P L D 1963 (W (PLP)

"the rule to be adopted is that the several owners become tenants in common in the confused or mixed goods, in pro portion to the quantities which should have been delivered to them respectively." There can be no doubt about the soundness of this rule in those cases, in which the ship‑owner is not responsible for the cause of the confusion and the shipper is.

19. The above discussion, I believe, will be helpful in easily appreciating the issues, except the first of them. They are as follows (1) (a) whether the goods were not delivered to the plaintiffs. (b) If they were not delivered, whether the reason was that the plaintiffs refused to accept them ? (c) If the plaintiffs refused to accept them, whether the reason was that the goods had short‑landed and therefore the plaintiffs' goods could not be offered or that the marks of identification had been obliterated ? (d) If the goods had not short‑landed but the marks of identification were obliterated making the goods unidentifiable, whether this was the result of damage caused to the goods and their packing on account of inherent defect, quality or vice from which they suffered ? (2) Whether any loss of or damage to the goods was caused by the negligence of the steamship Company its servants or agents ? If the answer be in the negative, what is its effect ? (3) Whether the damaged goods delivered to the plaintiffs were damaged because they suffered from inherent defect, quality or vice ? (4) Whether the inherent defect, quality or vice mentioned in the above issues was discoverable by due diligence ? (5) Whether Suits Nos. 796 and 823 of 1955 are barred by time? (6) To what amount of money as damages, if any, are the plaintiffs entitled ? (7) General ?

20. I had proposed the first issue to be the same as in Adam Limited, as follows "Whether any part of the cargo was short‑landed as dis tinguished from being damaged." Mr. Vellani objected to it by saying that it wrongly placed the onus on the plaintiffs to prove that the cargo had short‑landed, and was not damaged. He proposed that it should be "Whether the goods were not delivered to the plaintiffs." In deference to his objection, and with the following expla nation (order dated 3‑1‑62) I have framed the first issue as it is now ; "The proposed issue may represent a part of the pleadings correctly, but does not represent the true state of the pleadings. This can be understood if the following chain of reasoning is kept in mind. The plaintiffs have alleged that the goods were not delivered to them, but the defendants point out that the goods were offered to the plaintiffs, but they did not accept them. The reply of the plaintiffs is that the goods which ‑were offered were not the same as were consigned. To this the reply of the defendants is that they were damaged owing to inherent vice, which resulted in the obliteration of marks. This means that the question of non‑delivery is linked up with the question of inherent vice ; therefore, the real issue between the parties is : Whether the cargo was short‑landed or was merely damaged. In view of this situation of the pleadings, Issue No. 1 was framed to represent the true state of affairs. (2) To avoid the chances of misconceived criticism, I would like to change it by setting out of the steps from the beginning to the point at which the true state of the pleadings may be represented. I, therefore, recast the issue as follows :"

21. Taking up the issues, with the background of all that has been said above, I proceed to decide them as follows hereafter

22. Issue No. (1) (a).‑Mr. Hassan, counsel for the defendants has conceded this issue subject to the reservation that the goods could not be delivered owing to their inherent vice, in the condition in which they were loaded on the ship. The reservation is the subject‑matter of Issue No. (1) (d).

23. Issue No. (1) (b).‑Mr. Vellani has conceded this issue subject to the reservation that the undelivered goods were either not discharged from the ship and were missing or were damaged owing to the defendant's negligence. The reservation is the subject‑matter of Issues Nos. (1) (c) and 2. .

24. Issue No. (1) (c).‑The parties do not dispute that the goods that were offered to and were not accepted by the plaintiffs were damaged and were not identifiable by marks ; therefore the real fact to be found under this issue is whether the seed that was not delivered to the plaintiffs was or was not discharged from the ship.

25. Whatever amount of the seed is proved to have been discharged from the ship but not received by the plaintiffs can be taken to have formed a part of the damaged seed that was laying at the sheds, without discovering its exact amount because it was in the custody of the Port authorities whose negligence is not in issue. Moreover, an emphasis on this method of calculation appears to my mind to be more satisfactory than attempting to correctly assess the weight of the utter rubbish that the damaged seed was and, therefore, at least partly deserving to be treated by the Port authorities with a careless regard for it. It was in such a bad state that the Health Officer had found it to be unfit for human consumption (See Exhs. A‑1 and A‑3 and the statement of Dr. D. Rehman, D. W. 5 in Suit No. 4 1 2) and had ordered it to be dumped (into the sea) to get rid of it. Mr. Vellani has rightly pointed out that the defendants have produced no evidence that the damaged cargo, which was lying at the sheds in loose state or in rotten bags, was either weighed or that the bags were counted by anybody and that counting the bags would also have been unsatisfactory without weighing them, because the fabric of the bags was weak ; therefore, they could have been torn and `bleeding'. The existence of a loose quantity of the seed, assessed on behalf of the defendants to be 170 maunds (See Annexure B t3 the defendants' written arguments), proves that the seed was dripping from the charred bags. Mr. Vellani has further criticised the defendants for not producing as a witness the officer who was in charge of the sheds ; but the officer could not give satisfactory evidence about the storage of 4172 maunds of seed unless there was a proper record of all the contents of the sheds (See Annexure B to the defendants' written arguments). There is no evidence that a record was maintained and, if it was maintained, that it was maintained satisfactorily with respect to a cargo that was waste‑material and litter. The defendants, in any event, were not responsible for its custody or for maintaining its record after it was discharged from the ship.

26. The landing tally slips (Exhs. B‑1 to B‑362 in Suit No. 412) prepared jointly by the ship‑owners and the Port authorities of Chittagong are the first record of the cargo that was discharged from the ship and the (Out‑turn Report Exh. B‑368 in Suit No. 412) is the record prepared on their basis of the cargo that was identified and delivered to the consignees, as well as indirectly, the record of the cargo that was not identifiable by marks and, therefore, could not be delivered to the consignees (See U. A. Asif, P. W. 1 and Ramzan Ali D. W. 4, both in Suit No. 412). It is not a document which may be used to prove whether all the carges that was placed on board the ship was discharged from it or not. Mr. Vellani has, therefore, rightly criticised the landing tally slips as incomplete in com parison with the Out‑turn Report, but he has also criticised the defendants for withholding some of them. It was not in the interest of the defendants to do so and their explanation is that their former agents at Chittagong had last them (see the statement of Ramzan Ali D. W. 4 m Suit No. 412). The tally slips which have been exhibited were produced by Mr. S. M. Maroof, Deputy Traffic Manager (D. W. 2 in Suit No. 412) at the instance of the defendants. The inescapable conclusion, however is that neither the tally slips nor the Out‑turn Report establish con vincingly as to how much seed was discharged at the Port of destination.

27. Mr. Vellani seemed to entertain the view that the short‑landing certificates (Exh. 53 in Suit No. 244, Exh. 10 in Suit No. 512, Exh. 8 in Suit No. 796 and Exhs. 33 and 34 in Suit No. 823) positively proved that the goods shown in them as short‑landed were not discharged from the ship but, as explained by me in Adam Limited, and by Mr. Ramzan Ali, D. W. 4 in Suit No. 812, they do not prove this. The explanations show that the undelivered goods could, in spite of these certificates, have been rotting in the sheds without identifiable marks on them, and as explained by the Jetty Superintendent of Mr. U. A. Asif (P. W. 1 in Suit No. 412) might have been roughly "connected" with the invoices of the plaintiffs, if somebody was interested in taking this wasteful trouble.

28. I must, therefore, turn to another aspect of the evidence. An Export General Manifest is the document in which all the cargo that is loaded on a ship at the port of export is entered and an Import General Manifest is the document in which the cargo that arrives on board ship at the port of destination is shown. The latter and, for the present purposes, the more material document is Exh. 68 (in Suit No. 412). This is a document that is prepared under section 55 of the Sea Customs Act, 1878, and "if any goods entered in the import manifest of a vessel are not found on board of vessel", then under section 167 (17) of the Sea Customs Act, 1878, the Master of the ship is liable to be punished. Mr. Ramzan Ali, D. W. 4 (in Suit No. 412), who was the local Manager of the Muhammadi Shipping Agencies Limited, the agents of the defendants at the time of the arrival of the ship, has stated that "no objection was taken by the Customs Authority in this casal against the steamship company on account of the short‑landing of cargo." There is no suggestion to the contrary from the side of the plaintiffs, which indicates that the Port Authorities did not hold the defendants responsible for the shortage of the cargo.

29. On this evidence I have to decide whether the plaintiffs' goods had not arrived and were missing, or that they were unidentifiable and as such not deliverable by marks. There is no evidence to mathematically or logically establish as to how much of the plaintiffs' seed was or was not discharged from the ship and as to how much of it was stored at the sheds, but, as has been pointed out by philosophers and mathematicians, nothing can be fully proved except in mathematics ; for logic too is handicapped by the vagaries of language. This kind of strict proof is, however, not demanded by law, for a fact is taken under section 2 of the Evidence Act as "proved" when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist."

30. Such material is on the record of these suits. To appreciate it I should note firstly, that there is no suggestion and nothing on the record to indicate that any part of the cargo was removed from the ship by plunder, theft, act of the enemy or by being jettisoned. Secondly, it is admitted by the plaintiffs as well as by the defendants that a part of the seed had deteriorated. The process of deterioration could undoubtedly result in the reduction of its bulk because it could be "com pletely baked to ashes" (See the letter of the Health Officer regarding seed carried by ss. Pakistan Prosperity in the same month Exh. A‑4 in Suit No. 412). There is, of course, no measure by which one might tell as to what proportions in bulk it should have assumed after deterioration so that the actual available quantity could be compared with that standard, but it was equally futile for Mr. V ellani to contend that a part of the seed was missing on the ground that its bulk was smaller, and for Mr. Hassan to attempt to justify the defendants' plea that no part of it was missing by trying to argue that there was no reduction in its volume as compared to what it was when outwardly sound bags of seed were loaded on the ship. The deteriorated condition of the seed itself was the explanation of obliteration of the marks as well as of its shrinkage in volume. This appears to be the reason why the Port Authorities did not take action against the ship‑owners under section 167 of the Sea Customs Act, 1878.

31. The conclusion, therefore, is that the plaintiffs refused to take delivery of the damaged seed owing to its unidentifiability only.

32. Issue No. (1) (d).‑The most important dispute between the parties is on another question which is : whether the deteriora tion of the seed was the result of inherent defect, quality or vice of the seed or not ? This inherent vice is to be distinguished from a defect that might have been created during the voyage owing to negligent treatment of the seed by the defendants, because the seed could be internally heated if the holds in which it was stowed were not sufficiently ventilated and, perhaps, could also deteriorate by too much ventilation because, according to Dr. A. Sattar (D. W. 9 in Suit No. 412) it could absorb moisture during the voyage. The plaintiffs have not given, and could not give valuable evidence on this question, because they have never acknowledged that they suspected it to be defective. The expert evidence (Dr. Abdus Sattar, formerly Deputy Director of Agriculture and at the time of his evidence Principal, Agri cultural College, Lyallpur D. W. 9 in Suit No. 412) shows that rape‑seed can absorb extra moisture at time of its maturity when the crop is still standing if. the weather is cloudly and needs to be cured by proper storage and exposure to the sun. The plaintiffs did not even know the places where this seed had grown so that they could think of the possibility of extra moisture in it, and could not treat it with special care because they never doubted its quality. They have described the usual care with which they are said to have treated seed in every season, but this is not an answer to the charge that this seed was not treated by them for curing it of its vice. The defendants were able to think of its quality probably because they were receiving claims for damages from the shippers and did apply in Suit No. 412 for particulars of the places of its origin. The plaintiff position with respect to that application is explained in my note of the 3rd of January 1962, recorded in that suit, as follows :‑ "Mr. Vellani admits that it is not possible to give more information than to say that it had grown in the area of the former Punjab, but even this fact was not disclosed in answer to the request (of the defendants) for better particulars."

33. The defendants were, therefore handicapped in making a selection of precise evidence to prove the quality of the seed. They had the alternative to produce all possible evidence but they did not adopt it and Mr. Hassan convincingly pleaded that they were excusable because the magnitude of the task with its obvious wastefulness was the creation of the plaintiffs' own inadequate information. They have produced two meteorological statements, examined Mr. Abdul Haye, Regional Director, Regional Meteorological Centre, Lahore (D. W. 10), Mr. Hashmatullah, Regional Director, Regional Meteorological Centre, Lahore (D. W. 4), Dr. Abdus Sattar (mentioned above) as an expert on the behaviour and characteristics of the rape‑seed and Mr. S. M. Maroof, Deputy Traffic Manager, Chittagong Port (D. W. 2) who has stated that "it is correct that in or about March 1954, huge quantities of rape‑seed were discharged in damaged condition also by ss. Al‑Hassan and other Karachi Steamers. I did see there damaged rape‑seed personally both in the hatches and on shore. The nature of damage to the rape‑seed discharged by the Karachi vessels during that period was of similar nature." These are all disinterested witnesses. Mr. Abdul Haye has not supported the defendants, because he could net do so on the basis of the meteorological statement which was shown to him, but Mr. Hashmatullah has corrected the statement with the help of the official record and stated that there was excessive rainfall, humidity and cloudiness in Sialkot, Lahore, Jhelum, Rawalpindi, Khushab, Lyallpur, Montgomery and Multan in various months from October 1953 to March 1954. Dr. Abdus Sattar has stated that rape‑seed, called "Toria", which is grown in the area of the former Punjab, is harvested in December and January and is ready for marketing in March. He explained that "the weather was exceptionally cloudy during the season. The sunshine during January and February 1954, was not sufficient to make Toria seed dry enough to stand the long sea voyage, which would ordinarily last for 20‑30 days. I may state that during the voyage also Toria seed is apt to absorb more moisture. Drying of this Toria seed consignment in March or April would have been essential before shipping, but there too, it would have absorbed moisture during voyage, as this is the characteristic of rape‑seed."

34. This evidence shows that the rape‑seed suffered from inherent vice before it was loaded on the ship, but it has been criticised by Mr. Vellani as imperfect as well as incomplete. It is imperfect because Mr. Hye has not supported the defendants, and incomplete, because `Toria' is grown at many more than the eight places named above. The criticism is correct but inconclusive because the seed was certainly damaged when it was discharged from the ship which indicates that defect must have been either existing in it before it was loaded on the ship or was created in it during the voyage. Mr. Vellani has suggested that it was created during the voyage as a result of the defendants' negligence and that the defendants have not produced evidence to avoid this conclusion. I have therefore, to examine whether he is right.

35. The defendants have placed on record the stowage plan (Exh. 75 in Suit No. 412), the log‑books (Exhs. 69 and 70 in Suit No. 412) and examined Muhammad Hayat Khan, their Cargo Supervisor (D. W. 6 in Suit No. 412) who has stated "the method of stowing the cargo, which was adopted for the voyage to which this suit relates of ss. AI‑Saiyedah was same as adopted for stowing cargo in other vessels on other voyages." They have produced a number of plaints and written state ments (Exhs. 77 to 94 in Suit No. 412) from other suits to show that there was litigation in this period owing to damage to the seed. Their evidence read with the statement of Mr. S. M. Maroof (reproduced above in paragraph 33) has become con vincing, because Hussain Mian Bhai (P. W. 8 in Suit No. 412) has stated on behalf of the plaintiffs that "from 1951 onwards we have been regularly shipping large quantities of rape‑seed from Karachi to Chittagong. During the period beginning from 1951 to 1961 we have shipped rape‑seed from Karachi to Chittagong in more vessels than one or two dozens. We have been shipping about one lac of bags of this seed every year. I have a recollection that in March 1954 we had consigned rape‑seed from Karachi to Chittagong in ss. `Fakirjee Cowasjee', ss. 'At‑Hassan' and ss. `Pakistan Prosperity'. A small portion of the consignments sent by all the three ships was found to have been damaged. The rape‑seed consigned by us from Karachi to Chittagong in other years was also damaged, but the nature of the damage was different. The damage was caused by sea water."

36. Mr. Vellani has criticised this evidence also as incomplete and urged that stowage must have been defective and that ventilation of the holds must have been improper. To quote him from his written arguments, he has further said "the only way in which accurate information could have been obtained as to proper ventilation and stowage was by arranging a hatch survey when damage was found. This is sound practice‑See Thomas, page

58. But no hatch survey report has been produced, although such survey appears to have been held as per entry in log‑book dated 2‑4‑1954. As to inherent vice As to inherent vice, there is no direct evidence that the goods did in fact suffer from inherent vice. Plaintiffs in Suit No. 412/1955 requested chemical examination of the damage rape‑seed‑See Exh. 18, but this was declined‑See Exh.

22. Yet the damaged goods appear to have been analysed chemically, as would appear from Mr. Hemain, D. W. 7, Exh. 76, lines 174 to 178, and an application by defendants for examination of an expert in London filed in Suit No. 412/1955, which was dropped on 22‑8‑1960. The interro gatories show that the expert had examined damaged rape‑seed of the season 1953‑

54. This direct evidence is withheld by the defendants." A reference to the book on Stowage by Thomas (4th Ed.) at page 58, shows that the author has pointed out the advisability of surveys only. There is no positive or satisfactory evidence that hatch surveys were held on behalf of the defendants and that the reports were deliberately withheld by the defendants. As to direct evidence of inherent vice, the application for examining an expert witness in London was withdrawn because no report came from there for two years. The suspicion expressed regarding defective stowage and improper ventilation is removed, because stowage was as usual and because no definitely correct method of ventilation to suit this seed has been proved.

37. I am, therefore, satisfied that the seed suffered from inherent vice before it was loaded on the ship and that this inherent vice has resulted in the damage which has occurred.

38. Issues (2) and (3).‑The above discussion leads to the conclusion that these two issues be decided against the plaintiff's. They are decided accordingly.

39. Issue (4).‑The inherent vice was not known to the plaintiffs and was obviously not discoverable by the defendants who accepted the bagged cargo for transportation.

40. Issue (5).‑This issue was not pressed.

41. Issue (6).‑This issue does not arise in view of the above decisions.

42. Issue (7).‑In conclusion of all the foregoing facts and discussion this issue is decided against the plaintiffs. The suits are accordingly dismissed with costs. A. H. Suits dismissed.