P L D 1957 Karachi 315 (PLP)

WAHIDUDUIN, J.

This is an appeal against the judgment of Mahomed Bachal, J, dated 14th September 1949. Briefly stated, the facts leading to this appeal are that the respondent was the consignee of certain cargoes from the appellant's steamship S. S. Virginia. The said consignment consisted of various kind of goods including 50 packages of black pepper. According to the respondent the said steamer arrived at Karachi on or about 8th December 1947, and out of the said cargo, 15 packages of black pepper were short landed and short delivered to him. He, therefore, claimed Rs. 2,673-4 as compensation for non-delivery of the said 15 packages and a suit was filed on 8th January 1949. The appellant resisted the suit and one of the grounds was, that as the respondent did not file the suit within one year of the time when the goods should have been delivered, the suit was liable to be dismissed. This plea of the appellant was based on Article, 3 rule 6 of the Carriage of Goods by Sea Act, 1925. These rules are part of the contract entered into between the parties and incorporated in the bill-of-lading No. 68, marked as Exh.

6. According to the respondent, the ship discharged the cargo at Karachi Port on 8th of December 1947, and on 11th February 1948, he took delivery of a portion of the consign ment in dispute. The counsel for the appellant has urged that the suit should have been brought within one year from 8th of December 1947, and as it was filed on 8th of January 1949, the learned trial Judge was wrong in decreeing the same. The short question, therefore, in this matter is whether the contention of the appellant that the suit ought to have been filed within one year of 8th December 1947, is correct and: the suit having been filed after a month of the period stipulated above, should be dismissed. Clause 6 of Ariticle 3 reads 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." We have therefore, to determine the date on which delivery had been given to the appellant or the date when the goods should have been delivered and, therefore, the last part of the said Article, that is, when the goods should have been delivered, is alone to be considered to find out the date when the goods should have been delivered. We consider this contention of the learned counsel for the appellant as correct, and the only point for determination in this case is what was the date on which the goods should have been delivered to the respondent. According to the appellant, 8th of December 1947, is the date which should be considered as the date when the goods should have been delivered to the respondent ; on the other hand the learned counsel for the respondent has urged that 11th of February 1948 should be determined as the date on which the goods should have been delivered. Dr. Mahmud, learned counsel for the appellant, has relied on a number of authorities in support of his contention. He has referred to Haji Shakoor Gany (Firm) v. Volkart Brothers(A I R 1931 Sind 124) Haji Shakoor Firm v. Volkart Brothers (A I R 1937 Sind 11); Haji Shakoor Gany v. H. E. Hide & Co. Ltd. (A I R 1932 Born, 330) and Laudubhai Manekchand & Sons v. New Dholera Steamship Co. (A I R 1952 Sauc. 104). In A I R (1932) Bom. 330=34 B L R 634 Blackwell J. was considering a case where the ship arrived on 4th May 1929, and completely discharged cargo on 8th May 1929, and made the following observation "In my opinion, the effect of the incorporation of Article 3, clause 6, into the bills-of-lading in this case is that the rights of the holders have been extinguished in respect of the claim made in this case." In A I R (1931) Sind 124, Rupchand. J., while consider ing a similar question, considered the Sea Customs Act 1878, and also the Karachi Port Trust Act. He also considered the view expressed by Blackwell, J., in A I R (,1932) Bom. 124 and observed as follows :- "For all these reasons, I agree with the view taken by his Lordship in the Bombay case, that the right of the plaintiffs to claim from the ship the value of the sugar short delivered was extinguished at the expiry of one year from the date when such sugar should in the ordinary course of events, have been delivered here." The learned judge further observed :- "The Karachi Port Trust are statutory bailees and delivery to them was delivery to the plaintiffs. After the sugar had left the ship's tackle it was in possession of the Port Trust and on behalf of the holders of the bills of lading and at their risk, although it was also held by the Port Trust subject to a lien and to certain other rights of the ship. As the delivery was made to statutory bailees, no question whatsoever of any reasonable time lapsing between the date of the arrival of the ship and the date on which delivery became due arises. That question could only arise if the delivery was required to be given directly from the ship's tackle to the holder of the bill-of-lading. Even then a period of 11 days for taking delivery, that is, the period between the date of the arrival of the ship and 8th May 1929, would be unreasonable. It is hardly open to the plaintiffs to take advantage of any facilities afforded to them by the Port Trust for storing sugar in their sheds for a certain number of free days or to say that the delivery is not complete till the expiry of such free days. It is also not open to them to take advantage of their own negligence in not holding the survey immediately after the goods were landed." This case went in appeal before a Division Bench of the Sind J. C. Court in A I R 1937 Sind 11 and was approved. The learned judges, Davis, J. C. and Dadiba, A.J.C. also approved the case in 34 B L R 634, and made the follow ing observation :- "The Port Trust are not the agents of the ship owners to hold identified and ascertained consignment indefinitely at the will of the consignees, so as to make the ship-owners liable for the loss caused to the consignments, although in particular cases it may well be that they are agents of the ship-owners for the limited purpose of identifying and delivering the consignments mixed together." It was further observed: "The period of one year fixed in para 6, Article 3, Schedule 1 is to be construed strictly and is not to be allowed to be extended by vague and indefinite arguments and pleas. Where a ship leaves the port on a particular date, she must be deemed to have delivered the cargo to the consignees within the meaning of para 6, Article 3, and it is not open to the consignees to take advantage of a survey, which has been unduly delayed in order to extend the period of time." In (1952) A I R Saurashtra, 104 the following observations were made: "The Port Authorities hold the goods on behalf of the consignees. When the goods passed from the possession of the ship into the possession of the Port Trust they are held on account of the consignees and therefore, the date of the delivery to the consignee within the meaning of Article III Clause 6 of the Schedule is the date on which the ship sailed from the Port after delivering the goods to the Port Trust." We are in respectful agreement with the above mentioned observations and are clearly of the opinion that the date from which the period of one year should be calculated is the date on which the cargo is discharged by the steamship company. In the present case, the respondent in para 1 of the plaint has made a definite averment that the steamship S. S. Virginia arrived here on or about 8th December 1947 and discharged all its cargo except 15 packages of black pepper. In the face of this clear admission it does not lie in the mouth of the respondent to contend that the goods were not completely discharged on 8th December 1947, and that the burden of proof was on the appellant to establish when the discharge of the cargo was completed. The con tention of the learned counsel for the respondent in this respect is not sound and we are not prepared to accept it. The learned counsel for the respondent has also taken us through the record and urged that in the present case there is ample evidence to show that the goods did not arrive by S. S. Virginia but through some other ships also. He referred us, in support of this contention, to Exh. 10/4 under which the appellant company agent at Karachi asked the respondent to take delivery of the goods at the Native Jetty. The learned counsel contended that this particular jetty is not under the control of the Karachi Port Trust and, therefore, the princi ples of law laid down in A I R (1931) Sind 124 and A I R (1937) Sind 11 are not applicable. There is no force in this contention. It was for the respondent to prove that Native jetty is not within the control and jurisdiction of the Karachi Port Trust. No such plea was taken in the trial Court and, therefore, such plea cannot be allowed to be raised for. the first time in appeal. In any case, it was incumbent on the respondent to establish this particular fact. Having failed to do so, the argument of the learned counsel is untenable. The learned counsel has further urged that para 6 of Article 3 of the Carriage of Goods by Sea Act should be interpreted in the same way as Article 31 of the Limitation Act was interpreted by the Courts in India. Our attention was invited to a case in the matter of Exchange Bank of India & Africa (P L D 1954 Sind 222) and, it was urged that the view taken by Lari, J., in that case is also applicable to the present case. We have gone through the judgment of Lari. J. and it is clear from the facts of that case that there was a clear admission on the part of the steamship company that the goods were brought to Karachi in several lots by different ships. That case is is clearly distinguishable and is of no assistance to the respondent. According to section 34 of the Karachi Port Trust, it is the duty of the shipping company to land all the goods on arrival at Karachi on the wharfs, quays, stages, jetties-piers, warehouses, sheds and appliances of the Karachi Port Trust. According to section 37 on obtaining the receipt from the Karachi Port Trust, no master or owner of a vessel from which the goods in respect of which such receipt is given may have been landed shall be liable for any loss or damage to such goods which may occur after they have been so landed, and under section 40 of the said enactment private wharfs, docks, quays, stages, jetties-piers, erections or moorings are prohibited. Section 47 of the Karachi Port Trust Act lays down that the goods discharged and kept in the warehouses of the Karachi Port Trust will be kept at the risk and responsibility of the owner of the goods. It is therefore, clear that the Karachi Port Trust is the agent of the owner of the goods and delivery of the goods by the steamship company under the statutory provision of this enactment is the delivery of the goods to the consignee. Admittedly goods were discharged in this particular case on 8th of December 1947. Exh. 7 further proves that the respondent began to take delivery of the goods on 12th December 1947. This establishes the fact that the goods were ready and could be delivered to the consignee on or about 8th December 1947, or in any case on or about 12th of December 1947. The date on which in this case the goods should have been delivered is the 8th of December 1947, or in any case not later than 12th of December 1947. The appellant filed the suit after a month of the expiry of one year and therefore, according to Article 3 clause 6 his right to file the suit was extinguished and no longer was in ex istence. The learned trial judge has not considered this aspect of the question. He has counted the period of one year from the 11th February 1948, when it was discovered that the goods in question were not available for delivery to the respondent. This view in my opinion is not in accordance with law and is erroneous. We therefore, allow the appeal, set aside the decree, and order the respondents to pay the costs of this appeal. A. H. Appeal allowed.