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Petitioner: PAKISTAN SHIPPING LINES LTD. VS Respondent: TRUSTEES OF THE PORT OF KARACHI AND 2 JUDGMENT
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed Title:PAKISTAN SHIPPING LINES LTD. vs TRUSTEES OF THE PORT OF KARACHI AND 2
JUDGMENT
Reported As: 1981 CLC 1451 Result: Order accordingly Judgment JUDGMENT ' Pakistan Shipping Lines Limited (hereinafter for the sake of brevity called 'the Shipping Company') has filed this suit against Trustees of the Port of Karachi (hereinafter called 'The Trustees'), claiming a sum of Rs, 1,69,425 as compensation for damage caused to one of the three cases of dairy plant packed in three cases shipped per s. s. 'Mansoor' which was chartered by the Shipping Company, and which arrived on 27th July, 1969 at Karachi Port. The Shipping Company, has also joined Lyallpur Dairies Limited (hereinafter called 'The Importer'), and Messrs Afghan Agencies (hereinafter called 'the Clearing Agents') as defendants Nos. 2 and 3, to the suit. ' It is the case of the Shipping Company. That on or about 29th July, 1969, while one out of three cases of dairy plant shipped from Hamburg to Karachi under Bill of Lading No, 168 dated 14th June, 1969 deliverable to the order of the Industrial Development Bank of Pakistan was being landed by the Trustees. It was dropped on the dec or was slacked very rapidly to the deck. In striking the deck, it is claimed, the case containing machinery was broken open and the machinery was seriously damaged. According to the Shipping Company, the Trustees committed breach of the contract in not taking due and reasonable care and acted without due diligence in handling the case. In the alternative, it is pleaded that all servants and/or agents of the Trustees, who were operating the crane were negligent in that they did not take all reasonable care in landing the case and acted without due diligence. According to the averments made in the plaint, the Clearing Agents of the Importer preferred a claim for payment of a sum of Rs, 1, 69, 425 by the Shipping Company, on account of damages suffered by the Importer. The Shipping Company, has joined the Importer and the Clearing Agents as parties to the suit, as according to the Shipping Company, they are entitled
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to the fruits of the decree which may be passed in the suit, and because it was for them to prove the quantum of damages suffered by them. ' The Trustees in their written statement have denied their liability and pleaded that they were not responsible for the damage caused to the goods for the crane was hired by the Stevedor Company, Karachi, who were engaged as Stevedors by the Shipping Company, itself, and it was operated under the supervision, direction and instruction of the Stevedors, They have also denied, for want of knowledge, that the case was either dropped on the deck of the ship or was slacked very rapidly to the deck as alleged or that the case containing the machinery, was broken open and the machinery was seriously damaged. They have also pleaded that they did not bear any responsibility or liability for damage to the machinery in view of Bye-laws 25 to 35 of the General Bye-Laws of the Karachi Port Trust. ' They have further pleaded that the claim is not maintainable under Bye-Laws Nos. 43 and 46 of the General Bye-Laws of the Karachi Port Trust. The Importer and the Clearing Agents who have filed a joint written statement, while not admitting the allegations made in paragraph 3 of the plaint, have pleaded that a part of machiney containing the butter packing machine, while being discharged, was damaged due to want of due care and caution on the part of the Trustees. They have further pleaded that one of them viz., the Importer, has filed a separate suit, being Suit No, 304 of 1970, against the Shipping Company, joining there to the Trustees and the Clearing Agents as pro forma defendants and claiming a sum of Rs, 1,69,455. 50 from the Shipping Company. They have however, supported the claim of the Shipping Company, and pleaded that decree may be passed in favour of the Importer and/or the Clearing Agents for the amount claimed in the suit. ' On the pleadings of the parties, the following consent issues were filed on 19th April, 1971 which were adopted by the Court :- "(1) Whether defendant No. 1, their Agents and/or servants were operating/moving the cranes for discharging the case from the ship ? (2) Whether damage to the case was caused due to the negligence of the servants and/or agents of the defendant No. 1. If so what is the effect ? (3) Whether goods were given to K. P. T. In damaged condition. If so, what is the effect ? (4) What amount of loss was suffered by defendants Nos. 2 and 3 due to the damage caused to case containing machinery ? (5) Whether plaintiffs claim is not maintainable under Bye-Laws 25 to 35, 43 and 46 of Karachi Port Trust General Bye-Laws and sections 87 and 88 of K. P. T. Act ? (6) To what reliefs plaintiffs and defendants 2 and 3 are entitled ? ' Now, before I consider these issues I may in detail refer to the other suit filed by the Importer against the Shipping Company, the Trustees and the Clearing Agents, claiming a sum of Rs, 1,69,455.50 and pleading that the Shipping Company, had placed an order on the Trustees of the Port of Karachi for supplying the shore crane which they had provided. The Importer has further pleaded that the crane while discharging the Importer's packages on or about 27th July, 1969 was operated negligently by the Shipping Company, or its agents or servants and as a consequence whereof the cases were dropped on the deck and as a result of the impact of the fall, the cases of the machinery were completely damaged which were treated as total loss. ' The Importer in the second suit has claimed a sum of Rs, 1,69,425.50 as damages with the following particulars :- Particulars :- {{TABLE}} Rs, Cost D. M. 69, 540 (.4 D. M. 75, 1395: Pak Rs, 100 92,548.00 Bonus on freight proportionate 1,140.00 Insurance proportionate a paisa 90 per Rs, 100 758.00
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Clearing agents bill including duty, wharfage and demurrage 45,018.24 Cost of bonus voucher. 29,960.86 1,69,425.50 {{TABLE}} ' In the second suit the Importer has specifically and significantly pleaded that it has joined the Trustees and the Clearing Agents as pro forma defendants. In the second suit the Shipping Company, in its written statement has pleaded that for discharge of the cargo from the ship it placed order on the Trustees to supply shore crane and they provided the same which was operated by the staff of the Trustees. It is further pleaded that while one case out of the three cases was being landed by the Trustees it was dropped on the deck or was slacked very rapidly to the deck. In striking the deck, the case containing machinery was broken open and the machinery was seriously damaged. It is further pleaded that the Trustees committed breach of contract in not taking the due and reasonable care and diligence in landing the goods. Further, in the alternative, it is pleaded that the Trustees, their servants and/or agents who were operating the crane were negligent in that they did not take due care and diligence in landing the cases. It has denied its liability and pleaded that it has already filed a suit, being Suit No, 123 of 1970, in this Court against the Trustees for benefit of the Importer and/or the Clearing Agents. It has further pleaded that the Importer's claim is exaggerated, speculative and extortionate. It has also pleaded that the Importer is not entitled to Rs, 29,960.86 on account of the costs of bonus voucher and Rs, 45,018.24 on account of custom duty, wharfage, and demurrage charges. It has further pleaded that the defendants' maximum liability for loss or damage per package or unit is to the extent of the equivalent of D M. 1,250 in Pakistani currency in accordance with the Law of Germany from where the shipment was made. ' The Trustees of the Port of Karachi took the same defence as they have pleaded that the suit is not maintainable for want of service of notice under section 87 of the Karachi Port Trust Act, 1886 read with Bye-Law 46 of the Karachi Port Trust Manual. Part, ' The Clearing Agents in their written statement supported the claim of the Importer and have further submitted that the decree may be passed against the Shipping Company, and Trustees jointly in favour of the Importer and the Clearing Agents. ' On the pleadings of the parties in the second suit, the following consent issues filed by the learned counsel for the parties were adopted by the Court on 3rd May, 1971 "(1) Whether the defendart No, 2, their agent and/or servant were responsible for operating/moving the cranes for discharging the case from the ship? (2) Whether the damage to the case was caused due to negligence of the servant and/or agents of the defendants No, 2. If so, what is its effect ? (3) Whether the goods were given to K. P, T. In damaged condition. If so what is its effect ? (4) What amount of loss was suffered by the piaintiffs due to the damage caused to case containing machinery ? (5) Whether the plaintiffs claim is not maintainable as against defendants No, 2 under Bye-Laws 25 to 35, 45 and 46 of the Karachi Port Trust General Bye-Laws and sections 87 and 88 of the K. P. T. Act ? (6) Whether the suit as against the defendants No, 2 is not maintainable as the defendants No 2 are the statutory bailees of the ship and not of the plaintiffs/consignees ? (7) To what relief plaintiffs are entitled ? ' It will be seen that the issues in both the suits are common. By the order dated 22nd December, 1976, by consent of all the parties, both the suits were consolidated. Accordingly the evidence in Suit No, 123 of 1970 was recorded but the same is to be read as common to both the suits. I, therefore, propose to dispose of both the suits by this judgment.
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' The Shipping Company, has examined in support of its claim Saeed Bhombal (Exh. P 6), Kalim Akhtar, (Exh. 7), Abdul Rehman, (Exh. 8), Zaheeruddin (Exh. 9). ' Saeed Bhombal who was working as Marine Surveyor and had carried out the survey of the goods at the request of Shipping Company, produced survey report dated 11th August, 1969 (Exh. P. 6/1). He deposed that he had examined two cases at K. P. T. Open Plinth No, 7, East Wharf on 31st July, 1969. He stated that he did not take any technician or mechanic to dismantle the machinery before the survey. He deposed that it. Was the outward survey as it appeared to his naked eye. The material part of the survey report reads as follows :- ' Butter Moulding and Cutting Machine 8304-B. "1. Case/2. (1) 1 Metal cover plate (Approximately 2 mm. Thick) dented, crews sheared off. (2) Control wheel (bakelite) broken, shaft bent, (3) Speed regulator control wheel (bakelite) broken. (4) Metal cylindrical cover for shaft dented-oil leaked out-no further damage apparent. (5) One stitch assembly lying loose, one button partly loose. (6) One assembly apparently Rocker Arm, sheared off from ball at lower end and broken from Cast-iron plate at upper end. (7) Two roller assemblys with gear wheels found loose-position of original fitting not apparent. (8) One gear wheel found broken and damaged original fitted position not apparent. (9) Two electrical relays damaged and loose. (10) Body Paint chipped at places. (11) Case 1, found contents complete and sound." ' It will be seen from the above report that the surveyor has not assessed the loss in terms of money and has not stated that the plant or machinery has become totally useless or the damage could not be repaired. In cross-examination by the counsel for the Trustees he deposed that he did not remember whether any person from the K. P. T. Was present at the time of survey of the machinery. It was suggested to this witness that he could not survey the goods without the permission of the Trustees within the premises of K. P. T. He however, submitted that the Clearing Agents had taken the permission. But the same, has not been produced in evidence. ' Kaleem Akhtar (Exh. 7) who was Assistant Manager of National Shipping Corporation stated that the carriage of goods by sea is governed by the Hague Rules and that he had obtained the English translation of Hague Rules from West Germany but he has not produced the same. Therefore. His evidence is not at all material. ' Abdul Rehman (Exh. 8) is a material witness. He stated that he was working in the Stevedor Company, Karachi and that the Shipping Company, had appointed his company as Stevedors by its letter dated 21st July, 1969 (Exh. P-8/1), and that the cargo was unloaded by them. He further stated that he had requisitioned the crane of the K. P. T. For unloading the cargo from s. s. Mansoor". He produced 19 crane's requisition slips (Exhs. P-28/2 to 8/20). According to him one case out of three cases was damaged by the negligence of the crane driver. He further stated that the K. P. T. Cranes were operated by their drivers. He however, admitted that the sling in the hatch of the ship was made by the labourers of Stevedor Company Karachi. According to him the case was fixed in the hook of the crane and thereafter labourer in the hatch gave a signal to the crane operator to heave up the cargo. According to him, thereafter his work ended. He further stated that he was present on the dock at that time and saw the crane driver heaving up the cargo and dashing it against the wall of the hatch and consequently one case fell down on the deck. The wooden planks were broken due to that impact. According to him the Chief Officer of the ship made entry in his log book regarding the damage to the case. ' In cross-examination to the counsel of the Trustees, he admitted that after requisition, the crane worked in the charge of the Stevedor Company, Karachi and that the driver operated the crane
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under their orders. The labour was employed by them. In cross-examination to Mr. Abdul Raoof, Advocate for the Importer and the Clearing Agents, he stated.That there was only one case in the sling and the case fell down from a height of about 6 feets on the deck. ' Zaheeruddin (Exh. 9) who was an employee of the Shipping Company, and was working as the claim incharge produced the Bill of Lading (Exh. P-6/2-A) and stated that according to the endorsement on the Bill of Lading the delivery of the goods was to be made to the Clearing Agents. He also stated that his company had given two legal notices to the Trustees and he produced the copies of the notices together with acknowledgment receipt. He was not cross-examined by any of the counsel. ' Hamid Mukhtar Ahmad (Exh. 10), Abeerul Islam (Exh. D/11), Karamat Hussain (Exh. D/I2), Hassan Abbas (Exh. D/13), Hassan Ahmed (Exh. D/14) and Nazar Hussain (Exh. D/15) were examined on behalf of the defendants. ' Hamid Mukhtar Ahmad (Exh. 10) deposed that the name of his firm was Hamid Mukhtar & Company, which was established in Lahore since December, 1964 and they surveyed damage to the consignments of insurance companies. He gave his qualification as B. Sc., Mechanical and B. Sc., Electrical Engineering and stated that in the year 1970 his firm was appointed to do the survey of one package of the Importer, by the National Insurance Company, as it was then called, and he had surveyed the package at Lyalipur and then at Lahore and prepared his report (Exh. 10/1) which he produced and which was admitted subject to the objection of Mr. Ismail Tijahi, Advocate for the Shipping Company, which was that the document was not disclosed at any time by the Importer. He further stated the report bore his signature and was correct and was sent to N. C. S., Lahore. He further deposed that he had dismantled the case for detailed survey of the machine. ' In cross-examination to the counsel for the Shipping Company, he admitted that he did not issue any notice to the Shipping Company, and that none of the agents of the Shipping Company, were present. He also admitted that he had not surveyed the remaining two cases of the machinery. He further stated that the part of the machinery contained in Case No, 2 and surveyed by him could be sold in the market as scrap. He further stated that in his report he had valued the scrap at Rs, 500. He also stated that he saw the goods at Lyalipur and then asked the Importer to shift the same to Lahore for detailed inspection. He further stated that he did not remember whether the case bore the caution "Handle with care" on it. He expressed his ignorance whether the case was sent to Lyalipur from Karachi by truck or rail. He however, admitted that he did not see any other package nor could he say anything about its value. ' The next witness examined by Mr. Zaheeruddin Khan, Advocate for the Trustees, was Abeerul Islam (Exh. D/11). He stated that he was incharge of Crane Section, West Wharf, Karachi Port Trust and that the shipping agents or the stevedors requisitioned cranes from the Karachi Port Trust on hire by filling requisition form and the Department allotted the cranes to the applicants. He further stated that the staff of the cranes worked under the supervision of the applicants though the same was employed by the Karachi Port Trust and when a crane was requisitioned by a shipping agent or stevedors the staff worked for the purposes of loading and unloading of the cargo from the ship under the shipping agent or the stevedors. He further stated that in July, 1969 he was on duty at Keamari and the Shipping Company, by a letter addressed to the Karachi Port Trust on 21st July, 1969 requested them to supply a crane to its stevedors namely, Messrs Stevedor Company, Karachi. He produced the letter (Exh. P/8/1). He further stated that accordingly the Karachi Port Trust supplied the crane to the Shipping Company's stevedors. ' In his cross-examination to Mr. Ismail Tijani, he stated that the employees of the crane were permanent servants of the Karachi Port Trust and that they were entitled to fringed benefits from the Karachi Port Trust. He also stated that at the relevant time be was working as Foreman at the Karachi Port Trust Office at Berth No, 7 and the cranes were electric cranes and were fixed on'rail
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but they were adjustable on the rail. He admitted that he was not present at the site when the cargo was being discharged and explained that his duty was only to allot cranes to applicants and not to visit the site. ' The next witness examined on behalf of the Trustees was Karamat Hussain (Exh. D/12). He stated that in July, August, 1969 he was on duty in Shed No, 8 of the Karachi Port Trust and that he was P. 0. R. Clerk at that time and had prepared the Provisional Out-turn Report for the vessel 's. s. Mansoor' on 7th August. 1969. It was also signed by the ship's representative and the Incharge of the Karachi Port Trust, Mr. Hassan Abbas. He produced the report (Exh. 12/1) and further stated that in this report on page marked red there was remark one case was broken completely ; the other two cases were defective''. He further stated that the ship's representative was present when he inspected the three cases in question. He stated that P. 0. R. Was prepared within 24 hours after the entire cargo was unloaded and that the Karachi Port Trust became responsible for the goods as soon as they were discharged from the ship. ' In cross-examination to Mr. Ismail Tijani he stated that the Karachi Port Trust did not prepare truck notes. He pleaded his ignorance whether the three cases were surveyed, before he prepared the P. 0. R. He also stated that the P. 0. R. Did not contain any of those three cases. ' Hassan Abbas (Exh. D. W/13), on behalf of the Trustees deposed that he was the Traffic Supervisor, K. P. T., Karachi. In July-August he was Incharge of Shed No, 8, West Wharf, Karachi. He further stated that P. 0. R. (Exh. 12/1) was prepared in his supervision and he identified his signature thereon. He saw entries on page 6 of this report and said that two cases were in broken condition and the third was completely broken. He further stated that he was present at the Wharf while the cases were being unloaded from the ship and that the staff of the crane was not working under his instruction but was under the instruction of the agents concerned. He produced the delivery order (Exh. 13/2) and the delivery receipt executed by the Clearing Agents on 16th August, 1969 (Exh. 13/3). He deposed that no survey of the goods was done before the goods were delivered to the Clearing Agents. The Shipping Company, had given notice to the Karachi. Port Trust regarding the goods which he produced (Exh. 13/4) and (Exh. 13/5). He also produced the reply sent by the Karachi Port Trust (Exh. 13/6). ' In cross-examination he stated that P. 0. R. Was prepared under 1. C. A. Scheme and they did not issue K. P. T. Trust Notes. He further stated that P. 0. R. Was prepared after the entire cargo was discharged from the ship. He stated that he had several assistants and they were . Working under him. He has also stated that the delivery of the three cases was given to the Clearing Agents by one of his assistant who had signed the endorsement but he could not give his name. He has also stated that the cargo was first kept on the trolley and then removed to the shed where it remained from 27th July, 1969 to 16th August, 1969 in his charge. ' Hassan Ahmed (Exh. D/14) was examined on behalf of the Importer. He was one of the Directors of the Importer. He stated that Importer had imported dairy plant from West Germany which was packed in three cases and the parts in three cases would make a complete dairy plant. The plant was worth Rs, 4 lacs. He produced a pro forma invoice (Exh. 14/1) and the invoice of the plant (Exh. 14/2). He stated that the goods were insured and he produced the insurance policy (Exh. 14/3). All these documents were admitted subject to objection of Mr. Ismail Tijani and the learned counsel for the Shipping Company. He further stated that the Importer had paid demurrage and for the payment of ship freight the Importer had obtained bonus vouchers of Rs, 4, 148.32. He produced
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receipt for the same (Exh. 14/4). He further stated. That the Importer had paid Rs, 6, 940 as import licence fee acknowledged by receipt (Exh. 14/4) He produced insurance receipts (Exhs. 14/6 to 14/12). He further stated that the Importer also paid bank commission, L. C. Charges and interest to the extent of Rs, 43,000. He produced two bank statements (Exh. 14/13 and Exh. 14/4). He also stated that he got the goods surveyed in Shed No 8 at West Wharf, and that two survey reports were made by the Ship Surveyors and the Insurance Surveyors. He saw the report (Exh. 6/1) and said that it was the same survey report. He further stated that the Importer took three cases to Lyallpur after the survey report and the goods were further dismantled at Lahore and final report (Exh. 10/1) was prepared by Hamid Mukhtar and Company. He stated that the Importer suffered a total loss of Rs, 1,69,425.00 and he served a notice on the Shipping Company (Exh. 14/15). ' In cross-examination to the counsel for the Shipping Company he stated that the Importer had obtained delivery order from the Karachi Port Trust on 7th August, 1969 though the Importer had applied for delivery on 27th July, 1969 and the goods were delivered to him at Lyallpur by the Clearing Agents which were carried by truck to Lyallpur and then to Lahore. He further stated that the freight was not on prepaid basis. He however, admitted that the Bill of Lading (Exh. D. W. 13/1) showed that the freight was on prepaid basis. In cross-examination to Mr. Zaheeruddin Khan, Advocate, he stated that the Importer and the Clearing Agents were sister concerns. He admitted that the survey could be done in the Karachi Port Trust shed with the consent and in the presence of an officer of the Karachi Port Trust and in the instant case he did not know whether the survey was done in the presence of the officer of the Karachi Port Trust or with his consent. He further admitted that he was not present at that time. He also admitted that there were no marks in the delivery receipt (Exh. 13/3) to show that the cases were delivered after the survey but explained that was so because there was no such column in the delivery form. He also stated that it was not within his knowledge whether any information was given to the Karachi Port Trust or the customs authority regarding the survey of the goods in the shedule. ' The other witness examined was Nazar Hussain, the Manager of the Clearing Agents (Exh. D/15). According to him all the three cases were surveyed on the deck of the vessel on 27th July, 1969 and it was an external survey. He further stated that he had sent all the three cases to the Importer at Lyallpur. He produced two clearing receipts (Exhs. 15/1 and 15/2) and also produced copies of two letters (Exhs. 15/3 and 15/4), one of them, dated 23rd September, 1969 was addressed to the Shipping…
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