MOEL Trading Co Ltd v Kiribati Ports Authority - Judgment [2007] KIHC 42; Civil Case 58 of 2006 (19 January 2007)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 58 of 2006

Between:

MOEL TRADING CO. LTD
Applicant

And:

KIRIBATI PORTS AUTHORITY
Respondent

For the Applicant: Ms Berenike Iuta
For the Respondent: Mr Birimaka Tekanene

Dates of Hearing: 16 & 17 January 2007

JUDGMENT

On 20th March 2006 "Kiribati Chief" brought to Kiribati a container with 860 cartons of "frozen bone in chicken drumsticks" and with a net weight of 13,760 kg. The consignment was for the plaintiff, MOEL Trading Co. Ltd.

The container went into storage with the defendant, Kiribati Port Authority. It should have been kept at a temperature of -18oC but it was not. Something went wrong. Within a few days the chicken drumsticks went bad, not fit for human consumption. The whole consignment had to be dumped.

What went wrong? Who is to be held responsible?

The two witnesses of significance were Buraing Angibuaka for the plaintiff and Kateia Tingaia for the defendant.

Buraing is a tally clerk for MOEL. He supervised the unloading of containers for his employer and followed the usual practice of leaving them in storage until a little before storage charges begin. Container TRLU 1031050 with the drumsticks was left in store. Because its contents had to be kept at -18oC Buraing arranged for the electricity to be connected to the container so that the temperature would be maintained. The charge for electricity was $5 per hour.

Kateia Tingaia is an electrician working for the KPA. His version of the sequence of events varies a little from that of Buraing. I am sure both witnesses were truthful, doing their best to tell what happened. I prefer Kateia’s evidence to that of Buraing where the two accounts diverge: not that it matters: the significant facts are clear.

After some days it was noticed that the fan circulating the cold air in the container was not working. [One can see the fan from outside]. The temperature had climbed.

The first time the container was inspected a carton was opened and it seemed alright. Later some at least of the cartons had gone soft and were leaking blood.

Kateia described what had happened:-

Not the compressor that was broken but the fan: not operating. I didn’t check to fix it as I wasn’t sure if this was my responsibility. Have fixed a fan in a container lots of times. If it had been KPA property I could have fixed it straightaway.

That all came out as a result of my questions at the end of examination in chief. I invited Mr Tekanene to follow it up if he wished but he did not.

In cross examination Kateia:-

I didn’t report it to my boss as he was sick at the time ..... Buraing told me fan not working. I did check contents with Buraing. I did not offer to Buraing – to fix the fan: didn’t suggest he get an electrician, only that he should remove contents.

I had seen that it was still off in the three or four days between first and second inspections. After first visit I stayed for an hour or so to see if temperature would go down but it didn’t.

Duty to check temperatures: to see contents are not damaged. Duty to report to boss but I didn’t – reported to owners instead: told them no spare reefer available.

A "reefer" is a refrigerated container, such as TRLU 1031050. Eventually servants of the defendant found another reefer and transferred the chicken drumsticks to it. By then it was too late.

The cause of the problem was the failure of the fan. Kateia, the servant of the defendant, could have fixed it but he did not.

The defendant was a gratuitous bailee of the container and its contents. [I assume the charge for electricity of $5 per hour was an appropriate one and did not convert the gratuitous bailment into one for reward].

What obligations, then, did the defendant have? 2 Halsbury (3rd ed) @ para 202 sets out the obligations of a bailee. They come to this: to look after the goods in the same way as the bailee would look after his own.

The defendant did not do that. Kateia said he could have fixed the fan. If he had, probably no problem. Mr Tekanene conceded, when I pressed him, that as a matter of common sense – quite apart from the law – the fan should have been fixed. Had the container belonged to the defendant Kateia would have fixed it. He should have done the same for the plaintiff.

Mr Tekanene called in aid of his client section 35(2)(f) of the Kiribati Ports Authority:-

(2) The Authority shall not be liable for the loss of, or damage to, any goods to which this section applies arising from – ....

• (f) Any negligence of the owner or carrier of the goods; .....
  

Mr Tekanene suggested that the plaintiff should have taken the consignment. Whether the plaintiff had anywhere to keep the drumsticks at that time is not known. The defendant took "three or four days" to find another one. Then it, not the plaintiff, made the transfer. I could not find that the failure of the plaintiff to take the drumsticks nor its failure to get an electrician in to fix the fan – something Kateia failed to suggest to Buraing – amounted to negligence.

The plaintiff was not guilty of negligence. The defendant cannot take advantage of section 35(2)(f).

The defendant is liable to the plaintiff for its loss.

The only evidence of quantum is in the Commercial Invoice (Exhibit P1) which shews "$28,345.60". The claim is for $48,880 and interest of 15% per annum.

I shall regard this decision as one on liability and hear the parties on quantum.

Dated the 19th day of January 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice