P L D 1960 Dacca 147 (PLP)

AKBAR, J.‑‑This appeal is against the judgment and decree of the Subordinate Judge, 3rd Court, Chittagong, awarding a sum of Rs. 4,554, being the price of 9 drums of castor oil short‑delivered to the plaintiff at Chittagong Port from S. S. Ocean Endeavour.

2. The plaintiff is a registered firm carrying on business at Chittagong. They were the consignees of 25 drums of castor oil shipped at Karachi for being carried to Chittagong by S. S. Ocean‑Endeavour. Defendant No. 1, M/s. Trans‑Oceanic Steamship Co., Ltd., hereinafter referred to as the Shipping Company, are the owners of the said steamship. Defendant No. 2, Messrs Bird & Co., (Pakistan) Ltd., hereinafter referred to as the Agents, are the agents of the Shipping Company. Messrs Queensland Insurance Co., Ltd., and Federation of Pakistan are defendants Nos. 3 and 4 respectively.

3. The plaintiff's case is that out of the said 25 drums of castor oil shipped at Karachi only 16 drums were delivered to them at Chittagong Port and that the remaining 9 drums were not traceable and hence short‑delivered. The suit was filed for recovery of Rs. 5,009‑6‑

6. During trial, the name of the Queensland Insurance Company was struck off from the plaint at the request of the plaintiff.

4. Defendants Nos. 1, 2 and 4 contested the suit. Defend ants Nos. 1 and 2 disclaimed their liability for the amount claimed and stated: (1) that the entire consignment of 25 drums had landed, some under mark and some under ` Nil ' mark, and (2) that the Bill of Lading was subject to shipper's risk and hence they were not liable for loss or damage. The defence of the Federation of Pakistan was that the Jetty Authorities were not at all liable for the short‑delivery.

5. The only contest between the parties was with regard to the liability of defendants Nos. 1 and 2 for the price of 9 drums short‑delivered.

6. The learned Subordinate Judge decreed the suit for a sum of Rs. 4,554 only. Hence this appeal by defendant No. 1, the Shipping Company, and defendant No. 2 their agents.

7. Mr. Pal, the learned Advocate for the appellants, has contended that, on the evidence adduced in this case, the trial Court should have held that these 9 drums had landed under ` Nil ' mark. The correspondence between the parties, however, does not support this contention. On 16‑7‑53, the plaintiff wrote to the Agents:‑

" In this regard we have to advise you that the above referred steamer has completed discharge and in spite of every effort the above referred 9 (nine) drums castor oil out of the above consignment are still untraceable, and we cannot ascertain its damage. In this connection further we should like to let you know that you will please go through the records and let us know at the earliest if the consignment under reference is landed in full ". On 25‑7‑53, they again wrote : . " In this connection we have again to advise you that despite our every effort 9 drums of castor oil ex : the above are still untraceable and it is extremely regrettable to note that in spite of our earnest efforts you have not clarified as yet whether the consignment has been landed in full, and we cannot ascertain its damages ". On 25‑8‑53, they again repeated the above request. On 26‑8‑53, the Agents wrote to the plaintiff as follows :‑

" in our letter of the 12th August, 1953, we have very clearly mentioned that your entire consignment has been dis charged in full under ` Nil ' and illegible marks. The steamer is not responsible for the shortage of contents or effacing of marks and numbers ". On 28‑8‑53, the plaintiff requested the Deputy Traffic Manager to issue short‑delivery certificate in respect of those 9 drums. On 4‑9‑53, 'the Deputy Traffic Manager replied to them as follows:‑ " The 9 drums are neither in landing tally nor lying in shed. A short‑landing certificate will be issued to you upon finaliz ation of out‑turn report if the same is actually found short at that time ". On 18‑11‑53, the Agents wrote to 'the plaintiff that they had countersigned the short‑landing certificate. In the said certificate, their endorsement was to the following effect :‑ " Short‑landed by main marks but landed by ' NIL ' marks. Consignee to take delivery". On 12‑12‑53, the plaintiff wrote to the Agents: Further to our correspondence resting with you, we have to inform you that despite our every effort 9 (nine) drums of castor oil ex : the above vessel have not been delivered to us. Further, it is now, abundantly clear that 9 drums of castor oil have been short‑landed from the vessel as per your letter, dated 18th November, 1953. In reply to last para. of your above letter, we would like to let you know that we have already clarified our position as per our letter No. B/3/225‑53, dated 25th August, 1953, addressed to you, that the drums lying in Jetty ` K ' Shed do not belong to us, and do not form part of our consignment ; contents, marks and the number of packings are also not ours, which please note ". On 2‑1‑54, the Deputy Traffic Manager issued a short‑landing certificate. On 4‑5‑54, the plaintiff wrote to the Agents claim ing Rs. 5,009‑6‑6 as damages. On 8‑5‑54, the Agents wrote to them that they had referred the matter to the owner. As the plaintiff failed to get any relief either from the owner or the Agents, they filed this suit.

8. The above correspondence clearly shows that the plaintiff was ready and willing to take delivery of the drums even under ` Nil ' marks and even asked the Agents to identify the said drums. The Agents however merely persisted in saying that the goods had landed under ` Nil ' mark. They however did not even try to identify the said drums which, according to them, had landed under ` Nil ' mark. The conduct of the Agents in the whole matter was far from satisfactory. It is really regrettable that the Agents did not act in a fair and businesslike manner in this case. The out‑turn report also shows that out of the plaintiff's consignment 9 drums landed short. In view of the evidence, both oral and documentary, we are satisfied that the said 9 drums did not land at all at the Chittagong Port and hence the plaintiff was unable to take delivery of the same.

9. Mr. Pal has next contended that these drums were carried on the deck at the risk of the shipper and hence the Shipping Company or their Agents were not liable for the loss. In support of his contention, he has relied on the following endorse ment in the Bill of Lading: " Drums second‑hand ; shipped on deck at shipper's risk ". He has argued that these drums of castor oil, being carried on deck at shipper's risk, are exempt from the Carriage of Goods by Sea Act on account of the definition of " Goods " con tained in Article 1, sub‑clause (c). He has further argued that on account of the aforesaid entries in the Bill of Lading the Carriers are also exempt from liability for the loss or damages arising out of any cause whatsoever. In short, his argument is that, since the Carriage of Goods by Sea Act does not apply to this case, the only law applicable in a matter like this is the English Common Law and under English Common Law it is open to the carrier to contract himself out of the liability by a special provision in the Bill of Lading. This contention finds support from the decision in the case of British India Steam Navigation Co., Ltd., v. T. P. Sokkalal Ram Sait (A I R 1953 Mad. 3). In the above case, the exemption clause was as follows: " Notwithstanding anything to the contrary herein contained live animals and/or deck cargo are received, kept and carried at the sole risk of the owner thereof, and neither the carrier, (which expression includes both the owner of the ship and the operating ship‑owner for the time being) nor any stevedors, wharfinger nor any agent or servant of any of them nor any other person whomsoever for whom the carrier may be responsible shall be under any liability whatever for the goods, nor for any loss or expense connected therewith how ever caused and whether due to negligence, unseaworthiness or otherwise. Shippers and all concerned are, therefore, advised to see that their insurance policies cover all and every risk whatsoever whether ashore or afloat and are made without recourse to the carrier or any of the parties aforementioned ". A Division Bench of the Madras High Court held, on the strength of the above clause, that the carriers were not liable for the loss even if it was due to negligence on their part or on the part of their servants. It was further held that such a contract would not be governed by sections 151 and 152 of the Contract Act.

10. The instant case is clearly distinguishable from the above Madras case, because there is no such comprehensive clause here. On the other hand, the endorsement in this Bill of Lading is somewhat similar to that in the case of Home Insurance Co., Ltd., New York v. Ramnath & Co‑, (A I R 1955 Mad. 602). In the case of Home Insurance Co., Ltd., the Bill of Lading contained a condition that the goods were "shipped on deck at shipper's risk." Basheer Ahmed Sayeed, J., observed at page 604: " Learned counsel next invited my attention to a decision of a Bench of this Court in British India Steam Navigation Co., Ltd., v. Sokkalal Ram Sait. In that case, there was a comprehensive clause which had excepted the carrier from liability under any circumstance whatsoever. The Court, inter preting the scope and operation of such a comprehensive clause, came to the conclusion that the English Common Law applied and sections 151 and 152, Indian Contract Act, could not affect the liability of a common carrier in the view that the liability of a common carrier for the loss, injury or delay, in respect of the goods carried, might be varied by a contract and that the contract before them was not opposed to public policy and that section 23, Indian Contract Act, did not apply. The Bench was of the opinion that the bill of lading relieved the ship‑owner from any liability with regard to showing how the loss had occurred. The case‑law on the subject has been elabo rately discussed in that decision and it is unnecessary for me to traverse the entire field. So far as the facts in the present case before me are concerned, it cannot be said that the special contract between the shipping company and the plaintiff R is of such a comprehensive nature as to absolve the ship ping company from all liability and so as to exclude sections 151 and 152, Indian Contract Act, from coming into operation ".

11. In our opinion, the above observations are fully appli cable to this case. We would also like to point out that here also there was short‑delivery of 9 drums and it was not a case of total loss as was the case in British India Steam Navigation Co., Ltd. The defendant's case throughout was that some drums had landed under mark and some had landed under ` Nil ' mark. For the first time they took the defence in the written statement that they were not at all liable for this loss. For the above reasons, we hold that the decision in British India Steam Navigation Co., Ltd. is not applicable to this case. In this connection, the following observations of Langton, J., in Strana (1937) 130=106 L J P 81, may be aptly quoted: " I can quite easily read the words ` at charterer's risk ' to mean that the goods‑owner takes the chance of some imperfectly ascertained cause of action. But to say that it confers on the shipowners the right to claim exemption from liability in every case when the cause of the loss is unknown seems to me to be altogether too benevolent construction in favour of the party who has inserted the exception. Pushed to its logical conclusion, this argument would appear to go to the length of saying that these words excuse a bailee from giving any explanation of the loss of goods entrusted to him ". Similarly, in C. With Svenssons Travaruaktiebolag v. Cliffee Steamship Company ((1932) 1 K B 490), Wright, J., while considering the question of a carrier's liability in carrying goods under a contract which contained a similar exemption clause, held that the words in the charter‑party, " at charterer's risk ", standing alone, did not excuse the carrier of loss due to negligence on their hart. In the light of the aforesaid decisions, we hold that the Shipping Company or their Agents cannot be exempted from liability of short‑delivery in this case.

12. Before leaving this point, we may observe that the Paramount clause in the bill of lading was 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 anything 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 pursuance 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 exceptions of this Bill of Lading ".

13. Mr. Pal has argued that the provisions of the Carriage of Goods by Sea Act do not apply to cargo which by contract of carriage is being carried on the deck. Hence his contention is that this Paramount clause will not be of much assistance to the plaintiff. We are unable to accept this argument of Mr. Pal. The Paramount clause expressly says that if any term of the bill of lading is repugnant to the Carriage of Goods by Sea Act to any extent, it shall be void to that extent and no further. Simply because the Carriage of Goods by Sea Act does not apply to deck cargo, it cannot be said that none of the provisions of the Act are applicable. The Paramount clause clearly indicates that every part of the Act which is capable of being applied will be deemed to be incorporated. In other words, the subsequent provision on which the ship owners rely will be qualified by other provisions of the Act. Such a method of construction does not seem to be unreasonable. To say that the provisions of the Act shall not at all apply to the bill of lading would really render the Paramount clause nugatory. This certainly was not the intention of the parties. As stated by Lord Wright in Hillas & Co., Ltd., v. Arcos, Ltd. ((1932) 38 Com. Cas. 23 (36)) :‑ " the duty of the Court to construe such documents fairly and broadly, without being too astute or subtle in finding defects but, on the contrary, the Court should seek to apply the old maxim of English Law verva ita Bunt intelligenda ut res magis valeat quam pereat ". See also Admastos Shipping Co., Ltd. v. Anglo‑Saxon Petroleum Co., Ltd. ((1958) 1 All E R 725). In view of this paramount clause, the 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 the 9 drums and that they were also excused from giving any explanation for the loss.

14. The quantum of damage awarded by the learned Judge has not been challenged before us.

15. In these circumstances, we hold that the learned Judge has rightly decreed the suit against defendant No. 1, the Shipping Company, and defendant No. 2, their Agents.

16. Lastly, Mr. Pal has contended that the learned Judge was not justified in ordering that the costs awarded to defendant No. 4 was to be recovered from defendants Nos. 1 and

2. Defendant No. 4 was not added as a party in the suit at the instance of defendants Nos. 1 and

2. The plaintiffs made this defendant No. 4 a party in the suit of their own accord. Hence we see' no reason by the plaintiff should not be made liable for the costs awarded to defendant No.

4. The plaintiff, therefore, should pay the costs of defendant No. 4.

17. With the above modifications, we affirm the judgment and decree of the learned Subordinate Judge and dismiss this appeal with costs.

18. We do not think there was any necessity for defendant No. 4 to appear in this appeal and hence we do not allow them any costs of this appeal. KHAN, J‑I agree. K. B. A. Appeal dismissed.