Sunny Ositez International Nigeria Limited V. Delmas & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of Olatoregun-Isola J. of the Federal High Court Lagos Division in suit No. FHC/L/CS/5547/2008 delivered on the 9th day of July, 2010 dismissing the appellant’s suit as time barred.

The Appellant’s case is that it imported two containers of electrical goods from overseas and entrusted the carriage to the Respondents, via the Respondents vessel “CMA CGM OUBANGUI VOYAGE 062”.

The vessel arrived Berth 16 Apapa Sea Port Lagos in January 2008 and discharged the Appellant’s two containers in conditions which indicated that Hold No.5 which housed the containers were flooded during voyage. By a letter dated 22/1/08 from Petromarine Technical Service Limited, the Respondents’ Protection and Indemnity Club Representative, the Respondents requested the Appellant to contact Petromarine Technical Services Limited for a joint inspection and survey. The Appellant complied. The joint inspection confirmed that 605 cartons of the consignment were damaged. The Appellant demanded for payment for the damaged items and upon refusal to pay, the Appellants instituted this action.

The Respondents agreed that the damage occurred due to the flooding on board the vessel CMA CGM OUBANGUI. They however contended that the action ought to have been instituted against the owners of the Vessel or Petromarine who had by their letter of 22/1/08 admitted liability. Secondly, that the bill of lading is a combined transport bill by which fact the suit ought to have been instituted within 9 months of the accrual of action and that same having been instituted outside the said 9 months was time barred. Thirdly, that as bailees they, the Respondents did all that they could have done to protect the goods of the Appellant.

At the trial the Appellant testified through its Managing Director and called one other witness. The Respondents called one witness. Both sides tendered several documents as exhibits. At the conclusion of trial, the learned trial Judge dismissed the Appellant’s case. The Appellant being dissatisfied with the judgment filed a notice of appeal in this Court containing four grounds of appeal, out of which the three issues were distilled as follows:

1. Whether from the evidence on record the carriage contract between the Appellant and the Respondents is a Combined Transport Shipment contract or a Port to Port Carriage contract. (Ground 1)
2. Whether the learned trial judge properly evaluated the evidence adduced in the case before arriving at a conclusion that the contract of carriage entered between the Appellant and the Respondents is a Combined Transport Shipment contract. (Grounds 2 and 4).
3. Whether the provisions of the bill of lading (Exhibit E) on Time Bar applied to the carriage contract between the Appellants and the Respondents. (Ground 3).

The Respondents on their part formulated four issues for determination. The issues are:

1. Whether or Not the Bill of Lading is a Combined Transport Bill of Lading or a Port to Port Bill of Lading.
2. Whether or not the learned trial Judge evaluated the evidence Adduced before arriving at a conclusion that the contract between the parties was a Combined Transport Bill of lading.
3. If the answer to issue (i) is in the affirmative, then whether By virtue of Clause VI (9) of the Contract of Carriage the suit is Time Barred.
4. Whether the Respondents were negligent and were careless as Bailees or whether there was a breach of contract.

Issues 1-3 of the Appellant’s issues and issues 1-3 of the Respondents’ issues are the same. I will therefore adopt the Appellant’s three issues in the determination of the appeal. The Respondents’ additional 4th issue is in my view not relevant in the determination of this appeal.

ISSUE 1

Whether from the evidence on record the carriage contract between the Appellant and the Respondents is a Combined Transport Shipment contract or a Port to Port Carriage contract. (Ground 1)

APPELLANT’S ARGUMENTS:

Learned Counsel on issue 1 submitted that the carriage contract between the Appellant and the Respondents is not a combined transport shipping contract but that of port to port shipping contract notwithstanding the asterisk on the face of Exhibit E, (Bill of Lading). Counsel submitted that the document evidenced a port to port contract which is the contract the Respondents performed. Counsel argued that a combined Transport Bill of Lading otherwise known as ‘COMBICONBILL’ covers transport from door to door by several modes of transport. Counsel referred to the Book “The Shipmaster’s Business Companion” 4th Edition (2004), a publication of The Nautical Institute page 534 paragraph F07b.8 titled Types of Bill of Lading. He submitted that it is usually used by Liner companies who want to offer a full service to their customers by carrying their goods from door to door. Such Bill of Lading must show on its face mode of pre-carriage. It must also be shown on the face of the bill if any other mode of carriage took place in the country of export, before the carriage by sea. The Bill of Lading must show a specific address as place of final Delivery of the Goods other than a sea port in the country of import. In addition, there must be evidence available to a court seised with interpreting the status of the Bill of Lading contract, the mode of carriage of the Goods to the place of final Delivery by the carrier in the country of import.

Combined Transport, counsel contended is the combination of at-least two types of transport in a uniform transport chain that does not involve the changing of the transport units. Counsel referred us to the book “Shipping law” 2nd edition, 2001 by Simon Baughen at page 145. Learned counsel submitted that there is no doubt that the Bill of Lading in this case, Exhibit E is pliable. It could be used either as a Port to Port Bill of Lading or alternatively as a Combined Transport Bill of Lading. Exhibit E is first and foremost designed as a Port to Port Bill of Lading; see Clause IV on the reverse side titled Carriers Responsibility: Port to Port Shipment. It is further designed for an alternative use as a Combined Transport Bill of Lading; see Clause V on the reverse side titled Carriers Responsibility: Combined Transport. It is submitted that whichever of the two alternatives Exhibit E is used for, is a question of law and fact. Learned counsel submitted that to determine which of the alternative uses Exhibit E was put to, the court must take into consideration the place of the loading of Appellant’s containers and the place of discharge of the containers by the Respondents. The court must also consider the place of final delivery of the containers and who delivered them. The answers counsel contended will be found in Exhibits E, F and B. Exhibit E shows that the first contact the Respondents made with the Appellant’s containers in the country of export was at the load port, i.e. CHIWAN Port. Exhibit F dated January 22, 2008 shows in its paragraph 2 that the last contact the Respondents had with the Appellant’s containers was at Berth 16 Apapa Port when Petromarine Technical Services Limited as damage surveyors “attended onboard the vessel on arrival at berth 16 Apapa Port Lagos to witness the DISCHARGE of the containers destined for Lagos that were stowed in No. 5 hold.” Exhibit B in its page 2 paragraph 1 shows that the Appellant’s two containers (subject containers) were discharged from the relevant carrying vessel at APMT Terminal (which is also called Berth 16 Apapa Port), Apapa on January 21, 2008 and that prior to the author’s completion of documentation and the subsequent delivery of the containers to the Appellant, it received Exhibit F. It submitted that all the facts stated here are consistent with the view that this shipment is a port to port shipment and not a combined transport shipment. To further strengthen this view, the Respondent’s only witness admitted in cross examination that the carriage contract is a port to port carriage contract. Counsel referred to the witness testimony at page 46 of the Records (last line).

Learned counsel submitted that on the other side of the scale, there was no evidence introduced to show that the carriage contract was Combined Transport contract. The trial court based its view that the carriage contract was a combined transport contract on mere Asterisk. It is submitted that Asterisk is not enough to change the legal and factual characteristic of a contract. Exhibits B, E and F as well as the admission of the Respondent’s witness in court are weightier than asterisk as they are hard and cold verifiable facts. Counsel argued that the trial court did not even consider these exhibits before making Asterisk its preference. The two most distinguishing characteristics of Combined Transport Carriage from Port to Port Carriage is that the former features Door to Door service through at-least two modes of transport. The carrier must not only discharge the goods ex the carrying ship, carrier must deliver the goods to the cargo interest, unlike in Port to Port where as in this case the responsibility of the carrier ends with the discharge of the goods ex the carrying vessel.