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Kiribati Shipping Services Ltd v Tokaraetina Trading Ltd [2010] KIHC 129; High Court Civil Case 119 of 2010 (19 November 2010)

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

High Court Civil Case 119 of 2010

Between:

Kiribati Shipping Services Ltd
Plaintiff

And:

Tokaraetina Trading Ltd
Defendant

For the Plaintiff: Ms Taoing Taoaba
For the Defendant: Mr Banuera Berina

Date of Hearing: 18 November 2010

JUDGMENT

Claim by the plaintiff company for $4,100 for the detention by the plaintiff of a cargo container.

In 2008 the plaintiff decided to impose a charge on customers who kept a container for more than 16 days after the departure of the vessel on which it had come. No charge had been made previously. In July 2008 the plaintiff wrote (in English) a Memorandum to customers (Exhibit P2):-

Date: 21/07/2008

To all our valued Customers,

Please be informed that starting from Voyage 18 of MV Moanaraoi, the charges for using KSSL Containers has been amended by KSSL Management on Monday 21st July 2008. The following is a full explanation of the amendment.

The Consignee is herewith allowed to have the container for devanning either at KPA premises or at the Consignees owned yard within 16 working days after Moanaraoi arrived in Tarawa.

A charge of $50.00 per day (including holidays) will be applicable and charged to the Consignee if he/she failed to remove his/her cargo within this timeline.

Due to KSSL short stock of containers and an increase in cargo capacity from Fiji Management has no other option but to implement this amendment and put it into effect starting from Moanaraoi Voyage 18 .....

Thanking you for your support and understanding.

The second witness for the plaintiff, Nei Teuaku Eita, gave evidence that she delivered the Memorandum to the office of the defendant in Teaoraereke. She saw a man in the office. He was apparently in charge of the office. He told her that the "people had gone to Fiji". She had him sign an acknowledgment in her book. An extract of the page from the book is Exhibit D1. She saw him write his name Bwakati in the column "Name". He did not sign the next column "Signature". That is not of significance. She then handed the Memorandum to him and left. Nothing more known about the Memorandum.

Mr Karaeba Bwakati, the principal of the defendant company, explained that the man who signed for the Memorandum is his father. He does not speak English. When Karaeba returned to Kiribati his father did not tell him of the Memorandum. The first Karaeba knew of the imposition of the charge was when he received an invoice dated 03/08/09 (Exhibit P1) for $4,100 for storage of the container for 82 days at $50 per day. Although Karaeba protested at so high a daily storage rate he did not in these proceedings challenge the amount.

Mr Berina based his argument on contract. He submitted that this was – or would be if the defendant had known of the imposition of the charge – a contract between the parties: the plaintiff was under a duty to make sure, double check apparently, that the defendant, his client, knew about the charge: the plaintiff had failed to do that. I reject the submission. The plaintiff had done all it needed to do to inform the defendant – a hand delivered Memorandum delivered to a person apparently in charge of the office of the defendant. The plaintiff was entitled to assume that the defendant knew of the charge. The plaintiff was entitled to impose it.

There will be judgment for the plaintiff for $4,100.00.

Dated the 19th day of November 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice