Waysang Kum Kee v Kiribati Oil Company Ltd [2010] KIHC 9; Civil Case 83 of 2009 (7 January 2010)

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

High Court Civil Case 83 of 2009

Between:

Waysang Kum Kee
Plaintiff

And:

Kiribati Oil Company Limited
Defendant

For the Plaintiff: Mr Mantaia Kaongotao
For the Defendant: Mr Banuera Berina

Date of Hearing: 7 January 2010

JUDGMENT
(Ex Tempore)

In his evidence Mr Kum Kee gave an account of events which have led to this dispute sufficient for me to have come to form conclusions.

KOIL requested the carriage of fuel to Kanton. When Mv Mataraoi got to Kanton the fuel could not be offloaded as the KOIL storage tanks were full. The fuel had to continue on the voyage to Kiritimati, Washington and Fanning and back to Tarawa. I accept Mr Kum Kee’s evidence that at none of these places could the fuel be offloaded. There was no practicable alternative to its being brought back to Tarawa. That was done. The initial mistake was that of KOIL in consigning the fuel to Kanton. KOIL must pay the cost of freight Tarawa to Tarawa.

By letter or memorandum dated 20 July 2005 but received by Mr Kum Kee on 9 August with an invoice of that date, KOIL offered to sell the fuel to Mr Kum Kee. Mr Kum Kee did not reply but he did use the fuel on a subsequent voyage early in 2006. By his use of the fuel in 2006 Mr Kum Kee signified his acceptance of KOIL’s offer of August 2005. Thus there was a valid contract between the parties for the sale and purchase of the fuel. The contract supersedes any term or condition to the contrary in the Bill of lading. Mr Kum Kee must pay for the fuel.

Having come to these conclusions I shall now leave it to the parties to work out the figures so that judgment may be entered.

Freight be calculated at the 2005 rate. No payment for storage.

THE HON ROBIN MILLHOUSE QC
Chief Justice