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Teraina Island Council v Kiribati Inter Island Shipping Services Ltd [2008] KIHC 26; Civil Case 69 of 2008 (31 July 2008)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 69 of 2008

Between:

Teraina Island Council
Plaintiff

And:

Kiribati Inter Island Shipping Services Ltd
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Mantaia Kaongotao

Date of Hearing: 31 July 2008

JUDGMENT
(Ex Tempore)

I must make a difficult decision on the balance of probabilities. The Teraina Island Council ordered from BKL 50 bags of rice, 50 bags of flour and 50 bags of sugar. The BKL Shipping Instruction Form (Exhibit P1) is dated 28/04/06. It shews that the cargo was "released from the Main Warehouse" on"03/05" and "tallied and received by" the supercargo Baateran, on the same day. His signature appears on the document. Unfortunately Baateran is now dead.

When the MV Te Taobe reached Teraina on or before 3 June the sugar was not on board. The letter (Exhibit D3) signed by the Acting Clerk to the Council and counter signed by the supercargo Baateran is a claim addressed to "Captain MV Tetaobe" for compensation. [At some time the addressee has been changed to "Manager BKL Betio Tarawa" but I assume that the letter went originally to the captain.] What had happened? No one knows.

Mr Berina has submitted that P1 shews the sugar was "received" by the defendant: that does not mean it was shipped or it may have been shipped and off loaded at an intermediate port. Exhibit D1 which is a photocopy of Exhibit P1 has a notation against the "50 bags Fiji Raw Sugar" "Not shipped" and Bwaateran’s signature. The date on D1 is "04/06" so I conclude the sugar never was loaded, shipped on MV Te Taobe.

Mr Kaongotao has referred me to Ss 33 and 51 of the Sale of Goods Act but these are not relevant in the circumstances of this case. Once the sugar had been received by the defendant (as indicated by the signature of the supercargo) it was in the custody of the defendant who had, in this case, the responsibility to deliver it to Teraina. For reasons unknown the sugar was not delivered to Teraina.

I must rely on the original document P1. Doing so on the balance of probabilities, the defendant has failed to discharge its responsibility and is liable to the plaintiff.

Having heard these reasons the parties have agreed that damages should be assessed at $3,000. Accordingly there will be judgment for the plaintiff for $3,000.00. The plaintiff will have its costs.

THE HON ROBIN MILLHOUSE QC
Chief Justice