Case No: Civil Appeal Nos. 15 and 38 of 1981
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Dr. Kamal Hossain,,
Citation: 34 DLR 1982 (AD) 111
Case Year: 1982
Appellant: Al-Sayar Navigation Co.
Respondent: Delta International Traders Ltd. and others
Subject: Maritime claim,
Delivery Date: 1981-06-25
Supreme Court of Bangladesh
Kemaluddin Hossain, CJ.
Fazle Munim, J.
Ruhul Islam, J.
B. H. Chowdhury, J.
Shahabuddin Ahmed, J.
……….Appellants (In Civil Appeal No. 15/81).
Delta International Traders Ltd. and others
Delta International Traders Ltd and others
……….Appellants (In Civil Appeal No. 38/81).
M.V. Kuan Hai renamed as M. V. Al-Sayer and others
Judgment Date: June 25, 1981.
Admiralty Court Act (3 of 1861)
Section 6 of the Admiralty Court Act gives the Court’s jurisdiction only when there is damage done to the goods on account of breach of contract of carriage or due to negligence, misconduct or breach of duty, independently of the contract which resulted in damage to the goods to be carried by the ship.
Maritime lien— Maritime claim
Maritime lien is different from maritime claim. All maritime liens are maritime claims but all maritime claims are not maritime liens. Only certain types of maritime claims give rise to the maritime liens. It is well settled that the parties cannot by agreement confer lien status on a claim which is not by nature a lien.
Dr. Kamal Hossain, Senior Advocate, with Shah Abu Nayeem, Advocate, instructed by A. Backkar, Advocate-on-Record—For the Respondent 1 in Civil Appeal No. 15 of 1981 and For the Appellant (In Civil Appeal No. 38/81).
Asrarul Hossain, Senior Advocate, with Abdul Azim, Advocate, instructed by S. M. Huq, Advocate-on-Record.—For the Respondent (in Civil Appeal No. 15 of 81).
Civil Appeal Nos. 15 & 38 of 1981.
(From the Judgment and Decree dated 1st December 1980 passed by the High Court Division in Admiralty Suit No. 1 of 1978).
These appeals by special leave are directed against the judgment and decree passed by the Admiralty Court of the High Court Division in Admiralty Suit No. 1 of 1978. Civil Appeal No.15 of 1981 is at the instance of Defendants and Civil Appeal No. 38 of 1981 by the plaintiff.
2. The suit was filed by the plaintiff under section 6 of the Admiralty Court Act, 1861. Facts are simple. There was salt crisis in Bangladesh during the relevant time and the Government allowed import of salt. The plaintiff tried to import salt from India but he was not successful. Time was running out. The import license had to be used by 31 st December, 1977. At last he found the defendant No.3 agreeable to supply salt of North Yemen origin. The contract was concluded between the parties and it was agreed that the defendant would supply 9000 metric tons of salt "white, clean, dry, common, edible fine/ fully crushed salt in bulk." It was agreed that the shipment must be made by 31st December, 1977 and the plaintiff opened letter of credit accordingly. Salt was loaded in the vessel at Hodeidah port in North Yemen and the bill of lading was issued by the Master on the 31st December, 1977 and the goods were described in it "as white clear, dry, common edible (fine and fully crushed in bulk) weight 8000 metric tons." The expected date of arrival of the ship was 27th January, 1978. The ship, however, reached Chalna on 1st April, 1978. On arrival of the ship the plaintiff took the stand that it was not the salt which he contracted for and the salt was clogged. The dispute centred round this point. Eventually, the salt was unloaded from May, 1978 and continued upto 31st July, 1978. Thereafter the plaintiff filed the suit.
Plaintiff's case was that the salt which was loaded at Hodeidah was sold out by the ship owner at Dar-e-Salam and other salt was loaded which was brought to Chalna. (2) There was undue delay and deviation; as such the defendants were liable for damage.
3. Defendants 1, 2,3,4,5 and 8 by filing 3 different written statements resisted the suit firstly, on the ground that there was no conversion of the salt; secondly, there was no clause in the Charter Party restricting the carrying of other goods; thirdly, deviation was justified because liberty was retained by ship owner so to do. Lastly, the suit was not maintainable under section 6 of the Admiralty Act.
4. The High Court Division came to the conclusion that the suit was maintainable and the Admiralty Court could entertain the suit. Then the High Court Division considered that it was sale by description and not by sample and observed:
"In such circumstances it must be held that the plaintiff failed to prove that the salt was changed.''
Having come to this conclusion the learned Judge on consideration of the evidence observed as follows:
"In the above circumstance it must be held that the defendant Nos. 1, 2, 4 and 5 did not deliver the salt which was received by them on 31-12-1977."
Then he concluded:
"It is, therefore, not a case of change or conversion of the salt and quality of the salt, but it is a case of non-delivery of the same salt which was shipped in the vessel and received by defendant No. 1 and the defendant No. 5."
5. It is difficult to follow the reasonings. With respect, when the High Court Division had found that the plaintiff failed to prove that the salt was changed how the conclusion could be that it was a case of non-delivery of the same salt. In order to bring the case within section 6 of the Admiralty Act, the High Court Division assumed that it was a case of non-delivery of the right type of salt and then devoted a considerable portion of the Judgment, for coming to the conclusion that the suit is maintainable under section 6 of the Act.
6. Next, as to the delay and deviation the High Court Division noticed the evidence that the normal voyage takes 3/4 weeks from Hodeidah to Chalna. It was not part of the contract that the vessel would go from Hodeidah to Dar-es-Salam in the opposite direction instead of coming straight to Chalna. This deviation was unauthorised and the delay caused by it had resulted in the loss of market and other expenses for which the defendants were liable for damage. As for the clogging of the salt it noticed that the defendant had already paid Tk. 50.000/- to the plaintiff for meeting expenses and then it assessed the damages on various counts and decreed the suit for Tk. 34 33,135/-. Earlier, the ship was arrested by the order of the Court and it was released on furnishing a bank guarantee for Tk.30,00,000/-. Accordingly, the High Court Division directed that the decretal amount as covered by the Bank guarantee be released by encashing the guarantee. The counter claim by the defendant for demurrage amounting to Tk, 93,00,000;-lac was rejected as the defendants were liable for the delay in the discharge of the cargo owing to prolonged discussion and negotiation.
Defendants appealed against the decree. Leave was granted to consider the question whether the suit was maintainable under section 6 of the Admiralty Court Act and whether there was any maritime lien which could be enforced against the subsequent purchaser of the vessel who happened to be the shipper himself. Lastly, whether the defendants at all were liable for any damage.
7. Mr. Rafique-ul-Huq, the learned Counsel appearing for the defendant-appellant canvassed that the suit under section 6 was not maintainable because it was not a case of maritime lien.
Section 6 of the Admiralty Court Act is in the following terms:
"The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any part in England or Wales, in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales, provided always, that if in any such cause the plaintiffs do not recover 22 pounds he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said Court."
8. The section is attracted only when damage is done to the goods, due to negligence, misconduct or breach of contract or breach of duty in relation to the goods. In a series of decisions in England it has been settled now that it gives the Courts jurisdiction only when there is damage done to the goods on account of breach of contract of carriage or due to negligence, misconduct or breach of duty, independently of the contract which resulted in damage to the goods to be carried by the ship.
9. It is to be noticed that in England section 6 of the Admiralty Court Act, 1861 was repealed by section 21 of the Administration of Justice Act, 1920. The material portion of section 5 of 1920 Act is as follows:
(b) Any claim relating to the carriage of goods in any ship and
(c) Any claim in tort in respect of goods carried in any ship,
10. It will be noted that section 5(1) omitted the words "owner or assignee of a bill of lading" who were the only persons who could sue under section 6 of the Act, 1861. Section 5 of the 1920 Act was wider than section 6 of Act, 1861.
Then again section 5 of 1920 Act was repealed by section 226 of the Supreme Court of Judicature Act 1925 but re-enacted the provisions of the section by section 22(1) (a) (XIII).
11. Thereafter by s. 49 of the Administration of Justice Act, 1956, section 22 of 1925 Act was repealed, and by section 87 the Admiralty jurisdiction was conferred the power to hear and determine "any of the following questions of claim" : —
12. In the instant case it is true that the bill of lading described goods as "white, clean, dry, common edible, fine, fully crushed salt in bulk" vide Ext. II and supporting evidence Ext 10. The plaintiff contended that this salt was replaced at Dar-es-Salam or somewhere else. This story of conversion was not proved. The finding of the High Court Division was that plaintiff has failed to prove his case so far conversion of salt was concerned. This finding is based on evidence. But then the High Court Division concluded that the defendant did not deliver the salt that was loaded at Hodeidah and termed it as a case of non-delivery of right type of goods, (page 53 of the Paper Book C.A No. 15 of 1981). This finding actually begs the whole question. What type of salt was then loaded? The learned Judge himself came to the conclusion that it was sold by description and not by sample and that was also the case of plaintiff. Then the question arises on what basis the learned Judge made the comparative study for coming to the conclusion that it was not the salt which was shipped. No evidence was adduced on this point. Anything, therefore, not based on evidence is conjecture. Such finding, therefore, must be set aside.
13. To turn to the nature of the claim in dispute, it is found that Maritime lien is different from maritime claim. All maritime liens are no doubt maritime claims but all maritime claims are not maritime liens. Only certain types of maritime claims give rise to the liens. It is well settled that the parties cannot by agreement confer lien status on a claim which is not by nature a lien. An action in rem is brought against the vessel whereas action in personam is against the owner. The lien and the proceeding in rem are co-relative; where one exists the other can be taken and not otherwise. In the 19th century the Admiralty jurisdiction in England had at times termed certain maritime claim as maritime lien. Again, there are certain decisions which purported to circumscribe the liens, in the Law of Admiralty (Second Edition) the authors Grant Gilmore and Charles Black have summarised the history of lien and maritime claim during the course of 19th and 20th century, on both the sides of the Atlantic. The consensus of opinion is recorded as follows:
"The only liens recognised today are those created by statutes and those historically recognised in maritime law." (Page 633 Ibid)
14. The authors have noticed the present-day attitude of the Court of no new liens. The International convention for the unification of rules relating to maritime liens, etc. in 926 enumerated in Article 2 that the following give rise to maritime lien on a vessel:
(1) Law costs due to the state, pilotage dues, tonnage dues, etc. and other public taxes.
(2) Claims arising out of contract of engagement of the master, crew and other persons hired on board.
(3) Remuneration for assistance and salvage, etc.
(4) Indemnities for collision, as also for damage caused to harbours, docks, etc; indemnities for personal injury to passengers or crew; indemnities for loss of or damage to cargo baggage.
(5) Claims resulting from contracts entered into or acts done by the master.
Article 3 provided that the national laws may guard a line in respect of claims other than those mentioned in Article 2 but without modifying the ranking of claims. (International Conventions of Merchant Shipping—Singh 2nd Edition, 1978).
15. The same author refers to the International convention for the unification of certain Rules relating to the maritime liens and mortgages in 1967 held at Brussels, "having recognised the desirability of determining by agreement certain Rules relating to maritime liens and mortgages agreed as follows,”
Article 4-1. The following claims be secured by maritime liens on the vessel.-
(i) wages and other sums due to the master, officer of the vessel's complement in respect of their employment on the vessel;
(ii) port, canal and other water way dues and pilotage dues.
(iii) claims against the owner in respect of loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of the vessel;
(iv) claims against the owner, based on tort and not capable of being based on contract, in respect of loss of or damage to property occurring, whether on land or on water, in direct connection with the operation of the vessel;
(v) claims for salvage, wreck removal and contribution in general average. The word "owner" mentioned in this paragraph shall be deemed to include the demise or other charterer, manager or operator of the vessel.
Clause (iv) clearly provides the liability "in respect of loss or damage to property occurring, whether on land or on water, in direct connection with the operation of the vessel. Though this convention has not been ratified yet it shows the consensus of the maritime nations.
16. Present day commerce and shipping clearly have necessitated the restriction on maritime lien, and that is understandable because of the International trade. In the cited cases e.g. The St. Cloud (1863 L. R.2. A & E 269) and the Napotor (L.R. 2 A &E 375) Photostat copies of which have been placed before the Court damages were done to the cargo by negligence of the master of the ship and improper stowing and the Courts found the master liable for the damage under section 6 of the Act. In the case of North Port Code Vs. Owners of Henrich Bjorn, 1886, Appeal Case Vol. 11p. 270. The House of Lords considered the claim for necessaries or money advanced to purchase necessaries. It was held that, that does not give any lien under section 6 and observed that section 6 does not give a maritime lien in respect of necessaries supplied to foreign ship in an English port. In Glovanni Dapueto Vs. James Wyllie, 1874 L.R. 5 P.C. p. 482 it was held that section 6 does not confer a maritime lien. The clause in question does no more than confer to the Court, of Admiralty jurisdiction to entertain such cases that can be brought within scope and which, it is to be observed, may be instituted in personam as well as in rem.
17. In the instant case as has been noticed that there was no proof that the owner had committed any tort or the master of the vessel was responsible for damage to the property, namely, the loaded salt nor has it been contended that our municipal law has granted a maritime lien for delay had deviation. As such it is clear that there had been no maritime lien which could warrant the arrest of the ship. That was clearly untenable.
Section 35 of the Act 1861 reads as follows:
"The jurisdiction conferred by this act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings personam.”
18. Having come to the conclusion that the proceeding in rem that is against the vessel was clearly bad in law the only question is whether by proceeding in personam is maintainable. The plaint had been drafted in such a manner that the plaintiff had given the schedule of the loss incurred as under:
(i) L.C. price of goods.
(ii) Import duty.
(iii) Import-charges, river dues, landed cost of goods; plus
(iv) Costs incurred to make goods marketable; plus
(v) Loss of profit; i.e., market difference 27-1-1978 and 31-7-1978; plus
(vi) Loss suffered as a result of production of lower quality salt even after crushing, washing, etc.
19. It is clear that plaintiff being an importer was assessing his damages in terms of market loss of business and loss of profit. In other words, his action was for damages. He made the shipper a party in the suit. That party subsequently became the owner of the vessel as well. It was clearly an action in personam. It is true that both maritime lien and maritime claim come within the scope of section 6 of the Act but the liability incurred under maritime lien is different from that of maritime claim. In the present case the liability is that of maritime claim and not of a maritime lien and the defendant-appellants are liable for the reasons set out herein.
The next question, what is the liability of the shipper as the subsequent owner?
20. It is in evidence that the contract was for delivery of salt at Chalna Port, Normal voyage takes 3/4 weeks. This vessel instead of proceeding to Bangladesh travelled in the opposite direction to a port at Dar-es-Salam for discharging fertilizer. It is not disputed that the vessel went to Dar-es-Salam which is not on the normal geographical route. It is in the opposite direction. The issue is whether this deviation was justified.
Mr. Rafique-ul-Huq contended that the vessel had retained the liberty to call on any port in any order.
21. The question of deviations was agitated in the Court of Appeal in Ledue & Co. Vs Ward, C.A 1888 L.R. Vol. XXp. 475 the question was whether the deviation was justified. The plaintiffs, the owners of goods shipped on board sued for non-delivery of the goods at Dunkirk in accordance with the terms of the bill of lading. The vessel instead of proceeding direct for Dunkirk, sailed for Glasgow, and was lost with her cargo, off the mouth of the Clyde, by perils of the sea. Evidence was given by the defendants, the ship owners, that the plaintiff knew at the time when the goods were shipped, that the vessel was intended to proceed to Dunkirk via Glasgow and in substance agreed to her so proceeding. The trial Court held that there had been a deviation and gave judgement for the plaintiffs. It was contended in the Court of Appeal that the bill of lading contained a clause:
"With a liberty to call at any port in any order and to deviate for the purpose of saving life or property then follow usual course excepting perils of the sea, etc.
Lord Esher observed:
"In the present case liberty is given to call at any ports in any order.........I believe the term has always been interpreted to mean that the ship may call at such ports as would naturally and usually be ports of call on the voyage named. If the stipulation were only that she might call at any ports, the invariable construction has been that she would only be entitled to call at such ports in their geographical order and therefore the words "in any order" are frequently added, but in any case it appears to me that the ports must be ports substantially on the course of the voyage. It follows that, when the defendants' ship went off the ordinary track of a voyage from Fiume to Dunkirk to a port not on the course of that voyage, such as Glasgow, there was a deviation, and she was then on a voyage different from that contracted for to which the expected perils clause did not apply; and therefore the ship owners are responsible for the loss of the goods."
Fry, L.J. concurred and observed:
"As a matter of construction I cannot doubt that power to deviate from the voyage so described must be confined to that given by the bill of lading in terms viz. a power to deviate in order to call at any ports in any order, or for the purpose of saving life or property. The question is whether that power includes a power of going to Glasgow, which appears to be, to and fro, somewhere about 1200 miles out of the ordinary course of the voyage. I think the meaning of the clause with regard to calling at ports is what the Master of the Rolls has stated, and that it cannot include a right to go to Glasgow."
Lopes, L.J. expressed the same view that the deviation was not justified and the ship owners were responsible for the goods.
22. In the James Morrison and Co. Ltd Vs. Shaw, Savili and Albion Co. Ltd, (1916) 2 K.B. 783 the plaintiffs shipped a quantity of wool at Napier, New Zealand for London by the defendants ship Tokomaru. The ship was torpedoed by a German submarine between 7/8 miles from Havre and the ship ' and cargo were an actual total loss, the plaintiffs sued for breach of contract evidenced by the bill of lading. The defendants while admitting the total loss of the goods disputed their liability. They said that the loss occurred by excepted perils, the king's enemies. The plaintiffs coatended that the defdts are not entitled to rely upon the exception clause in the bill of lading as the vessel deviated from the contract voyage by leaving the direct route and proceeding to Havre and a disaster occurred and that the liberty contained in the bill of lading did not permit the deviation. The Court of Appeal considered that the deviation was unjustified, and therefore, the ship owners could not escape liability by invoking the liberty clause and excepted perils clause. Phillimore, L.J., observed:
"This makes it necessary to determine, first, what was the course of the voyage; and secondly, if there was a departure from that course, whether it was justified by the liberties given by the bill of lading."
He quoted with approval the passage of Lord Esher in Leduc & Co. vs. Ward quoted above. A number of decisions were reviewed and the conclusion was:
"It is not, as far as we are informed, a known or usual voyage for vessels bound from New Zealand, or even from South America, to call at Havre on the way to London.........As the accident occurred at the time and place when it did the ship being then on her deviating course, the ship owner is responsible unless he can show that the loss or damage would have occurred if she had been on her proper course for London."
23. It the case of Stage Line Ltd, Vs. Foscolo Mango & Co. Ltd, 1932 A.C. p. 328 the House of Lords considered the point of deviation. In that case a cargo of coal was loaded on the appellants' steamship Ixia at Swansea for carriage in Constantinople under bills of lading which gave the ship owners "liberty... ......to call at any ports in any order, for bunkering or other purpose......all as part of the contract voyage. In order to land two engineers the ship went off the route and called at St. Ives bay. Shortly after resuming her voyage from St. Ives bay and before she had returned to the usual route the ship got stranded on the Cornish coast' and both ship and cargo were lost. In an action for damages by the cargo owners the trial Court and the Court of Appeal came to the conclusion that the deviation was not reasonable in the circumstances. On further appeal, the House of Lords held that the departure of the ship from the contract route did not come within the liberty given by the bills of lading as the words "other purpose" in the context must be construed as meaning the calling at a port, for some purpose having relation to the contract voyage; secondly, it was held that the deviation was not reasonable within the meaning of Article IV, Rule 4 of the Schedule to the Carriage of Goods by Sea Act, 1924. The finding of the Courts below ought not to be disturbed and, lastly, the immunity of the carrier under the Act from loss or damage arising from perils of the sea did not apply. It was observed:
"The Act too, must be considered as a whole, in the light of all the attendant circumstances. A conclusion so reached that a particular act was reasonable or unreasonable is in general a conclusion of fact; it is an inference of fact from a given set of facts."
The Court did not find any reason to disturb the concurrent finding of fact.
24. In the instant case the ship instead of proceeding from a North Yemen port to Bangladesh proceeded to the opposite direction to Dar-es-Salam. It was in violation of the bill of lading. Applying the aforesaid principles there is no hesitation in saying that the deviation was unauthorised. The ship owners, therefore, must be held responsible for this unjustified deviation and this deviation is one of the causes of delay.
25. Next, the question of delay. It is la evidence that the ship came to Chalna on 1st of April, 1978 although the expected date of arrival was 27th January, 1978. This delay owing to deviation had caused loss or profit to the plaintiff. That was his case. In 1877 the Court of Appeal in the Parana L.R. Vol. II 118 considered the point and held that in the facts of that case the consignee could not recover damages for the loss of market because of a protracted voyage due to the defects of the ship when by that time the market price of the goods shipped had fallen. Mr. Rafique-ul-Huq relied on this case heavily. The burden of the decision in the case could be seen in the paragraph quoted below-
"In order that damages may be recovered, we must come to two conclusions. First, that it was reasonably certain that the goods would not be sold until they did arrive: and secondly, that it was reasonably certain that they would be sold immediately after they arrived, and that was known to the carrier at the time when the bills of lading were signed, In appears to me that nothing could be more uncertain than either of those two assumptions in this case."
26. Their Lordships were considering the facts of that case, but the test laid down therein has some relevancy for the purpose of the present case. Evidence was given that the plaintiff desperately tried to import salt from India but he failed there. His license was due to expire on 31-12-77. The defendants contacted him and agreed to ship salt before the expiry date. Crisis in salt market in Bangladesh was known to both the parties. Plaintiff contracted for 9,000 metric tons though ultimately salt weighing 8,000 metric tons was shipped. Cargo capacity of the vessel was 9351 tonnage. In other words the entire ship was chartered under the Genkon Charter party. Clause 3 contained deviation clause which reads as under:
"The vessel had liberty to call at any port or ports in any order for any purpose to sail without pilots to toe and assist vessel in all stations and also to deviate for the purpose of saving life and or property."
27. As has already been noted that this clause would not be attracted because the finding of the Admiralty Court was that deviation was clearly unauthorised and the principles set out above do not warrant any interference. That finding must be accepted. Now, the delay of 120 days. As noted in the Parana Case just cited the decision was given in the facts of that case, but the test laid down in that case operates against the ship owners as the analysis of the evidence showed that the salt shipped at Yemen was for the purpose of salt in the market of Bangladesh when the crisis was continuing. Hence the decision in Parana does not help the appellant ship owner.
28. The latest decision on the point has been given by the House of Lords, in the case of Heron II reported in 1967, 3 Ali E. R. 686. In that case the respondents chartered the appellant ship owner's vessel, the Heron II for the carriage of three thousand tons of sugar by sea with the intention of selling the sugar on arrival at Basrah, the port of destination. The time that the voyage would take could be predicted with reasonable certainty to be twenty days. The vessel made deviation in breach of contract, which resulted in a delay of nine days. If there had not been this delay, the sugar would have fetched Pd. 32, 10s, 9d per ton. The charterer sought to recover the difference between the amount that would have been realised on sale at Pd.32, 10s. per ton and the amount realised, in fact, as damages for breach of contract of carriage by delay due to deviation. Held: The loss of profit was recoverable as damages for breach of the contract of carriage by deviation involving delay because, on the knowledge available to the ship owner when the contract was made, the sale of the sugar in Basrah market on the ship's arrival was something of which "there was such probability that it should be regarded by the Court as arising in the usual course of things and as being within the contemplation of the parties at the time of the contract". Lord Reid observed:
“The crucial question is whether on information available to the defendant when the contract was made, he should, or the reasonable man in his position could have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation."
And the answer was given in the following words.
"It was certainly not unlikely on the information which the defendants had when making the contract that delay in delivering the boiler would result in loss of business, indeed, it would seem that there was more than even chance and there was nothing new in holding that the damages should be estimated, on a conjectural basis. This House had approved of that as early as 1813 Hall vs. Ross. Then his Lordship expressed the opinion:
"The loss of the profit claimed in this case was not too remote to be recoverable as damages."
29. The case of Dunn vs. Bucknall Brothers. 1902 (2) KB. 614 was quoted with approval. It was held in that case that there was no general rule that damages could not be recovered by loss of market on voyage by sea and for special reasons such damages have been awarded in a number of later cases. Lord Pearce expressed his opinion that the loss of market will be found to be with the contemplation of the parties in carriage of goods by sea. Lord Upjohn opined: The ship owner knew of the existence of sugar market at Basrah but had no detailed knowledge thereof. Those in a sense are the relevant facts on which the question of damages has to be determined. It is common ground that the question falls within the first branch of Rule in Hadley Vs, Baxendale 1854, 9 Ex. 341. He quoted two cases from the U.S.A. In the case of United States vs. Middleinn, 1924, 3 Fed Rep (2nd 384 (An Atlantic Port to Japan 60-90 days and the Lossifoglu 1929-32 Fed Rep (2nd 928) Philippines to US, Atlantic Port 46-66 days). In both the cases it was held that in the case of marketable commodities being carried to market if the ship greatly exceeds the larger estimate of the voyage through breach of contract and the cargo owner thereby misses the market, he is entitled to damages for loss of market. These two decisions were quoted with approval. So is the case here.
Mr. Rafique-ul-Huq then made his submissions on the defence plea that the ship was not in un-seaworthy condition, but it had boiler trouble, engine troubles, etc. In the written statement it is said:
“The ship was running in slow speed owing to various troubles. It is contended that the delay was reasonable."
30. In the case of Monarach SS Co., Vs. A/B Carlshons the facts were as follows: Reported in 1949 All. L.R. Vol, J page 1. On April 4, 1939. the M. Company chartered a steamship, belonging to the S. Company, a British Company, which sailed to Rashin in fulfillment of the charter and there loaded a cargo of soyabeans, purchased from the Company by the K. Company of Sweden. On May 6, 1939, sixteen bills of lading were issued; on May 12 the ship sailed from Rashin. Under the terms of the charter party the S. Company contracted to supply a seaworthy ship, but, owing to bad bunker coal having been used in her and to other causes, the ship was unseaworthy on sailing from Rashin, and considerable delay was caused owing to deviations from route for repairs. On June 7 in conformity with the charter party, and bills of lading, the M, Company nominated Karlshamnas as the port of discharge but the S. Company was not told until the middle of August that delivery was intended to be made to the K. Company. On the outbreak of war on September 3, 1939. The voyage, which would have taken only 63 days but for the ship's unseaworthiness, was still not completed, and the ship was ordered by the Admiralty to proceed to Glasgow which she reached on October 21. On her arrival the M, Company paid the freight and took delivery of the cargo and on October 23 transferred the bills of lading to the K. Company, who had chartered three neutral ships to carry on the cargo to Karlshaman. The cost of transshipment was, £ 21, 634,7s 4d which the K. Company now claimed from S. Company as damages for breach of contract. It was found as fact that the S. Company was unaware of the unseaworthiness of the ship. The charter party contained a war risk clause relied on by the S. Company, under which the ship was to have liberty to comply with orders of (inter alia) the British government and delivery under such orders was to be fulfillment of the contract.
31. It was held that the diversion to cargo brought about through the delay in carrying out the contract of carriage was attributable to the default of the steamship co. because in the conditions existing in April, 1939, It ought to have foreseen that war might shortly break out and that any prolongation of the voyage might cause the loss of or diversion of the ship. Next the cost of transshipment was due to the steam company's failure to carry out its bargains and was damage arising as a direct and natural consequence of the breach of contract, for which Steamer Company was liable. In that case it was found that the voyage was extra-ordinarily protected owing to the unseaworthiness of the vessel. The comment on the evidence was as follows:
"I am satisfied that by the time the vessel reached Rashin her tubes as a whole were in a defective condition and that, in addition, the flaw which permitted sea water to find its way into the boilers and then, in existence, and that in consequence of these defects the ship was unseaworthy."
Earlier the evidence was considered:
‘‘Her boilers’ tube was so old and deteriorated that she was in no fit state to enter on the contemplated voyage".
Lord Du Pareq observed:
"Unseaworthiness in itself may, if fortune is kind, occasion no damage to anybody, but apart from other obvious dangers it is very likely to cause delay.
Delay may produce damage of many kinds, some of it predictable. If it be once granted that there was a real and known danger of war at the date of the contract, I understand that all your Lordships who heard the arguments are agreed that the diversion of the ship which caused such grave loss to the respondent followed in the usual course of things from the delay and the unworthiness which caused it". (page 19)
32. This is the complete answer to the contention of the appellant. The ship itself was scrapped, immediately after this voyage. It is disputed that it was an old vessel. Even on the admission of the appellant, this ship was incapable of performing the voyage within the stipulated period and they must face consequences.
33. In the case before us the appellant were apprised of the salt crisis and the urgency of immediate shipment. These are facts found by the Admiralty Judge. These findings cold not be assailed by the appellant. The rest is simple. The authorities cited above clearly saddle the appellant with liability. The Court of Appeal in Dunn vs. Bucknall Bros All E. R. Rep 1900-03 p-131:
“Wherever the circumstances admit of calculations as to the time of arrival and the probable fluctuation of the market being made with the same degree of reasonable certainty in the case of a sea, as of a land, transit there can be no reason why damage for late delivery should not be calculated according to the same principles in both cases."
34. Now the damages. In all the reported decisions the principle has been reiterated that it is essentially a question of fact. It will be useful to trace the course of the voyage. Cargo was loaded on 31.12.77. The vessel left the port of Hodeidah for Bangladesh on 12.1.78. It reached Aden on 14.1.78. Then there was new trouble and new crews were brought in on 18.1.78. The vessel left Aden on 20.1.78 and the boiler trouble started. It came back to Aden on 23.1.78 for repair. Repairs were completed by 8-2-78. Then the boat sailed in the opposite direction for Dar-es-Salam and reached on 19-2-78. It left Dar-es-Salam on 28-2-78 and immediately engine trouble started. It went to Colombo for repairs, etc. and then left Colombo on 24-3-78 and reached Chalna on 1-4-78. The expected time of arrival was 27-1-78. It reached Bangladesh after 3 months. This course of voyage speaks for itself. There was not only delay and deviation but the boat itself was unsuited for the voyage. The plaintiff has claimed not only difference in market price but loss of profit and other expenditures, namely, ''cost incurred to make goods marketable", loss suffered as a result of production of lower quality even after crushing, washing, etc. and for the higher rate of dollar. The plaintiff claimed damage on the following counts:
35. It is well settled that all sorts of damages are not entertainable. After perusing the decisions the opinion is in assessing damages, only the circumstances resulting from the breach of contract are to be taken into consideration. In Liesboch Dredger vs. Eddison S. C. S, 1933 A. 449. Lord Wright observed:
"The law cannot take account of everything that follows a wrongful act: it regards some subsequent matters as outside the scope of its selection, because it was infinite for the law to judge the cause of causes or consequence of the caused. Thus the loss of a ship by collision due to the other vessel's sole fault, may force the ship owner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life but no such loss could be recovered from the wrong doer. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons, In the present case if the appellants' financial embarrassment is to be regarded as a consequence of the respondents' tort, I think it is too remote, but I prefer to regard it as an independent cause, though its operative effect was conditioned by the loss of the dredger. The question of damage has been considered in many authorities and from many aspects, but no cause has been cited to your Lordships which would justify the appellants' claim"
36. Keeping this principle in mind, let us analyse the consequences of ship owner's default. The plaintiff had shown his stock of 8,000 metric tons of salt and its disposal in his balance sheet at page 155 Part II of the Paper Book. 8,000m tons=2 lac 16 thousand maunds. At page 149, he has mentioned the import cost including landing bill, duty and sale tax and other charges total 43,56,380/36. In the sale account he showed sale of 72,204 mds......Tk. 21.41.325/-
So this figure shows that the total landing costs of 43 lac and odd has already surpassed by the net sale and stock which is valued by the plaintiff himself at 47 lac and odd.
37. Now the question of loss of profit. As has been noted that the expected date of arrival of the ship was 27th January, 1978 when the market price was fluctuating between Tk. 38 and Tk. 36 per maund. In April when the ship came the ruling price was between Tk. 36 and 34 per maund. It is in evidence that immediately after the arrival of the ship dispute arose as to the quality of the salt and negotiations continued between the parties for a pretty long time and actual unloading started in the middle of May 8 and the discharge was completed on 31-7-78. Were it not for the prolonged negotiation and unsuccessful mediations the plaintiff could mitigate the damage by taking delivery of goods under protest which ultimately he did. In July the market price came down from Tk.30 to 27. Evidence is there that even from January there was a downward trend of the market obviously because salt by that time started coming to the market from other sources. Had it come in January then the plaintiff could have sold at the rate of Tk. 38 per maund but in July was varying from Tk. 30 to 27 per maund. The difference, therefore, is Tk .8 to 9 per maund and the plaintiff is entitled to recover this difference. He sold according to his own evidence 72,000 maunds, Therefore, he is entitled to the difference of Tk. 9/-per maund because of the delay due to deviation and consequent loss of profit putting one Taka extra for each maund as incidental costs. The total comes to Tk.7, 22,040/-. He is further entitled to Tk. 14,000/- for the balance of the unclogging charges. The loss therefore recoverable is Tk.7, 36,040/-.
38. As against this the defendant has filed a counter claim for the demurrage charges amounting to Tk. 93 lac. The Admiralty jurisdiction had rightly rejected the claim. One cannot take advantage of one's wrong. The defendant was responsible for the delay and deviation, now he cannot turn back and claim for demurrage. In U. S. Shipping Board and Bunge vs. Born Lloyds Law Report, Vol. 18, 1 924 at page 422 the Court of Appeal considered the claim of demurrage.
39. There was deviation and delay. The Court held that "the effect of deviation” is to wipe out the clauses in the Charter party which were in favour of the ship-owner. The result is to wipe out the fixed lay days of discharge. That does not relieve the Charterer of the duty to discharge in reasonable time. It was held:
"The result is there was a wrongful deviation in coming to Lisbon; the effect was to wipe out the fixed lay days in the charter party and to render the owners liable for any damage that may have been sustained by reason of the deviation.....The deviation was wrongful. The award in favour of demurrage must be wiped out."
40. This is a sound principle and no demurrage can be claimed by the ship owner-who himself was liable for the delay and deviation. The claim for demurrage has been rightly rejected.
In the result, therefore, this appeal Civil Appeal No. 15 of 1981 is allowed in part and the judgment and decree are set aside and the damage recoverable by the plaintiff is assessed at Tk. 7,36,040/- and the decree is passed accordingly. Civil Appeal No. 38 of 1981 is dismissed. There will be no order as to costs.