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.