Bobotin Kiribati Ltd v WKK Shipping Line - Judgment [2006] KIHC 156; 87-05 (25 May 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case No. 87 of 2005

Between:

BOBOTIN KIRIBATI LTD
Plaintiff

And:

WAYSANG KUM KEE T/A WKK SHIPPING LINE
Defendant

For the Plaintiff: Mr Banuera Berina
For the Defendant: Mr Karotu Tiba

Date of Hearing: 25 May 2006

JUDGMENT

Dispute over 120 bags of Fiji raw sugar. The plaintiff ordered 600 bags of sugar for delivery on TabNorth: when the cargo was offloaded the plaintiff claims the consignment was 120 bags short. The value of 120 bags of Fiji raw sugar is in the pleadings, both Statement of Claim and Defence, and in the claim for cargo short landed, given as $2,658. The value was not disputed at the hearing. I take it to be common ground that 120 bags of Fiji raw sugar in September/October 2005 were worth $2,658. If I am mistaken and the parties do not agree value I shall assess damages.

A consignment of goods, set out in the Shipping Instruction Form (Exhibit P1) was shipped by the defendant on his vessel MV South Seas Mana and delivered to the plaintiff on TabNorth.

The cargo was offloaded during the first week in October. Bauro Karianako, the branch supervisor for BKL on TabNorth gave evidence that when it was landed on the beach he and the supercargo, Etitoka Tewannanti, checked the Shipping Instruction which the supercargo had with him. Bauro admitted that after the check he began selling some of the most needed goods, including the sugar from the beach. He could not start selling, he said, without the supercargo’s permission.

The rest of the cargo went by truck, accompanied by two BKL salesmen, to a warehouse at another village.

Etitoka told a different story: Bauro began selling on the beach before all the cargo had been unloaded. Etitoka was not quite happy about it but allowed the selling to continue.

Some days later Bauro filled out the pro forma (Exhibit P2) used for complaining about short deliveries. The largest item is "120 x Fiji raw sugar 25kg (unit price) 22.15 2658". Bauro signed it as "manager". His signature was witnessed by Etitoka as "supercargo". Although Etitoka is described merely as witness to Bauro’s signature it was accepted at the hearing (and even without Etitoka’s admission I would have had no difficulty in finding) that by witnessing Bauro’s signature he was acknowledging the accuracy of the complaint. In cross examination Etitoka made this admission:-

Acknowledge short landing by signing on claim. P2 is usual form. Form not new to me. Knew claim would follow. I signed because I knew the goods listed had been short landed.

On the form has been written - it seems by Bauro at Etitoka’s request:-

Cargo aikai tenaan short landed on the MV 003002 Date 29/09/05 Tao e bon atai kabwarabwara super cargo on MV South Sea Mana.

Etitoka asserted this meant he was making a reservation about the accuracy of the claim. That is not what the words say: they are an admission that there were goods "short landed" but that may be the supercargo had an explanation for it. If Etitoka did not agree with the accuracy of the list of items short landed it would have been wise not to have witnessed Bauro’s signature, not to have signed at all.

Mr Tiba implied ingeniously all sorts of explanations as to what could have happened to the sugar once it left MV South Seas Mana but the plain facts are against him - Etitoka’s signature on the claim form and his admission in cross examination.

Unless it is necessary to assess damages there will be judgment for the plaintiff for $2,658. If it is necessary to assess, then there will be judgment for the plaintiff on liability with damages to be assessed.

Dated the day of May 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice