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Home » Nigerian Cases » Supreme Court » Pacers Multi-dynamics Ltd Vs The M.v Dancing Sister & Anor (2012) LLJR-SC

Pacers Multi-dynamics Ltd Vs The M.v Dancing Sister & Anor (2012) LLJR-SC

Pacers Multi-dynamics Ltd Vs The M.v Dancing Sister & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The claims of the appellant as plaintiff/applicant in an Admiralty Action in Rem reads

“The plaintiff as the consignee and owner of 13,600 Metric TONNES of Brazilian white refined Sugar covered by the “Congenbill” Edition 1978 bills of Lading Nos. 1, 2, and 3 shipped on Board the Defendants’ vessel “DANCING SISTER” for carriage of the said 13,600 Metric Tonnes of Brazilian white refined Sugar from RECIFE in BRAZIL to APAPA, LAGOS, claims against the Defendant’s jointly and severally for the value of 58.9 metric tonnes short landed cargo (refined sugar) and damages for breach of contract and/or breach of duty and/or negligence of the Defendant’s their servants, or Agents in respect of Damage done to 2,000 Metric Tonnes of the said goods during the said voyage in the sum of $1,007,213.00 (One Million and seven thousand, Two hundred and thirteen U.S. Dollars) only.

On the 7th of April, 1995 the appellant as plaintiff filed this action in the Federal High Court, Lagos Division. The appellant obtained an order exparte arresting and detaining the 1st defendant, the M.V. Dancing Sister. On the 25th of April, 1995 the Chief Judge of the Federal High Court discharged the arrest order unconditionally on an application filed by the 1st respondent on the ground that the appellant is not a party to the Bills of Lading either as a consignee or endorsee and so cannot sue on the Bills. His Lordship concluded that the arrest of the vessel, the M.V. Dancing Sister was ordered on a wrong set of facts presented to the court by the appellant, and ordered the vessel released.

On the 4th of May, 1995 the 2nd respondent filed on application under order 33 of the Federal High Court (Civil Procedure) Rules for an order striking out or dismissing the action on the grounds:

(a) That the appellant has no locus standi to institute and/or maintain the action, not having been named either as consignee or endorsee of the relevant Bills of Lading, and/or

(b) That the 2nd respondent has been improperly joined to the action.

The learned Chief Judge of the Federal High Court Belgore CJ, heard the application and in a considered Ruling delivered on the 23rd of November, 1995 held in the penultimate paragraph of the Ruling as follows:

“I do therefore hold that the plaintiff has no locus under the Bills of Laden Exhibits FA1, FA2, and FA3 to institute this action. And the action being an Admiralty one cannot through the back door be converted to a common law case of tort.

The learned Chief Judge struck out the case. That means there was no trial. The appellant appealed. That appeal was heard by the Court of Appeal Lagos Division. That court in a well considered decision delivered on the 8th of February, 2000 agreed with the Federal High Court and concluded thus:

“……the appellant has no locus standi to institute an action against the respondents not having been named either as consignee or endorsee of the relevant Bills of Lading. I hereby make consequential order striking out the action, which the court ought to have done, I also strike out the name of the 2nd respondent …..as no reasonable cause of action has been disclosed in the relevant clauses of the charter party.

Concluding, the Court of Appeal dismissed the appeal with costs of N5,000 in favour of the respondents: This appeal is against that judgment. In accordance with rules of this court both sides filed and exchanged briefs. The appellants’ brief was deemed filed on the 18th of October, 2006, and the respondents’ brief deemed filed on the 22nd of February, 2010. A reply brief was filed by the appellant on the 19th of February, 2010. The 1st respondent did not file a brief and was unrepresented at the hearing of the appeal on the 17th of October 2011. Learned Counsel for the appellant formulated four issues for determination.

  1. Whether the court below was right when it held that a notify party cannot possibly be a party to the contract evidenced in a Bills of Lading.
  2. Whether the court below was right in holding on the evidence before the Federal High Court and the Court of Appeal, that the appellant was neither consignee nor endorsee on any of the three Bills of Lading and thus lacked the locus standi to sue on any of the subject Bills of Lading.
  3. Whether a notify party under a bill of lading is necessarily precluded in law from maintaining on action in the tort of negligence for loss or damage to goods carried by sea, by the mere fact of absence of a contract between such party and the owners/charterers of the carrier-vessel.
  4. Whether the Court of Appeal was right in holding that the Federal High court should have struck out the action on the 25th of April 1995.

Learned Counsel for the 2nd respondent also formulated four issues. They are:

  1. Whether the court below was right when it held that “a notify party cannot possibly be a party to the contract evidenced in a Bills of Lading.”
  2. Whether the court below was right in holding, on the evidence before the Federal High Court and the Court of Appeal, that the appellant was “neither consignee nor endorsee” on any of the three Bills of Lading and thus lacked the locus standi to sue on any of the subject Bills of Lading.
  3. Whether a notify party under a bill of lading is necessarily precluded in law from maintaining an action in the tort of negligence for loss or damage to goods carried by sea, by the mere fact of absence of a contract between such party and the owners/charterers of the carrier-vessel.
  4. Whether the Court of Appeal was right in holding that the Federal High Court should have struck out the action on the 25th of April, 1995.

The four issues formulated by the 2nd respondent are identical with the four issues formulated by the appellant. I would consider the issues formulated by the appellant, which in effect would be considering all the issues formulated by the 2nd respondent.

At the hearing of the appeal on the 17th of October, 2011 learned counsel for the appellant, Mr. A. Adegbonmire adopted the appellants’ brief and reply brief filed on the 1st of November, 2005 and 19th of February, 2010 and urged this court to allow the appeal. Learned counsel for the 2nd respondent adopted his brief deemed filed on the 22nd of November, 2010 and urged on the court to dismiss the appeal.

Issue 1

Learned Counsel for the appellant observed that the appellant has the status of Notify Addressee under the three Bills of Lading and also possesses the status of endorsee in respect of the subject Bills of Lading. Refering to Broadline Enterprises Ltd v. Monterey Maritime Corporation 1995 9 NWLR pt.417 p.1 he argued that the Court of Appeal was wrong to hold that a notify party or addressee cannot possibly be a party to a contract evidenced in the bills of Lading. He urged this court to hold that the Court of Appeal erred in law in coming to that finding.

Learned Counsel for the 2nd respondent observed that the three bills of Lading relied on by both sides in the court are, all the same in content, further observing that the appellant is not named as consignee as alleged by them but only as Notify parties. He observed that section 375 (1) of the Merchant Shipping Act, Cap 224 Laws of the Federation of Nigeria 1990 recognises only two classes of people who can sue on a bill of Lading contending that the two classes are the consignee, or the endorsee. He submitted that the appellant was neither a consignee or endorsee on any of the three Bills of Lading.

Relying on Adesanya v. Leigh Hoegh 1968 1 ANLR p.330

He submitted that the appellant is a total stranger to the contract evidenced by and/or contained in the bills of lading, not having been named as consignee or endorsees of the relevant Bills of Lading.

An admiralty action in rem is a proceeding against a ship, the res, where the ship is arrested. By the arrest the owner of the ship is compelled to enter appearance and defend the ship. The owner is enjoined to answer to the judgment of the court to the extent of his interest in the property. A bill of Lading is a contract between the shipowners/carriers, the shipper/consignor on the one part and the consignee/endorsee on the other part. See

Adesanya v. Leigh-Hoegh 1968 1 ANLR p.330

See also  Khaled Barakat Chami V United Bank For Africa Plc (2010) LLJR-SC

Allied Trading Co. Ltd v. G.B.N. Line 1985 2 NWLR pt.5 p.74

The obligations therein are the receipt of goods and the delivery to a designated part stated in the Bill of Lading. Put in another way, an agreement between the carrier and the consignee for the delivery of goods mentioned in the Bill of Lading and it is binding between the parties.

A Notify party or addressee is the party who is to be notified of the arrival of the goods and is often an agent for the receiver of the goods who arranges for their clearance.

He has no right of audience before the court. I have examined the three bills of Lading, Exhibits FA1 , FA2, and FA3 and found that nowhere on them does appellant posses the status of an endorsee. The appellant on the three bills of Lading appears as a Notify Party. Furthermore I do not see anywhere where the appellant is shown as on assignee, nor are any of the three bills of Lading endorsed to the appellant. As quite rightly pointed out by learned counsel for the appellant a party can be a Notify Party and a consignee under the same bills of Lading, but this fact must be clear for all to see on the bills of Lading. The appellant was not a party to the contract of carriage by goods, since he was neither a consignee nor endorsee. The fact that he claims ownership of the property is irrelevant to a suit founded on contract of carriage of goods.

Broadline Enterprises Ltd Monterey Maritime Corporation (Supra) is of no help to the appellant since the appellant is only a Notify party. Parties to a bill of Lading are the Ship-owner/Carrier, the Shipper/consignee on the one part and the consignee/endorsee on the other part. A bill of Lading contains a contract and that contract is carriage of goods. To sue on it one must be a party to the contract. A Notify party, which the appellant is, is not a party to the contract contained in a bill of Lading. The appellant not being a consignee or endorsee in respect of the subject bills of Lading (Exhibits FA1, FA2, and FA3) ought not to have instituted an action on the subject bills as it cannot sue on them. The appellant is a total stranger to the contact contained in the bills of Lading and the fact that the appellant claims ownership to the goods is irrelevant to a suit founded on contract in the bills of Lading. The appellant cannot sustain a claim on the bills of Lading. The courts below were correct when they held that the appellant, being only a notify party cannot be a party to the contract evidenced in the bills of Lading. See Adesanya v. Leigh Hoegh 1968 1 ANLR p.330

Seatrade v. Fiogiet 1987 – 1990 2 NSCC p.453.

ISSUE 2:

Learned Counsel for the appellant urged this court to set aside concurrent findings of fact of the Court of Appeal and the Federal High Court that the appellant was neither consignee nor endorsee of any of the bills of Lading. He observed that there are three sets of bills of Lading and the appellant is an endorsee in blank. Reference was made to Bills of Lading on pages 83 to 85A of the Record of Appeal. He submitted that the features of the bills of Lading referred to above show they are bearer bills of Lading endorsed in blank. Reference was made to Brawal Shipping Ltd v. F.I. Onwadike Co. Ltd 2000 11 NWLR pt.678 p.387.

He observed that although the appellant is Notify Addressee under the three bills of Lading it also possesses the status of endorsee in respect of the subject bills of Lading. Concluding he submitted that the plaintiff was endorsee of the bills of Lading within the meaning of Section 375 (1) of the Nigerian Merchant Shipping Act, and the bills were delivered to the plaintiff and the plaintiff took delivery of the subject consignment by producing the aforesaid bills at the port of discharge, submitting that the plaintiff possessed the requisite locus standi to maintain the action.

Learned Counsel for the 2nd respondent observed that the appellant failed to show miscarriage of justice or any violation of some principle of law or procedure and so this court should not disturb concurrent findings of fact by the two lower courts. Reliance was placed on Enang v. Adu 1981 1 -12 SC p.25. He argued that the appellant’s position has always been that it is the consignee and owner of 13,600 Metric Tonnes of Brazilian white refined Sugar, contending that nowhere is the issue of endorsement in blank pleaded and so any argument in that direction is an after thought and must be rejected. Referring to the Bills of Lading on pages 83, 84 and 85 learned counsel observed that there is no endorsement in blank on the said Bills of Lading or any writing at the back of any of them.

Contending that there was no endorsement in blank which it can take advantage of in this case.

A person has locus standi to sue in an action if he is able to show to the satisfaction of the court that his Civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are:

  1. The action must be justifiable; and
  2. There must be a dispute between the parties.

In applying the test a liberal attitude must be adopted.

Senator Adesanya v. The President of Nigeria 1981 5 SC p.112

Lays down the rule for locus standi in Civil Cases, while Fawehinmi v. Akilu 1987 vol.18 NSCC pt. 2 p. 1269 Lays down the for mare liberal rule for locus standi in criminal cases. See also on this:

Ogbuechi v. Gov. of Imo State 1995 9 NWLR Pt. 417 P.53.

To have locus standi the plaintiff’s statement of claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action.

Section 325 (1) of the Merchant Shipping Act Cap 224, Laws of the Federation of Nigeria 1990 in titled:

“Rights of consignee of goods and Endorsee of bills of Lading.”

375 (1) reads:

“Every consignee of goods named in a bill of Lading, and every endorsee for a bill to whom property shall pass upon or by reason of such consignment or endorsement shall have transferred to and vested in him all right of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bills of Lading had been made with himself.

The above recognizes only two classes of people who can sue on a bill of Lading, and they are :

(a) the consignee, or

(b) the endorsee

In Adesanya v. Leigh Hoegh 1968 1 ANLR p.330

This court said:

“Be that as it may, the important thing is that the name of the plaintiff never appeared in the bills of Lading (save in regard to notification which in this respect is irrelevant) and we cannot agree with MR. Adefala’s contention that it is possible for someone here to be an endorsee whose name never appeared on the bill of Lading (Exhibit 4) as such. Endorsement of itself naturally purports writing, here upon the bill of Lading. The question therefore of who had the property is not relevant to the plaintiff’s suit based upon the bills of Lading (Exhibit 4). The plaintiff was in no way a party to the contract of carriage of goods, but he was a party, if at all to separate contract with the sellers and the argument of his counsel has confused the two. In so far as the bill of Lading was concerned, therefore, the plaintiff had no locus standi to sue upon it. This being so, we think that the learned trial judge was quite right to find that the plaintiff had no claim accruing to him by virtue of the bill of Lading.”

The above explains Section 375 (1) supra and the dilemma of the appellant in this appeal. To have locus standi the appellant must disclose sufficient legal interest and show how that interest arose in the subject matter of the action. In carriage of goods by sea, suits are contested on bills of Lading. The appellant claims to be the consignee and owner of the goods shipped from Brazil on board the Dancing Sister (1st respondent). The appellant appears on the three bills of Lading as the Notify Party and not the consignee. The right of action on the bills of Lading is restricted to parties to the bills of Lading. Ownership of the goods is irrelevant in a suit on the contract in the bills of Lading. Since the appellant is a Notify party on the three bills of Lading, he is not a party to the contract in the bills of irrelevant in a suit on the contract in the bills of Lading and so he had no locus standi to sue upon it. There can only be a justifiable action in contract if there is a dispute between the parties to the contract. Since the appellant is not a party to the bills of Lading there can be no dispute to resolve. The Court of Appeal was correct to confirm the finding of the learned trial judge that the appellant had no claim on the three bills of Lading.

See also  S & D Construction Company Limited V. Chief Bayo Ayoku & Anor (2011) LLJR-SC

In the claim, the appellant says it is the consignee and owner of the goods. The appellant now says that it is an endorsee – in-blank. A party should be consistent in stating its case and also consistent in proving it. He will not be allowed to take one stance in the trial court and another stance on appeal. Such a shifty attitude must be condemned in strong terms. For the streams of justice to remain pure counsel must at all times be consistent in the presentation of his case. An endorsement in blank is where the shipper or consignee writes his name on the back of the bills of Lading. The primary meaning of to endorse is to write on the back. An endorsee’s name must appear on the bills of Lading. A close examination of the three bills of Lading reveals that there is no endorsement. The appellants name never appeared on any of them as consignee, endorsee or endorsee in blank. It appears only as Notify party.

Both courts below found that the appellant is a Notify party, and not a consignee or endorsee to the bills of Lading and so cannot sue on them. Where findings of the trial court have been confirmed by the Court of Appeal this court would rarely interfere, but this court would be compelled to interfere where it is satisfied that the findings are perverse, or cannot be supported by the evidence before the court, or there is/was a miscarriage of justice or violation of some principle of law or procedure. See

Cameroon Airlines v. Olutuizu 2011 1-2 SC pt.111 p.200

Onwubuauri & 3 Ors v. Igboasoiyi & 4 Ors 2011 1-2 Pt.111 p.109.

Concurrent findings of fact by the two courts below that the appellant is a Notify party, and so not a party to the bills of Lading is correct. The finding would not be disturbed by this court.

ISSUE 3

Learned Counsel for the appellant submitted that the law imposes a duty of care on the carrier of goods towards persons who may not be parties to the bill of Lading, and where there is breach of duty it is actionable in negligence of the instance of such non parties of Notify party to the bill of Lading. He further submitted that on owner of goods carried on board a ship who cannot sue in contract upon a bill of Lading because same was not endorsed to him can maintain an action in tort against the ship-owner, provided he can show, either:

(i) That he was the owner of the goods or

(ii) That he had an immediate right to possession of them. Reliance was placed on Cashmore, parties to a contact of carriage page 214.

John F. Wilson Carriage of Goods by sea 3rd Edition page 146 – 147.

He observed that since part of the damage/loss to the appellants consignment of Sugar occurred during discharge operations as a result of the activities of stevedores he had a right to sue in tort. Reference was made to Mitsui & Co Ltd v. Fiota Mercante GranColumbiana S.A 1988 2 Lloyds Law Report p. 208.

Learned Counsel for the 2nd respondent submitted that under a bill of Lading a Notify party is precluded in law from maintaining on action in the tort of negligence for loss of damage to goods carried by sea unless he can show that he is additionally a consignee or endorsee in the said bill of Lading. He observed that the only legal duty owed by the carrier to a Notify party is to notify him of the vessels arrival and no more. He further observed that Broadline Enterprises Ltd. V. Monterey Maritime Corporation (Supra) cannot avail the appellant because in that case the appellant had a cause of action in contract as a consignee under the relevant bill of Lading and so was perfectly entitled to abandon same and to prosecute its claim in tort. He submitted that the appellant has no such right in both contract and in tort. Finally he submitted that by virtue of the Charter Party the 2nd respondent is not liable for negligence.

On this issue the Court of Appeal had this to say:

….a notify party or addressee has no standing or right of audience before the court. He has not right of audience or standing in contract. It follows therefore that he has none in tort either. I do not think the issue of whether an action can be maintained in tort within the Admiralty jurisdiction should arise since the appellant is only a notify party…. I do not see how the appellant can maintain an action in tort of negligence against the respondents as it has not been shown that there is contractual relationship between it and any of the respondents.

In Broad line Enterprises Ltd v. Monterey Maritime Corporation (Supra) the plaintiff had a cause of action in contract because it was a consignee under the relevant Bills of Lading. The Consignee endorsed on the Bills of Lading is Broadline Enterprises Ltd. That is not the case here. In this matter the Bills of Lading are not endorsed to the appellant. Infact they are not endorsed to anyone. The Broadline Enterprises Ltd case does not avail the appellant. A plaintiff who is a consignee or endorsee to a Bill of Lading is in Law a party to the Bill of Lading. Where he has a cause of action in contract, or/and in the tort of negligence, he has a right to sue in both contract and in tort.

On the other hand, the appellant is a Notify party or addressee as can clearly be seen in the bills of Lading. He is not an endorsee in blank or a consignee. He is not a party to the bills of Lading and so has no right of action in contract. But that is not the end of the matter. Does the appellant have a right to sue in tort It is not in dispute that the appellant is the Notify Party and owner of the goods shipped from Brazil on the Dancing Sister, the 1st respondent.

An examination of the appellants claim and affidavit evidence reveals that damage occurred to the goods:

  1. During the voyage, i.e. on the high seas, and
  2. During discharge of Apapa Port in Nigeria.

In (1) the party vested with the right to sue for damage to goods during the voyage (ie damage at sea) is the de jure consignee. The reasoning being that while the vessel is still of sea the de jure consignee has property in the goods.

As regards (2) there are different considerations.

In Mitsui & Co. Ltd v. Fiota Mercante Grancolombiana S.A 1988 2 Lloyds Law Reports p. 208. The Court of Appeal in England observed that there are four means by which a claim can be made for damage to goods on board a ship.

(c) the shipper may sue in contract, assuming that he has not divested himself of his rights by indorsement of the bill of Lading.

(b) a consignee named in the bill of Lading or an indorsee of the bill of Lading can sue in contract under of the bill of Lading can sue in contract under Section 1 of the bills of Lading Act, 1855

(c) an implied contract can arise out of the circumstances in any particular case in which delivery is taken at the port of discharge.

(d) the person who was the owner of the goods of the time when damage occurred can sue in tort.

In the Aliakmon 1986 2 Lloyds Law Reports P1

The House of lords reasoned in the same way when it said that the owner of goods carried on board a vessel can claim in negligence for loss caused to him by reason of loss or damage to the property, if he had either the legal ownership of or a possessory title to the property at the time the loss or damage occurred. What both cases are saying is not new. All they are saying is that the owner of the goods at the time of damage to them can sue. When goods are damaged during the voyage of sea, it is the de jure consignee who can sue. At that time the de jure consignee has property in the goods. When the ship berths and shipping documents are handed over to the owner, the contract in the bill of Lading comes to an end. The shipper has divested himself of his rights and legal ownership to the goods now resides with the owner of the goods.

See also  African Continental Bank Plc V Damian Ikechukwu Nwaigwe & 2 Ors (2011) LLJR-SC

My Lords, affidavit evidence, viz pages 17 and 62 of the Record of Appeal reveals that the goods were also damaged during discharge operations. At that time the appellant was the owner of the goods. He has a cause of action for negligence against the stevedores and their principals. Damage to goods on the high seas and damages to goods occurring during discharge operations are thus completely different as regards the right to sue and liabilities.

ISSUE 4.

Learned Counsel for the appellant observed that the appellants’ claim was for breach of the contract contained in the Bills of Lading and breach of duty and negligence, and argued that after the Federal High Court found on the 25th of April, 1995 that the appellant cannot sue on the Bills of Lading, outstanding claims of breach of duty and negligence were still pending and so the Court of Appeal was wrong to strike out the action when it held that the suit ought to have been struck out on the 25th of April, 1995.

Learned Counsel for the 2nd respondent conceded that the Court of Appeal was wrong to have held that a striking out order flowed as a natural consequence. He observed that the Court of Appeal had no jurisdiction to grant an order/relief which has not been prayed for particularly in the circumstances of the case. Reference was made to Ekpenyong v. Nyong 1975 2 SC p.71

Aghodiuno v. Onubogu 1998 5 NWLR pt.548 p.16

The appellant’s Motion exparte dated the 6th of April, 1995 and filed on the 7th of April, 1995 was for:

“an order stopping the clearance and or the arrest and detention of MV “DANCING SISTER” now berthed at shed No 12 of Apapa Quays, Apapa, Lagos since the 20th day of March, 1995 and intending to leave the jurisdiction of this Honourable Court anytime from now, pending the determination of this action or until this Honourable Court otherwise orders, and for such order or further orders as this Honourable Court may seem just to make in the circumstances.”

The learned Chief Judge ordered as follows after hearing the appellant’s learned counsel:

“I do order the arrest and detention of the vessel M/V Dancing Sister” until the determination of this case or until the court otherwise orders.

The 1st respondent, by an application on notice sought an order to vacate the exparte order. The prayers in the Motion filed on the 18th of April, 1995 reads:

  1. Set aside/and or discharge unconditionally the interim order made on the 7th of April, 1995 for the arrest and detention of the 1st defendant/applicant, that is M.V. Dancing Sister berthed at shed number 12 Apapa Quays, Apapa, Lagos.
  2. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

Vacating the exparte order on the 25th of April, 1995 the learned Chief Judge said in the penultimate paragraph:

“I am of the firm opinion that any party not being a party to a bill of Lading either as a consignee or as endorsee (neither of capacity, I found the defendant to be) cannot sue on the Bill.”

And in the concluding paragraph went on to say:

“The arrest of the vessel Dancing Sister was ordered on a wrong set of facts presented to the court. The arrest is therefore wrong ab initio and I order that the vessel be released henceforth without any condition attached.”

The Ruling above was delivered by the learned Chief Judge on the 25th of April, 1995. The Court of Appeal was of the view that the learned Chief Judge ought to have struck out the suit on the 25th of April, 1995. Learned counsel for the appellant was of the view that after the order of 25th of April, 1995 it still had a claim of breach of duty and negligence still pending and so the Court of Appeal was wrong to say that the learned Chief Judge ought to have struck out the suit.

The appellant’s claim reads:

“The Plaintiff as the consignee and owner of 13,500 Metric Tonnes of Brazilian white Refined sugar covered by the “Congenbill” Edition 1978 Bills of Lading Nos. 1, 2 and 3 shipped on board the Defendants vessel “DANCING SISTER” for carriage of the said 13,600 Metric Tonnes of Brazilian white Refined Sugar from RECIFE in BRAZIL to Apapa, Lagos, claims against the Defendant’s jointly and severally for the value of 58.9 Metric tonnes short landed cargo (refined sugar) and damages for breach of contract and/or breach of duty and/or negligence of the Defendants, their servants or Agents in respect of DAMAGE done to 2,000 Metric Tonnes of the said goods during the said voyage in the sum of $1,007,213.00 (One Million and seven thousand, two hundred and thirteen U.S. Dollars) only.

The above reveals the appellant’s claim to be for:

“….. Damage done to 2,000 Metric Tonnes of the said goods during the said voyage…..”

By the appellant’s claim it seeks to sue on the three bills of Lading.

My lords, only consignee, endorsee can sue on a bill of Lading. The de jure consignee has property in the goods when the vessel is on sea. He has the right of action in negligence. The appellant being a Notify party is not a party to the contract in the bills of Lading and so cannot sue on it in contract, negligence. The appellant has no cause of action on the bills of Lading and being the owner of the goods makes no difference. The appellant cannot sue on the bills of Lading because he is a Notify Party. Where as in this case the appellant has no locus standi to institute the action the proper order to make is to strike out the suit. The Court of Appeal was correct to hold that the Federal High Court should have struck out the action on the 25th of April, 1995. I now turn to examine whether the 2nd respondent is answerable in negligence. There is a charter party.

Relevant Extracts reads:

Clause 11. Charterer’s liability to cease when cargo is shipped and bill of Lading signed, except as regards payment of freight, dead freight and demurrage (if any).

Clause 14. Stevedores for loading, stowing trimming and discharging to be employed by charterers or shippers/Receivers of their expense and under Masters control. Stevedores shall be considered as owner’s servants and the charterers/shippers/Receivers are not to be responsible for any negligence of whatever nature, default or error in judgment of the stevedores employed.”

By the terms of the charter party, the parties have expressed clearly their intention and it is not the practice for the court to make a new contract for them. The court is to give effect to the terms of the contract. Clause 11 and 14 are exemption clauses. They exempt the 2nd respondent from liability. Exemption clause 14 is a complete answer to any claim the appellant might file for damages. Furthermore the charter party is binding on the parties to the contract in the bills of Lading. The 2nd respondent is not liable in view of the exemption clause and the fact that it is not a party to the contract for the discharge of the goods of Apapa Port.

In conclusion the appellant’s suit is for claims for goods destroyed at sea, ie during the voyage. He has no right to sue in view of all that I have been saying. On the other hand the appellant is at liberty to sue on a separate contract for his goods damaged during discharge operation. That suit can only be against the stevedores and their principals.

Accordingly this appeal is dismissed with costs of N50,000 to the second respondent.


SC.238/2001

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