HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 643 OF 1998
BETWEEN:
AHMED
NASSER ............................................................ PLAINTIFF
t/a Ayat
& Company
- and -
UNION
TRANSPORT LIMITED ....................................... 1ST
DEFENDANT
- and -
SHIPPING
MANAGEMENT SERVICES LIMITED ........... 2ND DEFENDANT
CORAM: TEMBO, J.
Kasambara, of Counsel for the Plaintiff
Nkhoma, of Counsel for the 1st Defendant
Katundu, of Counsel for the 2nd Defendant
Katunga (Mrs), Court Clerk
JUDGMENT
TEMBO, J.: By
his writ and statement of claim, the plaintiff is claiming from the 1st
and 2nd defendants (a) damages for breach of contract; (b) damages
for negligence or, in the alternative, recovery of the value of the container
in the amount of US$34,009.50; (c) loss of profit in the amount of
US$10,000.00; (d) recovery of an amount of US$3,272 which the plaintiff paid to
the 1st defendant in respect of port charges, agency and storage
fees; (e) interest at commercial banking rate effective from the date the
container ought to have been delivered to the plaintiff in Malawi to the date
of the judgment in the instant case.
The plaintiff is also claiming costs for the instant action.
On their part, both the 1st
and 2nd defendants have denied any liability therefor. Instead, they pray for the dismissal of the
plaintiff’s action in its entirety with costs.
The Court has heard four
witness. Two witnesses, including the
plaintiff himself, have testified for the plaintiff, and the other two have
done so for the defendants. The facts
emerging from the testimonies of all the witnesses are quite simple and are to
the following effect: The plaintiff is a business person who is based in the
City of Blantyre . He is engaged in the
sale of second-hand clothing. On or
about 12th December, 1996, the plaintiff bought 486 bales of
second-hand clothing from General Business Corporation, based IN New Jersey in
the City of New York in the United States of America. The plaintiff paid US$34,009.50 therefor to General Business
Corporation. Thereafter, General
Business Corporation had contracted with P & O Containers, shipping line,
to transport plaintiff’s 486 bales of clothing to Blantyre, Malawi, through the
Port of Beira in Mozambique. A bill of
lading dated December 4, 1996 therefor was issued, the original of which had
been sent to the plaintiff on or about 25th February, 1997. The bill of lading is Exh. P2. A proper examination of this bill of lading,
in its entirety, gives a clear impression that it was for combined transport,
that is one for multimodal transport.
This entailed that the plaintiff’s goods were, initially, to be
transported by sea transport from New York in the United States of America to
the Port of Beira in Mozambique and, thereafter, by land transport to Blantyre
in Malawi. Further, it is quite clear
that this bill of lading was a house to
house one. Thus, the goods of the
plaintiff had to be transported from New York to Blantyre through Beira by P
& O Containers. This fact is borne
out by the type of movement expressly prescribed by and in the bill of lading
in question.
Upon receipt of the bill of lading,
on or about 25th Febraury, 1997, the plaintiff approached the 1st
defendant to act as a clearing agent for him in respect of the goods in
question and for which purpose, the plaintiff submitted the bill of lading to
the 1st defendant. The 1st
defendant have their agent at the Port of Beira in Mozambique, thus Gundel
Finger. The 1st Defendant
did not secure or procure the clearance of the plaintiff’s goods. Eventually on or about May 1997 the 1st
defendant and the plaintiff approached the 2nd defendant for that
purpose. The 2nd defendant
are the agents of P & O Containers in Malawi. The combined effort, or lack of it, of the 1st and 2nd
defendants for one reason or another could not secure the clearance of the
plaintiff’s goods until July, 1997. Then, the 1st defendant informed
the plaintiff that in order for the plaintiff’s goods to be cleared, the
plaintiff ought first to have paid US$3,272 an amount for port charges, agency
fees and storage charges. The
plaintiff, in fact, paid that amount to the 1st defendant as
required then. Despite such payment having been made, the
plaintiff’s goods were seized and sold by the Mozambican Customs authorities on
or about June or July on the ground that the goods had over-stayed without
being cleared at the Port of Beira. It
was also in evidence that the customs authorities had legal power so to do upon
goods remaining uncleared at the port for a continuous period of thirty
days. It is also apparent from the
testimonies of the witnesses that the ship carrying plaintiff’s goods had
called at the Port of Beira some time in February, 1997 and that the goods were
finally seized and sold in or about June or July, 1997. Upon the plaintiff being notified of that
fact, and the defendants having declined to make payment, therefor, the
plaintiff commenced this action.
Regard being had to the evidence in
the case, it is abundantly clear that the plaintiff on his part had acted
diligently upon receipt of the bill of lading in question, on or about 25th
February, 1997. He had promptly handed
it over to the 1st defendant, so as for the 1st defendant
to secure or procure the clearance and the transportation of the goods out of
Beira to Blantyre in Malawi. This was
by way of an oral contract which has not been disputed by the 1st
defendant. The 1st defendant
had sufficient time within which to have done what it was required to do by and
under the oral contract. Thus from
about 25th February 1997 to July 1997, the 1st defendant
had utterly failed to discharge its obligation under the oral contract with the
plaintiff. Hence the sad result that,
by June or July, the plaintiff’s goods had been seized and sold by the
Mozambican Customs authorities. The 1st
defendant had its agent at the Port of Beira, whom it could have diligently
used, had it sought to have done so, in order for the 1st defendant
to have ably managed to clear the goods in question in time, thus prior to
their seizure and sale by the Customs authorities. In the circumstances and due regard being had to the evidence,
the claim of the plaintiff against the 1st defendant must succeed in
its entirety with costs. It is so
ordered.
Reverting to the plaintiff’s case
against the 2nd defendant, the position is as follows: To begin
with, it must be noted that in the main, in its defence the 2nd
defendant has contended that Exh. P2 is a bill of lading for port to port
shipment; thus denying that it was a bill for combined transport. On its part, the Court has already found as
a fact that this was a bill of lading for combined transport, thus one for
multimodal transport. Reading the bill
of lading as a whole, it is quite clear to the Court that plaintiff’s goods
were to be carried, initially, by sea transport from New York in the United
States of America to the Port of Beira in Mozambique and, thereafter, by land
transport out of Beira to Blantyre in Malawi; thus in Beira, the goods were in
transit to Blantyre, Malawi. Besides
that, the 2nd defendant has contended that the bill of lading was,
therefore, not one for house to house type of movement. The bill of lading must be read as a whole
and, when so read, it ought to be taken to be what it says it is, unless if a
contrary position or meaning may be had on the basis of other compelling facts
to the contrary. The Court, on its
part, holds the view that there are no such facts with respect to Exh. P2 in
that regard: Paragraphs 18-006 and 18-012 (at pages 922 and 926-7) of Benjamin’s
Sale of Goods 4th Ed are quite relevant in that regard—
“A bill of lading is a
document issued by or on behalf of a carrier of goods by sea to the person with
whom he has contracted for the carriage of goods. Such a document has three functions. It is evidence that the goods described in it have been received
by the carrier, or actually shipped. ; it is evidence of, or contains, a
contract of carriage ; and it is a document of title to goods both in the
common law and in the statutory sense...
A bill of lading is evidence of the facts stated in it, so that a
shipped bill is evidence that goods described in it have been shipped, and of
the date of shipment as stated in the bill.... A statement in the bill that the
goods were shipped, or received, in apparent good order and condition is
likewise evidence of the external condition of the goods at the time of
shipment or receipt. Similar effect is
given to a statement as to the quantity, weight or number of the goods ... At common law, a bill of lading is only prima
facie evidence of these matters.”.
It is, therefore, the view of the
Court that a statement in a bill of lading, as there was and is in Exh. P2,
clearly stating the type of movement, ought to be prima facie
evidence of that fact. Exh. P2 clearly states
that the type of movement herein was that for house to house shipment.
Under or by a house to house bill,
the carrier’s obligation is to carry the goods from the port of export to the
warehouse of the importer. For
instance, in the instant case the carrier, that is the principal of the 2nd
defendant, had the obligation to transport the plaintiff’s goods from New York
to the plaintiff’s warehouse in Blantyre.
That was the obligation of the 2nd defendant in the instant
case. Acting on behalf of their
principal, P & O containers, the 2nd defendant ought to have
seen to it that the goods were delivered at the plaintiff’s warehouse in
Blantyre, Malawi. Such a position, in
that regard, is clearly and only consistent with the view of the Court that
Exh. P2 was a bill for multimodal transport.
Such being the position, the fact
that on his part the plaintiff had, along the way, also sought the services of
the 1st defendant for that purpose does not, of itself alone,
operate so as to absorb the 2nd defendant of their obligation and
liability in that regard. The 2nd
defendant have utterly failed to deliver those goods at the warehouse of the
plaintiff due to no fault of the plaintiff whatsoever. They must, therefore, be held liable for the
seizure and sale of the plaintiff’s goods by Customs authorities at the Port of
Beira. In the circumstances, the
plaintiff’s claim against the 2nd defendant must succeed in its
entirety with costs. It is so ordered.
PRONOUNCED in Open Court this Wednesday, 9th
day of October, 2002, at Blantyre.
A.
K. Tembo
JUDGE
STAY OF EXECUTION
Court: On the application of both
defendants, the Court has hereby ordered that execution be stayed for 7 days
effective from 10th October, 2002.
This will enable counsel to communicate with their respective clients
before the plaintiff may levy execution.
A.
K. Tembo
JUDGE
09.10.02