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Walters v Kimbe Shipping & Transport Pty Ltd [1999] PGDC 19; DC65 (3 September 1999)

Unreported District Court Decisions

[1999] PNGDC 17 - TOM WALTERS V KIMBE SHIPPING & TRANSPORT PTY LTD

[1999] PNGDC 17

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 90 OF 1999

TOM WALTERS (Complainant)

v

KIMBE SHIPPING & TRANSPORT PTY LTD (1^st Defendant) AND: CONSORT EXPRESS LINES LIMITED (2^nd Defendant)

Kimbe

S Lenalia PM

3 September 1999

16 August 1999

27 August 1999

NEGLIGENCE�Proof of�Carriage of goods by sea�Bill of lading�No bill of lading acquired�Liabilities and duties�Duties of Bailor�Duties and liabilities of bailee�Carriage of goods by ship.

BAILMENT�Duties and liabilities�Negligence�Carriage of goods by sea�No bill of lading issued�No liability where bailor has not complied with standard practice�Bailee not negligent�claim dismissed.

Cases referred to

Hutton v Warren [1836] EngR 115; [1836] 1 M & W 466

Representation:

Counsel/Representative:

Complainant: In person

Defendant: E Tatut for first Defendant (by leave), S Maliaki for the second Defendant

Lawyers/Representative:

Informant: Complainant in person

Defendant: Lawyer for 2^nd Defendant: Warner Shand Lawyers

3 September 1999

S LENALIA PM:

N1>[1]����� The complainant sues the two defendants for negligently handling his cargo namely fifteen (15) bags of "Singapore" taro which was shipped from Kimbe to Lae by the second Defendant. Against the first Defendant the complainant pleads failure to prepare and issue sufficient and proper documentation in the form of a bill of lading or other appropriate documents to disclose shipment of the fifteen bags of singapore taro on board a cargo vessel operated and owned by the second defendant the MV Morobe Coast on voyage "No. 178S" from Kimbe to Lae. Against the second defendant, the complainant pleads failure to include his cargo into the manifest list and failure to inform the stevedoring company in Lae to off-load the fifteen bags of Singapore taro in Lae. Still on the part of the second defendant, the complainant further pleads failure to properly check the cargo-hold of the aforementioned vessel to locate his cargo and further that the second defendant failed to make proper inquiries regarding the fifteen singapore bags to determine its destination. Both defendants denied liability and the matter went by trial.

N1>[2]����� The complainant relies on his own evidence and that of his wife Lucy Tom. The complainant's evidence is that on 19 October 1998 he enquired at the office of the first defendant with intention to ship his fifteen bags of singapore taro from Kimbe to Lae. A shipping clerk at the first defendant's office by the name of Ambrose Matu issued to the complainant an application for what is termed on that document (see Annexure "B") "PRE-RECEIVING CARGO FOR SHIPMENT". This document according to the evidence was to allow the complainant access into the Harbours Board gate to deposit his cargo as well as a notice that the complainant was to bring his cargo the next day between 7 am and 4 pm. The complainant and his wife admitted during cross examination that one Ambrose Matu informed them both to bring their cargo the next day between 7 am - 4 pm as instructed by Ambrose. In other words, both the complainant and his wife were carefully instructed by Ambrose to bring their cargo within a specified time.

N1>[3]����� Acting on this information, the complainant and his wife went back to their block at Buvussi and collected exactly 15 bags of singapore taro and had them transported to the Kimbe main wharf the same date.

N1>[4]����� It is clear from both the complainant's and his wife's evidence that, they brought their cargo to the main wharf by about 7 pm. On arrival at the Harbours Board gate, the complainant produced the pre-receiving cargo application and was allowed access onto the Harbours Board loading area as directed by the Harbours Board security officials. After depositing his cargo, the complainant and his wife left and they never returned the next day to check and see if his cargo had already been shipped or not.

N1>[5]����� In cross-examination by the second defendant's lawyer, the complainant was asked if he understood what is meant by term "Pre-freight". The following question was put to the complainant "Did you ever think you should pay first?" In answer the complainant said "The clerk told me to do it, and if I could show it in Lae and pay for it in Lae." I will return to that part of the complainant's evidence later.

N1>[6]����� The complainant's evidence is supported by that of his wife Lucy Tom. She confirmed that after speaking to a shipping clerk in the first defendant's office they obtained a receipt for shipment of their cargo from Kimbe to Lae. She further confirmed that her husband and herself proceeded to Buvussi and collected 15 bags of singapore taro and brought the cargo back to the wharf by 7 pm that evening. In fact Stevedores at the Harbours Board loading area located the complainant's cargo and somehow thinking that freight charges had been paid they loaded the 15 bags on board the MV Morobe Coast V 178S and such cargo was in fact domiciled "Lucy Tom�Lae". The vessel sailed for Lae by about 4 pm the next day.

N1>[7]����� I am grateful for submissions being filed in time by both defendants representatives. For and on behalf of Kimbe Shipping and Transport Pty Ltd, they submit that orders sought by the complainant should not be granted since at the first place there was complete failure by the complainant to adhere to instruction given by shipping clerk Ambrose Matu. Further to this, the first defendant submits that failure by the complainant to turn up the next day to further complete documentation regarding payment of freight charges which would subsequently enable his cargo entry onto the in-ward cargo manifest and issuance of a bill of lading . The second defendant submits that the complainant having received specific instructions from the first defendant's servant to bring his cargo by next day between the hours of 7 am and 4 pm, failed to do as instructed cannot be allowed to sue or recover anything. They further submit that the complainant had sufficient knowledge and notice of the requirement to pay for freight charges before his cargo could go to Lae.

N1>[8]����� On the law a number of factors need to be addressed. First it would appear from evidence of the complainant that he may have been mistaken. In contract a mistake can occur where an agreement has been reached on the basis of a mistake common to both parties and secondly where there was a mere appearance of agreement because of mutual or unilateral mistake.

N1>[9]����� Mutual mistakes occur where the parties have negotiated at cross purposes. In a unilateral mistake, one party only is mistaken and the other party knows or is deemed to know of the mistake; see "The Law of Contract" by NT Magor at pp 82-84.

N1>[10]��� In the case before me, I do not think it can be classified as a mutual mistake nor it is a unilateral mistake. Must the Court accept the complainant's evidence suggesting that the first defendant failed to prepare and or issue sufficient or proper documentation to disclose the complainant's cargo or that by their negligence they failed to include the 15 taro bags in the manifest list when in fact the complainant must be blamed for his negligence. Or alternatively should the court hold the second defendant liable for failing to properly check the vessel cargo hold to locate the 15 bags of Singapore when in fact the cargo was not placed on the manifest list.

N1>[11]��� In law there is a general presumption that where the parties to a contract have expressed orally or in writing every material term which are intended should govern these contract. But under circumstances were terms have not been clearly expressed, they are implied by law to give effect to the parties presumed intentions or it may be that terms are implied by statute. The contract between the complainant and the two defendants is governed by customs and usage of carriage and shipment of cargo from port to port.

N1>[12]��� Baron Parke once said (Hutton v Warren [1836] EngR 115; [1836] 1 M & W 466 at 475):

"It has been long settled, that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transaction of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to those known usages."

N1>[13]��� It is my view that although Baron Parke spoke about implied terms in written contracts, the same principles would apply to oral contracts.

N1>[14]��� It is my finding from all the evidence that, the complainant's cargo was not properly documented and the reason such cargo was not properly documented was because no bill of lading had been obtained thus the cargo could not be put on the manifest. This was due to the complainant's failure and inability to obtain a bill of lading because he had not paid his freight charges. The complainant's cargo was brought to the Kimbe main wharf by 7 pm. How did the complainant expect to see his cargo shipped when in fact, no freight was paid. Despite this irregularity, the cargo was safely brought to Lae and I further find that despite there being no bill of lading or inspite of the fact that the cargo was not included in the manifest, the complainant's wife should have been in Lae to receive these cargo.

N1>[15]��� The complainant indicated in cross-examination by the second defendant's lawyer that, he understood what the shipping clerk at the first defendant's office instructed him to do. To the Court this means the complainant also understood the fact that, his cargo should have been brought in by between 7 am and 4 pm the next day. I am entitled by law to infer fetch that the complainant understood the fact that he should pay fright charges before his cargo could be allowed to leave the Kimbe port to Lae.

N1>[16]��� I find that it is customary to pay for freight prior to shipping a piece of cargo from port to port. If there was a practice which allowed a shipper to ship his goods without first paying for freight, I am afraid such is absent from the evidence in totality. In absence of an original manifest, I am content to accept the amended manifest issued at Lae dated 4 November 1998, Serial No 116496 by the second defendant's office.

N1>[17]��� As appears from evidence Lucy Tom boarded another vessel on 23 October 1998 for Lae and when she got to Lae, she checked at the second Defendant 's office for the cargo on 26 of that month. Officials at the second defendant's office demanded she pay K70.00 freight first and after paying she was informed that the cargo had gone to Moresby then to Alotau. When looking at all the circumstances surrounding this claim, the better persons to be blamed was none other than the complainant and his wife.

N1>[18]��� On the part of the complainant, he defied instructions given him and his wife to bring their cargo by between 7 am and 4 pm the next day. The complainant did not nor his wife pay any freight. Neither of them obtained any bill of lading nor a copy of the manifest. On the part of Lucy Tom, despite all irregularities she should have been in Lae to receive the cargo when the vessel arrived in Lae. I find therefore that there was no negligence on the part of the two defendants, in terms of the discharge of their responsibilities.

N1>[19]��� On the part of the first defendant, they ought not to be liable because the complainant had chosen to transport his cargo into the wharf rather late by 7 pm the same date he enquired at the first defendant's office instead of the next day by between 7 am and 4 pm. This resulted in the non issuance of a bill of lading and thus the cargo could not be put on the manifest. On the part of the second defendant, their agents and servants carry out their duties by reference to the bill of lading and manifest in order for them to discharge cargo domiciled to whichever port is indicated in the manifest . In fact having knowledge of their irregularities, Lucy Tom should have been in Lae to pick up their cargo since it was not manifested in documents.

N1>[20]��� I dismiss this claim and order the parties to meet their own costs.

N1>[21]��� Orders Accordingly.