Hauhaea v Laurabada Shipping Services Ltd [2005] PGDC 31; DC200 (13 July 2005)

DC200

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 781 OF 2003

BETWEEN

K. Hape Hauhaea
Complainant

V

Laurabada Shipping Services Limited
Defendant

Port Moresby: Bidar, Pm
2005: 11th & 13th May; 9th June & 13th July.

Shipping - Carriage of goods by sea - Action for loss of goods - Loss of drums of zoom and kerosene - Onus of proof.

Shipping - Carriage of goods by sea - Action for loss of goods - Limitation of liability - Bill of Lading - Contract of carriage of goods - Exclusion clause - Limited Liability - Judgement for defendant.

Cases Cited
Rabaul Stevedores Ltd & Another -v- Seeto [1994] PNGLR 248,
Finch -v- Seafreight Pty Ltd & Others [1976] PNGLR 440.

13th July 2005.

DECISION

BIDAR, PM: On 21st January 2002 the complainant bought 5 x 44 (200 litre) drums of zoom and 3 x 44 (200 litre) kerosene to be shipped to Ihu, Gulf Province.

He had arranged with the defendant company to ship his goods. After Mobil delivered these goods to the wharf, the complainant paid the appropriate costs for shipment of goods to Ihu. As usual Bill of Lading was issued for carriage of these goods. Upon delivery at Ihu, the complainant received out of 8 drums, 4 drums of zoom and 3 drums of kerosene. One (1) drum of zoom was not received and was recorded as lost.

On his second trip to Port Moresby in May 2002, he bought 10 drums, 5 kerosine and 5 zoom, all 200 litre drums. As usual he paid freight and Bill of Lading was issued for these goods. After shipment, he received 5 drums of kerosene and 2 drums of zoom. The 3 drums of zoom were not found and were recorded as lost.

After experiencing these two incidents he wrote to the defendant company on seven occasions but he received no response at all from the defendant. In August 2002, he visited the company office and talked to a Mr. Jimmy Kila, that four of his drums were lost between port of loading and port of delivery. He requested replacement of 4 drums by defendant. The company did not oblige but offered complainant a credit in the sum of K1,007.70 for future shipment of goods. Complainant refused the offer and commenced these proceedings.

The evidence is summarised in this manner.

- It was contract of carriage of goods between the parties which is contained in the standard Bill of Lading. (Exhibit D1).

- Complainant was happy with the Bill of Lading and did not see anything wrong with it.

- Complainant agrees the goods were not lost on the ship itself but were lost before loading or after discharge from the ship.

- Clause 6 of Bill of Lading is a team of contract of carriage between the parties which expressly limits the liability of the defendant to losses incurred during the period of time the goods are on the ship itself.

- Defendant relies on clause 6 of Bill of Lading as its defence on the issue of liability.

The issue to be resolved is whether or not the defendant is liable under the contract of carriage.

The relevant law is Sea Carriage of Goods Act 1951. Schedule 1 of the Act defines the phrase "carriage of goods" to cover the period of time when the goods are loaded to the time they are discharged from the ship. It also stipulates that a Bill of Lading is a contract of carriage.

In Finch -v- Seafreight Pty Ltd & Others [1976] PNGLR 440, a case for claim of damages for loss of goods shipped by the defendants. Court held that the first defendant failed to prove that the goods were lost before loading and after discharge and because default judgement had been entered, the first defendant could not seek to limit its liability by relying on an exclusion/exemption clause in the Bill of Lading.

In this case complainant has failed to prove that the loss of his goods occurred at the time they were loaded onto the ship and to the time they were discharged at Ihu port. In these circumstances the defendant’s liability was excluded by clause 6 of the Bill of Lading.

In all the circumstances Court finds defendant not liable. The complaint is therefore dismissed. In the exercise of Court’s discretion no costs are awarded.

Rules accordingly.

Appeared In Person: Complainant
Mr. W. Tekwie: Defendant