P L D 1962 Dacca 31 (PLP)

M. R. KHAN, J.‑This Appeal by the New Zealand Insurance Company Limited is directed against an appellate decree for money In favour of Mr. M. A. Rouf, the sole proprietor of a firm known as Upper India Trading Corporation.

2. The plaintiff imported some consignments of M. S. Angles from Belgium to Chittagong. These were shipped from Antwerp per SS "Lemsterkerk" belonging to Holland‑Bengal Burma Line (defendant No. 2) whose local agent is Messrs M. M. Ispahani Ltd. (defendant No. 3). The appellant (defendant No. 4) was the underwriter who issued an insurance certificate covering the risk for loss of the said goads. The Federation of Pakistan (defendant No. 1) was said to be a bailee in respect of those goods and made a party to the suit as such.

3. The ship arrived at the Chittagong Port on the 22nd May 1952 and left the port on the 10th June 1952, after discharging its cargo. Out of the goods imported by the plaintiff, 73 bundles of M. S. Angles were not delivered. A certificate showing short landing of 73 bundles of M. S. Angles was issued on the 7th March 1953, and the same was duly counter signed by the Shipping Company's Agent (defendant No. 2). The plaintiff gave notices to all the defendants about the said short delivery and brought the suit on the 10th August 1953, in the first Court of the Munsif at Chittagong for the recovery of Rs. 3,611‑7‑0 as the price of the goods short landed and Rs. 361‑0‑0 on account of loss of profit, that is, Rs. 3,972‑7‑0 in all.

4. The suit was contested by all the defendants. Of them, the defendants 2 and 3 filed a joint written statement and each of the defendants 1 and 4 filed a separate written statement. The Court of the first instance decreed the suit against defendants 2 and 3 but dismissed it against others. On the question of limita tion urged on behalf of the defendants 2 and 3, the learned Munsif held that limitation against them was one year from the date of delivery of the goods or the date when the goods ought to have been delivered. He further held that limitation was to run from the 7th March 1953, the date on which the short landing certificate was issued and that the suit having been instituted within one year of the said date was within time. On appeal, the first Court of Subordinate Judge, Chittagong, decreed the suit only against defendant No. 4, but dismissed it against the rest. The learned Subordinate Judge dismissed the suit against the defendants 2 and 3 on the finding that under the contract of carriage the right of the plaintiff to claim from them the value of the goods short delivered was extinguished at the expiry of one year from the date of departure of the ship, from the port of discharge, namely, the Chittagong port. He, however, made the under‑writer (defendant No. 4) liable for the loss under the contract of insurance. It is against that decision that the under‑writer has come on appeal before us.

5. The points mainly urged on behalf of the appellant are that the plaintiff's claim against the defendants 2 and 3 was not extinguished as held by the lower Appellate Court and that the appellant is not liable to compensate the alleged short delivery. The plaintiff (respondent No. 1) has contested the appeal. Also the defendants 2 and 3 (respondents 2 and 3) have appeared and denied liability contending that the claim against them was extinguished. The following are the main points for determination in this appeal: ‑ (1) Whether the plaintiff's claim against the defendants 2 and 3 was extinguished by efflux of time ? (2) Whether the appellant is liable to pay compensation for ' the goods short delivered ?

6. Before we proceed to deal with the points for determina tion it is necessary to examine the law and procedure regulating the carriage of goods by sea.

7. The International Conference on Marl‑time law held at Brussels in October, 1922, adopted a draft convention for the unification of certain rules relating to bills of lading. In 1925, the Carriage of Goods by Sea Act (Central Act No. XXVI of 1925), was enacted in British India, with a view to giving legal effect to the rules relating to the bills of lading contained in the said draft conviction. Those rules are included in a schedule to the said Act and form part of that Act. Many countries, includ ing England made similar domestic laws giving effect to those rules, the British Act for the purpose being the Carriage of Goods by Sea Act, 1924 (14 & 15 Geo. 5, c. 22). The Carriage of Goods by Sea Act, as In force in Pakistan, applies to the carriage of goods by sea from any port in Pakistan to any other port whether in or outside Pakistan, but does not apply to the carriage of goods by sea from a foreign port to a port in Pakistan, vide section 2 of that Act. Thus, the carriage of goods by sea between ports In Pakistan and from any port in Pakistan to any other port outside Pakistan is regulated by the provisions of the said Act of 1925, including the internationally recognised rules relating to bills of lading as contained in the schedule to that Act ; a bill of lading in respect of such carriage of goods by sea should be in conformity with the provisions of that Act and not in derogation thereof. As regards the shipment of goods from a foreign port in Pakistan, such shipment is governed by the conditions of the relevant con tract of carriage, the Carriage of Goods by Sea Act, 1925, not being applicable thereto.

8. Now, clause 6 of Article III of the rules relating bills of lading contained in the schedule to the said Act provides, among others, as follows: ‑ "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered". Thus, the said clause 6 of Article III forming part of special law, namely, the Carriage of Goods by Sea Act, 1925, prescribes a special limitation of one year within which a suit for relief against a carrier and a ship must be brought. In view of section 29 of the Limitation Act, 1908, the said period of limitation shall apply to such a suit instead of any period under the general law of limita tion. Section 29 of the Limitation Act has rendered section 15 of that Act applicable for the purpose of determining any period of limitation prescribed by any special law. Therefore in computing the period of limitation prescribed by the Carriage of Goods by Sea Act, 1925, in Article III clause 6, the period of notice served under section 80 of the Code of the Civil Procedure, or any other law shall be excluded. A Division Bench of this Court took such a view in Messrs United Steamship Company v. Messrs Jamiluddin and others (P L D 1959 Dacca 164). Also another Division Bench of this Court held the same view in its unreported decision in F. A, No. 64 of 1954. In both those cases, the Carriage of Goods by Sea Act, 1925, applied, the goods having been shipped from one; port to another port in Pakistan. In this connection it may be observed that if, in a single suit against several defendants jointly, the plaintiff is required to give notice in pursuance of any law to one of the defendants, he is entitled under section 15 of the Limitation Act to a deduction of time not only as against the defendants to whom notice is given, but is entitled to a deduction against all the defendants. The said Article III clause 6 is perhaps capable of being interpreted as providing not only a rule of limitation but also a substantive law inasmuch as under the provision of the said clause, the carrier and the ship are absolved from all liabilities unless the suit is brought before the expiry of the period mentioned in that clause. Such an interpretation can not, however, affect the legal position that the said Article III clause 6 forming part of the Carriage of Goods by Sea Act, 1925, prescribes a special limitation, which shall be applicable under section 29, read with section 15 of the Limitation Act. Therefore, Article III, clause 6 forming part of the said Act provides essentially a rule of limitation.

9. In the case of the carriage of goods by sea from a foreign port to a port in Pakistan the position is, however, different. As al ready said, the shipment of goods by sea from a foreign port to a port in Pakistan is governed by the conditions of the relevant contract of carriage. A bill of lading embodies the conditions of such a contract and usually contains a clause exactly in the words of the aforesaid Article III, clause

6. The reason for the inclusion oft such a clause in a bill of lading is the adoption by many countries of the rules relating to bills of lading contained in the draft Brussels Convention mentioned hereinbefore. Where a bill of lading in respect of shipment of goods from a foreign port to a port in this country contains such a clause, the relevant portion of which has been quoted in para 8 above, the claim against the carrier and the ship shall be extinguished in terms of the contract n' at the expiry of one year from the date of delivery of the good or the date when the goods should have been delivered. In such a case, the bill of lading cannot be construed as providing a rule of limitation. A bill of lading is not a law, it embodies only the conditions of a contract of carriage. Thus, a bill of lading is not a special or local law within the meaning of section 29 of the Limitation Act and, as such, it does not prescribe any period of limitation like the Carriage of Goods by Sea Act, 1925, a special law. Moreover, a bill of lading cannot be construed as prescribing bar of limitation in the face of section 28 of the Limitation Act, which forbids a contract limiting the time within which rights are to be enforced by suit. The said section 28, however, does not hit a contract of carriage as embodied in a bill of lading containing a clause corresponding to caluse 6 of Article III for the reason that under that clause the claim against the carrier and the ship becomes extinguished in the event of non‑filing of a suit before the expiry of the period of one year mentioned therein. When the claim it self is extinguished under the said clause the question of bar of limitation does not arise. A Division Bench of this Court, after referring to the decision in Haji Shakoor Gany Firm v. Volkart Brothers and another (A I R 1931 Sind 124), Haji Shakoor Gany v. H. E. Hinde & Co. Ltd. (A I R 1932 Bom. 330); Gladstone Wyllie & Co. Ltd. v. Shahidi Trading Cor poration, Ltd., and another (P L D 1959 Dacca 73) has held in the case of Holland Bengal Burma line v. Dawood Corporation, Ltd. (P L D 1961 Dacca 39), that when a bill of lading in respect of shipment of goods from a foreign port to a port in Pakistan contains a clause corresponding to clause 6 of Article III of the rules relating to bills of lading included in the schedule to the Carriage of Goods by Sea Act, the contract is not hit by section 28 of the Contract Act and that the carrier and the ship will be totally absolved from liability if the suit against them be not filed within one year.

10. From the foregoing discussion, it therefore, follows that in the case of carriage of goods by sea between ports in Pakistan and from any port in Pakistan to any other port outside Pakistan, the Carriage of Goods by Sea Act, 1925, shall apply with the result that the suit against the carrier and the ship in respect of loss or damage of goods shall be barred by limitation unless the suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. It further follows that In the case of shipment of goods by sea from a foreign port to a port in Pakistan, such shipment is governed by the conditions of the relevant contract of carriage. If the connected bill of lading con tains a clause corresponding to clause 6 of Article III of the rules relating do bills of lading referred to hereinbefore, no rule of limitation shall apply, but the claim against the carrier and the ship in respect of loss or damage shall be extinguished at the expiry f of one year from the date of delivery of the goods or the date when the goods should have been delivered.

11. This naturally raises a question as to the date from which the period of one year mentioned in Article III clause 6, should be calculated. In the words of the said clause 6, the period is "one year after delivery of the goods or the date when the goods should have been delivered." According to clause (e) of Article 1 of the rules relating to bills of lading as included in the Schedule to the Carriage of Goods by Sea Act, 1925, `Carriage of Goods,' covers the period from the time when the goods are loaded on to the time when they are discharged from the ship. Thus, a contract of affreightment comes to an end with the discharge of the goods. Therefore, the expression "one year after delivery of the goods or the date when the goods should have been delivered" occurring in Article III, clause 6, really means one year after discharge of the goods or the date when the goods should have been discharged. The word 'discharge' implies complete discharge of all the goods covered by the consignment. Hence, in a case where the goods are completely discharged, the period of one year shall be calculated from the date of discharge of the goods. If, however, the time for the discharge of the goods is spread over a number of days, the said period shall be calculated I from the date of completion of the discharge. In the case of non- delivery of or short delivery of goods by the carrier and the ship, time shall commence to run from the date when the goods should have been delivered, which implies the last date up to which the discharge of the undelivered goods can be expected. No discharge of cargo can be expected after the departure of the ship from the port of discharge. Therefore, in the case of non‑delivery or short delivery, time shall commence to run from the date of departure of the ship from the port of discharge. The date of a certificate as to non‑delivery or short delivery of the goods by the carrier on the ship is immaterial for the purpose of calculating the period of one year for the reason that the date on which the goods should have been delivered cannot, in the absence of a special promise or assurance by the carrier or the ship, extend' beyond the date of departure of the ship. In the event of a promise or assurance by the carrier or the ship to deliver the goods subsequent to the departure of the ship, the date from which time shall begin to run will depend upon the nature of the promise or assurance in each case. That in the case of short delivery the time begins to run from the date of departure of the ship from the port of discharge finds support from the decisions in Haji Shakoor Gany v. Volkart Brothers and another and Ludhubhai Manekehand and sons v. New Dhalera Steamship Ltd. (A I R 1937 Sind II). In those cases there was short delivery, but the period of one year was calculated from the date of departure of the ship and not from the date on which part of the goods covered by the bill of lading was discharged. In Messrs United Oriental Steamship Co. v. Messrs Jamiluddin and others a Division Bench of this Court also took the date of depar ture of the ship to be the date from which the period of one year should be calculated in the case of short delivery. But in the case of Holland Bengal Burma Line v. Dawood Corporation Ltd. another Division Bench of this Court, after referring to the cases of Haji Shakoor Gany v. Volkarl Brothers and another and Ladhubhai Manekchand and sons v. New Dholera Steamship Ltd. made an observation that suit for compensation against carriers and their agents should be brought within one year from the date on which the cargo is discharged. As, however, the case referred to and relied on by the Division Bench themselves decided that, in the case of short delivery, the date of departure of the ship should be taken to be the date of discharge within the meaning of Article? 11, clause 6, the observation of the Division Bench in the case of Holland Bengal Burma Line v. Dawood Corporation Ltd. may be construed accordingly. In the instant case, however, it is immaterial whether time commenced to run from the date of discharge of part of the cargo or from the date of departure of the ship, because the suit was brought beyond one year from either date.

12. Let us now consider the first point for determination in this appeal in the light of the legal position analysed above. The plaintiff imported some quantities of M. S. Angles from Belgium to Chittagong and these were shipped from Antwerp. As the shipment of the goods was from a foreign port to a port in Pakistan, the same was governed by the conditions of the contract of carriage embodied in the bill of lading Exh. A. 1, and the Carriage of Goods by Sea Act, 1925, prescribing a special limita tion did not apply thereto. It appears that the bill of lading was subject to the Hague Rules. This means that the provisions of Article III, clause 6 of the rules relating to bills of lading contained in the draft Brussels Convention and reproduced in the Schedule to the Carriage of Goods by Sea Act, 1925, forms part of the conditions of the contract of carriage in the instant case. The learned Advocates for the appellant and the respondents do not dispute this. The ship arrived at the Chittagong port on 22‑5‑1952 and left the port on 10‑6‑1952, after discharging the cargo. The certificate Exh. 4, issued on 7‑3‑1953 is in clear proof of the short delivery of 73 bundles of M. S. Angles. The suit was brought on 10‑8‑1953, that is, more than one year even from the date of depar ture of the ship from the port of Chittagong. On these facts the plaintiff's claim against the carrier and its agent (defendants 2 and 3) was extinguished in terms of the contract before the institution of the suit. As the claim against them was extinguished, the question of excluding under section 15 of the Limitation Act the period of notice under section 80 of the Civil Procedure Code served on the Federation of Pakistan (defendant No. 1) did not arise.

13. With regard to the second point for determination, the learned Advocate for the appellant argues that the plaintiff never asked for any relief against the appellant on account of the alleged short delivery and that there is no evidence to prove its liability for, the same. This argument does not appear to be sound. In para 6 of the plaint, relief was asked for also against the defendant No. 4 (appellant) on the basis of the contract of insurance. Apart from this, the plaintiff (P. W. 1) in the course of his deposition said that the appellant was liable for the loss as underwriter. He was cross‑examined on this point on behalf of the appellant. Therefore, it is hardly correct to say that no‑relief was ever claimed against the appellant. The certificate of insurance, Exh. All, covers the risks as follows: ‑ " . . . Always including breakage and bending even without accidents such as mentioned above as well as theft, pilferage, short and non‑delivery." As short delivery is expressly covered by the certificate of insur ance the appellant's liability for the goods delivered stands established by that certificate. It is next argued on behalf of the appellant that the plaintiff did not follow certain instructions contained in the certificate of insurance and, as such he is not entitled to any relief against the appellant. When asked to mention the particular instructions not carried out by the plaintiff, the learned Advocate for the appellant could not cite any. On the contrary, it appears from the correspondence Exh. 3 series that the plaintiff informed the appellant of the short delivery and duly complied with the appellant's instructions given from time to time. Lastly, it is argued that the lower Appellate Court erred in decreeing the suit against the appellant inasmuch as it did not frame any specific issue as to the liability of the appellant. It is true that the judgment of the lower Appellate Court does not expressly state any point for determination with regard to the liability of the under‑writer. But this omission did not prejudice the appellant at all inasmuch as the appellant put appearance m the First Appeal with the full knowledge that the plaintiff had made a claim against it on the basis of the contract of insurance and advanced arguments before the lower Appellate Court through its lawyer.

14. In the result, the suit, in our opinion was rightly decreed against defendant No.

4. The appeal, is therefore, dismissed with costs only to the plaintiff‑respondent, and the decree of the lower Appellate Court is armed. HASSAN, J.‑I agree. K. M. A. Appeal dismissed.