th Edition, at pages 987 and

989. We find at page 990 the following passage: "Apart from special circumstances, which may affect the case in such ways as we have been considering, the value of the goods for which compensation must be made, when they have been lost, or damaged, is that which they would have had at the time and place, at which they ought to have been delivered."

15. There is no dispute as to the applicability of the said principle but in the evidence of P. W. 1 we find that market price has been valued at Rs. 59 puls 10 per cent profit, namely, the market price that has been proved by P. W. 1 is Rs. 56/ + 10%. This price was also stated in the plaint. The defendants Nos. 1 and 2 did not categorically state that, that was not the price but only alleged that defendants Nos. 1 and 2 did not admit the price quoted by the plaintiffs in their plaint and put the plaintiffs to prove. The statement of P. W. 1 that market price is 56/‑+ 10% has not been challenged in the cross‑examination by the defendants Nos. 1 and 2 and the trial Court has not decreed the suit at Rs. 56/+ 10%. per bag but has decreed at Rs. 56 against which there is no cross‑objection preferred by the plaintiffs. We find from the evidence that it has been proved what was the market price at the time when and at the place where goods ought to have been delivered.

16. In this connection it has been argued by the learned Advocate for the appellants that they should not have been entangled with the costs of the Government. It is seen from the plaint as well as from the written statement of the defen dants Nos. 1 and 2 that the plaintiffs at first did not make the defendant No. 3 a party but the defendant No. 3 was brought on record as defendants Nos. 1 and 2 pleaded that defendant No. 3 was a necessary party. So it appears that defendant No. 3 was brought on record at the instance of defendants Nos. 1 and 2 and we have found that defendant No. 3 is not responsible as 141 bags were not landed at the Jetty and 1s the damage was not caused at the Jetty, so, we do not find any substance in this argument. In the result, the appeal is dismissed with two sets of costs to the plaintiff arid defendant No.

3. IDRIS, J.‑I agree. S. B./A. H. Appeal dismissed.