IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 4 of 2010

BETWEEN:

Josaia Navoka Kaisuva also trading as
CargoCare Freights
Plaintiff

AND:

Maersk Australia Pty Ltd
First Defendant

AND:

Shipping Services (Fiji) Ltd
Second Defendant

Appearances: Mr Hiuare for the plaintiff
Ms Radhika Naidu for the defendants

Dates of hearing: 10 November, 2011, and 27 March,2012

JUDGMENT

1.	There are three parties concerned in this case. First, the plaintiff, the shipper of cargo carrying on business as CargoCare Freights; second, the first defendant, an international shipping carrier company; and third, the second defendant, the first defendant's agent in Fiji . 

2.	The statement of claim recites that by bill of lading No 801404937 dated 22nd June, 2009, the second defendant acknowledged shipment on board their vessel at Suva, 4 containers containing "4 bulk of heavy melting scrap". The second defendant undertook to deliver the consignment to the plaintiff or their orders at Chennai, with freight being prepaid, as stated in the bill of lading. The plaintiff was the owner of the goods. The statement of claim proceeds to state that the defendants, in breach of contract and their duty as carriers for reward, failed to deliver the 4 containers to V One Zero Eight & Co at Tuticorin, India, or alternatively, wrongfully and without authority, delivered the 4 containers to V One Zero Eight & Co, without production of the relevant Bill of Lading, thereby converting the said goods. The plaintiff claims the value of the goods and the loss and damages suffered in a sum of $ 70, 722.78. The particulars of losses are set out in the statement of claim.

The first and second defendants, in their respective statements of defence, state that delivery was made to the party nominated by the plaintiff. The first defendant counter-claims for unpaid freight in a sum of $ 47,282.73. 

The plaintiff, in his reply to the statements of defence filed by the first and second defendants, states that the first and second defendant breached their contractual duty to ensure that the 4 containers reached the plaintiff's buyer .The counter-claim is denied.

3.	The hearing

The plaintiff's evidence

The plaintiff testified that on 22nd June, 2009, he shipped 4 containers of scrap metal on the vessel of the defendants. The second defendant undertook to deliver the consignment to the consignee, V One Zero Eight & Co at Chennai. V One Zero Eight & Co had not paid the plaintiff for the goods, since the goods did not reach them. The goods were lost in the custody of the defendants. The plaintiff stated that he had been shipping cargo on the second defendant's vessel, for a period of two years. This claim was made, as local agent for Austrader Pty Ltd of Australia, the owner of the goods.
 
In cross-examination, the plaintiff stated that the second defendant had retained the original Bill of Lading, since the plaintiff had not paid freight. The goods were first consigned to AKR Viyapaar .The plaintiff had requested that the consignee be changed to V One Zero Eight & Co. The plaintiff was also cross-examined, as to the reason his invoice of 1 August, 2009, in support of his claim, pre-dated the bill of lading dated 07 August, 2009. The plaintiff's response was that the invoice was so prepared, in order to make a claim against the first consignee, which had dishonoured payment. 

The plaintiff explained that the phrase "freight prepaid" meant that freight was paid at the port of loading, in Fiji. The plaintiff stated he did not collect the original bill of lading, as he had not paid freight. The normal practice, he said was to pay the freight, upon receiving the money for the cargo from the consignee. He then, collects the bill of lading and sends it to the consignee, to take delivery of the goods. He stated further that he had not authorised the second defendant to release the cargo to the consignee. The plaintiff stated he was not aware that the cargo was sold on the high seas by V One Zero Eight & Co,as stated in the email produced by the defendants. 

The plaintiff was recalled to testify, since Ms Naidu, counsel for the defendants moved to
produce several emails, after the plaintiff's evidence was concluded.

The defendant's evidence

Jale Gavidi, the Manager of the second defendant company gave evidence on behalf of the defendants. He said the plaintiff was a freight forwarder, who shipped goods on behalf of Austrader Pty Ltd, as their agent. In the present case, the goods, according to his records, were delivered to the consignees, V One Zero Eight & Co. He produced in support, a document from the Customs in India attached to an email from Maersk India Ltd .He also relied on a letter from Austrader Pty Ltd, which had requested that the consignee's name be changed from AKR Viyapar Ltd to V One Zero Eight & Co . He did not receive any complaint that V One Zero Eight & Co had not received the goods. The defendant was claiming a sum of $ 47, 282.73 as freight. 

In cross-examination, Jale Gavidi stated that the original Bill of Lading was not released to the plaintiff, since he had not paid the freight charges, as he had not received the monies from the consignees. The arrangement was to give credit to the plaintiff, for freight, but the original bill of lading was not released, until payment was made. 

4.	The determination

The agreed issues recorded at the pre-trial conference read as follows:

Was the plaintiff at all material times the owner of the said goods?
Whether the defendants delivered the said goods to the party as instructed by the plaintiff and/or his agents?
Whether the defendants are in breach of contract and/or its duty as carriers?
Whether the plaintiff has any cause of action against the second defendant whether the second defendant should have been made a party to this action?
Whether the plaintiff suffered loss or damages in the sum of $70,722.78?
Is plaintiff entitled to any interest on the said sum?
Whether the plaintiff is in debt to the 1st defendant in the sum of $47,282.73 for the unpaid freight charges?
If yes, is the 1st defendant entitled to the interest on $47,282.73 at the rate of 15% from 1st December, 2009 to the date of full payment?

As regards the first issue, the plaintiff stated that he was in the business of shipping goods on behalf of Austrader Pty Ltd. This evidence was unequivocally supported by Jale Gavidi, the Manager of the second defendant company. I am satisfied that the plaintiff is entitled to make this claim, as agent of Austrader Pty Ltd, the owner of the goods. 

I turn to the central issue in this case, namely whether the defendants delivered the goods to the party, nominated by the plaintiff. 

The plaintiff's case is that the goods were not delivered to the consignee, V One Zero Eight & Co or alternatively, delivered to that consignee, without production of the bill of lading. It transpired in the cross-examination of the plaintiff, that he had not received any communication from V One Zero Eight & Co, that it did not receive the goods. His evidence reads as follows:

Ms Naidu: I say to you Mr Kaisuva that you have not produced any evidence, nothing to show that the goods have not been received by V ONE ZERO EIGHT.

Mr Kaisuva: I have not received any confirmation....

Ms Naidu: But you agree that you do not know if V ONE has received it or not. You agree with that.

Mr Kaisuva: I agree that I do not know whether they received it or not. (emphasis added)

The onus was on the plaintiff to prove that the goods were not delivered to the consignee. In my judgment, this he failed to do.

The defendants contends that the goods were delivered to the consignee, V One Zero Eight & Co. In support, the Customs checklist issued from Chennai was produced. This document depicts that the importer of the goods was the consignee, V One Zero Eight & Co, as admitted by the plaintiff, in cross-examination, as follows

Ms Naidu: That customs checklist confirms that the importer is V ONE ZERO EIGHT. Do you agree?

Mr Kaisuva: The importer is V ONE ZERO EIGHT.

Ms Naidu: And you also will agree that if the goods have arrived in India as per the checklist confirmation with the stamp from the Chennai ports and the importer is named as V ONE ZERO EIGHT, is it correct to say that the goods have reached India with the goods being imported by V ONE ZERO EIGHT?

 Mr Kaisuva: Yes. (emphasis added)

A letter from Austraders Pty Ltd of 5th August, 2009, was also produced by the defendants' witness, informing the Deputy Commissioner of Customs of the change of consignee from AKR Viyapar Ltd to V One Zero Eight & Co, due to the earlier consignee failing to make payment. The letter requests that changes in the customs records be made accordingly.

In my judgment, the defendants' evidence, as accepted by the plaintiff, establishes that the goods reached India. It was left to V One Zero Eight & Co to take delivery, from the Customs.

The defendants also produced an email from stating that the cargo was sold on "High Sea Sale" basis. This was refuted by Ms Naidu. I find the contents of that e-mail inconsistent with the Customs checklist issued from Chennai

The plaintiff advanced the proposition that he became liable to pay freight, only upon the consignee paying him the price for the goods.

I turn to the bill of lading, which governs the contract between the parties. On the second page are these words "FREIGHT PREPAID". The natural and ordinary meaning of this phrase is that the sellers have prepaid freight at the port of loading. The plaintiff testified to this effect, as follows:

Ms Naidu :  So freight prepaid means you pay at the place the goods is being loaded?

Mr Kaisuva: That is right. ... 

Ms Naidu: They have provided the service. You have not paid. I say to you that you did not pay because you did not receive payment on your shipment. Is that correct?

Mr Kaisuva: That is right. (emphasis added)

The plaintiff, in his evidence in chief, stated he was not issued the bill of lading, since he had "not paid the freight to take the cargo to take the delivery or to send it to India to send it to V ONE to take the delivery". (emphasis added) 

The closing submissions of the plaintiff argues that the original bill of lading was not released, since the 4 containers were sold to a third party without his consent. In my judgment, this contention is overtaken by the fact that that the bill of lading was admittedly not released to the plaintiff, since he had not paid freight. In my view, it would be fanciful to expect a ship-owner to deliver a bill of lading, before freight is paid.

In my judgment, the plaintiff's claim fails . 

The counter-claim

I now turn to the counter-claim for freight . It was not in dispute that freight is due to the defendants.

In my judgment, the defendants have established their right to freight in respect of the shipment under bill of lading No 801404937. The defendants' counterclaim against the plaintiff, in a sum of $ 17,829.62 succeeds. The defendants have claimed interest on this sum. No evidence has been led in this regard. Accordingly, the claim for interest is declined.

The counterclaim contains several other claims, which in my opinion, are quite incompatible and unconnected with the plaintiff's "matter" within the meaning of Or 15,r.2 of the High Court Rules. I decline those claims.

5.	Orders

(1). The plaintiff's action is dismissed.
(2). The plaintiff shall pay the defendants a sum of $ 17,829.62 together with costs summarily assessed in a sum of $ 2500.

A.L.B.Brito-Mutunayagam Judge
23rd January, 2013