⦿ CASE SUMMARY OF:
Broadline Enterprises Ltd. v. Monterey Maritime Corporation & Anor (1995) – SC
by NSA PaulPipAr
⦿ LITE HOLDING
⦿AREA OF LAW
– Contract Law
– Commercial Law
– Breach of contract.
– Short delivered.
1. Broadline Enterprises Ltd
1. Monterey Maritime Corporation (Owners of M.V. Cape Monterey).
2. Capt. George (Master of M.V. Cape Monterey).
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Kola Awodein.
* FOR THE RESPONDENT
– Jimi Oduba.
⦿ FACT (as relating to the issues)
The plaintiff’s case, put shortly, is that on or about the 29th July, 1981, 100,000 bags of white crystal sugar were entrusted to the defendants for shipment from Rotterdam to Apapa, Lagos and for delivery at Apapa to the plaintiff for valuable consideration. The plaintiff company which claimed to be the importer of the goods stated that the defendants, in breach of their duty of care as common carriers and bailees, failed to deliver a total of 3,434 bags out of the said consignment of 100,000 bags of sugar to the plaintiff. Inspite of repeated demands, the defendants had failed and/or refused to deliver the said 3,434 bags of sugar to the plaintiff hence this action.
The plaintiff thus claimed against the defendants jointly and severally for breach of contract and in negligence as common carriers and bailees for reward for the non-delivery and/or loss of the said 3,434 bags of sugar.
At the close of the case for the plaintiff, learned counsel for the defendants indicated that he did not intend to call any evidence. Accordingly, he rested his defence with the evidence led on behalf of the plaintiff. Learned plaintiff’s counsel at this stage indicated to the trial court as “We are abandoning claim on bills of lading, that is, for breach of contract. We only claim on negligence. Thus paragraph 14 of our Statement of Claim”.
The learned trial Chief Judge concluded as follows:- “Having accepted on the foregoing authorities that parties and court are bound by pleadings and the plaintiff having voluntarily abandoned their case on Bills of Lading. I hold that all evidence of the Bill of Lading are to no issue, and are rejected. I do not found any issue left once the issue of the Bills of Lading is withdrawn. The issue of Bailee and Common Carrier are interwoven and inseparable from the issue of the Bills of Lading. But even if it can be held that the issues of Bailee and Common Carrier are separable from that of the issues of Bills of Lading then there is no evidence that the defendants owed any duty of care to the plaintiff. There is no evidence of any reward paid to the defendant for carrying the goods once evidence of the Bills of Lading is disregarded. On the whole I found no case established against the defendant. The case on Bills of Lading was withdrawn by the plaintiff. The issue of Bailee and Common Carrier was not pleaded independently of the issue of Bills of Lading and if however it was pleaded, and can be said to amount to independent pleading, then there is no evidence of any duty of care owed by the defendant to the plaintiff. In the circumstances enumerated, the plaintiff’s case must be dismissed and it is thereby dismissed with costs.”
Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Lagos Division which in a unanimous judgment dismissed the appeal on the 23rd January, 1989 and affirmed the decision of the trial court.
Aggrieved by the said judgment of the Court of Appeal, the plaintiff has further appealed to this Court.
1. Whether or not the claim of bailment was pleaded?
2. After the giving of evidence but before the address of counsel, what issues if any remained joined after plaintiff’s declaration of abandonment of claims of bills of lading, that is, for breach of contract.
3. Of the issues, joined, what was proved by evidence.
⦿ RESOLUTION OF ISSUE(S)
1. THE CLAIM OF BAILMENT WAS PLEADED BY THE APPELLANT.
i. A careful study of the averments of facts in paragraphs 4, 8, 9, 10, 12 and 14 of the amended Statement of Claim leaves one in no doubt whatever that the appellant, not only fully pleaded facts which constitute bailment, but went further to plead bailment expressly, particularly in paragraphs 12 and 14 thereof. In paragraph 12 of the amended Statement of Claim, the appellant expressly pleaded breach by the respondents of their duty as common carriers and bailees of the consignment of sugar in question. So too, in paragraph 14 of the amended Statement of Claim, the appellant, again expressly, claimed from the respondents the reliefs already above indicated for non-delivery of the said goods by the respondents as “common carriers, and bailees for reward”. There is also the evidence of the appellant’s witnesses before the trial court which is in line with the averments in the amended Statement of Claim above set out. I do not think it can be seriously argued, as contended by learned respondent’s counsel that from the pleadings and evidence before the court, the appellant made no claim on bailment. With great respect, I am unable to accept the views of the two courts below that a case of bailment as a tort was neither pleaded at all nor sufficiently. In my opinion, the one single claim before the court was that of bailment and I entertain no doubt that the state of the pleadings, particularly the appellant’s amended Statement of Claim, clearly bears this out.
i. But the abandonment of a head of claim does not and cannot tantamount to an abandonment of all or any admissible evidence properly led in a cause and relevant to the determination of the life issues in the suit. Accordingly, when the appellant’s learned counsel abandoned his claim in contract, the bills of lading, Exhibits B1-B10 remained legal, admissible and relevant evidence before the court and ought not to have been discountenanced by the trial court or the Court of Appeal. In my view, both courts below were, with respect, in error by holding that the abandonment of the appellant’s claim in contract was synonymous with an abandonment of Exhibits B1-B10 and all other evidence relating thereto. Those Exhibits, without doubt, are inter alia relevant in the determination of the appellant’s locus standi in the suit as the legal consignee of the goods, an issue which appeared to be in dispute between the parties in the claim relating to the bailment in question.
ii. I entertain no doubt that the appellant was entitled to abandon its cause of action in contract and to prosecute its claim in tort.
iii. Both the claim on breach of contract and that on negligence are based on the bills of lading. The abandonment of the claim on breach of contract did not destroy the evidence led on the bills of lading which also supports the claim on negligence. He did not abandon the bills of lading.
i. The onus, in the present case, is on the respondents to establish that the loss of the 3,434 bags of sugar entrusted to them occurred without negligence or default on their part. See Ogugua v. Armels Transport Ltd. (supra), etc. This onus, they failed to discharge in so far as they neither offered any evidence at the trial nor did they challenge or cross-examine the appellant’s witnesses on any issues they testified upon.
ii. The position in the present case is that the respondents, as bailees, were entrusted with a consignment of 100,000 bags of sugar for shipment from Rotterdam to Apapa in July 1981. The consignment was delivered by the respondents to the consignee, the appellant and owners of the sugar, less 3,434 bags. The respondents despite repeated demands failed to account for the loss of the 3,434 bags of sugar nor were they able to establish that their loss occurred without negligence or default on their part. With profound respect, it seems to me quite clear that had both the trial court and the court below properly directed themselves to the established facts of this case together with the appropriate law applicable thereto, they would have had no difficulty in finding for the appellant on the issue of liability in respect of the missing bags of sugar.
⦿ SOME PROVISION(S)
A common carrier as defined in paragraph 447 at page 282 of Halsbury’s Laws of England, 4th Edition Vol. 43, is “a shipowner who offers to carry the goods of all comers in a general ship or who runs a line of ships from port to port habitually carrying all good brought to him.”
⦿ RELEVANT CASE(S)
See Marshal v. York, Newcastle & Berwick Rail Co. (1851) 11 C.B. 655. In that case, a servant who was travelling under a ticket taken and paid for by his master sued the company for loss of his luggage. It was held that the company was liable for the loss of the luggage.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In this connection, a distinction must be drawn between the withdrawal or abandonment of a head or an arm of several causes of action in a suit as against the withdrawal of say, an Exhibit, tendered in a suit but subsequently withdrawn without objection. Once a head or an arm of several causes of action or reliefs is withdrawn or abandoned, such an abandoned or withdrawn cause of action or relief automatically ceases to exist or to constitute an issue between the parties in the cause but without prejudice to the determination of the remaining life issues in the suit between the parties. But the abandonment of a head of claim does not and cannot tantamount to an abandonment of all or any admissible evidence properly led in a cause and relevant to the determination of the life issues in the suit. – Iguh, JSC. Broadline v. Monterey (1995)
I think the first point that must be made for a better appreciation of their resolution is that where evidence given by a party to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established. – Iguh, JSC. Broadline v. Monterey (1995)
There is, secondly, the situation that the respondents offered no evidence before the trial court but rested their defence with the evidence led on behalf of the appellant. The evidence before the court therefore, went one way with nothing on the other side of the balance as against the cogent evidence given on behalf of the appellant. The onus of proof in such a case, as I have observed, is discharged on a minimal of proof and I entertain no doubt that in the circumstances of the evidence led before the trial court, both courts below were in grave error by their failure to act on the unchallenged evidence led on behalf of the appellant in considering whether or not the appellant had established its case against the respondents. – Iguh, JSC. Broadline v. Monterey (1995)
In this regard, the point must once again be made that it is one thing to aver or plead a material fact in issue in one’s pleadings and quite a different thing to establish or prove such a fact to the satisfaction of the court. Averment of a fact in issue in pleadings must be distinguished from proof of such a fact. An averment in pleadings is not tantamount to evidence and cannot be so construed as such. Accordingly, it has to be proved or established by evidence subject, however, to any admissions made by the other party in his own pleadings in respect thereof. – Iguh, JSC. Broadline v. Monterey (1995)
I should, perhaps, observe that although at common law, bailment is often associated with a contract, this is not always the case. An action against a bailee can quite often be presented, not only as an action in contract, nor in tort, but as an action on its own sui generis, arising out of the possession had by the bailee of the goods. – Iguh, JSC. Broadline v. Monterey (1995)
The law is well settled that where it is sought to prosecute an action on a bill of lading itself by a plaintiff whose name does not appear (other than the reference to his being notified) on the relevant bill and he is therefore neither the endorsee nor the consignee therein indicated, such a plaintiff in law has no locus standi to sue upon the bill. – Iguh, JSC. Broadline v. Monterey (1995)
A close scrutiny of the bills of lading, Exhibits B1-B10 however discloses in no uncertain terms that the consignee therein endorsed is Broadline Enterprises Limited, the appellant in the present case. This is clearly indicated in the stamp affixed against the consignee’s column in the said bills of lading. It is also clear that apart from the appellant being the consignee in the relevant bills of lading, it is additionally shown in the appropriate column of the bills as the notified party thereof. I think, with respect, that learned counsel for the respondents was in definite error when he submitted that the appellant had no locus standi to bring this action since he was not the consignee or endorsee shown in the bills of lading. The appellant being the consignee duly endorsed on the said bills of lading, as I have stated, was entitled and had locus standi to prosecute the suit. – Iguh, JSC. Broadline v. Monterey (1995)
At all events, the law seems to me clear that whenever goods belonging to one person are unconditionally entrusted to the care of another for whatever purpose, whether gratuitously or for reward, on the clear understanding that the goods shall ultimately be returned to the owner, failure to do so raises a presumption of negligence against the offending party. – Iguh, JSC. Broadline v. Monterey (1995)
In bailment, therefore, the onus of proof is always on the bailee to show that the loss of or damage to the goods entrusted to him occurred without negligence or default on his part. – Iguh, JSC. Broadline v. Monterey (1995)
General damages are such as the law implies or presumes of the action complained of and I think that the appellant, apart from the special damages for the value of the 3,434 bags of sugar short-delivered to it by the respondents, is entitled to general damages for this loss. – Iguh, JSC. Broadline v. Monterey (1995)