Carriage of Goods by Sea

Parties entered into contract of Affreighment, whereby plaintiff / claimant was to bring coal under the terms of carriage and the same was to be delivered to defendant company/respondent

Dispute had arisen between the parties and matter was referred to Umpire who announced his award and the same was filed in Court for making the same rule of the Court

Defendant/respondent filed objections and sought setting aside of the same

Validity

Contentions of defendant/respondent were dealt with by the Umpire, who considered that 8 shipments were delivered and on the contrary there was an admission on the part of respondent as to the quantities discharged

Claimant was not required to prove the quantities discharged in the light of O. VIII, R. 5, C.P.C. and the only point remaining unresolved in respect of the consignments was as to the 10% balance freight remaining unpaid

Applicability or non-applicability of foreign law was not of any particular consequence as regards the conclusion reached

Relevant clause of Contract of Affreighment dealt with liability for the cargo and not the freight

Payment of freight could not be avoided as it was the underlying consideration for the carriage of goods by sea

High Court set aside objections raised by defendant / respondent as there was no patent error of any material nature underpinning the award and it was made rule of the Court

Application was allowed in circumstances.

Contract of affreightment was entered into between parties whereby plaintiff's cargo was to be shipped on board the vessel

Two bills of lading were issued in respect of cargo which showed plaintiff as consignor

Contention of plaintiff was that as per contract of affreightment, vessel was to proceed straight to port of destination from the port of loading but it stopped on way to discharge some cargo, which was breach of contract of affreightment

Vessel was due for annual survey at the time when it sailed from the port of loading and when it stopped on way, the port authorities refused to allow vessel to sail until appropriate certificate was in place and vessel off-loaded cargo for the purposes of sea-worthy certificate

Plaintiff claimed to be entitled to bring suit in rem against the vessel and had it arrested

Validity

Duty to provide sea-worthy ship was determined at commencement of sailing

Vessel's certification might have been current when it sailed from port of loading, through it was imminently expiring and had to be renewed

Ship-owner was prima facie in breach of its duty notwithstanding that in technical sense vessel might have had a valid certification when it sailed from the port of loading

Fact that such certification was about to expire and vessel would be without proper certification with the attendant consequences was known to the ship-owner

Prima facie, it was established that ship-owner owed a duty, in tort, to provide a sea-worthy vessel; that such duty was owed, among others, to a person such as plaintiff, whose cargo was shipped on board the vessel under a contract of affreightment; that it was irrelevant that ship-owner was not contractual carrier and bills of lading were charterer's bills; that duty owed by ship-owner to plaintiff was breached in facts and circumstances; that claim for breach of such duty could be made by cargo owner i.e. plaintiff, in terms of S.3(2)(h) of Admiralty Jurisdiction of High Courts Ordinance, 1980; and that by virtue of S.4(4) of Admiralty Jurisdiction of High Courts Ordinance, 1980, action in rem was maintainable against the vessel

Equity was in favour of plaintiff and against vessel and ship-owner

All ingredients for grant of interim relief were in place and such relief could not be denied to plaintiff

High Court directed to detain the vessel and permission to sail was granted subject to deposit of surety

Application was allowed in circumstances.

[Words and phrases].

Copper cable wound on a reel-Reel coming direct from factory in same shape, neither put in any covering nor a cradle to facilitate its handling or transportation-Cannot be regarded as a "package".

[Words & phrases].

Marine insurance-Claim for damages-Survey at request of consignee-Survey report of surveyor appointed by Insurance Company without notice to carrier-Not binding on carrier.

governed by foreign law and decided by particular foreign Court Jurisdiction of local Courts, nevertheless, not ousted-Contract Act (IX of 1872), S. 28.

Carriage of Goods by Sea Carriage of Goods by Sea-Damage to goods-Liability of ship owner-Liability of ship owner for damage to goods before being loaded on ship arises either under provisions of Carriage of Goods by Sea Act, 1925, or relevant Port Trust Act or under terms and conditions of contract of affreightment in Bill of Lading-Bill of Lading containing endorsement that goods (Cotton Bales)were wet at time of shipment-No evidence that goods were handed over to ship-owner in apparent good order Liability of shipowner, in circumstances, held, commenced from shipment on board the ship.

Carriage of Goods by Sea Carriage of goods by sea-Carriage by sea-Bales of cotton damaged by soaking of water used to extinguish fire on board the ship-Liability-"General average" explained.

Carriage of Goods by Sea Marine Insurance-Insurance Company's liability for damage caused to cargo on board a ship-Clause in Insurance policy undertaking to help consignee to prosecute his cause against carrier in case of loss of, or damage to, consignment in transit on board the ship-Consignment damaged in transit and consignee approaching Insurance Company after his claim had been repudiated by carrier

Insurance Company, for long time giving evasive reply and finally repudiating its liability after period of limitation for filing suit against carrier expired-Assured, in circumstances, absolved of his duty to file suit against carrier or to make him a party to his suit against Insurance Company for realisation of claim on basis of Insurance Policy-Insurance Company alone, in circumstances, responsible for making good loss suffered by assured.

Freight charges for carriage of goods-Bill of lading disclosing that freight payable in Pakistani currency and as soon as goods loaded on vessel-Liability to pay freight incurred as soon as goods placed on board the ship aid

subsequently selling consignment, of cotton yarn to by delivery of relevant shipping documents (viz. Bill of lading, Marine Insurance Policy and Invoke of foreign firm)- on failing to receive purchased consignment of cotton yarn filing suit for recovery of purchase( price against as well as against S the insurers of goods claiming that either goods had not been shipped at all, in which case, was liable for return of purchase price or in alternative if goods had been shipped then because of non-delivery (the Insurance Company) was responsible for reimbursing for value of goods not delivered-Decree against S (Insurance Company) only-Question, how far an insurer, in such circumstances, liable, held to be a point of law of considerable importance-Special Leave to Appeal granted by Supreme Court to the Insurance Company-Simultaneously Leave to Appeal granted to the purchaser as well on plea that in case the Insurance Company be held not liable on ground that no goods were shipped at all might have an opportunity to put his claim in alternative against H the local importer.

Carriage of Goods by Sea Carriage of goods by sea-C. I. F. contract-Question whether goods were in fact shipped-Bill of lading, statement in-Not conclusive; onus lies on buyer to show that goads were not shipped at all

Sale of Goods Act (III of 1930), S. 39

Evidence Act (I of 1871), Ss. 101 do 103.

Carriage of goods by sea-Provisions of English enactment (Carriage of Goods by Sea Act, 1924) made applicable by virtue of a clause in Bill of Lading-Provisions of Act, nevertheless, applicable only in case of carriage of goods from any Port in Great Britain or Northern Ireland-Goods shipped from Hong Kong to Chittagong Not covered.

Charter party contract to "carry maximum of 4,000 tons deadweight" of cargo Expression "dead weight of cargo" indicates guarantee of vessel's carrying capacity with reference to contemplated voyage and description of proposed cargo made known to owner.

Carriage of Goods by Sea -Contract of affreightment-Parties to contract could extend time for delivery of goods by agreement only-Insurance of goods imported-Policy assuring insurance Company's liability for any loss or damage to goods subject to "bailee clause" incorporated in policy whereby owner of goods was required to lay claim upon carrier for loss or damage within period of limitation-Insurance Company, held, not liable to compensate if owner of goods had failed to take appropriate steps against carrier within period of limitation (within one year from departure of ship from port).

Carriage of Goods by Sea Carriage of goods by sea-(Loss of goods)-(Damage to goods)-Causes different for each result-To be separately pleaded.

Non-production of record and non production of evidence proving loss of cargo-Weigh against plaintiff and not against defendant

Claim in respect of alleged loss treated, in circumstances of case, as claim arising from damage to cargo.

Endorsement in bill of lading that terms of charter apply to and govern rights of parties-Terms of charter to govern bill of lading.