P I (PLP)

WAHIDUDDIN AHMED, J.-This Letters Patent Appeal is from the judgment of a learned single Judge on the original side of this Court in Suit No. 292 of 1955 dated the 5th October 1961. By this judgment the learned single Judge passed a decree for Rs. 79,316-100.7 with proportionate costs and interest from the date of the suit until recovery at the rate of 6 per cent per annum. The dispute between the parties arose in the following circum stances.

2. The appellant chartered the respondent's ship known as ss. Safina-e-Tariq under a- charter party agreement dated the 11th December 1954. The ship was chartered for carrying 4,006 tons of undecoaticated cotton-seed oil cakes from Karachi to three parts of the U. K. This contract is contained in letter dated 11th December 1954 (Exh. 6/1) which is reproduced below : "With reference to our conversation with you, we confirm having agreed to carry a full load of your cargo of cotton-seed oil cakes undecorticated from Karachi to three U. K. ports, i.e. Avonmouth, Liverpool and Manchester or Glasgow at our option, on the following terms and conditions. (1) That you will undertake to give a full load to the vessel upto a maximum of 4,000 tons deadweight. (2) That you will bring cargo alongside the vessel ready for loading with all formalities completed and papers in order latest by the 16th instant at the rate of minimum 500 tons per day. (3) That you will have no objection to our carrying a part of the cargo on deck on the usual 'on deck' terms and conditions. (4) That freight will be paid by you to us at the rate of sh. 130 per ton of 20 cwt. gross. The freight will be paid to us by you in Pakistani currency as follows (a) 25 % of the estimated freight in advance on confirming this agreement. (b) Balance of the freight within four days of the sailing of the vessel. (5) That in case you fail to provide the cargo as per clause (2) above, you will be responsible to pay us a demurrage of Rs. 2,000 per day and. that if you fail to supply the required. Full quantity, you will pay dead freight for the space left unutilised. (6) That the above arrangement is subject to voyage licence from the Controller of Shipping. This arrangement is subject to your immediate "confirmation and payment of 25 % of the advance as stated above." It is not disputed that the appellant gave a cheque for Rs. 40,000 drawn on the National Bank of India Ltd. dated the 11th December 1954, but its payment was stopped. Appellant's version is that this action was taken because the respondent's ship did not have the capacity to carry the proposed cargo. It is not disputed that differences arose between the parties and on 13th December 1954, the parties met to resolve their difficulties. The respondent's case is that under the terms of the contract the cargo was to be carried from Karachi to three U. K. Ports, that is, Avonmouth, Liverpool and Manchester or Glasgow on their option. On 13th December 1954, the appellant insisted on telephone to inform him about the option ports of Glasgow and Manchester. After some haggling in consultation with the Master of the ship, they informed him that the ship would go to Avonmouth, Liverpool and Glasgow. Thereupon the appellant requested that option be given to him between Glasgow and Belfast, but it was refused because under the contract the port of Belfast was not included as it would have required the payment of an additional fee of 20 shillings per tom. According to the respondents this infuriated the appellants and he threatened to cancel the contract. He was informed that he could not do so as he had accepted the contract and confirmed it and had even issued a cheque for Rs. 40,000 but he paid no heed and stopped payment of the cheque. In this-way he committed breach of the contract and in spite of a number of letters addressed to him did not make any amends.

3. The respondent further alleged that in order to minimise the loss and damage they sough: other employment and with difficulty succeeded in getting 2,fih6 tons of cargo for their ship which sailed from Karachi Harbour on 11th January 1955. For the alleged breach the respondent claimed Rs. 79,316-10-7 as logs suffered by them in the loss of freight. They further claimed Rs. 38,000 as demurrage by way of damages at Rs. 2,000 pet day for 19 days. By notice dated the 15th January 1955, the respondent claimed from the appellant a total sum of Rs. 1,17,316-10-7 as damages which the appellant failed to pay and failed the above-mentioned suit for recovery of the said amount.

4. The appellant resisted the suit. In defence he pleaded that there was no dispute between the parties in respect of the declaration of the option of the ports. On the other hand, the dispute was in respect of the carrying capacity of ss. Safina-e -Tariq. He alleged that the agreement for carrying 4,000 tons of undecorticated oil cakes in bags to U. K. ports was made on the representation of the respondent, that the above ship could load the above-mentioned quantity of goods but later on enquiry he received positive information that it could not load more than 2,700 tons. He, therefore, contacted the respondent on telephone on 13th December 1954, for clarification and did not receive any satisfactory reply and was directed to see the Master of the ship. He then went personally and saw Mr. Ismail, one of the principal officers of the respondent company, who, instead of satisfying him, behaved rudely and, after exchange of hot words, refused to abide by the contract, which was accepted by him and the negotiations came to an end, and no charter party was finalized between the parties. He further alleged that the cheque for Rs. 40,000 was obtained by suppression of facts with respect to the loading capacity of the above ship and it wax or this reason that the payment of the cheque was stopped. He pleaded that there was no valid contract between the parties and there was no question of any alleged breach.' The appellant further pleaded that there was no binding and enforceable contract between the parties and he was not liable to pay any damages.

5. On the pleadings of the parties as many as 11 issues were settled. It is not necessary to reproduce them because, as will be presently shown, the dispute between the parties is in a very narrow compass. In support of their case the respondent examined six witnesses namely P. W. I Abdul Hamid Ismail, P. W. 2 A. R. Rafiq, P. W. 4 Abbas Ali, P. W. 5 Syed Abu Zafar Imam and John Charles who was examined on commission. The appellant examined three witnesses, namely, D. W. 1 Muhammad Bashir Hussain Siddiqi, D. W. 2 Capt. A. Nihalovitz and D. W. 3 John Johnson. On the evidence of the pities the learned single Judge came t0 the conclusion that the on deck carrying capacity of Safina-e-Tariq was about two lacs 18 thousand cubic feet and the stowage factor of the oilcakes being between 48 and 55 cubic feet it had the capacity to carry 4,000 tons of the appellant's cargo. He further held that there was a valid contract between the parties and the appellant had committed breach of the contract. He disallowed the claim of the respondent in respect of demurrage claimed as damages but allowed the claim for Rs. 79,316-10-7 as damages for loss of trade suffered by the respondent for the alleged breach. The appellant has challenged this judgment in this Letters Patent Appeal before us.

6. Before considering the appeal on merit it may be stated that` the parties have not disputed before us about the validity or concluded nature of the contract. This point was neither urged nor was taken in the Memo. of Appeal. The main grievance of the appellant is that the charter party contract was entered into on the alleged misrepresentation of the respondent that their vessel ss Safina-e-Tariq had the capacity to carry 4,000 tons of undecoaticated cotton-seed oil cakes, but as the said vessel did not have so much capacity, the respondent hid committed the breach of the contract and the appellant was not liable to pay any damages. It is however strange that the appellant brought no such objection to the notice of the respondent till February 1955. The appellant's case that the immediate cause of dispute between the parties was the respondents' inability to satisfy him that the above-mentioned vessel had the loading capacity of 4,000 tons of his cargo is not borne out by any reliable evidence on the record. The charter party agreement was entered into on 11th December 1954, and in terms of the contract the appellant gave a cheque for Rs. 40,000 (Exh. 6/9) to the respondents. On 13th December 1954 the appellant stopped payment of the cheque and informed the respondent about it by letter Exh. No. 6/5 dated 14-12-54 but made no mention in it about the alleged dispute in respect of the loading capacity of ss Safina-e-Tariq. In it he only complained about the unbusinesslike behaviour of the respondent in threatening to cancel the contract, which he reluctantly accepted and for that reason stopped the payment of the cheque. No other reason was assigned for the stoppage of the payment of the cheque. Likewise in subsequent correspondence that passed between the parties no such plea was taken by the appellant. In letters addressed to the respondent dated the 17th December 1954 (Exh. 6/7) and 20th December 1954 (Exh. 6/8) not a word is mentioned about the loading capacity of the vessel in question. It was for the first time in his lawyer's letter dated the 10th February 1955 (Exh. 6/15) which was sent in reply to the respondent's lawyer's notice dated the 15th January 1955 that the appellant raised the plea about the loading capacity of the respondent ship. Appellant admitted this fact in his statement as witness in Court to a question put to him by the respondent's counsel which is reproduced below :-- Q. Is it a fact that from December 1954 to February 1955; you did not raise any question about the tonnage capacity of the ship in question ? . A. Yes. There was no necessity of repeating the facts that had already been discussed and the contract was already cancelled. When the matter was placed in the hand of the legal adviser he thought it advisable to mention the dispute of the tonnage capacity and that is why he mentioned it in the letter sent to the plaintiff". In these circumstances the plea of the tonnage capacity of the ship appears to be an after thought. However, this circumstance by itself would not absolve the respondents to establish that they were always ready and willing to perform their part of the contract. In law, unless this fact is proved, a party is no r entitled to claim any damages. In order to succeed in the suit it was necessary for them to prove that the ship in question had the loading capacity of 4,000 tons deadweight as contemplated in the contract Exh. 6/1. It was contended by Mr. Shaikh Haider that the term "4,000 tons of deadweight" was a guarantee in respect of the vessel's carrying capacity with reference to the contemplated voyage. In support of his contention the learned counsel referred to a decision of the House of Lords in Robert Mackill and others v. Right Brothers & Company ((1889) 15 A C 106). In that case the charter party contract was to "carry not less than 2,000 tons deadweight of cargo". It was observed that the guarantee must be read with reference to the circumstances contemplated by the parties and in that context it was held that the expression "dead weight of cargo" must be read as being something more than a mere guarantee of carrying capacity. To us also it appears that in such circumstances it would be a guarantee of the vessel's carrying capacity with reference to the contemplated voyage and the description of the proposed cargo made known to the owners. Mr. Mansoorul Arfin has not challenged the fact that the respondents agreed to carry 4,000 tons of the proposed cargo. He, however, urged that there was an alternative argument available to the respondent that in some cases this expression is used to describe the abstract lifting capacity of a vessel. In this connection he referred us td another decision of the English Courts in W. Millar and Co. Ltd.'v. Owners of S. S. Freden ((1918) I K B 611). It was held in that case by the Court of Appeal that the primary meaning of the phrase "ship's deadweight capacity" was not her capacity to carry tons of maize but her abstract lifting, capacity, and that the mere fact that maize was mentioned as the' cargo to be carried in the earlier part of the charter party did not change the meaning of the phrase from a designation of the ship's lifting capacity in the abstract to 'a designation of her combined lifting and cubic capacity applied to the ratio of bulk to weight existing in maize. The decision of the House of Lords was distinguished on the ground that the language of the contract in that case was very different from what they were considering and that in that case the language pointed to a guarantee with regard to the weight to be carried on that particular voyage and not to the general capacity of the ship, In the present case, the case of both the parties is that under the contract the appellant had undertaken to give a full load to the vessels up to a maximum of 4,000 tons deadweight. It was admitted by P. W. 1 Abdul Hamid Ismail (Exh. 7) that "the contract was entered on the understanding that the capacity of the ship was more than 4,000 tons." He further admitted that he had assured the appellant that they would carry approximately 4,000 tons of his cargo. This is also the case of the appellant. In these circumstances the said guarantee read with reference to the proposed cargo and contemplated voyage when it referred to ' the "4000 tons dead weight'.", did not refer to the total weight of the ship, but referred to its load carrying capacity. This is also the finding of the learned single Judge. We would, therefore, hold that the respondents had represented that the load carrying capacity of their ship with respect to the proposed cargo was of more than 4,000 tons.

7. Mr. Shaikh Haider, the learned counsel appeasing for the appellant, contended that the finding of the learned single Judge on the question of the loading capacity of the ship in question for the proposed -cargo is not based on proper appreciation of the evidence. In support of his contention the learned counsel referred us to the statement of D. W. John Johnson (Exh. 15), Managing Director of G. B. Potts 8t Company, Surveyors who surveyed the ss Safina-e-Tariq belonging to the respondent in December 1954. In his evidence, the witness claimed that the loading capacity of a ship, is to be determined according to its cubic capacity. He stated that the cubic capacity containing bags or bales of the ship in question was 1,80,000 cubic feet according to Lloyd's measurement. In support of his statement 'he referred to Lloyd's Register, Volume II of the year 1956-57 (Eah. 15/1). The witness however admitted in cross-examination that this capacity refers only to the entire volume which may legitimately be used for cargo. He further stated in cross-examination that the deck is not legitimate storage space. It is considered as customary but not legitimate, space. The witness, while giving the cubic capacity of the vessel, excluded the deck capacity. He further stated that the storage factor for undecorticated cotton seed oil sakes is 68 cubic feet. Basing his opinion on it he stated that the ship in question did not have the cargo loading capacity of 4,000 tons. The evidence of this witness on this point was not relied upon by the learned single Judge because, according to the contract, the parties had agreed that part of the cargo was also to be taken on the deck. The appellant's counsel has not been able to satisfy us as to why we should not also discard the evidence of this witness on this point for this reason.

8. The respondent, besides examining P. W. 1 Abdul Hamid Ismail (Exh. 7) has produced other reliable evidence to show that the ship in question had the cargo load carrying capacity -of more than 4,000 tons. P. W. 1 Abdul Hamid Ismail in his statement stated that the capacity of their ship was 4,915 tons and they bad been allowed to carry cargo over 4,000 tons. He stated that on 26th January 1954, the said shi-p took 4,187 tons from Karachi to East Pakistan. On 5th November 1953, she carried general cargo of 4,043 tons from Karachi to East Pakistan. On 11th April 1953, she carried 4,298 tons to the same destination. The statement of this witness was supported by Y. W. Syed Abu Zaffar (Exh. 11) who produced Exh. 11/1 to 11/6 showing the various voyage licences granted to the respondent by the Controller of Shipping. These documents do support the statement of Abdul Hamid Ismail about the general cargo carried by the ship in question from time to time. The respondent had further relied on Exh. 10/1, an extract from the ship Register in the Port of Karachi during the quarter ending 30th September 1951. In this document the deadweight of the ship in question is mentioned as 4,950 tons and the cargo carrying capacity in cubic feet is stated as 2,19,

000. Considering that this document is of the year 1951, it cannot be said that it is not a reliable piece of evidence. Besides, the appellant in the written statement also had admitted that the entire loading capacity of ss Safina-e-Tarfq was about 2,10,000 cubic feet. In para. 3 of the written statement he stated as under:- "This defendant on enquiries received positive information that ss Safina-e-Tariq cannot load more than 2,700 tons with an entire loading capacity of 210,000 cubic feet cargo loading space an average of 78 cubic feet per long ton of 20 cwt. gross in bags." The learned single Judge has held the loading capacity in cubic feet of the ship as 218,000 cubic feet on the following observations:- "According to Exh. 10/1 the total cubic capacity of the ship is 2,19,000 cubic feet. Mr. Nurul Arfin attempted to assign statutory authority to this document but gave up that stand because he realized that it is not the copy of that register which is maintained under the Merchant Shipping Act, 1894. It is however, significant that the total of the under deck capacity of the ship as given in the Lloyds Register plus the "on deck" capacity of the ship as given by Abdul Hamid Ismail P. W. 1 comes to 2,18,OC0 cubic feet. This capacity is the same as stated in Exh. 10/ 1 with the difference of a small margin. I am, therefore, inclined to believe that the on deck capacity of the ship is about 38,000 cubic feet." In our opinion the finding of the learned single Judge on this aspect of the question is based on proper appreciation of the evidence produced by the parties. We, therefore find no ground to take a view about the cubic capacity of the ship other than what has been found by the learned single Judge.

9. It was next urged by Mr. Haider that even if the cubic capacity of the ship is found to be 2,18,000 cubic feet, it did not possess the loading capacity of carrying 4,000 tons of cotton-seed Oil cakes undecorticated. The learned counsel contended that the storage factor of this kind of cargo on the evidence produced on the record is about 68 cubic feet: In support of his contention he referred us to the statement of John Johnson (Exh. 15) who surveyed the ship in question in December 1954 in respect of similar cargo which it took from Karachi to United Kingdom. It is not disputed that this survey was held at the instance of the respondent Company. He deposed that 2,682 Eons of the above-mentioned cargo was stowed on board the ship. It was so loaded that there was no further space to load any further cargo. He further stated that the storage factor with a cargo of 2,682 tons in relation to the cargo capacity of 1,80,000 cubic feet comes to 68.3 cubic feet per ton. This witness also produced the survey report (Exh. 15/3) in respect of the survey of Al Hassan which sailed in January 1955. According to the report the number of cubic feet available for the storage of bags and bales in ss Al Hassan is 4,85,920 c. ft. He stated that it loaded 7,140 tons of similar cargo. This vessel also had no further space available and the witness stated that the storage factor of Al Hassan was 68.4 c. ft. It was contended by Mr. Haider that on the basis of the statement of this witness the storage factor of the cargo in question is about 68 c. ft. and even if in calculating. the cubic capacity of the ship in question deck capacity is included, it was next to impossible for the respondent ship to carry 4,000 tons deadweight as assured by them. The learned counsel further referred us to a pamphlet issued by B. I. S. N. Company Ltd. in November 1955, from Calcutta showing the stowage factors of different commodities in the principal ports which are used by their ships. At page 40 of this pamphlet" it is mentioned as under :- KARACHI "Articles Pkgs. per D. W: Ton. S. F. per D.- W Ton. Remarks Oil cake 11 bales 70 Dirty. Liable to heat. Undecorticated should be stowed in Tween Decks only, and venti lated with wooden ventila tors, away from engine and boiler space." He also referred to the information contained in the Diary of 1960 of Brigstocks Eduljee & Co. about the approximate stowage factors of similar cargo loaded at Karachi which is. as Under . "Approximate stowage particulars of cargo loaded at Karachi. Cargo Bales or Bags per ton. C. ft. per Bale or Bag. Stowage Factor. Oilcake 15 4.5 70 On this premise the learned counsel contended that the cargo loading capacity of the respondent ship could not be held to b: 4,Ofk1 tons.

10. In reply, Mr. Mansoorul Arfin, the learned counsel appearing for the respondent contended that the stowage factor depends largely on the construction of the snip and in ore deck ship the space factor is less than the double deck ship. The learned counsel referred us to the statement of D. W. Capt. A. Mihalovitz (Exh. 13), a witness examined on behalf of the appellant. He stated as under:- "As a Ship Master I consider that even less than 65 c. ft. per ton will be fair storage for this cargo. In my opinion upto 63 c. ft. should be considered as fair storage. This depends largely on the construction of else ship. It is correct that in one deck ship the space factor is less than the double deck ship." Respondent's counsel then referred us to the statement of John Charles Thompson, which on other grounds was rejected by the learned single Judge. but has gone unchallenged about his assertion that the ship in question was a single deck ship. He stated as under in his statement examined as a witness on de bene esse: "I have independently surveyed ss Safina-e-Tariq at Karachi -in the month of December 1956. This was a single deck ship. There were no Between-Decks." We have no ground to disbelieve the evidence of this witness about the type of the ship and therefore, in order to consider the stowage factor, the fact that the ship in question was a single deck shall have to be taken into consideration. On the point under consideration the respondent's counsel's contention is also supported by the information contained in the book known as Shipping Practice by Stevens. The learned author at page 125 of the book states as under - "It will be seen that heavy cargoes occupy the smallest space whilst the lighter the cargo is, the more space is occupied. From this will be seen the reason why when dealing with general cargoes or light cargoes that 'tween-deck or shelter deck steamers are required providing ample under deck space, against the single deck steamers for heavy cargoes, where plenty of space is not necessary." Mr. Mansoorul Arfin also referred us to page 127 of the above book in which the stowage factor of oil cakes from all ports shipping cotton is given as 50-60 c. ft. It will be useful to reproduce the information conveyed about this item in this book . "Oil cakes.-From all ports shipping cotton. Oil cakes are made from the residue of crushed cotton-seed. Shipped in bags this commodity measures approximately 50-60 c. ft." In another Treatise known as Thomas' STOWAGE which deals with properties and stowage of cargo, 5th Edition, the stowage factor of cotton-seed cakes in bales is given between 48 to

55. At page 162 the learned author has stated as under :- "Cotton Seed Cake Bales 56/60 Loose Is readily damages by moisture and susceptible to tainting damage if stowed near or with odorous goods. Particular care should be observed if loading in Southern U. S. A. ports to keep this cargo clear of turpentine fumes. Usually put up in bales covered with gunny or in bags, but at times shipped in the loose condition. Requires to be well dunnaged and well ventilated." We were also referred to the New Shipmasters Business Companion by W. C. Aubrey-Rees. At page 326 the stowage factor of oilcakes in bage is mentioned as between 50 to

60. The relevant entry about this cargo is as under : "Oil cake, in bags . . . . . .50/60." In stowage Notes by James Knox, which has been reproduced also by the learned single Judge, at page 272 the stowage factor of oil cake bags is 49 c. ft. and 50 c. ft. The relevant portion of the note is reproduced below :' "Oil Cake (Bags) 5'-6" x 2'-10 " x 2'-7" Cwts qr. lbs 2 0 6 2 0 7 2 0 6 2 0 6 2 0 5 2 0 6 2 0 5 2 0 5 8 Bags Oil-Cake weighing 1838 lbs. stowed in 40 c. ft. 10.18 inch = 49 c. ft. 9. 39 inch, per ton of 20 cwt. 9 Bags per ton of 50 c. ft. 9 Bags per ton of 20 cwt." It will thus be noticed that all the authoritative books on stowage factors supports the contention of the respondents that the stowage factor of the cargo in question is between 50 and 60 c. ft Thus it is abundantly clear that in the light of the stowage factors of the commodity in question discussed in the above-mentioned books on the subject under consideration no exception can be taken to the finding of the learned single Judge that the stowage factor of oilcakes is between 48 and 55 c. ft. which means that the ship in question had the capacity to carry 4,000 tons of the appellants' cargo.

11. Besides it is well-established rule of law that it is part of the duty of the Master of a ship to stow the goods properly so that no loss of space or dead freight be caused owing to bad stowage to the owners of the ship. In law the Master, besides looking to the safety of the ship, owes a duty to the owner of the ship to see that stowage is done with skill and care. According to Thomas on Stowage at page 66 "the most carefully determined stowage factor is not absolute, at least it can only serve as a guide." In modern times it depends on so many factors. If the appellants had any legitimate grievance about the stowage of the ship in question he should have waited till the time of the loading. The question should have been left to the Master of the ship. In case the stowage was found to be improper it was open to him to raise objection and later on to claim damages for any damage caused to the cargo. The appellant failed to adopt this procedure for obvious reasons discussed earlier. Neither at the proper stage he raised any dispute about' the tonnage capacity of the ship in question nor did he take the cargo by the side of the ship for stowage.

12. Lastly, Mr. Haider Shaikh contended that the circumstance that the respondents accepted Rs. 40,000 as estimated freight in advance indicates that the tonnage capacity of the ship in question was not more than 2,686 tons. This contention has also no substance because the case of both the parties is that 4,000 tons of the proposed cargo was to be carried by the respondent ship. It might have been of some significance if the case of the appellant had been that 4,000 tons deadweight mentioned in the letter dated 11th December 1954, was a guarantee of abstract cargo capacity and not a guarantee of the capacity of the proposed cargo. This however is not the case of the appellant and no importance can be attached to this circumstance. After carefully considering the evidence of the parties, we are satisfied that the load carrying capacity of the ship in question was of more than 4,000 tons, that it could carry the said quantity of the proposed cargo on it and that the case of the appellant that it was next to impossible for the respondent ship to carry the said quantity of the cargo in question was rightly rejected by the learned single Judge. Having regard to the evidence produced on the record and the fact that the respondent ship had in the past taken more than 4,000 tons of general cargo and the stowage factor of a single deck ship is much more than the ships of other type, the finding of the learned single Judge on this aspect of the question in unexceptionable.

13. We had some doubt about the damages awarded to the respondent. It will be noticed that the respondents had not produced any evidence about the rate at which they secured 2,686 tons of cargo to minimise the damages. After concluding the arguments we further issued notice to the parties for considering this question. Mr. Mansoorul Arfin's contention that the appellant has not contested that the respondent had charged at more rate than at what the damages had been-claimed by them is well founded. The respondent was also willing to place on the record sufficient material to establish that the rate at which the cargo to mitigate the damage was secured was not more than the rate at which the damages had been claimed in the suit. This point was also not challenged by the appellant's counsel. In view of this the claim of the respondent in the sum of Rs. 79,316-10-6 was properly decreed. It may be mentioned that the measure of damages in 'cases in an action against a charterer for nut loading the cargo in the amount of freight which would have been earned after deducting the earning on a substituted voyage. No other point was urged in support of the appeal.

14. In the result, we find no force in the appeal which is dismissed with costs. K. B. A. Appeal dismissed.