P L D 1962 (W (PLP)

11. I would, however, like to consider to examine the question from the angle from which Mr. Riaz Ahmad would like me to see it. According to him there is no reliable evidence on record of the "on deck" capacity of the ship. He has, therefore, argued, on the assumption that the onus of proving the capacity of the ship is on the plaintiff, that the conclusion should be drawn against the plaintiff. This assumption no doubt finds some support from the form of the issue. The difficulty in the way of counsel, however, is that the capacity on which the plaintiff relies is in consonance with the terns of the contract (Exh. 6/1) and the defendant wants to justify the avoidance of the contract on the ground that it is a misrepresentation. The contract is signed by him and, therefore, the onus of proof is on him to establish the existence of a different state of affairs In my opinion, if there is no reliable evidence on record of `on deck' capacity of the ship, the defendant would fail because in that event he has not been able to justify his conduct in avoiding the contract.

12. Mr. Riaz Ahmad tried to meet this situation when I put it to him by contending that the plaintiff should fail because the plaintiff's allegation is that the contract has not been performed because the defendant had made an unreasonable demand to include a new port in the contract and that allegation has not been as much as referred to by Mr. Nurul Arifin in his address. This stand of Mr. Riaz Abmad appears to me to be misconceived. The plaintiff slid gave a reason for the non‑performance of the contract. That reason has not been substantiated but the fact remains that the defendant did not perform the contract for a different reason. If he fails in establishing his justification, it is no argument to say that the other reason which was ascribed to the defendant's act by the plaintiff has not been established.

13. The conclusion, therefore, that the under‑deck capacity of the ship has been established to be according to the Lloyd's Register (Exh. 15/1) to be 1,18,000 cubic feet and its "on deck" capacity has been established to be about 38,000 cubic feet.

14. Turning now to the other aspect of the question, namely the stowage factor, I may mention that the entire evidence of the parties on this aspect consists of tile statements of J. C. Thompson (Exh. 5), Captain A. Mihal‑Ovitz (D. W. 2), John Johnson (D. W. 3), survey reports Exhs. 15/2 and 15/3 and the contract Exh. 13/1. Mr. Riaz Ahmad has argued as pointed out above that the statement of J. C. Thompson is not reliable. I have agreed with him and therefore need not refer to his statement. The statement of John Johnson is not considered by me to be reliable as pointed out above and therefore I need not refer to it. Captain A. Mihal‑Ovitz has stated as follows:‑ "I have no personal experience about the cargo in dispute manufactured in Pakistan." His statement, therefore, is of no value. Eliminating the state ments of these three witnesses the three documents Exhs. 15/2, 15/3 and 13/1 become valueless because there is no mention in them of the stowage factor. They were intended to be used with the help of the evidence of the witnesses. In consequence I am left to draw my conclusions from reliable literature.

15. There are two books to which references have been made. One of them is "Stowage Notes" by James Knox, Licensed Measurers' Department, Bengal Chamber of Commerce, Second Edition, 1918 and the other is "Stowage" by Captain R. E. Thomas, assisted by Captain O. O. Thomas, 4th Edition, 1957. The relevant portion at page 272 of the Stowage Notes is as follows: "Oil Cake (Bags) Cwts. Qr. lbs. 5'‑6" x 21‑10 " x 2'‑7" 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 3/2 Bags per ton of 50 c. ft. 9 3/4 Bags per ton of 20 c. w. t." and the relevant portion from page 162 of Stowage is as follows:‑ "Cotton Seed Cake 48/55 Bales56/60 Loose. Is readily damaged by mois ture 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. Re quires to be well damaged and well ventilated." The stowage factor given in the latter quotation is higher but it is sufficiently low to enable the ship to carry 4,000 tons of the defendant's cargo.

16. Mr. Riaz Ahmad has argued that these Books give the stowage factor of oil cakes generally and not of oil cakes "undecoaticated." The distinction drawn by counsel is not supported by any evidence and does not appear to be material on the basis of any reference to any authoritative book brought to my notice by counsel. The mere fact that the word "undecoa ticated" is used in the contract (Exh. 6/1) does not enable me to come to the conclusion that the space required for oil akes in general would be less than for oil cakes "undecoati cated."

17. My overall conclusion is that the under‑deck and on -deck carrying capacity of "Safina‑e‑Tariq" is about 2,18,000 cubic feet. The stowage factor of oil cakes is between 48 and 55 cubic feet which means that it had the capacity to carry 4,'000 tons of the defendant's cargo. The issue is decided accordingly.

18. Issues Nos. 2 & 6.--‑It follows from the above discussion that the defendant has committed breach of the contract and that plaintiff is entitled to a decree for Rs. 79,316‑10‑7 with propor tionate costs and interest from the date of the suit until recovery at the rate of 6% per annum. I decide accordingly. A. H. Order accordingly.