DC93

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 199 OF 2002

BETWEEN

WILLIAM WANI
Complainant

AND

CONSORT EXPRESS LINES
Defendant

Mt. Hagen

S W Seneka
11 July 2003

JUDGMENT

S W SENEKA. This is a Motion moving the Court to dismiss this case. The basic is on their defence file on 11th October, 2002 and affidavit of Frenta Avia dated 28th November, 2002 and filed 11th December 2002. The defence dated 04th October, 2002 is as follows;-

DEFENCE

1.	The defendant denies the allegation contained in the Complaint and Summons upon Complaint and the statement.

2.	The complainant has no cause of action against the defendant as it fails to institute these proceedings within the statutory time limited provided under Articles 111.6 of the Schedule of the Sea Carriage Act Ch. No. 261 of the Revised Law of PNG.

3.	In the circumstances, no cause of action lies against the defendant and the defendant claim liability.

In this affidavit by Frank Avea complainant made a claim against the defendant in respect of (35) thirty five white bags of kaukau alleged to have been damaged on the Vessel Niugini Coast Voyage 2585 from Lae to Port Moresby. The Vessel arrived in Port Moresby on 21st March, 2000 but did not discharge its cargos due to the Waterside Workers Union strike. The strike affected the Ports of Port Moresby, Lae and Rabaul. The strike ended at 1:00pm on 05th April, 2000. The Release Docket for the Shippers including Complainant to collect cargos on time was issued on the morning of 6th April 2000. The kaukau and potatoes collected were rotten. Defendant then issued a letter dated 11th April, 2000 to the owners that they were denying liabilities as the owners have shipped their cargos in non refrigerated containers. The cargos were perishable goods and are shipped on their own risks. The owner has also signed a "Vegetable Indemnity Release" to that effect.

Defendant also claims no liability for Vessel's delay due to weather berth congestion, holidays, breakdown, and strikes action all beyond their control. Complainant has also on 03rd September, 2002 signed a "Vegetable Indemnity Release Form" releasing Defendant from any such liability.

Mr. Jaminen also submitted that they rely on Sea Carriage of Goods Act Chp. 261 Article 3. Clause 6. That Complainant should have laid this claim within a year but have waited for over a year which makes the claim time barred. Article 3 Clause 6 is as follows;-

ARTICLE 111 - Responsibilities and Liabilities.
1...
2…
3...
4...
5...
6...
7...
8. Unless notice of loss or damages and of the general nature of the loss or damage is given in writing to the carrier or his Agent at the Port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery under the Contract of Carriage, or if the loss or damages be not apparent, within three days the removed is prima facie evidence of the delivery by the carrier of the goods as described in the bill of loading.

The notice in writing need not be given if the state of goods has at the time of their receipt been the subject of join survey or inspection. 

In any event the carrier and the ship are discharged from all liability in respect of loss or damage unless suit is brought with one year after delivery of the goods or the date when the goods should have been delivered.

In the case of any actual or apprehended loss or damages, the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.

In the same Act Articles 4 (2) also spell out the rights and immunities of the carrier or the ship. Under Clause 2, it is not responsible for loss or damages as a result of amongst others strike.

Defendant's notice was heard without the presence of the Complainant on 24th April, 2002 and motion was adjourned for ruling on 02nd May, 2003. However, perusal of file shows that case was adjourned from 08th April 2003 to 28th April, 2003 for mention.

But since the motion was heard on 24th April, 2002 without the presence of Complainant, case was rescheduled from 2nd May, 2003 to 28th April, 2003 to hear Complainant's side of the story. On 28th April, 2003 and 02nd May, 2003 Complainant made no appearances so adjourn to 11th June, 2003 and calling notice dated 02nd May 2003 sent to Complainant to appear a 16th June 2003. On Complainant's appearance on 11th June 2003, Court explained the Motion and Defence counsel's submission to him. Complainant replied his affidavits are on file if Defendant or Court have any question he will answer them.

Complainant have number of affidavits on file on 30th January 2003 and 13th February, 2003 which have the same or similar to that of Franch Avas. But in his affidavit he said he came to unload his cargos, but Defendant ignored and refused to listen to him. As a result, the continuous delay damaged the kaukaus.

Complainant had taken possession of his (35) kaukau bags on the 05th April, 2000. On that date or soon after he should have written to Defendant, pointing out the damaged kaukau and their conditions. He had waited until 19th August, 2002 some two years four (4) months later he came and filed this complaint.

The law under Sea Carriage of Goods Act is quite clear. Where complainant is put in a situation that he has loss or damages to his cargos, he must notify the defendant before at the time of removal or within (3) days of removal. If no such notice, the removal is deemed to be delivered. My reading of this section shows that goods were delivered in good condition. But even if defendant knew the loss or damages and negligent or refused to compensate has within one year to sue.

Complainant has not notify the Defendant of the loss or damages of the kaukau before at the time of removal or three (3) days after the removal nor Complainant laid complaint within one (1) year after delivery. Complainant has not done any of those. The main contention is that he failed to file his case within (1) year.

He filed this case into the Court on 19th April, 2003 some two (2) years (4) months after delivery of goods on 05th May, 2000. According to Sea Carriage Act, the claim is time barred. 

COURT ORDER

On that basis application is granted without cost.
Case dismissed. Defendant discharged.