⦿ CASE SUMMARY OF:
THE M. V. “CAROLINE MAERSK” SISTER VESSEL TO M.V. “CHRISTIAN MAERSK” & ORS v. NOKOY INVESTMENT LIMITED (2002) – SC
⦿ LITE HOLDING
⦿AREA OF LAW
– Marine Law.
– Gold value.
– Vicarious liability.
THE M. V. “CAROLINE MAERSK” SISTER VESSEL TO M.V. “CHRISTIAN MAERSK” & ORS.
Nokoy Investment Limited
(2002) JELR 44676 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
E. O. Ayoola, J.S.C
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The respondent (referred to in this judgment as “the plaintiff) a registered Nigerian company carrying on business of exporting of sea foods, entered into an agreement with the Maersk Nigeria Ltd., the 3rd defendant, to ship 1,202 cartons of frozen atlantic gold shrimps valued at US$71,516.50 in a vessel called Christian Maersk, owned by the 2nd defendant from Lagos port to Algeciras port in Spain. The consignee of the shrimps was Tako Fish Corporation, Panama. The shrimps were of good consumable quality when they were shipped from Lagos. They were sealed in a container under acceptable temperature of 18’b0C/20’b0C. The goods were carried under a bill of lading issued in Lagos. The Spanish Health Authority issued two reports on the condition of the shrimps. In the first, issued on 14th February, 1994, it was stated that the shrimps were “not suitable in the first inspection due to abnormal odor, unsatisfactory appearance and high volatile vitrogen.” In the second, issued on 4th March, 1994, it was stated “Not suitable (second inspection) due to abnormal odor, unsatisfactory appearance and melanoies.”
Judgement was entered for the plaintiff, Nokoy Investment Ltd.
Its claim against the three defendants was as follows: “1. Certificates/invoice value of the 1202 boxes of frozen shrimp USD $71,516.50 2. Further, or in the alternative, the plaintiff claims at the rate of 100.00 (One hundred pounds sterling) lawful money of the United Kingdom” for each of the 1202 packages of shrimp …. 120,200.00. 3. Further, or in the alternative, the plaintiff relies on bill of lading no. LOSE 09233 to claim the value of the net weight of 24,040 kgs, as against the gross weight of 27,040 kgs, at the rate of US$20.00 (Twenty U. S. Dollars) per kilo …. US$480,800.00 4. Damages for delayed delivery, spoilage, deterioration of cargo, non acceptance of the aforesaid boxes by the consignee and the Spanish Exterior Trade Inspection Center as well as opportunity and embarrassment caused to the plaintiff by the defendant…U5$50,000.00. 5. Interest at the rate of 20% per annum until judgment and thereafter at the rate of 4%”.
It was common ground that the shrimps became bad. What was in dispute was when the shrimps deteriorated. The plaintiff claimed that it was during the period of carriage by sea, while the defendants asserted that the shrimps deteriorated after their arrival in Spain and because by the nature of the shrimps they should have been collected within 2 days but were not collected more than 30 days after arrival.
In the result, he entered judgment against the defendants for the rest of the claim after rejecting the 3rd and 4th heads of claim. He dismissed the defendants’ counterclaim for the cost of repatriation of the cargo back to Nigeria and return of the container to the defendants.
The defendants appealed to the Court of Appeal which dismissed their appeal and confirmed the decision of the Federal High Court. This appeal is from the decision of the Court of Appeal.
1. Whether liability lies on the Appellant?
2. Whether the Court of Appeal is correct in awarding as damages the principal claim of $71,516.50 and the sum of 120,200, as a further claim?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED, IN PART]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT FAVOUR OF THE RESPONDENT.
i. Although, for my part, I fail to see the immediate significance of the above provisions of Article III rule 8 to the question whether the contractual obligation of the carrier is strict or not, I think they show that a carrier cannot contract out of liability for negligence, whether such negligence is presumed or actual. Reliance on rule 8 of Article III to describe the liability of the defendants as strict, even if erroneous is not of any consequence to the result of the case. Both the trial Chief Judge and the court below accepted that absence of want of due care may be a defence available to the carrier. Their finding that such defence was not established is enough to make the issue raised by the defendants on this appeal as to the nature of the liability of the defendants an academic exercise. Although Galadima, JCA, who delivered the leading judgment of the court below said “the carrier is strictly responsible for all loss or damages that occur in transit.”, and had earlier stated that “Article 3(8) provides for strict liability.”, these statements did not affect his approach to the determination of the carrier’s liability, for he also said “The appellants (i.e the carriers) as bailees have failed to discharge the burden of proving that they were not negligent.”
ii. The liability of the agent in terms of section 16(3) is dependent on whether the act, default, omissions or commission was (or were) in respect of anything done or to be done in Nigeria. That the act, default etc was in respect of anything done or to be done in Nigeria by the ship is an essential part of the cause of action and is a material fact that ought to be alleged and proved. Speculation as to where such event happened will not do. It is clear that in this case the 3rd defendant had been sued as an agent and that as such he could only be liable pursuant to section 16(3) of the Admiralty Jurisdiction Act. The act, default, omissions or commission of the ship for which the ship was sued could have been in or outside Nigeria. There was no allegation that any such event happened in Nigeria. In these circumstances, there was really no basis for making the 3rd defendant liable. In my judgment, the appeal of the 3rd defendant must be allowed.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. No reading of clause 6(2) of the bill of lading or of rule 5 of Article IV could reasonably lead to the view that regardless of the fact that the ascertained value of the goods is less than the limit stipulated, the plaintiff should still be awarded the upper limit which is a ceiling. It is in this regard that the formulation of the plaintiff’s claim as if the claim is by a prescribed fixed rate is flawed. Any claim to compensation computed without regard to the value of the goods and arrived at merely by multiplying the number of packages by 100 sterling and arriving at a sum of 120,200 was, thus erroneous. The trial court having proceeded on the footing that the value of the goods was US $71,650.50, the next question is whether that value is beyond the stipulated limit for which the carrier could be liable in the absence of compliance with the “unless clause of Article IV rule 5. Taking judicial notice of the fact that US$71,650.50 is far less than 120,200 as I do, I feel no hesitation in holding that the alternative award of 120,200 was erroneous in any event.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
For the reasons given, I would allow the appeal of the 1st and 2nd defendants to the extent only that the judgment of the trial Chief Judge awarding to the plaintiff US$71,516.50 and, in the alternative, 120,200 and interests on the award is set aside.
The appeal of the 3rd defendant succeeds in its entirety. Judgment entered against the 3rd defendant is accordingly set aside. Since the appeal of the 1st and 2nd defendant fails on the question of liability, it is clear that the plaintiff is entitled to damages; but the amount still has to be properly ascertained after taking the effect of Article IX into account.
In the result, I make the following orders:
(i) That the appeal of the 1st and 2nd defendants as far as the damages awarded against them are concerned, be allowed and the award of damages made by the Federal High Court and confirmed by the Court of Appeal be set aside.
(ii) That the case be remitted to the Federal High Court for that court to enter judgment for the amount of damages that the plaintiff may be entitled to after taking into consideration the limit set by Article IV rule 5 of the Rules and after taking further evidence as the parties may wish to adduce for the purpose of ascertaining the gold value of the naira mentioned in that Article pursuant to Article IX.
(iii) That the appeal of the 1st and 2nd defendants in respect of liability be dismissed.
(iv) That the appeal of the 3rd defendant be allowed in its entirety.
The 3rd defendant is entitled to the costs of this appeal and costs of the appeal in the court below which I assess at N10,000 and N5,000 respectively. I order that the other defendants bear their costs of the appeal in this court and in the court below.
⦿ SOME PROVISION(S)
Article III rule 8 of the Rules in the schedule to the Carriage of Goods by Sea Act: “Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these rules, shall be null and of no effect.”
William Tetley: Marine Cargo Claims at pages 133-134 cited and quoted in the appellants’ brief filed by the defendants thus: “It is the first principle of marine cargo claim that the carrier is prima facie liable for loss or damage to cargo received in good order and out turned short of in bad order. The carrier having received the goods in good order under a clean bill of lading and having received bad order receipts on delivery is prima facie liable for the loss or damage. Prima facie (at first sight) means that the proof is rebuttable so that the carrier has a burden of making proof sufficient to overturn claimant’s prima facie case.”
Clause 6(2) of the Combined Transport Bill of Lading (Exhibit A) which provides:
6(2) Where the Hague Rules apply hereunder the carrier’s maximum liability shall in no event exceed GBP100.00 lawful money of the United Kingdom per package or unit, unless the nature or value of such goods have been declared by the shipper before shipment and inserted on the reverse side of this bill and extra freight paid.
(a) subject to clause 5, 7 and sub paragraphs 2, 3, and 4 of this clause, when the carrier is liable for compensation shall be calculated by reference to the invoice value of the goods plus freight charges and insurance if paid. (b) If there is no invoice value of the goods such compensation shall be calculated by reference to the value of such goods at the place and time they are delivered to the merchant in accordance with the contract or should have been so delivered. The value of goods shall be fixed according to the commodity exchange price or if there be no such price, the current market price by reference to the normal value or goods of the same kind and quality. (c) Compensation shall not exceed USD 2.00 per kilo of gross weight of the goods lost or damaged. (d) Higher compensation may be claimed only when with the consent of the carrier the value of the goods declared by the shipper upon delivery to the carrier exceeds the limits laid down in this bill of lading. In that case the amount of the declared value shall be substituted for this limit. Any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Be that as it may, where the provisions of a valid statute are clear and unambiguous and its application lead to no obvious absurdity, the court does not need to inquire into the motive or wisdom of the lawmaker before it applies its provisions nor, should the difficulty or complexity in working out the implications of the provisions stop the court from pronouncing its provisions part of the law. – Ayoola JSC. Maersk v. Nokoy (2002)
The common law regards many contractual liabilities as strict in the sense that, barring express and implied terms of the contract or contracts in which exercise of due diligence is of the essence of the contract such as a contract between the doctor and his patient, when a party has undertaken to perform an obligation that he did not perform it or could not perform it due to no fault of his does not exonerate him from the consequence of the breach. French law on the other hand recognises that contractual obligation may be absolute, strict or based on negligence. Thus there is the contractual obligation which requires a person to take reasonable care to achieve the result by the contract; there is a second category of contractual obligation which requires a person to achieve a particular result though it allows the excuse for non-performance of force majeure; then, there is the third which requires a person to achieve a particular result come what may, so that he is liable for any failure even in the case of force majeure; (I have adopted these categories from Bell, Boyron and Whittaker Principles of French Law, [Pub. 1998, Oxford University Press]) – Ayoola JSC. Maersk v. Nokoy (2002)
A misdirection as to evidence in regard to the date when the vessel arrived when the material issue is the date when the cargo was discharged, is inconsequential. – Ayoola JSC. Maersk v. Nokoy (2002)
An alternative award is an award which can also be made instead of another. It is not an additional or a further award. – Ayoola JSC. Maersk v. Nokoy (2002)
Where a plaintiff sets up two or more inconsistent sets of material facts and claims relief on each of them in the alternative, he will be granted such relief as the set of facts he established would entitle him. Only one of two or more alternative reliefs will be granted. Where the plaintiff on a set of facts asks for a relief and a second relief “further, or in the alternative” to the first, it is for the court to decide on the facts and on principle whether the grant of second relief as a further (additional) relief will not amount to double compensation for the same cause of action, in which case the second relief should not be granted. Where a plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first relief or merely as an alternative, he can claim the subsequent relief as a “further or alternative relief’. Where the first and principal relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a “further or alternative relief.” – Ayoola JSC. Maersk v. Nokoy (2002)
However, there may be cases in which the trial Judge though satisfied that the facts established are sufficient for a grant of a first relief claimed, wishes to leave his views on record as to the alternative relief, in case he was wrong on the first. In such cases it is a desirable practice that he considers the alternative relief in relation to the facts established, even though he should grant only the first. The advantage is that should the defendant appeal on the question of damages, the appellate court will have on record the findings and opinion of the trial court on the alternative relief, thus making it unnecessary to remit the case to the trial court for consideration of the alternative relief. A plaintiff who claims a principal relief and another in the alternative is to be taken as saying “on the facts alleged I am entitled to the principal relief, but even if on those facts I am not entitled to it, those facts will entitle me to this alternative relief.” Where the trial court awards the principal relief and has pronounced the plaintiff entitled also to the alternative relief in case he was wrong as to the one he granted on an appeal by the defendant on the question of damages, the plaintiff did not need to have cross appealed for the appellate court to substitute the alternative relief for the relief granted, if the alternative relief is available and is the appropriate relief on the facts established. It is in this regard that it may be wiser for an aggrieved defendant to show that the plaintiff was not entitled to either of the reliefs. That, as I understand the defendants’ case on this appeal, is what the defendants have sought to do. – Ayoola JSC. Maersk v. Nokoy (2002)