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Petitioner: DAWOOD VS Respondent: ISBRANDTSEN CO. (INCORPORATED) AND OTHERS
P L D 1967 Karachi 576
P L D 1967 Karachi 576
Before A. S. Faruqui, J
DAWOOD‑Plaintiff
versus
ISBRANDTSEN Co. (INCORPORATED) AND OTHERS‑Defendants
Suit No. 60 of 1958, decided on 6th May 1966.
(a) Damages------
----‑Carriage of goods by sea‑Contract for carriage of goods from Port of embarkation to that of landing‑Bill of lading providing that "ship may proceed beyond port of discharge . . . . may call at same port more than once before giving delivery of cargo at port of discharge . . . . or the carrier or Master may trans‑ship or forward the goods by any other vessel"‑Clauses in bill of lading whether and when give carrier choice of not discharging goods at port of destination and enable them to call at same port again for the purpose of discharging or trans‑ship goods from another port.
A person imported steel billets from U. S. A. A contract was entered into with a shipping company for the transport of these goods from a port in U. S. A. to Karachi. The vessel in which the billets were loaded arrived in due course at Karachi. The billets, however, could not be discharged at Karachi because on top of this consignment was loaded about 1,310 tons of wheat in bulk for being carried to Bombay port in India. The ship after discharging some general cargo proceeded onward and at Singapore the billets were transferred to another ship which brought the consignment back to Karachi and it was thereafter that the goods were delivered to the consignee. The shipper on account of the delay in delivery of the cargo filed a suit for damages claiming that be had entered into a contract upon submission of tender with the Government of Pakistan for the supply of the imported goods and since the goods were not delivered to him and the Government was pressing for the supply he had to purchase identical goods from the market and deliver the sane to the Government at the control price with the result that he suffered a lass of Rs. 39,792. The defendant relying on certain printed elapses in the bill of lading contended that having regard to the terms of the clauses, the ship could call at the port of Karachi and then proceed onward without giving delivery at that port on its first call. It could then return to that port and then discharge the cargo. Therefore, it was urged that if in the judgment of the carrier the discharge of the plaintiff's cargo which was beneath the wheat cargo was likely to cause delay or disadvantage, the ship was permitted to proceed to port or place whatsoever as the carrier considered advisable under the circumstances and to discharge the plaintiff's goods at another port to be forwarded from there to the port of Karachi. On the questions, whether tic carrier in nut delivering the goods at Karachi on the arrival at tire part acted in breach of contract; whether the clauses in the bill of lading empowered the carrier to act in the manner in which it acted; and whether the clauses in the contract act ran contrary to the main purpose of the contract and were for that reason not binding on the plaintiff.
Held, the clauses by themselves did not defeat the main object of the contract that is the carriage of the goods from the port of embarkation to that of landing, or the fundamental rules popularly known as The Hague Rules. These clauses, however, ought to be construed to safeguard the carrier to meet special situations which may be brought about by circumstances beyond their control. To provide for such situations it was open to the parties by the contract of carriage so long it did not offend against the very purpose of the contract. That purpose being provided for in the main part of the contract the printed clauses including the exception clauses must be subordinated to the written part of the contract. They are, however, not to be disregarded unless there is a conflict which cannot be resolved. In order that a carrier may be entitled to the protection of the exception clauses it must be shown that the situation upon the basis of which the exception was being sought, was not brought about by the negligence of the carrier or the master of the ship. It a situation of difficulty or emergency is brought about by something which the carrier or the master are themselves responsible for, they then cannot to permitted to call in aid the exception clauses in defence of the action in that particular situation which was caused by their own wrongful act. A carrier owes a duty to the shipper to show that skill which is normally expected of a person in that skilled profession. Where a carrier performs a loading in a manner which was bound to cause considerable delay in the discharge of the cargo of the shipper and which might necessitate the return of the ship to the port to which the shipper's cargo was destined or which might involve the carrying away of the shipper's goods to a destination far and distant he cannot be said to have acted with that standard of care which is required of a carrier. In failing to perform his duty with the Skill required of him the carrier must be held to have acted negligently. That being so, he cannot then fall back upon the‑ exception clauses in extenuation of his action, which action was necessitated due to the carrier's own negligence at an earlier stage.
W. T. Sargant & Sons v. Asiatic Co. Ltd. 32 T L R I 19; Cunard Steamship Co. Ltd. v. Buerger (1927) A C 1 and Yrazu and another v. The Astral Shipping Company 20 T L R 153 ref.
(b) Damages‑----
--Goods imported from foreign country‑Contract for carriage of goods by sea‑Ship failing to discharge goods on her arrival at port of destination, proceeding onward and trans‑shipping goods from another port and thus causing delay in delivery of goods‑Shipper entitled to claim damages on basis of difference due to fall in price of goods between date on which delivery should have been made and date on which delivery was actually made‑Damages, however, cannot be claimed on basis of special circumstances (e. g. that shipper had to fulfil a contract with third party within stipulated time and therefore had to supply goods at control price offer obtaining some from market) unless carrier had been given notice of such special circumstances at time of entering into contract.
Ramchandani for Plaintiff.
Fakhruddin for Defendants.
Dates of hearing: 13th November 1961; 19th, 20th April; 20th, 31st August and 4th September 1962; 30th September; 8th, 24th October 1963 and 25th, 26th and 27th April 1966.
JUDGMENT
This is a suit fur the recovery of damages on account of delay in delivery of goods and for non‑delivery of a small quantity and for incidental expenses and loss. The plaintiff is Dawood son of Haji Ibrahim trading is the name of Standard Rolling Mills and also Karachi Export Import & Co. The first defendant is a company incorporated in U. S. A. and which was the owner of the ship ss Brooklyn Heights, by which ship the goods were shipped from a port in U. S. A. and eventually brought to Karachi. The defendant No. 2 Messrs Shaw Wallace Pakistan Ltd. are the local agents of the defendant No. 1 and the defendant No. 3 Messrs Kaikobad Pestonji Kakalia, a firm of clearing agents were formally joined as the plaintiff had endorsed the bill of lading in their favour.
2. The material facts are these: The plaintiff had entered into a contract upon a submission of tender with the Government of Pakistan, Department of Supply and Development, Karachi for the supply of mild steel, bars weighing 110 tons which had to be rerolled from 415 billets of about that weight which held to be imported from the United States and for which the. Department of Supply and Development had agreed to provide the plaintiff with an import licence. Though this contract was entered into in 1937 the import licence was given to the plaintiff only on 25th March 1957. the plaintiff had placed an order with a firm in New York for the supply of the said quantity of billet; and this firm entered into a contract in the name of the plaintiff with the defendant No.1, the owner of the slip ss Brooklyn Heights for the transport of these goods to Karachi. The contract was made at Baltimore, U. S. A. on 31st May 1957. The billets were duly loaded on the ship at the port of Baltimore and the vessel in due course arrived at Karachi on 13th July 1957. The billets, however, could not be discharged at the port of Karachi because on the top of this consignment seas loaded about 1,310 tons of wheat in bulk which had been loaded at the port of Albany for being carried to Bombay upon an urgent demand of the Indian Govern?ment. Some general cargo was discharged at the port of Karachi which left that port about 20th July 1957 and according to the defendants evidence it went to Bombay but due to congestion and non‑availability of berth facility it was directed to the port of Nalaki in Kutch where the wheat was discharged and as there were no facilities for trans‑shipment at the port the cargo of billets was taken to Singapore where the trans‑shipment took place and the ship carrying these goods arrived at the port of Karachi on 2nd September 1957 whereafter the goods were delivered to the plaintiff. There was, however, shortage‑of 6 pieces for which the carrier admitted its liability. It is the case of the plaintiff that is the cargo was not disembarked at the port of Karachi when the ship arrived in July and he was under pressure by the Department of Supply and Development for delivery he purchased in the market from a firm of Messrs Muhammad Hussain & Co. on 25th July, 45 tons of M. S. bars for Rs. 62,200 and 65 tons on 18‑8‑57 for Rs. 88,075 at the rate of Rs. 1,355 per ton and delivered the same at the control price with the result that he suffered a loss of Rs. 39,792‑14‑9. The plaintiff claimed this amount plus a sum of Rs. 958‑4‑0 being the cost of 6 pieces short delivered and two more sums firstly of Rs. 4,510/‑ on the ground that his mills had remained closed for 11 days due to the delay in delivery of the billets and secondly a sum of Rs. 557-8-0 on account of additional interest on the shipping documents which he paid to the bank due to the delay in delivery. A further sum of Rs. 2,528 in claimed on account of interest of the above sums accruing upto the date of the suit. It is from these items that the claim for Rs. 48,346‑11‑9 was made.
3. The defendants Nos. 1 and 2 by their written statements denied each and every claim of the plaintiff except the claim for Rs.958‑4‑0 On Account of short delivery of 6 pieces which amount had teen offered by them to the plaintiff and which he had refused. The defendant No. 3 filed a formal written statement.
4. Upon the pleadings a number of issues had been submitted by the partite and bad been adopted, however, at the hearing the questions which required to be determined were these
(1) Whether the carrier in not delivering the goods at Karachi when the ship arrived here in July had acted in breach of the contract of carriage of goods?
(2) Whether clauses 4, 5 and 6 of the contract, that is the bill of lading, Exh. 15, empower the carrier to act in the manner in which it did in not landing the goods at Karachi and having them traps‑shipped subsequently from Singapore?
(3) Whether these three clauses ran contrary to the main purpose of the contract and were for that reason not binding on the plaintiff?
(4) Whether the plaintiff has proved that he incurred the alleged loss on account of the delay in the delivery of the goods? If so, is the plaintiff entitled to the damages claimed by him? ,
5. The first three issues may be conveniently dealt with together. The vessel ss. Brooklyn Heights commenced its journey from the port of Norfolk in Virginia and it then came to the port of Baltimore, at which port the steel billets consisting of 415 pieces and weighing 111 tons were loaded at the bottom of hold No. 3 of the vessel. The vessel then travelled to the port of Philadelphia and then to Albany where a large cargo of wheat in bulk had to be loaded for transport to Bombay. Out of this quantity 1,305 tons were. loaded in hold No. 3 at the top of the cargo of billets. The remaining quantity of wheat was loaded in several other holds. The vessel then came for further loading to New York from where it proceeded on its onward journey and reached Karachi on 12th July 1957. According to the evidence of defendants' witness D. C. Blayke, the shipping manager of Messrs Shaw Wallace, defendant No. 2, the cargo of wheat was loaded and was being carried to India upon a special request made to New York in an emergency. At the Karachi port there were no facilities at that time for the discharge of wheat in bulk and so if the cargo of steel billets was to be landed the wheat on the top of it would have to be put into bags for being removed. Tire plaintiff was informed that this cargo of steel billets would riot for that reason be discharged at Karachi at that time and this would hive then to be traps‑shipped from an onward port. The plaintiff protested against this and wrote to the defendant No. 2 as per Exh, 19 that as his goods were being over‑carried to Bombay for traps‑shipment to Karachi this would take considerable time and the goods being essential commodities were urgently required as per allocation by the Controller of Iron and Steel and that therefore arrangement should be made for removing the cargo of wheat so that leis consignment may be landed at Karachi. This letter was written on 12th July and the defendant No. 2 replied on 15th of July Exh. 20, stating that the wheat cargo was in bulk and it would have to be discharged first and that the plaintiff's goods would have to be carried to Singapore and would be trans‑‑shipped back to Karachi. The ship accordingly left for. Bombay but it had to be redirected to the port of Nalaki where the wheat cargo was discharged and the ship proceeded to Singapore, from where the consignment of the plaintiff was re‑shipped per ss Troutpool which arrived at Karachi opt 2nd September 1957 and the consignment in question was then discharged and delivered to the plaintiff. There was, however, a shortage of 6 pieces, the liability for which was admitted by the defendants. Thus a delay of about 2 months took place by the fact that the consignment of the plaintiff was not discharged when the ship called at the port of Karachi. It was, however, contended by Mr. Fakhruddin, the learned counsel for the defendants, that the carrier was within its right in adopting the course which it did. Reliance was placed upon clauses 4, 5 and 6 of the bill of lading, from which the material portions relied upon by Mr. Fakhruddin may be reproduced:‑
(4) The scope of the voyage herein contracted for shall include usual or customary or advertised ports of call . . . . also ports in or out of the advertised, geographical, usual or ordinary route or order, even though in proceeding thereto the ship may sail beyond the port of discharge The ship may omit calling at any port . . . whether scheduled or not and may call at the same port more than once and before giving delivery of the within mentioned cargo at the port of discharge herein provided sad with the like liberties as aforesaid to leave and then return to and discharge the said cargo at such port, may . . remain in port, sail . . . . and all of the foregoing are included in the contract voyage.
(5) In any situation, whatsoever and wheresoever occurring and whether existing or anticipated before the commencement of or during the voyage which is the judgment of the carrier or the Master is likely to give rise to risk of . . . delay or disadvantage to . . . . the ship or any part of her cargo, to make it imprudent . . . . for any reason to . . . discharge the goods . . . at the port of discharge, or to give rise to delay or difficulty in . . . discharging at . . . the port of discharge. .the ship may proceed . . to . . . .any port or place whatsoever as the Master or the. Carrier may consider safe or advisable under the circumstances, and to discharge the goods . . . at any such port or places ; or the carrier or the Master may retain the cargo on board . . . until such time as the Carrier or the Master thinks advisable and discharge‑ the goods at any place whatsoever as herein provided or the carrier or the Master may discharge and forward the goods to the port of discharge by any means . . . at the risk and expenses of the goods . . . Discharge or the taking of any action by the Carrier or Master pursuant to the terms of this paragraph 5 shall constitute complete delivery or performance as the case may be under this contract and the Carrier shall be freed from any further responsibility.
(6) Whenever the Carrier or the Master may deem it advisable . . . . and although traps‑shipping or forwarding of the goods may not have contemplated or provided for herein . . . the Carrier or the Master may, at the port of discharge or at any place whatsoever, trans‑ship or forward the goods . . . by any vessel . . . at the risk and expenses of the goods and at any time whether before or after loading on the ship named herein, sad by any route whether within or outside the scope of the voyage or beyond the port of discharge or destination of the goods and without notice to the shipper or con?signee . . . ".
The contention of Mr. Fakhruddin was that having regard to the terms of clause 4 which related to the scope of the contract of voyage there was no deviation by the carrier and the ship could call at the port of Karachi arid then proceed onward without giving delivery at that port on its first call. It could then return to that port and then discharge the cargo. That being so, it was urged that in so far as clause 6 of the contract permitted trans‑shipment the carrier acted within tile terms of the contract in trans‑shipping the goods from Singapore for being carried to Karachi. 1n any case it was urged that clause 5 was a complete answer to the plaintiff's claim because, if in the judgment of the carrier the discharge of the plaintiff's cargo which was beneath the wheat cargo was likely to cause delay or disadvantage to the ship or in the discharging of the wheat cargo, the ship was permitted under this clause to proceed to any port of place what?soever as the carrier considered advisable under the circumstances and to discharge the plaintiff's goods at another port to be forwarded from there to the port of Karachi.
6. Mr. P. C. Ramchandani appearing for the plaintiff on the other hand contended that in the first place clauses 4, 5 and 6 of the bill of lading did not cover the failure to discharge the plaintiff's cargo at Karachi when the ship called at that port and in any case the carrier or the master having acted negligently the clauses could not be relied upon by them in the manner in which it was being sought. It was also urged that if the application of these clauses was to run contrary to the main purpose of the contract then these clauses must be rendered void. At one time, it was suggested that these clauses were repugnant to The Hague Rules which were incorporated in the United States Carriage of Goods by Sea Act, which Act was made a part of this contract, but this point, however, was not seriously pressed.
7. The first case relied upon by Mr. Ramchandani is the case of W. T. Sargant & Sons v. East Asiatic Co. Ltd. (32 TLR119) which was decided by Bailhache, J. in the King's Bench Division. In this case the plaintiffs had bought under a C. I. F. contract for delivery in London 100 tons of block gambler from the defendants who were also the owners of the ship. They had also bought a quantity of pepper from a certain party who in turn had bought it from the defendants. The delivery of these goods at the London port was refused on grounds in which it is not necessary to go. The bill of lading contained a clause giving the ship the liberty to carry the goods beyond their port of destination and to trans‑ship and forward the same at the ship owners expense but at the merchant's risk. Referring to these clauses the learned Judge held that under this liberty shipowners were not entitled to carry the goods into their port of destination and to refuse to deliver them there on the ground that there was a likelihood of the steamer being considerably delayed if the goods were discharged and so to carry them to another port and forward them from there. The learned Judge took the view that the clause only made provision for the case in which the carrying steamer failed to put into the port of destination. The facts of this case as appear from the report were different from the facts of the present case. But what is more important is that the liberty clauses of the bill of lading in that case are not avail?able so that they could be compared with the clauses in the present case. The clauses in the present case give the carrier the choice of not discharging the goods at the port of call and enable them to call at the same port again for the purpose of discharging the cargo or trans‑shipping it from another port. The circumstances under which this may be done is left to the judgment of the carrier or the master.
8. The next case cited is that of Cunard Steamship Co. Ltd. v Buerger ((1927) A C 1). In this case 8 bales of cloth were shipped by the plaintiffs for carriage from London to Odessa in the defendants' steamer under a bail of lading which reserved to the defendants liberty for the steamer, before or after proceeding towards leer port of discharge, to proceed to any port or ports, although to a contrary direction, in any order, for any purpose and if inconvenient for the ship's purpose to deliver during the ship's stay at the port of destination to forward the bales by any other ship at the defendants' expenses at the plaintiff's risk. The contemplated voyage was to Constantinople and thence to Black Sea ports including Odessa. On the arrival of the ship at Con?stantinople it appeared that Odessa was likely to be captured by the Soviet Forces and it was agreed that 5 bales should be delivered at Batoum and 3 at Constantinople. The ship proceeded to Batoum and back by Novorossisk to Constantinople; the bales consigned to Batourn retraining on Board after the ship had left that port. The three which wire to have been brought back to Constantinople were landed at Novorossisk for no explained reason and were detained by the defendant company's agents for two months. Neither the five bales nor the three bales Here thereafter traced. It teas, in these circumstances, held that the over‑carriage of the 5 bales and the landing and detention of three at the port of Novorossisk constituted deviation from the contract of carriage, by abandonment of the voyage or by such unreasonable delay as amounted to deviation so as to deprive the defendants of the benefit of the exceptions in the bill of lading. It would be noticed that the true reason for not allowing the carrier the benefit of the exceptions in the bill of lading was that the over carriage of 5 bales and the detention of other three bad not been satisfactorily explained by the carrier.
9. The third case is that of Yrazu and another v. The Astral Slipping Company (20 T L R 153) decided by Walton, J. in the King's Bench Division. In this case cattle were shipped on board under is live‑stock contract which excepted the usual perils arid also loss arising from force majeure or from any negligence of the master or engineers. The vessel sailed to take in coal for voyage from there to the port of destination but it was found that she did not have sufficient coal and so she halted at another port for taking in coal. By the time it reached the port of destination the vessel was detained in quarantine. Upon a construction of the exception clauses it was held that the steamer was not permitted to land at any other port except in the case of force majeure and the deficiency of coal being owing to miscalculation was not a case of force majeure the ship owner was liable for the deterioration of the cattle.
10. In the present case, I am of the view that clauses 4, 5 and. 6 would have normally, covered the defendants against liability. I do not think that these clauses by themselves defeat the main object of the contract, that is the carriage of the goods from the port of embarkation to that of landing, or the fundamental rules popularly known as The Hague Rules. These clauses however, must be construed to safeguard the carriers to meet special situations, which may be brought about by circumstances beyond their control. To provide for such situations was open to the parties by the contract of carriage so long it did not offend against the very purpose of the contract. That purpose being provided for in the main part of the contract the printed clauses including the exception clauses must be subordinated to the written part of the contract. They are however, not…
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