[1968] Vol. 2 Lloyd's Rep.

145

PAKISTAN
SUPREME COURT
(APPELLATE JURISDICTION)
June 13 and 14, 1967
____________________
EAST & WEST STEAMSHIP COMPANY v. HOSSAIN
BROTHERS; PAKISTAN; QUEENSLAND INSURANCE
COMPANY, LTD., AND JAMES FINLAY & CO., LTD.
Before Mr. Justice A. R. CORNELIUS, C.J., Mr. Justice S. A.
RAHMAN, Mr. Justice FAZLE-AKBAR, Mr. Justice HAMOODUR
RAHMAN, and Mr. Justice MUHAMMAD YAQUB ALI
Bill of lading-Exemption clause-Rain-water damage to cotton bales
in lighter after discharge from vessel-Liability of shipowner
-Whether carriage of goods ceased when goods were put into
lighter-Hague Rules, Art. I (e), Art. III (2)-Schedule to Indian
Carriage of Goods by Sea Act, 1925.

Plaintiff consignee claimed Rs. 13,025/9/9 against defendant

shipowner in respect of rain-water damage to 33 bales of cotton
shipped on defendant's steamship Fatakada under bills of lading
which provided (inter alia):
All the terms, provisions and conditions of the Indian Carriage of
Goods by Sea Act, 1925 and the Schedule thereto are to apply to the
contract contained in this bill of lading.
The said goods, to be carried and delivered subject to the terms and
conditions of this bill of lading in the like good order and condition
at the port of Chittagong unto Order or his or their assigns.
In all cases and under all circumstances the Company's liability
shall absolutely cease when the goods are free of the vessel's tackle
and thereupon the goods shall be at the risk for all purposes and in
every respect of shippers or consignees.
(a) All general cargo will be discharged at Chittagong at outer
anchorage owing to deep draft of the vessel. Under the circumstances
all general cargo other than rapeseeds in bags is accepted for
shipment on the distinct understanding that the ship will not be
responsible for any damage sustained by such cargo due to its being
discharged at outer anchorage into lighters nor will the ship be
responsible for shortage of packages and/or its contents partially or
wholly due to any reason including pilferage.
 [1968] Vol. 2 Lloyd's Rep. 146
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers Fazle-Akbar, J.

(b) Discharging of cargo at Chittagong anchorage will be carried Svenssons Travaruaktiebolag v. Cliffe Steamship Company,
out at shipper's risk and ship and/or lighterage department will not be [1932] 1 K.B. 490; (1931) 41 Ll.L.Rep. 262;
responsible for the loss and/or damage etc. in Cargo.
Sze Hai Tong Bank, Ltd. v. Rambler Cycle Company, Ltd.,
Parties agreed that damage was caused when goods were in lighter
[1959] 2 Lloyd's Rep. 114; [1959] 3 All E.R. 182.
after discharge from vessel at Chittagong. Evidence was given that
lighter had no fixed cover to protect cargo. Shipowner contended (1) ____________________
that, under conditions of bills of lading, its liability ceased once goods
were "free of ship's tackle"; that, under Art. I (e) of Hague Rules, sea This was an appeal by the defendant, East & West Steamship
transit ended as soon as goods were put into lighter; and, further, that Company, from a decision of the High Court of East Pakistan,
damage occurred outside period of carriage by sea. Plaintiff's claim
at Dacca, confirming a decision by the Subordinate Judge who
was allowed by Subordinate Judge and defendant's appeal was
dismissed by Pakistan High Court. Defendant appealed to Supreme had allowed a claim by the plaintiff, Hossain Brothers, against
Court. the defendant in respect of rain-water damage to 33 bales of
-Held, by Pakistan Sup. Ct. (A. R. Cornelius, C.J., S. A. Rahman, cotton after discharge into a lighter from the defendant's
Fazle-Akbar, Hamoodur Rahman, and Muhammad Yaqub Ali, JJ.), (1) steamship Fatakada.
that carriage of goods under Hague Rules did not cease when goods The main issue on appeal was whether the defendant was
were discharged from ship; (2) that, under Art. III, r. 2, shipowner was protected by a condition in the bill of lading which provided
under duty to see that lighter was seaworthy and properly equipped for (inter alia):
purpose; that lighter was not properly equipped for reception of goods
and, therefore, shipowner was guilty of lack of due diligence; that . . . the Company's liability shall absolutely cease when the
exception clauses in bills of lading were limited to losses or damage goods are free of the vessel's tackle . . .
where there was no negligence on the part of shipowner; that if there Mr. Mahomed Jaffer, Advocate, (instructed by Mr. Abdur
was a clause exempting shipowner from liability for loss or damage Rab-II) appeared for the appellant; Mr. Muhammad Jan-i-Alam,
resulting from negligence it would have been null and void under Art.
Senior Advocate, Mr. M. A. Aziz, Advocate (instructed by Mr.
III of Hague Rules; ((further) by S. A. Rahman, J.) that even if
contract of carriage by sea ended with discharge of goods shipowner J. H. Khan) appeared for the first respondent; Mr. Mozammel
would not have been absolved from liability as bailee of goods until Huq, Advocate (instructed by Mr. D. K. Khadem) appeared for
they were handed over to consignees. Appeal dismissed. the second respondents; for the third and fourth respondents, ex
parte.
____________________
Judgment was reserved.
The following cases were referred to:
____________________
Galileo, [1914] P. 9; (H.L.) [1915] A.C. 199;
Goodwin Ferreira & Co., Ltd. v. Lamport and Holt, Ltd., (1929) Tuesday, Oct. 17, 1967
34 Ll.L.Rep. 192; (1929) 18 Asp. M.L.C. 38; ____________________
Price & Co. v. Union Lighterage Company, [1903] 1 K.B. 750;
JUDGMENT
Pyrene Company, Ltd. v. Scindia Navigation Company, Ltd.,
[1954] 2 Q.B. 402; [1954] 1 Lloyd's Rep. 321; Mr. Justice FAZLE-AKBAR: The facts in this appeal by
special leave are not seriously in dispute, but they give rise to
Renton & Co., Ltd. v. Palmyra Trading Corporation of Panama,
questions which are of general importance to the shipowners
[1957] A.C. 149; [1956] 2 Lloyd's Rep. 379;
operating in the ports of this country.
The plaintiff, Hossain Brothers, hereinafter called the
consignee, was the holder of bills of lading No. 28 and No. 29
dated Sept. 9, 1953, in respect of 115 bales of cotton which
were shipped under them at Karachi for carriage to and delivery
at Chittagong port on board the steamship Fatakada belonging
to the defendant, by
[1968] Vol. 2 Lloyd's Rep.
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers
East & West Steamship Company hereinafter called the
shipowners. When the Fatakada reached Chittagong the said
cargo was discharged into a lighter engaged by the shipowners
and then carried to the landing jetty. On taking delivery of the
goods the consignee found that some 33 bales had been
damaged by rain water. On survey by the Lloyd's surveyor the
damage was assessed at Rs. 13,025/9/9 inclusive of survey fees.
The consignee also claimed Rs. 776/- as interest at the rate of
six per cent. on the said amount. Thus, the consignee laid his
claim for damages at Rs. 13,801/9/9.
The shipowners disclaimed all liability relying on the
conditions subject to which the bills of lading were expressed to
be issued. In other words, according to them, they were
protected by the exceptions contained in the bills of lading.
The Subordinate Judge decreed the suit for Rs. 13,025/9/9. As
the consignee had already received Rs. 12,658/7/- from
defendant No. 4, Queensland Insurance Company, Ltd., and
executed a letter of subrogation in their favour, the Subordinate
Judge directed that the decree would be for the benefit of the
said insurance company to the extent of the amount paid by
them, i.e., Rs. 12,658/7/-. On appeal, the judgment and decree
of the Subordinate Judge were upheld by the High Court.
The case has been argued before us on agreed facts, namely,
that there was no damage caused to the goods either during the
time they were in the ship's hold or at the time of their
discharge at the outer anchorage and that the goods were
actually damaged by rain water when they were in the lighter.
The only question which has been pressed before us is whether
the shipowners are completely protected by the terms and
conditions mentioned in the bills of lading. Both the bills of
lading contain similar terms.
It will therefore be necessary to set out the relevant provisions
of the bill of lading. There is a paramount clause the opening
words of which are:
All the terms, provisions and conditions of the Indian
Carriage of Goods by Sea Act, 1925 and the Schedule thereto
are to apply to the contract contained in this bill of lading.
147
Fazle-Akbar, J.
It further provides:
The said goods, to be carried and delivered subject to the
terms and conditions of this bill of lading in the like good
order and condition at the port of Chittagong unto Order or his
or their assigns.
It then says:
In all cases and under all circumstances the Company's
liability shall absolutely cease when the goods are free of the
vessel's tackle and thereupon the goods shall be at the risk for
all purposes and in every respect of shippers or consignees.
The above provisions are in the printed part of the bill of
lading, and the following clauses are typed thereafter:
(a) All general cargo will be discharged at Chittagong at
outer anchorage owing to deep draft of the vessel. Under the
circumstances all general cargo other than rapeseeds in bags is
accepted for shipment on the distinct understanding that the
ship will not be responsible for any damage sustained by such
cargo due to its being discharged at outer anchorage into
lighters nor will the ship be responsible for shortage of
packages and/or its contents partially or wholly due to any
reason including pilferage.
(b) Discharging of cargo at Chittagong anchorage will be
carried out at shipper's risk and ship and/or lighterage
department will not be responsible for the loss and/or damage
etc. in Cargo.
There is also the following rubber stamp indorsement on the
bill of lading:
Discharging of Cargo at Chittagong anchorage will be
carried out at shipper's risk and ship and/or lighterage
department will not be responsible for the loss and/or damage
etc. in Cargo.
Thus the paramount clause shows that the bill of lading is
subject to the provisions of the Hague Rules which have been
incorporated in the Schedule to the Carriage of Goods by Sea
Act, 1925.
In order to appreciate the contentions raised by the parties it
will be convenient at this stage to set out the relevant provisions
of the Hague Rules.
Art. I, rr. (b) and (e):
(b) "Contract of Carriage" applies only to contracts of
carriage covered by a bill of lading or any similar document
[1968] Vol. 2 Lloyd's Rep.
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers
of title, in so far as such document relates to the carriage of
goods by sea including any bill of lading or any similar
document as aforesaid issued under or pursuant to a
charterparty from the moment at which such bill of lading or
similar document of title regulates the relations between a
carrier and a holder of the same:
(e) "Carriage of goods" covers the period from the time when
the goods are loaded on to the time when they are discharged
from the ship.
Art. II:
Risks:
Subject to the provisions of Article VI., under every contract
of carriage of goods by sea the carrier, in relation to the
loading, handling, stowage, carriage, custody, care, and
discharge of such goods, shall be subject to the responsibilities
and liabilities, and entitled to the rights and immunities
hereinafter set forth.
Art. III, rr. 2 and 8:
2. Subject to the provisions of Article IV., the carrier shall
properly and carefully load, handle, stow, carry, keep, care for
and discharge the goods carried.
8. Any clause, covenant or agreement in a contract of
carriage relieving the carrier or the ship from liability for loss
or damage to or in connection with goods arising from
negligence, fault or failure in the duties and obligations
provided in this Article or lessening such liability otherwise
than as provided in these Rules, shall be null and void and of
no effect.
A benefit of insurance or similar clause shall be deemed to be
a clause relieving the carrier from liability.
On behalf of the shipowners it was contended that the
obligations they undertook were fulfilled by discharge of the
goods into the lighter and that at any rate their liability ceased
when the goods were once "free of the ship's tackle." In support
of this contention reliance was also placed on Rule (e) of Art. I
which defines "Carriage of goods." In other words, it was
argued that as soon as the goods were put into the lighter the sea
transit was over and the terms and conditions of the bill of
lading were attracted. Further, according to the learned Counsel,
"Carriage of goods" covered the period from the time
148
Fazle-Akbar, J.
when the goods were loaded on to the time when they were
discharged from the ship. It was therefore, argued that as the
damage to the goods occurred outside the aforesaid period, the
company was not liable for the damage.
The meaning and effect of Art. I (e) was considered in the case
of Pyrene Company, Ltd. v. Scindia Navigation Company, Ltd.,
[1954] 2 Q.B. 402; [1954] 1 Lloyd's Rep. 321, and Mr. Justice
Devlin, while repelling the contention "that if the casualty does
not fall within the period covered by this last definition (Art. I
(e)) the rules do not apply to it "observed (ibid., at pp. 415 and
327 of the respective reports) as follows:
In my judgment this argument is fallacious, the cause of the
fallacy perhaps lying in the supposition inherent in it that the
rights and liabilities under the rules attach to a period of time. I
think that they attach to a contract or part of a contract. . . .
While elucidating his view the learned Judge says:
. . . It is not intended to specify a precise moment of time. Of
course, if the operation of the rules began and ended with a
period of time a precise specification would be necessary. But
they do not. It is legitimate in England to look at section 1 of
the Act, which applies the rules not to a period of time but "in
relation to and in connexion with the carriage of goods by
sea." The rules themselves show the same thing. The
obligations in article 3, rule 1, for example, to use due
diligence to make the ship seaworthy and man and equip her
properly are independent of time. The operation of the rules is
determined by the limits of the contract of carriage by sea and
not by any limits of time. . . .
The above observations, with which I respectfully concur, are
sufficient to repel the contention of the learned Counsel that the
carriage of goods covered the period from the time when the
goods were loaded to the time when they were discharged from
the ship.
I now turn to the clause in the bill of lading providing for
cesser of liability. It says that
. . . the Company's liability shall absolutely cease when the
goods are free of the vessel's tackle . . .
[1968] Vol. 2 Lloyd's Rep.
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers
A somewhat similar clause, namely,
. . . the responsibility of carrier whether as a carrier or as
custodian or bailee of the goods shall be deemed to commence
only when the goods are loaded on the ship and to cease
absolutely after they are discharged therefrom . . .
came up for consideration in the case of Sze Hai Tong Bank,
Ltd. v. Rambler Cycle Company, Ltd., [1959] 2 Lloyd's Rep.
114; [1959] 3 All E.R. 182, before the Privy Council and Lord
Denning observed (ibid., at pp. 120 and 185 of the respective
reports):
The exemption, on the face of it, could hardly be more
comprehensive, and it is contended that it is wide enough to
absolve the shipping company from responsibility for the act
of which the [respondents], complain[s] . . . that is to say, the
delivery of the goods to a person who, to their knowledge, was
not entitled to receive them. If the exemption clause, upon its
true construction, absolved the shipping company from an act
such as that, it seems that, by parity of reasoning, they would
have been absolved if they had given the goods away to some
passer-by or had burnt them or thrown them into the sea. If it
had been suggested to the parties that the condition exempted
the shipping company in such a case, they would both have
said: "Of course not." There is therefore an implied limitation
on the clause, which cuts down the extreme width of it; and, as
a matter of construction, their Lordships decline to attribute to
it the unreasonable effect contended for.
But their Lordships go further. If such an extreme width were
given to the exemption clause, it would run counter to the
main object and intent of the contract. For the contract, as it
seems to their Lordships, has as one of its main objects, the
proper delivery of the goods by the shipping company, "unto
Order or his or their assigns" . . . It would defeat this object
entirely if the shipping company was at liberty, at its own will
and pleasure, to deliver the goods to somebody else, to
someone not entitled at all, without being liable for the
consequences. The clause must, therefore, be limited and
modified to the extent necessary to enable effect to be given to
the main object and intent of
149
Fazle-Akbar, J.
the contract, see Glynn and Others v. Margetson & Co. and
Others . . . G. H. Renton & Co., Ltd. v. Palmyra Trading
Corporation of Panama . . .
In my opinion the legal position has been correctly stated in
the above case. Now, it cannot be disputed that one of the
objects and intent of the contract in the instant case was that the
shipowners would discharge the goods carried "properly and
carefully" as laid down in Art. III, r. 2, of the Hague Rules
which have been incorporated in the Carriage of Goods by Sea
Act, 1925. Carver while dealing with r. 2 in his book "Carriage
of Goods by Sea", 9th ed. (1952), at p. 186, correctly points out
that this rule is "one which defines the scope of the contract
service rather than the terms on which that service is to be
performed".
The words "shall properly and carefully . . . discharge the
goods carried" have been interpreted by Lord Morton of
Henryton in the case of G. H. Renton & Co., Ltd. v. Palmyra
Trading Corporation of Panama, [1957] A.C. 149, at p. 169;
[1956] 2 Lloyd's Rep. 379, at p. 390, in these words:
. . . I construe the words "shall properly and carefully carry
and discharge the goods carried" as meaning that the carrier
must perform the duties of carriage and discharge imposed
upon him by the contract in a proper and careful manner. . . .
In other words, the ordinary discharge of goods should be
accompanied by the ordinary duties of avoiding negligence.
Hence, it was the duty of the shipowners to see that the lighter
was seaworthy in the ordinary sense of the word, that is to say,
it was structurally fit for reception and carriage of particular
goods. Now, the evidence has established that the lighter had no
fixed cover to protect the cargo from rain and that she used
tarpaulin for the purpose if and when necessary. It has also been
proved that the cargo was discharged on Oct. 1, 1953, and the
goods were water-stained by rain on the next day, i.e., on Oct.
2, 1953. As the cargo consisted of valuable goods it was the
bounden duty of the shipowner or his agents before discharging
the cargo, to be satisfied that the lighter was properly equipped
for the purpose. This, they did not do. It is not even pretended
that any care was taken in the selection of the lighter. Thus,
there was lack of due diligence on the part of the shipowners or
[1968] Vol. 2 Lloyd's Rep.
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers
their servants or agents in discharging the cargo on a lighter
which was not properly fitted for reception of the goods.
The case of Goodwin Ferreira & Co., Ltd. v. Lamport and
Holt, Ltd., (1929) 34 Ll.L.Rep. 192; (1929) 18 Asp. M.L.C. 38,
on which the learned Counsel has relied, has no bearing on the
facts of this case. In that case the Court on the evidence came to
the conclusion (ibid., at pp. 193 and 41 of the respective
reports) that
. . . the accident happened through another cause which arose
without the actual fault or privity of the carriers or without
fault or neglect of the agents or servants of the carriers
and hence held that as there was no negligence or fault of the
shipowners or their agents or servants, the consignee was not
entitled to get any damage. I, therefore, conclude the first stage
of argument by saying that the shipowners were under a
contractual obligation of care in discharging the cargo, that they
committed a breach of it, that the consignee thereby suffered
damage and that the consignee is entitled to recover damage
unless it was shown that there were other intervening facts
which would preclude recovery of damage.
In order to escape the consequences of damage, the learned
Counsel has relied on the exception clauses in the bill of lading.
They are as follows:
ii) The second part of cesser of liability clause provides that
after the goods are free of the ship's tackle "the goods shall be
at the risk for all purposes and in every respect, of shippers or
consignee."
Furthermore, typewritten Clause (a) and Clause (b) which
have been set out in the earlier part of the judgment say:
(a) . . . that the ship will not be responsible for any damage
sustained by such cargo due to its being discharged at outer
anchorage into lighters . . .
(b) Discharging of cargo at Chittagong anchorage will be
carried out at shipper's risk and ship and/or lighterage
department will not be responsible for the loss and/or damage
etc. in Cargo.
Carver in his book "Carriage of Goods by Sea", 9th ed. (1952),
at p. 108, while dealing with the question as to what extent the
use of the words "at shipper's risk"
150
Fazle-Akbar, J.
in the bill of lading would relieve the shipowner of his liability
for loss or damage, summed up his conclusion thus:
It is now settled that the words "at shipper's risk," or "at
charterer's risk," in contracts of carriage by sea do not exempt
the shipowner for liability for negligence, although they do
not, of course, prevent him from relying on a specific
exception in the contract which does relieve him from such
liability. . . .
I may now refer to some of the English decisions on this point.
The leading case on this question is that of The Galileo, [1915]
A.C. 199. In that case the bill of lading contained a clause that
the goods were to be transhipped at ship's expense and shipper's
risk. During its transhipment the machinery was placed in an
unattended lighter of which the planking was rotten. It therefore
sank and the machinery was damaged. Mr. Justice Bargrave
Deane held that the shipowners were liable to damages on the
ground that the words "at shipper's risk" did not cover their
negligence in placing the machinery in an unseaworthy lighter.
The Court of Appeal affirmed the decision on the ground that
those words did not cover the breach by the shipowners of the
fundamental obligation in respect of seaworthiness. The House
of Lords also affirmed that decision on the ground that the
words did not exempt the shipowners from liability for their
negligence in placing the machinery in an unseaworthy lighter.
Lord Shaw of Dunfermline, in his speech, said at p. 205:
In principle, my Lords, there is no difference between the
case of a man pretending to fulfil his obligation of
transhipment by putting goods into an unseaworthy lighter and
the case of a man pretending to fulfil his obligation of
transhipment by putting the goods into the sea. For all
purposes in law and in fact these goods are just the same as if
they had been negligently dropped by the shipowner, in the
course of what is called transhipment, into the bottom of the
dock. That being so, my Lords, I do not think that there was
any duty of transhipment performed here in any sense which a
Court of law could affirm. Upon that ground I hold that
liability attaches to the shipowner.
In the case of C. Wilh. Svenssons Travaruaktiebolag v. Cliffe
Steamship Company, [1932] 1 K.B. 490; (1931) 41 Ll.L.Rep.
262, a similar question arose
[1968] Vol. 2 Lloyd's Rep.
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers
with regard to "charterers' risk" and Mr. Justice Wright
observed (ibid., at pp. 498 and 269 of the respective reports):
It is quite clear, in my judgment, on the authorities as they
now stand, that the words "at charterers' risk," standing alone
and apart from any other exception in the charterparty, do not
excuse the shipowner in the case of a loss due to the breach of
warranty of seaworthiness. That, if it needed authority, is
clearly laid down by the Court of Appeal in The Galileo
([1914] P. 9), and I do not find any reason to qualify that
conclusion by anything that I find in the decision of the same
case in the House of Lords ([1915] A.C. 199). The words "at
charterers' risk" would clearly also not apply to damage
occurring after a deviation. These limitations on the apparent
generality of the words are, I think, too clear to need further
discussion, and I think that the words, standing by themselves,
have also to be read as limited to losses and damage where
there has been no negligence on the part of the shipowner or
his servants. That is clearly stated by Bankes and Scrutton
L.JJ., sitting as a Divisional Court, in Mersey Shipping and
Transport Co. v. Rea, Ld. ([1925] 21 Ll.L.Rep. 375) and is
deduced from the principles well established and laid down in
the Court of Appeal in Price & Co. v. Union Lighterage Co. . .
.
Now, the exception clauses on which Counsel has relied do
not expressly excuse shipowner in the case of loss or damage
due to negligence. In other words, the clauses standing by
themselves do not exempt the shipowner from liability for
damage for negligence. Hence, it must be read as limited to
losses or damages where there is no negligence on the part of
the shipowners. In this connection, reference may be made to
the following observations in Price & Co. v. Union Lighterage
Company, [1903] 1 K.B. 750, at p. 754:
". . . Accordingly, in Grill v. General Iron Screw Collier Co.,
((1866) L.R. 1 C.P. 600; (1868) L.R. 3 C.P. 476) an exception
in a bill of lading of "accidents of whatever nature or kind
soever" was held not to cover a collision caused by negligence
of master and crew: see also Phillips v. Clark (26 L.J. (C.P.)
168); Czech v. General Steam Navigation Co. ((1867) L.R. 3
C.P. 14). It is the duty of the shipowner by himself and his
servants
151
Fazle-Akbar, J.
to do all he can to avoid the excepted perils: the exception, in
other words, limits the liability, not the duty." I understand the
meaning of this to be that an exemption in general words, not
expressly relating to negligence, even though the words are
wide enough to include loss by the . . . carrier's servants, must
be constructed as limiting the liability of the carrier as assurer,
and not as relieving him from the duty of exercising
reasonable skill and care. If the carrier desires to relieve
himself from the duty of using by himself and his servants
reasonable skill and care in the carriage of goods, he must do
so in plain language and explicitly, and not by general words. .
..
For the reasons stated above I hold that the exception clauses do
not exonerate the shipowners from liability for negligence.
I may also point out that if there was a clause in the bill of
lading exempting the shipowners from liability for loss or
damage resulting from negligence in discharging the cargo even
then it would not have helped them because the same would be
null and void by reason of Art. III of the Hague Rules.
Art. III, r. 2, imposes on the carrier certain obligations in
relation to those matters which the shipowner agrees to perform
under the contract of affreightment. Further, obligations set out
therein must be carefully carried out by the shipowner. Art. IV
gives him certain rights and immunities in relation to those
obligations which are mentioned in Art. III, r. 2. Art. III, r. 8,
invalidates any provision in the bill of lading by which the
carrier seeks to relieve himself from liability for loss or damage
to or in connection with goods otherwise than as provided in
Art. IV.
Once the goods are loaded on the ship, the shipowner can free
himself from the obligation by bringing himself within the
exception mentioned in Art. IV. Art. III, r. 2, has already been
cited. It is directed to the manner in which the obligations
entered into are to be carried out. No doubt, Art. III, r. 2, is
subject to Art. IV. But exceptions mentioned in Art. IV do not
cover a case of failure to discharge the goods "properly and
carefully". Hence, the exception clauses will not protect the
shipowners in this case against the consequences of negligence.
[1968] Vol. 2 Lloyd's Rep. 152
Pakistan Ct. East & West Steamship Co. v. Hossain Brothers Fazle-Akbar, J.

I would, therefore, hold that the shipowners committed a
breach of the obligation contained in the bill of lading and as
such the consignee was entitled to recover damages in a case
like this. The quantum of damage awarded by the Courts below
has not been challenged before us.
For all these reasons I would dismiss the appeal with costs.
Mr. Justice A. R. CORNELIUS, C.J.: I agree.
Mr. Justice HAMOODUR RAHMAN: I agree.
Mr. Justice MUHAMMAD YAQUB ALI: I agree.
Mr. Justice S. A. RAHMAN: I agree but would add that even
if the contract of carriage by sea could be said to have ended
with the discharge of goods from the ship into a lighter engaged
by the shipowners, the latter would not be absolved from
liability as bailees of the goods until they were handed over to
the consignees or their agents or assignees. Negligence as a
bailee would have sufficed to sustain the claim against the
shipping company and here there was a clear negligence
resulting in damage to the goods.