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Petitioner: MACKINNON MACKENZIE & CO., OF PAKISTAN LTD VS Respondent: EASTERN MERCANTILE
P L D 1958 Dacca 410
P L D 1958 Dacca 410
Before A. Ahmed, C. J. and Nandi, J
MACKINNON MACKENZIE & Co., of PAKISTAN LTD., Agents for British India Steam Navigation Co., Ltd., Strand Road, Chittagong‑Appellant
Versus
EASTERN MERCANTILE Co., represented by sole Proprietor Brij Mohan Seth, at present of Enayat Bazar, Chittagong‑Respondent
First Appeal , No. 87 of 1953, decided on 4th December, 1957.
(a) Bill of lading‑ Ship-owners not bound to notify arrival of ships to consignee posting of letter sufficient where ship-owners contracted to notify‑Two clauses in a bill of lading‑One for notice to consignee and other to the effect that such clause is solely for use of ship's agent and creates no obligation to consignee Ship-owners whether liable to notify.
The ship-owner is not bound, in the absence of a special agreement, to notify the arrival of the ship to the consignees of the cargo, the 'consignees are bound to watch for it and to take notice of it without communication.
Where there was a contractual obligation imposed on the ship-owner to notify the consignees of the arrival of the goods, the posting of a letter containing the notification would be a sufficient performance, though the letter were lost in the post.
Where a bill of lading contained two clauses: one on the top of it which was as follows
"Notify Eastern Mercantile Co," and the other was a rubber stamp clause on the back of the bill of lading to the following effect :-
"Any clause herein giving names of parties who desire to be notified of ship's arrival at destination is solely for the use of the ship's agent and failure to notify shall not involve the carriers in any responsibility or relieve the consignees from any obligation hereunder".
It was contended by the consignee that the clause at the top of the bill of lading directing that the consignee was to be notified created an unqualified obligation on the part of the shipowner to so notify.
Held :that both the clauses should be read together as parts of the same contract an interpretation which gives effect to both the clauses should be accepted.
The Notification clause certainly created a contractual obliga tion on the ship-owner to notify 'hut by the other clause on the back of the bill of lading the ship-owner was by contract again relieved of all liability, in case the consignee was not notified. The notification clause was for the use of the ship's agent and reading the two clauses together it was clear that it was not intended to create any liability against the ship-owner.
Carriage of Goods by Sea (6th Edition) p. 599, Article 465 by Carver Charter Parties (15th Edition) p. 326 by Scrutton, English and Empire Digest (1928 Edition) Vol. 41, Article 2223 relied on.
(b) Bill of lading‑General notice showing arrival of goods hung up at notice board of ship-owners' office does not discharge liability to notify.
Where the ship-owner is under the contract or under law liable to notify the consignee of the arrival of cargo a general notice showing the arrival of goods hung up in the Notice Board of the ship-owners' office will not discharge the ship-owners from their liability, to notify.
P. C. Pakrasi for Appellant. S. C. Bose for Respondent.
JUDGMENT
NANDI, J.‑This appeal is on behalf of the defendant and arises, out of a suit commenced by the plaintiff respondent for recovery of Rs. 18,366‑10‑0 as compensation. The allegations on which the plaintiff come to Court are the following :‑The plaintiff imported 100 bales of cotton yarn per S. S. Sangola from Hongkong, At Singapore, the goods were transhipped from S. S. Sangola to S. S. Kola which is owned by B. I. S. N. Company, Limited; whose local agent is the defendant Company. S. S. Kola arrived at Chittagong Port on 30‑5‑51 and discharged her cargo. Though under the terms of the bill of lading it was the duty of the defendant to notify the plaintiff of the arrival of the ship and of the cargo, the defendant did not do so. The plaintiff wrote to the defendant on 25‑6‑51 and again on 5‑9‑51 enquiring about its consignment but did not get any reply to either of the letters. On 27‑9‑51, the plaintiff wrote to the defendant a third time enquiring about the goods. The receipt of this letter was, however, acknowledged by the defendant and on 2‑10‑51 it wrote back to say that part of the cargo of S. S. Sangola had been transhipped to S. S, Bandra and part to S. S. Bakala and the ships arrived at Chittagong Port on 13‑8‑51 and 24‑8‑51 respectively. On receipt of the above letter, plaintiff made enquiries and looked into the manifests of both S. S. Bandra and S. S. Bakala but failed to find any mention of its goods therein. On further enquiry. plaintiff came to learn that its consignment arrived at Chittagong Port on 30‑5‑51 per S. S. Kola. Plaintiff then alleges that due to the failure of the defendant to notify the plaintiff of the arrival of the goods it had to pay wharf rent of Rs. 18,366‑10‑0 and the defendant is liable to compensate the plaintiff to that extent.
2. The defence of the defendant Company is as follows :
The carrier has no obligation to inform the consignee of the date of arrival of the ship. It is the duty of the consignee to keep himself informed about the movements of the ship. The further defence is that the plaintiff's cargo arrived , at Chittagong Port per S. S. Kola on 30‑5‑51 and this was intimated to the plaintiff by post on 1‑6‑51. A notice showing arrival of S. S. Kola with transhipped. goods from S.S. Sangola was also hung up in the notice board in the office of the defendant Company for information of consignees concerned. The plaintiff, however, did not choose to move in the matter till 27‑9‑51 when it wrote for the first time to the defendant enquiring about the cargo of S. S, Sangola. S. S. Sangola, after having discharged its cargo at Singapore, went back to Hongkong and again came back with another load in July, 1951, part of which was transhipped to S. S. Bandra and part to S. S. Bakala which ships arrived at Chittagong Port on 13‑8‑51 and 24‑8‑51 respectively. As the plaintiff was making enquiries in September. 1951, defendant naturally thought the enquiry was in respect of cargo which arrived at Chittagong in August, and, in its letter, dated 2‑10‑51, it replied accordingly. The defendant, therefore, maintains that the suit should be dismissed.
3. The learned Subordinate Judge held on a discussion of the law on the point and of the clauses of the bill of lading that it was the duty of the defendant to notify the plaintiff of the arrival of the ship Kola. He also found as a fact that the defendant did not notify the. plaintiff of the arrival of S. S. Kola. He, however, found that the plaintiff was not entitled to recover wharf rent for ten days as there was some laches on the part of the plaintiff. A decree for Rs. 16,865‑8‑0 with proportionate costs was accordingly passed by him in favour of the plaintiff. Hence this appeal by the defendant.
4. Mr. Prakash Chandra Pakrasi, the learned Advocate who appears in support of the appeal, contends in the first place that there was no obligation on the defendant, either in law or on the terms of the bill of lading, to notify the plaintiff of the arrival of the ship or of its cargo. The learned Advocate contends in the second place that the defendant did give notice of the arrival of the ship to the plaintiff. The third contention of Mr. Pakrasi is that the Court below should not have allowed the plaintiff's prayer for amendment of the plaint which introduced a totally new cause of action.
5. Mr. Bose, the learned Advocate for the respondent, on the other hand, contends that by the terms of the bill of lading which is the contract between the parties, a contractual liability on the part of the defendent to notify the plaintiff was created. He also contends that no case of notifying by post was made in the written statement of the defendant and such a case at the trial on worthless evidence should be rejected. So far as the amendment of the plaint is concerned, Mr. Bose says that it was a formal matter and was rightly allowed.
6. It will be convenient to deal with the above contentions of the learned Advocate for the appellant in the reverse order. The third contention relating to the amendment of the plaint arises out of the following facts. In the plaint as originally filed, the plaintiff's cause of action was stated to be the fact that it was to pay the wharf rent because of the laches on the part of the defendant. It is contended that there was no statement in the original plaint' that the wharf rent had actually been paid to the port authorities. The plaint was. filed on 25‑2‑52. On 9‑3‑53, an application was filed by the plaintiff praying for amendment of the plaint by adding a statement to the effect that the cause of action also arose on 15‑10‑51, the date on which the wharf rent in question was paid. By an order dated 14‑3‑53, the Court allowed the prayer for amendment and also allowed the defendant to file an additional written statement which was actually filed on the 21st of March, 1953. Mr. Pakrasi contends that the amendment has introduced a totally new cause of action. We are unable to agree with him. The amendment sought for by the plaintiff and allowed by the Court below was a formal one, the object of which was to elucidate what was already in the original plaint. There is no question of the defendant having been taken by surprise to meet a new case. The whole tenor of the original plaint was to recover compensation from the defendant for the wharf rent plaintiff had to pay on account of the defendant's laches. The defendant also filed an additional written statement. There is in our opinion no substance in this contention of Mr. Pakrasi.
7. As regards his second contention that the defendant actually gave notice of the arrival of the ship to the plaintiff the learned Advocate refers us to the copy of a letter sent by the defendant to the plaintiff on 30‑5‑51 (Exhibit F). There is an endorsement at the bottom of the copy of the letter that it was despatched by post on 1‑6‑51. The plaintiff's address is given as Chittagong only. The learned Advocate also draws our attention to an extract from the Letter Despatch Register of his client dated the Ist of June, 1950 (Exhibit G). which shows that a letter was despatched to the plaintiff on 1‑6‑51 and the postal charge was 1 anna 6 pies. In this connection, the learned Advocate also refers to the evidence of witness No. 1 for the defendant who says :‑
"Plaintiffs were informed by us by a letter dated 31‑5‑51 of the date of arrival . of S. S: Kola. This is the office copy of the letter signed by the Head Clerk, Ext. F. It was sent by post because address was incomplete in the B/L and our peon could not trace the consignee. It is our Despatch Book. Copy of relevant entry is Ext. G".
As against this, the plaintiff's witness says that the plaintiff did not receive any such letter posted by the defendant on 1‑6‑51. It will be seen that the plaintiff's definite case in the plaint was that it was obligatory on the defendant to intimate the plaintiff of the arrival of the ship and this the defendant did not do. Had the defendant really posted the letter it would certainly have pleaded the same prominently in the written statement. But, instead, we find that the defendant throughout the whole of the written statement harps on the duties and liabilities of the carriers and consignees under the law of carriage of goods by sea. Under the circumstances, we find it difficult to believe the story of despatch of the letter as told by witness No. 1 for the defen dant. Mr. Pakrasi also draws our. attention to the fact that a notice showing the arrival of S. S. Kola at Chittagong with A transhipped cargo from S, S. Sangola was hung up in the Notice Board in the defendant's office. But, that is a general notice and cannot, in our opinion, discharge the defendant from its liability to notify the plaintiff if of course the defendant was under the contract or under law liable to so notify.
8. We now come to the first and main contention of Mr. Pakrasi. viz., that there was no obligation on the defendant either in law or on the terms of the bill of lading to notify the plaintiff of the arrival of the ship. The law as to how far the master of a ship is liable to notify the arrival of the ship to the consignees of her cargos is summarised by Carver in his book on the Carriage of Goods by Sea (6th Edition), page 599, Article 465, thus :‑ .
"The master is not bound in the absence of a special agreement to notify the arrival of the ship to the consignees of the cargo ; they are bound to watch for it and to take notice of it without communication. This has been repeatedly held to be the rule with regard to consignees and indorsees of goods shipped in general ships (a) ; and presumably the same is true where the shipments have been under a charter‑party (b). It is the duty of the consignee apart from special custom or contract, to use due and reasonable diligence to discover when the ship arrives with his goods on board' (c).
But where a through ,bill of lading contained the clause `Party to be notified : E 'Clemens Horst', it was held that there was a contractual obligation imposed on the ship-owner to notify the person so named ; it was also held that posting of a letter containing the notification would be a sufficient per formance, though the letter were lost in the post".
The statement of the law given by Scrutton in his book on Charter Parties (15th Edition) at page 326 is as follows :‑
'`In the absence of special contract or custom, the ship-owner is not bound to give notice of his readiness to unload either to the charterers or to the shippers or consignees under bills of lading".
So we have to see if there is any special contract in the case before us which makes it‑ obligatory on the defendant to give notice of the arrival of the ship to the plaintiff. At the top of the bill of lading, there is a clause "‑Notify Eastern Mercantile Co." On the back, however, there is a rubber stamp clause which runs as follows :‑
"any clause herein giving names of parties who desire to be notified of ship's arrival at destination is solely for the use of the ship's agent and failure to notify shall not involve the carrier in any responsibility or relieve the consignees from any obligation hereunder".
Mr. Paktasi contends that the two clauses read together do not create any duty on the part of the ship-owner to notify the consignee but the clause as regards notification is only for the use of the ship's agents as the rubber stamp clause itself says. Mr. Suresh Chandra Bose, the learned Advocate for the respon dent, on the other hand, contends that the clause at the top of the bill of lading directing that the plaintiff is to be notified creates an unqualified obligation in the ship-owner to so notify.
This, according to Mr. Bose, is a special contract and the force and effect of it cannot be nullified by the rubber stamp clause on the back of the bill of lading. We, however, think that both the clauses should be read together as parts of the same contract and an interpretation which gives effect to both the clauses should be accepted. In the present case, there is no difficulty in giving effect to both the clauses as they do not contradict each other. The notification clause certainly creates a contractual obligation t on the ship-owner to notify but by the other clause on the back of the bill of lading the ship-owner is by contract again relieved of all liability in case the consignee is not notified. The notifica tion clause is for the use of the ship's agents and reading the two clauses together it is clear it was not intended to create any liability against the ship-owner. In this connection, we may profitably refer to the English and Empire Digest (1928 Edition) Volume 41, Article 2223 :‑
"A through bill of lading contained the clause `Party to be notified' : Clemens Horst' : Held (1) the words were words of contract, (2) notification by post would have been sufficient even though the letter did not arrive, (3) a notification clause in an, ocean bill of lading incorporated by the through bill of lading to the effect that no claim shall, under any circum stances whatever attach to the steamer, her owners or agents for failure to notify consignees for arrival of goods does not contradict the through bill of lading containing the contract to notify but relieves the ship-owner from liability to pay damages if he fails to carry out the obligation to notify".
9. We hold accordingly that the defendant cannot be made liable for compensation for any loss the plaintiff might have suffered due to the defendant not having notified the plaintiff.
10. This appeal is 'accordingly allowed and the plaintiff's suit dismissed, but, in view of the fact that the law that arose for consideration in this case was by no means settled and we ourselves had to look out for authorities, we direct that the parties will beat their respective costs of both this Court and of the Court below.
11. The application for additional evidence was not pressed at the hearing and is, therefore, rejected. .
AMIN AHMED, C. J.‑I agree.
Appeal allowed.