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High Court of Solomon Islands |
(1983) SILR 160
HIGH COURT OF SOLOMON ISLANDS
p
SOLOMON ISLANDS ELECTRICITY AUTHORITY
-v-
SOLOMON ISLANDS PORTS AUTHORITY
High Court of Solomon Islbr> (Daly CJ)
Civil Case No. 101 of 1982
21st June 1983 983Contract � bailment � onus of proof � practice � pleading - statutory limitation � Ports Act s.80.
Facts:
The Plaintiffs claimed to have delivered to the Defendant a box containing electrical equipment. The Plaintiffs denied receipt although they admitted issuing a combined clearance certificate and debit note in relation to the box. The Plaintiff sued for the value of the box and contents. At the trial the Defendants sought to rely upon a limitation of liability contained in section 80 of the Ports Act.
Held:
On the facts, the box was delivered to the Defendants and as warehousemen they took possession under a contract of bailment. The onus was therefore upon the Defendants to show that the loss of the box was not due to their default.
As the statutory limitation was pleaded neither in terms nor by raising the necessary facts, the Defendants could not rely not upon it (Tang �v- Lo (No. 2) SILR 78 followed).
The Defendants were unable to discharge the onus upon them. Judgments for the Plaintiffs.
For Plaintiffs: F Waleilia
For Defendants: A NoriDaly CJ: This case concerns liability for the unsolved disappearance of a large wooden box containing heavy electrical equipment valued at $10,350.00.
In December 1981 the Plaintiff (the Solomon Islands Electricity Authority) conducted an overhaul at Lunga Power Station. They discovered that a rotor assembly on the turbine engine together with its bearings were worn and had to be replaced. A replacement unit was obtained and the old rotor assembly and its two bearings were removed and put in a wooden box for shipment to Australia. The rotor was more than two feet long and had a fan one foot six inches in diameter at the end. The bearings were each about nine inches in diameter. They must all have been of very sold construction because, when packed, the box containing these objects needed six men to lift it.
On the 15th December 1981, the box, having been packed but without the lid nailed down, was put on one of the Plaintiff�s trucks and taken from Lunga Power Station to the Plaintiff�s headquarters in Honiara. What happened to the box and its contents thereafter is subject to dispute in this case. The Plaintiff�s case is that the box was transported from its headquarters to No. 1 Shed on Point Cruz Wharf where it was delivered to employees of the Defendant (Solomon Islands Ports Authority) for shipping to Australia on Voyage No. 54 of the M.V. Papuan Chief. The Defendant denies receiving the box at all and therefore any responsibility for it. What cannot be disputed is that at some stage after being packed and put on the Plaintiff�s truck on the 15th December 1981 and a date in January 1982 when a full search was conducted for it, the box and its contents disappeared without any trace. The M.V. Papuan Chief came and departed on 24th December 1981. The box, it is agreed, did not go on board that vessel. The first issue then is, has the Plaintiff satisfied me on the balance of probabilities that the box was delivered to the Defendant? To resolve this issue I must consider in detail the evidence which I have heard about the events on the 15th December, 1981.
I was told by the Senior Assistant Supervisor, Repair and Maintenance at Lunga Power Station, Mr Toata, about the packing of the box. I also heard evidence from the driver of the truck, Mr Osifelo, who confirmed that the box was put on his truck at Lunga Power Station. These two witnesses then said they went with the truck of the Head Office to pick up the clerk responsible for the shipping documents. This was Mr Francis Keniheria. Mr Toata said documents were put in the box and then the lid nailed down with the contents of the box intact inside. The three of them with three others then went in the truck with the box to the Ports Authority area on the wharf. Mr Keniheria went into the Head Office and when he came back he gave instructions to the driver to go to No. 1 Shed on the Wharf. There the vehicle was reversed close to a door; a forklift truck of the Ports Authority came. The side of the Plaintiff�s truck was lowered and the forklift truck removed the box and took it into the centre of the shed. After Mr Keniheria did some more paper work the employees of the Plaintiff left.
The Defendant says that this did not happen at all. They called Mr Edward Rape to give evidence. Mr Rape was the clerk in charge of export documentation in No. 1 Shed on 15th December 1981. He said that Mr Keniheria did, indeed, came to the shed that day. He came, said Mr Rape in the morning with export documents for the box and asked him, Mr Rape, what he should do with the box. Mr Rape told him to bring it to the shed and Mr Keniheria said he would bring the box that after. Mr Keniheria then departed in a truck leaving the export documents behind. Mr Rape said that was the last he saw of Mr Keniheria who did not bring any box to the shed either in the morning or afternoon or any other time. The documents were put on a file and left there to be discovered when the search was conducted for the missing box.
Who, on the balance of probabilities, do I believe? I have mentioned that Mr Toata of Lunga Power Station and Mr Osifelo the truck driver both gave evidence. Both men struck me as honest and forthright witnesses who were telling the truth. Their accounts of loading this heavy box, going to Head Office and then the wharf and what happened there were consistent with each other and with that of Mr Keniheria. They correctly gave the Christian name of Mr Rape as one of the persons who dealt with Mr Keniheria. They named another clerk present and gave the name of the forklift driver. The logbook of the motor vehicle supports the fact that there was one journey that day from Lunga to Ports Authority. This is, of course, consistent with Mr Keniheria going and doing the paper work at the Ports Authority and merely making enquiries but when one considers the evidence of the weight of the box it seems highly probable that everyone would seek to conclude all the work in one journey. Mr Keniheria strongly denied any individual visit without the box.
Mr Rape on the other hand was not a very convincing witness in the way he gave his evidence. Nor was the content of the evidence impressive. He could not say why he had such a clear recollection of the events bearing in mind that he was only aware that the case was missing four or five months later and that he dealt with a great volume of cargo for this and other ships. There is no doubt that the Ports Authority issued a Clearance Certificate and Debit Note for the box on 15th December 1981 but the evidence was that such a document could be issued by a clerk at the Head Office without ever seeing the box. Much was made of the lack of charges for use of the forklift but in the event Mr Rape said he had never charged for use of the forklift and did not know the charges.
On the bas the evidencidence which I have heard and the way it was given I have no hesitation in accepting that on 15th Der, 1981, the box and its contents were delivered to No. 1 Shed on Point Cruz Wharf intf into the custody of the Defendant.
What is the legal position arising from those facts? There is no doubt that there was a contract between the Plaintiff and Defendant.
Although I am not told exactly what transpired in the Head Office of the Ports Authority on 15th December 1981, Exhibit 4, which is a combined clearance certificate and debit note for the Ports Authority�s charges, came into existence. The charges are said to be for �Lighterage, Handling and Wharfage� and amount to $1.80. There are no terms on the document but from the dealings between the parties the contract must be taken to have been for the Plaintiff to deliver the box and pay the charges and for the Defendant to receive and hold the box and to handle it in accordance with the instruction of the Plaintiff and the ports procedures. This then is what is described as a contract of bailment. There is also no doubt that at common law a contract with a warehouse is properly so described (see chitty on Contracts: Specific Contracts 24th Edition paragraph 2229). One of the legal results is, as the learned editors write in that paragraph:-
�When the chattel is lost, the onus is on the warehouseman to acquit himself by showing that he was not in default.�
Mr Nori for the Defendant seeks to rely upon section 80 of the Ports Act (Cap. 99) which limits the liability of the Defendant as a lighterman, wharfinger and warehouseman. This reads, so far as is relevant:-
�80. Subject to the provision of this Act or any contract, the Authority shall not be liable for the loss, misdelivery or detention of or damage to, goods �
(a)delivered to, or in the custody of, the Authority otherwise than for the purpose of carriage;
(b) accepted by the Authority for carriage, where such loss, misdelivery, detention or damage occurs otherwise than when the goods are in transit,
except when such loss, misdelivery, detention or damage is caused by want of reasonable foresight and care on the part of the Authority or any servant of the Authority and it is proved that such goods have been delivered to the Authority in good condition:
Provided that the Authority shall in no case be liable for such loss, misdelivery, detention or damage arising from �
��.
(v) act or omission of the consignor, consignee, or depositor, or of the servant or agent of any person;�
Mr Waleilia takes the point that reliance upon that section was not pleaded by the Defendant.
Order 21 rule 16 of the High Court (Civil Procedure) Rules, 1964 reads:-
�16. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, the Statute of Frauds, the Statute of Limitations, release, payment, performance, facts showing illegality either by Act or other written law or common law.�
Section 80 involves a number of questions of fact not specifically raised in the pleadings, for example, whether there was �want of reasonable foresight and care on the part of the Authority� and, in the submission of Mr Nori, whether the loss arises from �act or omission of the consignor�� within paragraph (v) of the proviso to section 80. Although the Plaintiff raises in its Statement of Claim questions of negligence it is, in my judgment, a clear requirement of Order 21 rule 16 that the Defendant must raise in its pleadings at least the factual matters upon which it relies in relation to section 80 of the Ports Act. The safest course is to refer expressly to the Act. These matters not having been raised, the Defendant is precluded from relying upon them in this case and hence from relying upon section 80. As this Court indicated in Tang v Lo (No.2) (1982) SILR 78 the pleading rules must be observed.
I should perhaps add that even were I prepared to allow the Defendant to rely upon the statute, I would have considerable difficulty in finding, first, that there was no want of reasonable foresight and care on its part and that, second, even if there were, that the loss of the box arose from an act or omission of the Plaintiff so that the Defendant may rely on paragraph (v). The way the latter point is put is that the Plaintiff failed to obtain the consent of the shipping agent, Sullivans, to the shipment of the box. As a result the box was not listed on the back loading list for MV Papuan Chief prepared by Sullivans against which goods were checked before being put into the containers. On the facts, to say that the loss arose from the non-inclusion in the backloading list is, in my view, somewhat far fetched. The failure to load the box on the Papuan Chief may be said to have arisen from this non-inclusion and hence from the omission of the Plaintiff. But to go a stage further and hold that the loss of the box in the possession of the Defendant either before or after the departure of the Papuan Chief arose from that non-inclusion is a step not warranted by the ordinary principles of causation. On the version of the facts which I find to be correct, the Defendant�s employees had received the box and its documents and therefore were aware of its presence in the warehouse.
Whether or not it was loaded upon the Papuan Chief or included in the back loading list for that vessel does not account for its disappearance from the shed. I would therefore find on the facts that section 80 of the Ports Act would not have assisted the Defendant.
However in view of my ruling that section 80 is not available to the Defendant in this case, I must decide the matter on a common law basis which, as I have indicated, places the onus on the Defendant to show that it was not in default in relation to the loss of the box. As the evidence for the Defendant was a denial of all knowledge of the box which I find the Defendant received it follows that there is no basis upon which I could find that the Defendant has established lack of fault on its part. The Plaintiff must therefore succeed in this case. There will be judgment for the Plaintiff for $10,350.00.
Order that the Plaintiff�s costs be paid by the Defendant.
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