FTCC 008/13 2013 S. N0.08

IN THE HIGH COURT OF SIERRA LEONE
(COMMERCIAL AND ADMIRALTY DIVISION)

ADMIRALTY ACTION IN REM AGAINST THE VESSEL MV"PARAPHATHEPPRARAT"

SAAD GROUP LIMITED PLAINTIFF AND
THE OWNERS AND/OR PERSONSINTERESTED DEFENDANT IN THE VESSEL MV MV"PRAPHATHEPPRARAT"
 

P.Lambert Esq.for the Plaintiff
S.K. Koroma Esq.for the Defendant

_
JUDGMENT DELIVERED THE 10th Dayy of April 2014

By writ of Summons dated 4th February, 2013 the Plaintiff claims against the

Defendant the following reliefs

(a) Damages as a result of breach of contract of carriage between the parties.
(b) Interest on the said damages from 4th February 2013 until judgment

pursuant to the Law Reform (Miscellaneous Provisions) Act Cap 19 of the Laws of Sierra Leone 1960.
(c) Any further or other relief.

(e) Costs.
 

In their particulars of claim the Plaintiffs allege that under seven bills of lading numbered KDBS15-KDBS21 respectively all dated 24th November 2012 and issued on behalf of the Defendant's vessel MV"PRAPHATHEPPRARAT" 9000 tons of rice contained in 180, 000 bags of rice (hereinafter called "the cargo") were shipped in good order and condition for carriage from Kakinada, India to Freetown, Sierra Leone and for delivery therein in like good order and condition for an agreed price which said price has been paid to the Defendants who have acknowledged receipt of same.

The Plaintiffs further allege that they are the owners of the said cargo and entitled to possession thereof and/or are the persons to whom risk in the said goods pass by virtue of the endorsement to them of the said bills of lading or to whom property in the said goods has passed upon or by reason of such endorsement.

The Plaintiffs also allege that in the light of the above the Defendants were under a duty as bailees and/or carriers by sea to deliver the said cargo in the like good order and condition as when shipped.

They claim that in breach of their duty as owners and/or carriers and/or bailees for reward and/or in breach of the contract contained or evidenced by the said bills of lading, the Defendants failed to deliver the cargo in the like good order and condition but delivered the same short or damaged.

The Plaintiffs then gave particulars of the losses they suffered which were reported in several folios. A summary of the losses is as follows
25o/o long grain rice US$ 206,014.62

25% Medium grain rice

5% long grain rice

Cost of reconditioning etc

Grand Total

281,156.27

139.914.56

287,600.00

914,685.44
 

The Plaintiffs also gave particulars of negligence on the part of the Defendants as failing to properly handle, load, stow, carry, keep, care for and discharge the said cargo in good order and condition; and failing to ensure that the covers of the hatch were in good order and condition. They also relied on the doctrine of res ipsa loquitor.

 

The Plaintiffs claim further or alternatively that the contract contained in or as evidenced by the said bills of lading was subject to the Hague and Hague Visby Rules and relied on Article 111 thereof which provides the duties of the carrier before or at the beginning of the voyage and at the discharge of the cargo and which are to be carried out with due diligence.

The Plaintiffs therefore claim that in breach of the said contract and/or duty the Defendants failed to properly man, equip the vessel and make those parts thereof in which the cargo were carried safe for their reception, carriage, and preservation and/or properly and carefully keep and/or care for the said cargo. As a result of the said breaches of the contract the Plaintiffs suffered loss and damage as described above. They therefore claim damages for the said breach of contract, interest thereon and costs.
The Defendants entered appearance to the said writ of summons and filed a statement of defence.

In the said defence the Defendants admitted that they were under a duty as bailees and/or carriers of the said cargo as alleged but averred that such responsibility is limited to factors within their control. They denied that they breached the contract as alleged and averred that the goods were delivered in good condition but were short or damaged which was as a result of several factors including but not limited to the handling of the cargo by the stevedores, the pilferage of the cargo whilst being discharged and or stocked in the Plaintiffs store.

They further averred that the loss estimated by the Plaintiffs did not reflect a true and just picture of the damages claimed as the particulars of loss claimed by the Plaintiff was as at a date when the discharge of the rice was not complete.

They alleged that the vessel completed discharging the cargo on lOth February2013 and a final report was prepared by the Plaintiff's Surveyor ERGET SCT AFRICA SARL (ERGET) which was signed by the representatives of the Plaintiff and Defendant respectively and other surveyors.

The Defendant then gave particulars of the said fmal report which showed that the total number of bags of rice missing was 3783.

The Defendants further alleged that most of the damage done to the cargo was as a result of the Plaintiffs negligence and proceeded to give particulars of negligence.

They denied that they were in breach of the contract contained in the said bills of lading and they too relied on the Hague and Visby Hague Rules and further averred that the cargo was not damaged whilst being carried but on discharge. They therefore denied being negligent as alleged by the Plaintiff and averred that the Plaintiff shipped the cargo under Cost Insurance Freight (CIF) and therefore the Plaintiffs loss should be covered by insurance.

At the trial, SAAD N.SAAD, a director of the Plaintiff Company testified on its behalf. He testified as to the facts of this matter which are briefly as follows: The Plaintiff Company purchased 9000 metric tons of rice from SEACOR COMMODITY LLC which company in turn purchased the said rice from LT FOODS OF INDIA. LT FOODS chartered the vessel MV "PRAPHATHEPPRARAT" to deliver the cargo of nee from India to Freetown. The Defendant then issued clean bills of lading which stated that they were subject to the Hague and Hague Visby Rules.

The cargo of rice was loaded on board the Defendant's vessel and was inspected in India by Bureau Veritas and certificates of weight/quality/packing condition were issued by the said Bureau Veritas. The said Bureau Veritas certified that it inspected the said cargo at various warehouses and whenever in India and on board the vessel from 2151 August to 24th November 2012 and found the average weight of the bags to be 50.140 kgs.

The vessel left India on 24th November 2012 and arrived in Freetown on 28th January 2013. It berthed at the Queen Elizabeth QuayFreetown on 29th January 2013. The cargo and holds of the vessel were inspected by the Plaintiffs representatives together with the representatives of the insurers, the owners of the vessel and their P & I club. A report was produced of the condition of the holds and cargo by ERGET the representatives of the Plaintiffs insurers. The gist of the report, Exh 2 is that the cargo was not in apparent good order and condition as bags with less weight tom bags and tom empty bags were observed. The report further stated that hatch covers and manhole were closed without seals/padlock and there were lots of weevils seen on the cargo.

The Plaintiff in his testimony stated that when he and the said representatives boarded the vessel for the pre-discharge inspection which was done in the presence of the Chief Officer and the Captain they observed that the cargo weight was not uniform, that is some bags contained less than 50 kgs although they were found with no sign that the bags had been tom. Some bags were caked and mouldy. Some bags were tom and rice was leaking out of them and some bags were completely empty.

He testified that photographs were taken which showed the state of the cargo – Exhs S 1-11 and T 1-15

The Plaintiffs sent a letter of protest dated 2nd February 2013 Exh BB to the Defendants to which the Defendants responded by letter dated 4th February 2013, Exh CC. The Plaintiff responded by a further letter dated 5th February 2013, Exh DO. Further ERGET , the representatives of the plaintiffs insurers also wrote to the Defendant pointing out the discrepancy in the weight of the cargo.

The Plaintiff undertook a weight verification exercise of the cargo of rice and invited the Defendants to observe but they turned down the invitation. The weight verification exercise was carried out by ERGET who prepared a daily report of the said exercise. The exercise was carried out in the presence of representative of the Defendants and of the P & I club, ARPO. The reports were signed by ERGET and counter signed by ARPO. From the said daily reports the Plaintiff produced a summary of its losses and damages suffered. See Exh PPl-5 and QQl-5.

The Plaintiffs claim losses for both insured and uninsured losses. A summary of all the claims contained in Exh PP1-PP4 is shown in Exh PP5. He claims that the actual loss for the marine claim only can be found in Exh QQI-5.

The witness PW1 further testified that the Plaintiff had to purchase empty rice sacks to undertake the reconditioning of the rice and also had to expend money on labour to carry out the reconditioning and he asked the court to give judgment in the Plaintiffs favour for the losses which it suffered.
 

The witness PW1 was cross-examined at length on his testimony. No other witness was called on behalf of the Plaintiff and that ended the Plaintiff's case.

 

The Defendant called one witness to testify on its behalf. MOHAMED SESAY DW1 a P & 1 Surveyor testified that he carried out a tally of the Plaintiffs
cargo and a report was prepared which he identified as Exh VV 1-71

 

He told the court that the report was prepared by himself and another person, a

MR.CAMA.

 

The witness DW1 also identified Exh XX, a document he stated which was prepared by the Plaintiff. He testified that after reading the document they did not agree with the figure given therein for sound bags during discharging amounting to 155, 484 bags. He said that they eventually signed the document but added the comments therein that it was signed" for receipt only without prejudice."

The witness also identified Exh GG10 as a summary of the discharge of the said cargo prepared by ERGET. He stated that according to the said report the total number of bags discharged from the vessel is 176,217 bags and the total number of bags that were delivered to the Plaintiffs warehouse is 174,898. He stated that the difference is 1228 bags. He explained that some labourers stole the rice during discharge and turned some of the rice into other bags which was the reason why they discovered more empty bags ashore than on board.

 

The witness went on to describe the method used in carrying out the checking of less weight bags and sound bags and that a daily report was prepared. He stated that at the end of the discharging the Plaintiffs representative asked for
50-60% depreciation on a total of 8216 bags weight bags to which they all agreed. Further that the said Plaintiffs representative asked for 60% of the sound stack as less weight bags.

He told the court that he was present during the discharging when the sound bags were being weighed and stated that from his estimation there were 18% less weight during discharging.

The witness was cross-examined on his testimony. That ended the case for the

Defendant.

 

Both counsel submitted written closing addresses.

 

The Plaintiff has alleged that they have suffered loss and damage as a result of the Defendant's breach of contract of carriage of their goods in failing to deliver the said goods in the like good order and condition but delivered the same short and/or damaged.

 

The first issue to be determined here is whether the Defendants took delivery of the goods in good order and condition. There is evidence shown from the certificates of the Bureau Veritas in India, Exhs L to R inclusive that the cargo of rice was received in good condition and about 5% bags selected at random

were checked weighed to ascertain gross weight and the average weight was found to be 50.140 kgs.

Counsel for the Plaintiff submitted that this evidence was not impugned or challenged by the Defendants. It is therefore established that the cargo of rice was loaded on board the Defendant's vessel in good order and that the average weight was 50. 140 kgs.

Indeed the Defendant in their defence denied that they were in breach of their duty as bailees or carriers for reward or in breach of the contract contained in the bills of lading and averred that the goods were delivered in good condition but was short or damage which was a result of several factors including but not limited to the handling of the cargo by the stevedores the pilferage of the cargo whilst being discharged and/or stocked in the Plaintiff's store.

 

The Defendants therefore admit that some of the cargo were delivered damaged but attributed responsibility for some of the damage to the negligence of the Plaintiff's during discharge.

 

What then are the duties of the carrier? Counsel for the Defendant submitted that in Sierra Leone, the law governing the Carriage of Goods: by sea for which there is a domestic legislation is the United Nations Convention on the Carriage of Goods by Sea 1978 (Ratification) Act No. 2 of 1988 otherwise known as the Hamburg Rules.

He further submitted that the Hague and Hague Visby Rules have not been adopted and ratified in Sierra Leone therefore it is only the Hamburg Rules that are applicable. Counsel therefore relied on Articles 4 and 5 of the said Hamburg Rules in his submission that the period of responsibility of the carrier for cargo is at the port of loading during the carriage and at the port of discharge. He contended that in this case the Defendant was in control of the cargo from the port of Kakinada in India until the goods arrived at the Queen Elizabeth 11 Quay in Freetown.

 

Counsel further referred to the contract of purchase between the Plaintiff as buyer and SEACOR COMMODITY TRADING LLC as seller Exh BBB3 where the buyer guaranteed as part of the discharge terms to discharge at the rate stipulated in the said contract He therefore argued that the period of responsibility for the carrier is when the goods arrived at the port In this case the seller he submitted has agreed with the buyer that is the Plaintiff that the seller is responsible for the discharge of the cargo from the vessel. He therefore maintained that any damage that occurred whilst the cargo is being unloaded and whilst in the custody of the consignee is not the responsibility of the carrier.

 

The issue here is whether it is the Hague and Hague Visby or the Hamburg

Rules which are applicable in this case.

Counsel for the Plaintiff in response to the submission made on behalf of the Defendant argued that the Hamburg Rules do not apply as they do not have the force of law in Sierra Leone since no date on which the Act should come into force has been fixed by the President by notice in the Sierra Leone Gazette as is required by the Constitution of Sierra Leone, 1991.

Alternatively, counsel for the Plaintiff argued that the court should not consider the said Hamburg Rules applicable as the Defendant in its statement of defence had pleaded that they relied on the Hague and Hague Visby Rules. He referred the court to Order 21 Rules 8(i) (b) and (c) of the High Court Rules 2007.

It is settled law that a party is bound by its pleadings. Counsel for the Plaintiff has relied on Order 21 Rules 8 (i) (b) which he submitted made it mandatory for a party to a cause in any pleading subsequent to a statement of claim to plead specifically any matter which if not specifically pleaded might take the other party by surprise or which raises issues of fact not arising out of the preceding pleading.

 

Counsel contended that the Plaintiff is taken by surprise by the Defendants reliance on the Hamburg Rules since they did not plead or rely on same in their statement of defence but rather had concurred with the Plaintiff that the Hague and Hague Visby Rules were applicable to the bills of lading.

 

The issue therefore is whether the Defendant's failure to plead that the

Hamburg Rules are applicable to this case is fatal.

Clearly there is no doubt that the Defendants in their pleadings specifically relied on the Hague and Hague Visby Rules. Can the Defendants now in their submission depart from their pleadings and rely on a statute not pleaded thus taking the Plaintiffs by surprise and depriving them of the opportunity to meet the Defendant's case?

In answer to these submission, counsel for the Defendant referred the court to Order 21 rule 11 and submitted that it states a party may by his pleading raise any point of law. He argued that there is a difference between pleading a point of law and pleading a statute. He maintained that it is not imperative for the Defendant under the rules to have pleaded the statute.

With all due respect to counsel for the Defendant the main object of pleadings is for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to the court to prove or defend. In as much as it is not imperative to plead a statute, in this case where the Defendant has specifically pleaded that he relies on a particular statute or statutory provision, he is bound by those pleadings. He cannot now at the trial submit that those provisions are not applicable.

 

In the circumstance the Hamburg Rules do not apply and the issue of notice as required under the Hamburg Rules is not necessary in this case. In any case there is no reference to the failure to give the required notice in the pleadings nor was the issue raised at the trial and only came up in counsel's written closing submissions.

Surely the said issue cannot now be seriously considered in the light of the fact that the parties had expressly agreed that the Hague and Hague Visby Rules

should govern the contract between the parties.

 

The next issue for consideration is whether the Defendant is responsible for the loss and damage of the cargo in the quantum claimed by the Plaintiff.

There is no doubt that the Defendant has admitted responsibility for some of the loss and damage to the cargo. Counsel in his submission stated that it is their admission that the liability of the carrier is for the rice that short landed, the less in weight bags that were removed from the vessel when it has been reconditioned and the torn bags before handling. He denied that they were liable for tom bags during handling and shortage that occurred from the sound bags and the loss of quality claim.

 

The Defendants have also alleged that some of the Plaintiffs losses were as a result of stealing, pilfering and deliberate or negligent handling of the cargo of rice by the stevedores during discharge. Counsel for the Plaintiff stated that the theft and damage to the cargo during discharge are the responsibility of the Defendants in accordance with the Hague and Hague Visby Rules which both parties had agreed are applicable to the contract for the carriage of the Plaintiffs cargo.

 

Counsel referred to Article 3 clause 2 of the said Hague Rules which provides

that

 

"Subject to the provision of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried."

Article III (2) of the Hague Visby Rules also makes similar provision. Counsel also referred the court to Marine Cargo Claims by William Tetley Q.C 2"d ed at page 249 where it states that

"Theft by the carrier or a crew member or other servant of an agent is the responsibility of the carrier by virtue of 4 (2)(q) ... "Stevedores" and other independent contractors are "agents " of the carrier and so the carrier is responsible for their theft as well."

The law is therefore clear that stevedores are the agents of the carrier and any theft by them during discharge is the responsibility of the carrier. There is no evidence before the court that under the terms of the contract they are not liable for damage to the cargo of rice during discharge. Furthermore there is no evidence that the Plaintiffs were complicit in the theft of the rice by the stevedores as alleged by the Defendants.

Now there has been a lot of controversy about the figures shown in the several reports tendered before the court showing the number of bags short landed, tom bags before and during discharge, less weight bags and sound bags. Each party has sought to discredit the figures set out in the others report.

 

There is evidence that the Plaintiffs protested in writing to the Defendants on the 2nd February 2013 when during discharge a number of less weight bags were discovered and there followed an exchange of correspondence - See Exh BB to Exh DD. ERGET by letter dated 30th January 2013 also notified the
Defendants of the discrepancy in weight of the cargo and they produced a report

after completion of the discharge. See Exh EE 1-3

 

There is also evidence that the Plaintiffs solicitors wrote to the Defendants informing them that they intended to commence weighing the less weight bags and invited the Defendants to send a representative to witness and record the process -Exh HH. The Defendants declined the invitation but rather by letter dated 13th March, 2013 offered to pay the sum of US$ 200,000 by bank guarantee as security for the release of the vessel.

 

The Plaintiffs proceeded with the reconditioning of the rice which was done in the presence of the Defendants representatives. ERGET kept a daily report of the reconditioning- See Exh JJ to OO Counsel for the Defendant has queried these daily reports and submitted that there is no differentiation in the said reports showing whether the reconditioning is for bags tom during handling or for bags tom before handling. He therefore submitted that it would be difficult to ascertain whether to treat the total number of tom bags before handling as complete loss or reconditioned.

However he admitted that the liability for the less weight bags that were delivered is with the carrier, the Defendant but that it is for the Plaintiff to show the court with certainty how many bags were recovered after the reconditioning, which ones were 5% broken, 25% med ium and 25% long grain. He submitted that failure to so prove would amount to failure on the part of the Plaintiff to show the exact amount of damages to which it is entitled.

Counsel for the Plaintiff submitted that the reconditioning was done in the presence of ARPO the P & I club representatives of the Defendants and that the reports were countersigned by the said representatives as testified by the Defendants witness in cross-examination.

Counsel for the Plaintiff submitted that from the daily reports the Plaintiff produced a summary of its losses and damages suffered. These are contained in Exh PPI-5 and Exh QQ 1-5. The figures reflecting the number of bags of each category of rice short landed have not been controverted. Rather, it is the prices which have been and counsel for the Defendant has alleged that the cost of the rice per metric ton has been inflated. For instance, he states that according to Exh A6, the commercial invoice, the Plaintiff bought a metric ton of 5% broken rice at a cost of US$ 499 but the said price for that category of rice is stated in Exh PPI as US$ 548. Exh AI gives the cost for 25% medium grain at a cost of US$ 449 but in Exh PP2, the price is given as US$ 493 and the cost of 25% long grain is US$ 497 per metric ton. By his calculation he submitted that the Plaintiff is entitled to US$ 86, 446.6 for which the Defendant accept liability.

In answer to this submission, counsel for the Plaintiff contended that the Plaintiff is not claiming the purchase price of the cargo of rice and that he is entitled in law to the market price for the price in Sierra Leone. He relied on Payne & lvamy's Carriage of Goods by Sea 11th ed at pages 144 to 146 and Halsbury's Laws of England 3rd ed Vol. 35 paragraph 682 at page 679. He submitted further that the cost of rice in Sierra Leone is higher than the purchase price.

 

Let me say that there is evidence given by the Plaintiffs witness PWI that the figures used are the insured value of the rice which is higher than the purchase price. Further that the insured price is the market price of the rice in Sierra Leone which has been accepted and paid by the insurers to the Plaintiffs. It is therefore reasonable for it to be used as the acceptable price.

With regards the Defendants defence that they are not responsible for the quantity and quality claims by the Plaintiff, counsel for the Defendant referred the court to the bills of lading, Exh E - K and submitted that in all of them "weight, measure, quality, quantity, condition, contents and value were unknown."

 

Counsel also referred to the certificates prepared by the Bureau Veritas Exhs L­ R and submitted that in these certificates only the weight was certified after a random sample of 5% of the cargo of 9000 metric tons of rice was taken. He submitted that there is no evidence to show to the court that these bags which were delivered as sound were interfered with by the carrier.

He contended that the obligation of the carrier to deliver the goods as he received them absolves them of any liability because the said goods were received as sound. He went on further to say that the Plaintiff bought the rice on C.I.F and therefore any apparent loss is the duty of the insurers and not the carriers as the insurance policy is to protect the buyer against such loss. The carrier he submitted is not responsible to ascertain quantity and quality

Counsel for the Plaintiff submitted that on the contrary, the certificates issued by Bureau Veritas who inspected the cargo in India did not disclose any deficiency in the said cargo. He referred to the testimony of PW1 that it was standard practice to take a random sample of 5% of the cargo in checking for defects and that this number is only increased if defects are discovered during the inspection of the 5%. As counsel for the Plaintiff submitted, this piece of evidence was not challenged or controverted, it is therefore accepted as the factual situation.

In the circumstance there is sufficient evidence before the court that the cargo was loaded on the Defendant's vessel in good order and condition with an average weight of 50.140 kgs.

Now the Plaintiff has relied on the doctrine of res ipsa loquitur. Since the cargo was handed over to the Defendants in good order and condition, they have failed to prove that they are not responsible for the damage to the cargo whilst in their custody.

Indeed the Plaintiff’s witness testified to the observations made when they went on board the vessel before discharge commenced. He said that the inspection was done in the presence of the Chief Officer and the Captain and they took photographs of the state of the cargo in the hatches. The photographs were tendered as Exh S 1-11 and Exh T 1-15. He described the condition of the rice in the hatched and it was clear from his testimony that some of the rice was not in good condition and had been interfered with. This testimony is also corroborated by the report of ERGET SCT SARL the representatives of the Plaintiffs insurers, Exh Z which stated inter alia "that the cargo was not in apparent good order and condition as they noted bags with less in weight, tom bags and few tom empties during surface inspection. Hatch covers and manholes closed without seals/padlocks. Lots of weevils noted and plenty of bags noted less in weight."

Furthermore there is evidence that the voyage from India to Sierra Leone was unreasonably long and no explanation was provided for this by the Defendants.

In sum the Defendants have failed to prove that they are not responsible for the loss and damage caused to the Plaintiff's cargo either whilst the said cargo was stored in the hatches and during discharge.

 

The Defendants have strenuously queried the figures shown in Exh ppt 1-5 and QQ 1-5, the summary of the Plaintiff's losses and damages suffered. Counsel for the Plaintiff in his submission explained that Exh PPl-5 are a breakdown of the Plaintiffs claim for both the insured and the uninsured losses and that Exh PP5 is a summary of all the claims contained in Exh PP1-PP4.

Counsel for the Defendant submitted in respect of the said sound cargo that "Now assuming without conceding that the loss that was discovered is the responsibility of the carrier, it is my submission that the evidence in support of it is so inconsistent and full of discrepancies". Counsel went on to great lengths to query the figures in Exh PPl-5 and QQ 1-5. He contended that the Plaintiff is repeating his claim for marine claim with those of actual loss. He ga\ e
examples of this as follows

 

"Marine claim in Exh QQ1 is the same as the claim for loss in Exh PP1 first three claims that is 541 bags, 269 bags and 866 bags
Marine claim in QQ4 is the same as Exh PP2. First three claims

1105,262 and 1336.
Marine claim Exh QQ5 is the same as PP5 first three claims 2137. 637

and 2150.

 

Exh QQ2 is the cost of reconditioning.

 

Exh QQ3 is recapitulation of the loss in 5% grain 25% grain and 25%

long grain.

 

How can both constitute separate claim is incomprehensible because it is just a recapitulation of the loss stated in PP2 and
3. It really is not afresh or different claim"

 

Let me quote counsel for the Plaintiff’s response

Exhibit PP1 to PP5 inclusive are a breakdown of the Plaintiff’s claims for both insured and uninsured losses. Counsel would like to bring to the Court’s attention to the fact that contrary to the submissions of the counsel for the Defendant in his address: Exhibit PP1 is in respect of losses for premium long grain white rice 5% broken

. .

"Exhibit pp1 to
eExhibit PP2 is in respect of long gain white rice 25% broken. Exhibit PP3 is in respect of losses for medium grain white rice

25% broken.

 

Exhibit PP4 is in respect of the costs of reconditioning of the cargo of rice and

Exhibit PP5 is a summary of all claims contained in Exhs PP1 to PP4 inclusive.

The Plaintiff has divided his losses between those which are insured and those which are uninsured. In this regard counsel refers the court to the following
exhibits.

Exhibit QQ3 is in respect of the insured losses which were suffered by the Plaintiff for which the Plaintiff has been paid the sum of UStp36, 284.

 

Exhibit QQ1 is in respect of the uninsured losses suffered by the
Plaintiff for premium long grain white rice 5% broken.
Exhibit QQ4 is in respect of the uninsured losses suffered by the
Plaintiff for long grain white rice 25% broken

Exhibit QQ5 is in respect of the losses suffered by the Plaintiff

for medium grain white rice 25% broken.

 

Exhibit QQ2 is the cost of reconditioning of the rice

 

Exhibit QQ3 is in respect of insured losses"

 

The above is adequate answer to the queries raised by the Defendant's counsel.

 

It is my view that the Plaintiffs have provided sufficient evidence to support their claim for the loss and damage suffered by them to their cargo. They have also satisfactorily established that the responsibility for the said loss and damage is with the carrier, the Defendants.

There is evidence that the Plaintiffs have received compensation from the insurers in the sum of US$ 236, 284. A sum less than the amount claimed by the Plaintiff. The Plaintiffs are therefore entitled to recover the difference between the two amounts. The Plaintiffs have summarised their loss in Exh PPS and it amount to US$ 867,881.28. The Plaintiffs are entitled to recover the difference between the two sums of US$ 867, 881.28 and US$ 236, 284 amounting to US$ 631,597.28.

 

J udgment is accordingly given in favour of the Plaintiff as follows

 

The Plaintiff is to recover damages for breach of contract for carriage of cargo of rice between the parties in the sum ofUS$ 631, 597.28.

2. Interest on the said damages at the rate of 5% per annum from 41h February

2013 the date of the writ of Summons until Judgment pursuant to the Law Reform (Miscellaneous Provisions) Act, Cap 19 of the Laws of Sierra Leone.

 

3. Costs to the Plaintiff to be taxed if not agreed upon.

A. SHOWERS
JUSTICE OF COURT OF APPEAL