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Petitioner: Abdul Wahid VS Respondent: M/s. Mediterranean Shipping Company S.A, & another
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title: Abdul Wahid vs M/s. Mediterranean Shipping Company S.A, & another Case No.: ADMIRLTY SUIT No.23 OF 2011 Date of Judgment:2020-02-07 Reported As: 2020 SHC 140 Result: Plaintiff dismissed
JUDGMENT
JUDGMENT Arshad Hussain Khan J. The instant suit was filed on 23.4.201 1 by the plaintif f against the defendants for Recovery of US$ 1,54,549.16 under section 3(2)(G) read with section 4 (1) & 5 of the admiralty jurisdiction of the High Court Ordinance, 1980, with the following prayers: "a) Judgment and Decree jointly and severally against the Defendants for US$ 1,54,549.16 with markup/loss of profit/interest @ 15% per annum from the date of filing of the suit till its realization. b) Any other/additional/ further relieves which this Hon'ble Court deems fit and proper in the circumstances of this case, may also be granted. c) To grant cost of the suit." 2. Briefly the facts of the present case, as averred in the plaint, are that the plaintif f carries on the business of imports and exports of fresh fruits and vegetables under the name and style of his sole proprietary concern M/s. Chase International. The plaintif f in the course of business two consignments comprising of Pakistan Long Grain Rice IRRI 6' were entrusted to defendant No.2 [M/s. MSC Agency Pakistan (Pvt.) Ltd.] at Karachi for onward carriage to Zanzibar , Tanzania. Both the consignments in full and good order and condition were handed over to defendant No.2 at Port Muhammad Qasim, Karachi as an agent of Defendant No.1 [M/s. Mediterranean Shipping Company S.A.] who had undertaken to carry the consignments on board their vessels above named for onward delivery to the consignee at Zanzibar , Tanzania in the same good order and condition. After loading the consignments, the vessels were sailed from Port Muhammad Bin Qasim, Karachi as per their schedule where after, the vessels in the normal course along with its cargo should have reached Zanzi bar, Tanzania, within the normal transit time period of one month from the date of their sailing from Karachi. However , the defendants as carriers committed unreasonable deviation in discharging cargo, and reached at the destination nearly in three months. Due to the lengthy transit time of about three (3) months, both the consignments were found to be rotten when
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finally discharged and delivered to the consignee at Zanzibar , Tanzania. Conseq uently , the entire consignments were to be disposed of under the directions and supervision of the competent authority at Zanzibar , which caused losses. Thereafter , vide letter dated 20.06.2009, the plaintif f lodged claim in the sum of Rs.1,54,549.16 with defendant No.2. However , when the defendants did not respond to the said letter , the plaintif f sent legal notice dated 16.10.2009. The said notice though was replied by defendant No.2 yet the plaintif f being dissatisfied with the said reply filed the present case for redressal of his grievances. 3. The defendants, upon notice of the present case, filed written statement denying the allegations and claim of the plaintif f and sought dismissal of the suit. In the written statement, the defendants while taking preliminary legal objections regarding maintainability of the suit on several counts, has stated that the defendants received the consignments in FCL condition and had no opportunity to verify the cargo condition at the time of receiving the said containers. Similarly , the defendants had no opportunity to check the weight, quality , quantity and /or the condition of the consignments due to the containers being sealed. It has also been stated that the terms and condition of the contract of affreightment as provided in the relevant bills of lading are binding on the plaintif f and in terms thereof the vessel is not liable to give delivery by weight of sealed container as the said weight is to be deemed for the purpose of charging freight only and shall not constitute prima facie evidence against the defendants. It has been further stated that the carrier committed no deviation in discharge of the cargo. The consignments discharged and reloaded being a transit ports. Moreover , in the bill of lading it has been specifically mentioned that the Carrier does not promise or undertake to load, carry or discharge the Goods on any particular date or time and advertised sailing and arrival are only estimated times, and such schedules may be advanced, delayed or cancelled without notice. Hence the Carrier , in no event is liable for any consequential damages or for any delay in scheduled departures or arrivals of any Vessel or other conveyances used to transport the Goods by sea or otherwise. It has been further stated that the survey conducted at the Zanzibar Port, clearly reflects that the containers were all in sound conditions and the damage was due to inherent vice of the goods for which the defendants are not responsible at all. It has been stated that the defendants and their agents, servants and employees took all the reasonable care and precaution in respe ct of the goods in question and safely discharged the entire cargo at the Port of destination in accordance with the arrangement made by the Port Authorities for receiving the cargo. Moreover , as soon as the subject goods were discharged from the ship, the responsibility of carrier in respect of the said goods came to an end as per the law and defendants are not liable for the alleged damage due to insuf ficiency of packing, improper stowage in the containers and inherent vice of the cargo. 4. Out of the pleadings, on 13.05.2013 the court framed the following issues:- 1. Whether the suit is maintainable under Section 4 & 5 of the Admiralty Jurisdictio n of the High Court's Ordinance, 1980? 2. Whether the Suit is time barred? 3. Whether the particulars as to weight, value, quality and quantity were inserted in the bill of lading on the basis of declaration made by the shippers? 4. Whether the terms and conditions/contents of the bill of lading are binding upon the parties concerned, if so, its effect? 5. Whether any loss occurred to the goods due to the negligence, fault and/or failure on the part of the defendants in performing their statutory and contractual obligations? 6. What is the quantum of loss suf fered by the plaintif fs and to what relief they are entitled to? 7. What relief if any the plaintif f is entitled to? 8. Whether the defendants have not committed unreasonable deviation/delay for discharging the suit consignment/container at the port of discharge, at Zanzibar , Tanzania? 9. Whether the findings contained in the survey report dated 14.02.2009 (Annexure `E' to the plaint) regarding cause of damage whereby it was concluded that the lengthy transit time could have contributed to the damage to the cargo, do not make defendants responsible for the damages caused to the plaintif f's suit consignment? 10. What should the decree be?
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5. After settlement of issues, at the joint request, the commissioner for recording evidence was appointed, who after completing the commission submitted his report along with the record of the evidence. 6. Record reveals that the plaintif f in supp ort of the case has examined himself as PW-1 and produced documents from Exh. P-1/1 to Exh.P-1/12, besides photocopies of documents Marked X-1 to X-6, to which the counsel for the defendants also raised objections. Conversely , the Defendants have examined Country General Manager of Defendant No.2, as DW-1, who produced documents from Exh. D-1 to D-3, besides attested copies as Marked `Z and Z-1'. The witnesses were subsequently cross examined by the advocates for the respective parties. After conclusion of the evidence the matter has come up for arguments. 7. I have heard the learned counsel for the parties and with their able assistance have examined the evidence available on record and also perused the case law cited at the bar . 8. Learned counsel for the plaintif fs during the course of his arguments while reiterating the contents of the plaint has contended that the plaintif f in the month of November 2008 had handed over the subject consignments to defendant No.2 at Port Muhammad Bin Qaism, Karachi, in full and in good order and condition. Defendant No.2 as an agent of Defendant No.1, upon receiving the consignments and getting themselves satisfied in respect of quality , quantity and weight of the consignments and of course in consideration of the freight charged while issuing two bills of lading had undertaken to carry the consignments on board their vessels for onward delivery to the consignee at Zanzibar , Tanzania. The subject consignments were loaded on board the vessels on the dates mentioned in the bills of lading and sailed from the port as per their schedule. Furth er contended that the vessels in the normal course should have reached at port of destination (Zanzibar), with normal transit time period of one month form the date of their sailing, however , the defendants as carriers committed unreasonable deviation and the vessels went to South Africa where the cargo was discharged and again reloaded into another vessels to Dar es Salaam where the cargo was again discharged and reloaded to another vessels for Zanzibar and finally reached at the port of destination after delay of nearly three months. Per learned counsel such deviation is clear breach of terms and conditions of contract of affreightment and due to lengthy transit time the subject consignments were rotten and declared unfit for human consumption by the competent authority , resultantly entire consignments were to be disposed of. The cause of rotting off the subject consignments due to lengthy transit is also supported by the survey report. Further contended that due the failure on the part of defendants to perform their part of contractual obligations and acted contrary to the contract the plaintif f has suffered losses/damages of US$1,54,549.16/-. And, thus the defendants are jointly and severally liable to compensate the plaintif f. As regards the maintainability of the present suit, learned counsel while referr ing section 3(2) (G), section 4(1), 5 and 6 of the Admiralty jurisdiction of this High Court Ordinance 1980, submits that the suit is maintainable as the same has been filed as action in personam which could be brought, inter alia, in respect of damages. It is also contended that for filing an action in personam the limitation period is provided under the law is two years from the date of occurrence and the suit filed within time and as such the plaintif f is entitled to reliefs as prayed. Learned counsel in support of his arguments has relied upon the case of PROCEEDING IN REM AGAINST THE VESSEL M. T. POR TOFINO and another v. M.T. POR TOFINO [ 2003 CLD 1655 ] 9. Conversely , learned counsel for the defendants while re-iterating the contents of the written statement, has contended that the suit as framed is not maintainable as the instant suit does not fall within the admiralty jurisdiction. It is also contended that the claim of the plaintif f in the present case is a simple claim for compensation and damages for which law of Carriage of Goods by Sea Act 1925 is applicable and for filing an action under the said law the limitation period provided is one year from the date of delivery of goods or from the date when the goods should have been delivered. Further contended that the present case is admittedly filed beyond the said period and as such the same is barred by limitation and is liable to be dismissed with compensatory cost. He further contended that the consignments were handed over to the defendants in FCL condition and as such the defendants had no opportunity either to check the condition or to check the weight, quality , quantity and/or the condition of the consignments due the containers being sealed. Further contended that the terms and conditions of the bills of lading, issued in respect of the subject consignment, form the contract of affreightment between the parties and as such the same are bindin g on the plaintif f as well. Further contend ed that as per the terms of the
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contract (bills of lading) vessel is not liable to give delivery on the same weight and condition if the vessel receives the consignment in sealed container . As regards the delay in arrival at the port of destination, learned counsel while referring to clause 8 of the bill of lading has contended that the date and time for sailings and arrival of the vessel were only estimated and such schedule could be delayed or cancelled without notice. Since the carrier does not promise or undertake to load, carry or discharge the goods on any particular date and time therefore, the carrier cannot be held liable for any such delay in scheduled departure, arrival and/or discharge of goods. It is also contended that the scope of voyage was contracted by the plaintif f and as such he was fully aware of the terms of bills of lading. Thus, claim of any allege d losses/damages due to delay in arrival is not sustainable in law and further the carrier is by no means contractually bound to compensate for any such losses. Lastly , contended that the suit is liable to be dismissed with compensatory cost. Learned counsel for the defendants in support of his arguments has relied upon the following cases of HOLLAND BENGAL BURMAH LINE v. DAWOOD CORPORA TION LTD [PLD 1961 Dacca 39], NEWZEALAND INSURANCE Co. LTD., CHITT AGONG v. M. A. ROUF and others [PLD 1962 Dacca 31], FAROOK OMAR v. NATIONAL SECURITY INSURANCE CO. LTD., KARACHI and another [PLD 1974 Karachi 321], DEUTSCHE DAMPCHIFFF AHAR TS-GESHLLSCHAFT and another v. CENTRAL INSURANCE Co. LTD., Karachi [PLD 1975 Kara chi 819], Messrs NATIONAL INSURANCE CORPORA TIO v. Messrs PAKIST AN NATIONAL SHIPPING CORPORA TION [1986 MLD 1885 ], M/s. CENTRAL INSURANCE Co. LTD., v. M/s. KONINKLUKE NEDLLOYD N.V., and another [1992 MLD 1766 ], NATIONAL INSURANCE CORPORA TION v. PAKIST AN NATIONAL SHIPPING CORPORA TION [1997 CLC 908], Messrs CRESCENT SUGAR MILLS AND DISTILLER Y LTD., v. Messrs AMERICAN EXPOR T ISBRANDT SEN INC. and 2 others [PLD 1983 Karachi 29], EASTERN FEDERAL UNION INSURANCE COMP ANY LIMITED v. AMERICAN PRESIDENT LINES LIMITED and another [PLD 1992 SC 291], BANGLADESH SHIPPING CORPORA TION v. M.V. 'NEDON' and another [PLD 1981 Karachi 246], ATLANTIC STEAMER'S SUPPL Y COMP ANY v. M.V. TITISEE and other [PLD 1993 SC 88], Messrs V.N. LAKHANI & COMP ANY v. m.v. LAKA TOI EXPRESS and 2 others [PLD 1994 SC 894], PROCEEDING IN REM AGAINST THE VESSEL M.T. POR TOFINO and another v. M.T.POR TOFINO [2003 CLD 1655 1, PAKIST AN SHIPPING LINES LTD. v. TRUSTEES OF THE POR T OF KARACHI and 2 others [1981 CLC 1451 ], CENTRAL INSURANCE Co. LTD. v. CHITT AGONG STEAMSHIP CORPORA TION LTD. and another [PLD 1968 Karachi 252], DAEWOO HEAVY INDUSTRIES LTD. and another v. KLIPRIVER SHIPPING LTD. and another [2003 EWCA Civ. 451] and PARSONS CORPORA TION and others v . C.V . SCHEEPV AAR TONDERNEMING 'HAPPY RANGER' [2002 EWCA Civ 694]. 10. I have given due consideration to the arguments advanced by the learned counsel for the parities, minutely perused the material/evidence available on record, the applicable laws and the case law on the subject. My findings on the issues are as under: 11. ISSUE No.1: Admiralty law has distinctive features that distinguishes it from other fields of law. One of these characteristics originates from the commencement of litigation, where a claim can be initiated through two different routes. On the one hand, by the action in personam , where a claim is issued and served on the person/company liable for the damages suffered. On the other hand, the action in rem is a unique action only obtainable under the Admiralty Jurisdiction of the High Court and it is an action against the "res", ship or ships of named or unnamed defendants. From the pleadings, it appears that the present suit was filed by the plaintif f under section 3(2)(g) read with section 4 (1) & 5 of the admiralty jurisdiction of the High Court's Ordinance 1980. Before going into any further discussion, it would be appropriate to reproduce the relevant provisions necessary for deciding the above issue as under: 3. Admiralty Jurisdiction of the High Court.-- (1) The Sindh High Court and the High Court of Balochistan shall have and exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined. (2) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to bear and determine any of the following causes, questions or claims____
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(a) .......................... (b) ......................... (c ) ........................ (d)........................ (e)........................ (f)......................... (g) any claim for loss of or damage to goods carried in a ship; (h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship; 4. Mode of exercise of admiralty jurisdiction. (1) Subject to the provisions of section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam. (2) ...................... (3) ..................... (4) In the case of any such claim as is mentioned in clauses (e) to (h) and (j) to (q) of subsection (2) of section 3 being a claim arising in connection with a ship, where the person who would be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court may, whether the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against: (a) that ship, if at the time when the action is brought it is beneficially owned as respects majority shares therein by that person ; or (b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid. (5) ................ (6) ............ 5. Jurisdiction in personam of courts in collision and other similar cases. (1) No Court shall entertain an action in personam to enforce a claim to which this section applies unless: (a) the defendant has his ordinary residence or a place of business within Pakistan; or (b) the cause of action arose within the internal or territorial waters of Pakistan ; or (c) an action arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined in the court. (2) .................... (3) .................... (4) ................... (5) ................... (6) The claims to which this section applies are claims for damage, loss of life or personal injury caused by ships or arising out of collision between ships or out of the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships or out of non-compliance, on the part of one or more of two or more, ships, with the regulations made under section 214 of the Merchant Shipping Act, 1923 (XXI of 1923). 6. Limitation of maritime lien. No action shall be brought before the High Court to enforce a maritime lien for the damage sustained in consequence of collision whosesoever occurring or any other maritime lien unless proceedings therein are commenced within two years from the date of the damage occurring or the maritime lien arising, subject to the discretion of the High Court to extend this period." Perusal of the aforesaid provisions reflec ts that Admiralty Jurisdiction has been conferred on this Court that is to say the jurisdiction to hear and determine the causes, questions or claims arising out of any agreement relating to the carriage of goods in a Ship or to the use or hire of the Ship and in respect of any claim for loss or damage to the goods carried in a Ship. The objectio n of the learned Counsel for Defendants that the case of the plaintif f is a claim in personam and not in rem, and therefore, it is not maintainable at least against the Master of the Vessel, is also devoid of any merits. Moreover , it is also by now settled that a claim in rem and personam is simultaneously
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maintainable under the Admiralty Jurisdiction of this Court. The learned Counsel for Defendants has vehemently argued that this is not a case, wherein, this Court could exercise its Admiralty Jurisdiction and has also placed reliance on certain documents as well as case law. In my view, and with respect, these decisions are not of any direct relevance in the circumstances of the present case. The issue in the present case is in respect of the contract of affreightment through a Bill of Lading, which is already a matter of admitted fact, with the carrier and defendant No.1 as its owner . As is obviou s, the nature of the question that require s resolution is different from that raised in the cited cases. Reliance may be placed on the case of C.V. "Lemon Bay" v. Sadniddin and others (2012 SCMR 1267 ); wherein inter alia it has been observed as under:- "6. ...... It, therefore, follows that the plain tiff was entitled to a decree against the defendants. At this juncture, it is important to bear in mind the provisions of section 3(2)(h) of the Admiralty Ordinance which provides that "the Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claims ... (h) any claim arising out of any agreement relating to the carriage of goods in a ship...." When we examine section 4(4) of the Admiralty Ordinance along with the said statutory provision, it becomes clear that an action in personam can be founded on any agreement such as a bill of lading relating to the carriage of goods in a ship. In addition to the right to bring an action in personam, the admiralty jurisdiction of the Court can also be invok ed for an action in rem for the arrest of a sister ship such as La Boheme in the case of Suit No.27 of 1999 and the vessel Swat in the case of Suit No.31 of 1999.........." Furthermore, in the present case there is no dispute in respect of issuance of Bills of Lading for carrying goods of the plaintif f, which is an acknowledgement of the receipt of the cargo mentioned therein. The Hague Rules say that a bill of lading is a prima facie evidence of the receipt by the carrier of the goods described therein. This is a conclusive evidence of shipment in the hands of the consignee or the endorsee, as the case may be, as against the Master or any other person signing the same. It is settled law that a holder of a Bill of Lading is always under an expectation that he is entitled to proceed against the ship or its owner in the event of loss or damage to his goods. And this is what the case of the plaintif f is; hence, it falls within section 3(2) (g) (h) of the Ordinance 1980, and this Court can competently exercise the Admiralty Jurisdiction. Accordingly , this issue is answered in af firmative. 12. ISSUE NO.2: Insofar as the period of limitation for filing an action under the admiralty jurisdiction is concerned, the same is two years from the date of the damage occurring or the maritime lien arising as provided under the provisions of the law viz. Section 6 of the Admiralty Jurisdiction of the High Courts Ordinance, 1980. In the present case, the goods were loaded on board the vessel/ship at the port of loading (Muhammad Bin Qasim, Karachi Pakistan) through two Bill of Ladings; bearing No. MSCUK1028404 dated 16.11.2008 [Marked as X-1] and MSCUK1034519 dated 30.11.2008 [Marked as X-3] and it was discharged at the port of discharged on 14.02.2009. Thereafter , survey was conducted and claim was lodged on 20.06.2009 [Exh. P/1-7] . The plaintif f having not received any reply to the claim lodged by him sent legal notice dated 16.10.2009 [Exh. P/1-1 1] to the defendants, which was replied to by the defendants through reply legal notice dated 04.11.2009 [Exh. P/1-12] wherein the claim of the plaintif f was denied and thereafter the plaintif f filed the present suit within two years, that is, on 23.04.201 1. Thus, the present suit appears to have been filed within time. Accordingly , this issue is answered in negative. 13. ISSUE NO. 3: In the present case, it is an admitted fact that the consignments were handed over to the defendants in FCL (Full Container Load) and STC (Said to Contain) condition. The term STC describes that the goods loaded on board a sea-going vessel in sealed containers. It is also an admitted fact that the goods were stuffed by the plaintif f/shipper at his container…
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