SCANSHIP GHANA LTD vs. EFFASCO LTD [1999-2000] 1 GLR 448

CASES REFERRED TO:

(1) Praka v Ketewa [1964] GLR 423,SC.

(2) Salifu v Alahama [1989-90] 1 GLR 431.

(3) Boakye v Asamoah [1974] 1 GLR 38.

(4) Taylor v Liverpool and Great Western Steam Co (1874) LR 9 QB 546.

(5) Fan Milk Ltd v State Shipping Corporation [1972] 1 GLR 1 (6) Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152; 108 LJKB 779; 161 LT 374, HL (7) Svenska Traktor Aktiebolaget v Maritime Agencies (Southhampton) Ltd [1953] 2 QB; [1953] 2 Y;LR; [1953] 2 All ER 570, QBD.

NATURE OF PROCEEDINGS

APPEAL by the appellant-shippers to the Court of Appeal from the judgment of the High Court holding them liable for the loss of the respondents cargo which they had carried on their ship MV Rep di Genova during its voyage from the Port of Tilbury, England to the Tema Harbour, Ghana. The facts, are sufficiently stated in the judgment of Baddoo JA.

COUNSEL

S Amarteifio (with him Mrs Ewool) for the appellant.

K Paintsil (with him Kofi Ackah) for the respondent.

JUDGMENT OF SAPONG JA.

At the court below the plaintiff-respondents (hereinafter referred to as the respondents) took action against the defendant-appellants (hereinafter referred to as the appellants) for:

[p.451] of [1999-2000] 1 GLR 448 “(1) The sum Of fifty-seven thousand five hundred and seven pounds sterling (£57,507) being the C & F value of cargo shipped and consigned to the plaintiffs on vessel MN Rep Di Genova voyage 6355 from Tilbury, England on 14 April 1992 per bill of lading No TC 5011 dated 14 April 1992 which the defendants as carrier’s agents failed to deliver to the plaintiffs when the vessel arrived on 12 May 1992.

(2) Damages of two hundred thousand pounds (£200,000) for negligence or fundamental breach of contract of carriage or both on the part of the carrier and its accredited agents, Sequana Maritime Ltd, who acted as shippers and freight forwarders and on behalf of the carrier.

(3) Loss of use of two road rollers from 22 May 1992 till the date of judgment at the rate of 4120,000 per day.”

Succinctly put, the facts of the case are: The plaintiffs by a bill of lading No TC 5011 wherein the goods of the plaintiffs were named, contracted with the owners of MV Rep Di Genova to ship the said goods from the Port of Tilbury in England to Tema in Ghana. The carrier’s agents in England were Sequana Maritime Ltd and they issued the bill of lading, exhibit D. The defendants are the local agents of the carrier, namely G & C Lines. The defendants sent arrival notice to the plaintiffs describing the cargo as contained in the ship’s manifest. And when the ship arrived at Tema on 12 March 1992 the plaintiffs cargo was not on board.

When the case was heard at the court below, judgment was given in favour of the plaintiffs. The defendants being dissatisfied with the said judgment, have appealed to this court for redress. The grounds of appeal filed are:

“(a) The learned trial judge misconstrued the terms of the contract between the parties and thereby erred in law by holding that the plaintiffs’ loss had arisen as a result of a breach of contract on the post of the defendants.

(b) The learned trial judge by failing to apply the provisions of the Hague Rules erred in law by applying the wrong principles in the assessment of damages and as a result

[p.452] of [1999-2000] 1 GLR 448 assessed the plaintiffs’ damages so high as to result in an entirely erroneous estimate in the damages to which the plaintiffs are entitled.

(c) The judgment is against the weight of evidence.

(d) The costs of ¢6 million awarded by the leamed trial judge were manifestly excessive in all the circumstances of the case.

(e) Other grounds to be filed later.”

The other grounds are the additional grounds of appeal filed. And these are:

“(1) The learned trial judge erred in law by holding that the defendants were liable to the plaintiffs because they had failed to prove that the plaintiffs’ loss was caused by the fact that the cargo was improperly lashed, stuffed or secured. within the container.

(2) The learned trial judge erred in law by holding, it was the result of the negligence of the defendants in the stowing of the plaintiff’s cargo that caused the plaintiffs’ loss.”

I shall hereinafter refer to the plaintiff-respondents as the plaintiffs and the defendant-appellants as the defendants in this judgment.

An appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could: see Praka v Ketewa [1964] GLR 423, SC. In this case, Sequana as agents of the defendants sent a container to Lester Plans Sales to pack the goods of the plaintiff therein. This was done and sent to them at the Tilbury Port where the said container with the packed goods of the plaintiffs was stowed onto the carrier that was supposed to send the goods to Tema. This was done on 14 April 1992. Lester did not indicate as to where and how the container was to be positioned. In that case, I would say the carrier was at liberty to position it any where on the ship but to make sure from its judgment that the opening of the container does not face the sea if the container was packed on deck and not in the hold.

This was not done, for when the container was packed on the deck’ the opening was facing the sea and the defendants at all material times knew the contents of the goods of the plaintiffs. The

[p.453] of [1999-2000] 1 GLR 448 defendants’ representative replied to questions in cross-examination as follows.

“Q You do not deny that at every point in time you knew the contents of the goods of the plaintiff?

A Yes.

Q You have said the opening of this container was toward the sea?

A Yes.

Q The carrier was also responsible for loading, storing, carrying, keeping and caring for the plaintiff’s cargo?

A Yes.”

It is the case of the defendants that by the contents of the bill of lading the loss of the goods cannot be attributed to the carrier. It is therefore of interest to read the following questions to the defendants’ representative and the answers thereto:

“Q The terms of a bill of lading are already printed on it, what we call standard form contracts?

A Yes.

Q In this case you issued the bill of lading the same day that the ship left the port of Tilbury?

A Yes Q So it is evident that plaintiff received the bill of lading only after the ship had set sail?

A Yes, it is the normal practice in the trade.

Q The bill of lading was received by the plaintiff only after the ship had set sail?

A Yes, that is normal in our trade.

Q Apart from the typed, information there is also a rubber-stamped information on the bill of lading, ie E & D A Yes, Q At the time the plaintiff received the bill of lading he was not in a position to agree or disagree with the stamped information on it. I put it to you?

A That is true, but it is so with all shippers.

[p.454] of [1999-2000] 1 GLR 448 Q From the moment the goods are loaded onto the ship who would you say is responsible for its safety?

A We are.”

If the bill of lading was received by the plaintiffs only after the ship had set sad, then how would the plaintiffs have known of the information therein, inclusive of ‘the rubber-stamped information? This rubber-stamped information is to relieve the defendants of any loss, damage etc. Can it therefore be said that the plaintiffs clearly knew of the terms of the contract as contained in the bill of lading before accepting same or they ratified it later? No.

In any case, the duty of care the defendants had to exhibit has not been discharged, for this would have been done only if the goods had arrived safely. The defendants’ representative is on the record as saying that from the moment the goods were loaded onto the ship they were responsible for the safety of the goods. Did the goods had arrive safely? They got lost and none did arrive at Tema. Here I would say the defendants were negligent and reckless. They did not even exhibit any degree of care knowing very well that they were responsible for the safety of the goods. I therefore hold that the defendants are liable to the plaintiffs for the loss of the plaintiffs’ goods.

That being so the appeal fails. As such the appeal is dismissed. On the question of damages, I do indorse the reasoning of the trial judge and so do not wish to disturb same. In respect of costs, I do not see anything wrong as to how the trial judge exercised his discretion. Crying foul as done by the defendants is uncalled for.

This also fails. The costs should not be disturbed,

JUDGMENT OF ESSILFIE-BONDZIE JA I agree

JUDGMENT OF BADDOO JA.

The plaintiffs (hereinafter called the respondents) are road and civil works contractors in Ghana. The defendants (hereinafter called the appellants) are shipping agents representing the owners of the vessel MV Rep Di Genova which is a ship operating cargo services between Europe and West Africa. On or about 14 April 1992 a company known as Lister Plants Sales shipped on behalf of the respondents, a container containing the following items: two road rollers, 24 tubes of crease, six tins of

[p.455] of [1999-2000] 1 GLR 448 break fluid. The goods were shipped per the vessel MV Rep Di Genova. When the vessel arrived in Ghana on 12 May 1992 the items could not be traced on the vessel even though the container was still there.

In August 1992 the respondents brought an action against the appellants for the value of the consignment estimated at £57,507, being the C and F value of the cargo, damages of £200,000 for negligence and fundamental breach of contract, and loss of use of the two road rollers at the rate of 4120,000 a day, up to the date of judgment. On 20 December 1996, judgment was entered for the respondents by the High Court.

On 23 December 1996 the appellant filed an appeal against the said judgment on the following grounds:

“(a) The learned trial judge misconstrued the terms of the contract between the parties and thereby erred in law by holding that the plaintiffs’ loss has arisen as a result of a breach of (b) The learned trial judge by failing to apply the provisions of the Hague Rules erred in law by applying the wrong principles in the assessment of damages so high as to. result in an entirely erroneous estimate in the damages to which the plaintiff is entitled.

(c) The judgment is against the weight of evidence.

(d) The cost of 46 million awarded by the trial judge was manifestly excessive in all the circumstances of the case.”

On 7 August 1998 the appellants filed two additional grounds of appeal.

In his written submission, the appellants argued only the two additional grounds of appeal and ground (b) of the original grounds of appeal. By implication, therefore, the appellants have abandoned grounds (a), (e) and (d) of the original grounds of appeal.

First ground of appeal.

The first ground of appeal argued before us was:

“the learned trial judge erred in law by holding that the defendant were liable to the plaintiffs because they had failed to prove that the plaintiffs’ loss was caused by the fact that the

[p.456] of [1999-2000] 1 GLR 448 cargo was improperly lashed stuffed or secured within the container.”

It was submitted for the appellants that the trial judge having found that the packing was done by Lister Plant Sales on behalf of the respondents, the mode of packing became a matter peculiarly within the knowledge of the respondents and therefore the onus shifted on the respondents to prove that the packing had been properly done. Thus it was contended that the trial judge erred in law in shifting the onus on the appellants to prove that the container had not been properly secured. The cases of Salifu v Maliama [1989-90] 1 GLR 431 and Boakye v Asamoah [1974] 1 GLR 38 were cited to support this proposition.

It is my considered opinion that this submission is clearly misconceived and the cases cited by counsel have no application in a contract of carriage of goods by sea. The case of Salifu v Mahama (supra) was an application for a stay of execution of a judgment in which the applicant had alleged that the respondents were men of straw and the execution of the judgment if carried out and the appeal subsequently succeeded, the respondents would not be in a position to refund the amount involved. The court held that even though the allegation had been made by the applicant, the onus was on the respondents to show that they were not men of straw, since these were matters peculiarly within their knowledge. The application was granted because the respondents were not able to discharge that burden. Incidentally, that case was decided by the same judge who gave the judgment in this case. So it cannot be said that he was not aware of this principles.

The barden of proof in a contract of carriage of goods by sea is on the cargo owner to show that the goods have been shipped as set out in the bill of lading, and that the goods have not been delivered. Once this burden has been discharged by the cargo owner, the onus shifts on to the carrier who seeks to escape liability to bring the cause of the loss within one of the excepted causes in the Hague Rules. In the case of Taylor v Liverpool and Great Western Steam Co (1874) LR 9 QB 546, the plaintiffs shipped at Liverpool on board the defendants’ ship for New York, a box of diamonds under a bill of lading which were excepted, inter alia, “pirates, robbers, thieves, vermin, barratry of Master and Mariners. The box was stolen

[p.457] of [1999-2000] 1 GLR 448 during the voyaue, or on the ship’s arrival in port before the time for delivery. But there was no evidence to show whether it was stolen by one of the crew or passengers, or after her arrival, by some person from the shore. Lush J in his judgment at, 550 said:

“The remaining question is, is it for the defendants or the plaintiffs to shew that the loss is within one of the exceptions of the bill of lading, on whom does the onus lie? I think it is for the defendants to bring the case within the exception, and that it lies upon them to shew that the act of theft was committed by some one outside the ship; and that onus is not on the plaintiffs to shew the contrary.”

Again, in the case of Fan Milk Ltd v State Shipping Corporation,[1972] 2 GLR 1, the court presided over by Hayfron-Benjamin J (as he then was) held, among other things, that when goods do not arrive or arrive in a damaged condition, the bill of lading holder must prove that the goods were lost or damaged on board the ship; once this has been done, the onus of proof is shifted and the carrier has to prove that the loss or damage falls under one of the excepted perils. The law therefore is well settled on this matter in a contract of carriage of goods by sea and the learned trial judge properly stated the law as it stands now. The criticism leveled against him is clearly misconceived.

It was further submitted for the appellant that the trial judge in approaching the matter as he did, disenabled himself from making a fair evaluation of the evidence and so ruled out proof of the appellants’ case by inference, by stating that: “it is not enough to say the cargo was insufficiently packed, simply because it got lost in transit in the container.” On the contrary, the learned trial judge made a very fair assessment of the evidence when he said “For their part, the plaintiffs pleaded that the rollers were properly secured in the containers, that they were wheel blocked and side blocked in the container and that both were further secured by wired fasteners connected to the floor eyes of the containers to make them immobile during voyage. This was confirmed in evidence by a letter addressed to the plaintiffs’ managing director by Lister Plant Hire dated 16 August 1992. This was put in evidence as exhibit. It is

[p.458] of [1999-2000] 1 GLR 448 noteworthy that the mode of packing which Lister said it employed has never been disputed as insufficient. I am satisfied that the cargo was sufficiently packed or secured in the container. Thus the onus of proof even if it lay on the plaintiffs, I think they have been able to discharge it satisfactorily.”

Now, having held that the respondents have by evidence shown that the cargo in the container was properly secured, the learned trial judge could not accept proof of the appellants’ case by inference. I agree with the findings of the trial judge that since there was evidence to show that the cargo in the container were properly secured and this evidence was produce by the respondents, it will be erroneous to accept proof by inference on behalf the appellants.

In Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170, HL Lord Wright said: “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

In this case, what are the facts from which the inference could be drawn that the road rollers were not properly secured in the container? The appellants submitted that sirce the two rollers came out of the container which had been packed, locked and sealed by Lister Plant Sales, the rollers must have moved within the container, and the only reason why the cargo would move in the container is that they were not properly secured . . . This submission can only be speculative or a conjecture, because no matter how secure the rollers had been made in the container, if the container was placed on the uppermost deck of the ship as it was done, the pendulum and rocking effect of the ship on the high seas, would cause the rollers weighing

[p.459] of [1999-2000] 1 GLR 448 over 18,000 tons to break out of the container, no matter how sufficiently they have been secured.

There were two issues which the trial judge decided were critica to the determination of this case. These were:

(a) Whether or not the loss of the cargo on the high seas was caused by the placing and stowing of the container or the top or upper deck of the vessel.

(b) Whether or not the loss of the cargo was caused by improper lashing, stuffing and securing of the two rollers in the container.

The submission of the appellants related to the securing of the two rollers, which I have first dealt with.

The trial judge was also attacked on his holdings with regard to exhibit M, which was said to be an extract from the captain’s log book which gave an eyewitness account of how the plaintiffs loss had occurred. This is what the trial judge said on exhibit M:

“Exhibit M is a letter written by Marine Claims Bureau in response to the plaintiffs’ claim for insurance. Marine Claims Bureau were the insurers of the cargo selected by the carrier. The report attached to the insurer’s letter was issued by the master of the vessel Rep Di Genova. The vessel is owned by the carrier. Thus it can be seen that the report was self-serving meant to protect only the carrier and naturally the insurer selected by the carrier was expected to rely on the master’s report and reject the claim. But this report is not conclusive of the facts stated therein, is only of persuasive value. I must place on record that exhibit M was not tendered as showing finally the cause of the loss, but was tendered to show that it was in August 1992 that for the first time the defendants introduced insufficient packing as the cause of the loss.”

I agree with the trial judge on his findings on exhibit M that it was self-serving. It is true that the trial judge accepted the contents of exhibit E and rejected exhibit M. The judge had before him two contending issues as to how the respondents’ cargo got lost at sea. He had to evaluate the evidence and take a decision one way or the other. In doing so, he has to give reasons and apply the law as he

[p.460] of [1999-2000] 1 GLR 448 knows it. This is what he did with regard to exhibits M and E. I am satisfied that the reasons he gave were reasonable.

Second ground of appeal

The second ground of appeal was that the learned trial judge erred in law in holding that it was a result of the negligence of the appellants in the stowing of the respondents’ cargo that caused the respondents’ loss. Counsel then submitted that the duty cast on the appellants by the trial judge to stow the goods, having regard to the nature of the goods, was wrong in law because the court required appellants to stow the respondents’ cargo by a method that was suited to all the weaknesses and idiosyncrasies of that particular cargo.

It is my considered opinion that the trial judge’s statement of the law is correct. He writes: “in Careers’ Carriages of Goods by Sea (10th ed) edited by Colinvaux appears this relevant passage at p 474: the question whether cargo may properly be stowed on decks depends on the probable circumstance of the intended voyage and the condition of the ship. Goods ought not to be carried on deck if they are there exposed to a greater risk, than when stowed in the usual carrying part of the ship, unless the shipper has assented to their being so carried, or unless a custom to carry in that way exists in that particular trade.”

In the case of Svenska Traktor Akitiebolaget v Maritime Agencies (Southampton) Ltd [1953] 2 QB 295 the carrier was held liable for the loss of a tractor carried on deck without specific agreement with the shippers that it should be a deck cargo and washed over board because it was not properly secured.

It was the case for the respondents, which the trial judge accepted, that the appellants knew that the cargo weighed over 18,000 tons. That having regard to the nature of the cargo being wheeled units, and having regard to the fact that an unusual high pitching of the sea could affect the cargo, the appellants should have properly stowed the container in any part of its lower deck, or if they found it convenient to stow it on the upper deck, to have made the opening

[p.461] of [1999-2000] 1 GLR 448 face either inside the ship or in between two containers, so as to prevent the cargo from failing down in any eventuality. Thus the trial judge found as a fact:

“That on the facts the cargo would not have been lost if they were not on deck, if the opening did not face the sea and if they were lashed in the upper deck at a place where it is admitted there were steel rails or if they were lashed together with other containers.”

It is my considered opinion that the findings of the trial judge is sound and should not be disturbed.

The last ground of appeal was that the trial judge failed to apply the Hague Rules and thereby assessed the respondents’ damages so high. It was submitted for the appellants that the principle of restitutio in integrum, which was applied by the trial judge, was wrong in law since the respondents” shipment was governed by the bill of lading No TC 5011, the terms of which were binding on the respondents.

In my opinion, the learned trial judge gave very good reasons why the provisions in article 4(5) of the Schedule to the Bill of Lading Act, 1961 (Act 42) cannot be complied with. I agree with his reasoning. This is what he said “. . . the roles contained in those articles of which article 4(5) forms a part, apply subject to the provisions of Act 42. And by section 1 of Act 42, those articles apply in relation to and in connection with the carriage of goods by sea in ships carrying goods from any part of Ghana to an other port whether in or outside Ghana. There is no dispute that the cargo in question was being carried from a port in the UK not from Ghana. The limitation in liability in article 4(5) does not therefore apply to this case.”

It is therefore abundantly clear that the findings of the trial judge was based on the law as provided for in Act 42. The principles of liability applicable in this case was to compensate the cargo owner for the loss of his cargo and the compensation should be extended to the losses he has sustained in consequence of the breach. This was what the trial judge did in his judgment, and I do not think he erred.

[p.462] of [1999-2000] 1 GLR 448

With regard to loss of use, I think his assessment was really on the lower side and he himself said so. To pay 420,000 a day for a road roller in 1992 was very moderate and the appellants cannot complain.

On the basis of the facts and the law, it is my considered opinion that the judgment of the court below is sound and should not be disturbed. I shall dismiss the appeal. Costs of 43 million to the respondents.

DECISION

Appeal dismissed.

SA