ASSONA BUILDING CO., LTD. vs. AKERS MEK VERKSTED [1976]DLCA1238

Date	1976-07-30
Suit No.	-
Citation No.	[1976]DLCA1238

ARCHER JA

ANIN JA

ANNAN J.A.

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS.

H. V. A. FRANKLIN FOR THE RESPONDENT.

[1976]DLCA1238
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													<main id="main" class="content" style="min-height: 60rem" >ASSONA BUILDING CO., LTD. <o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; vs. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>AKERS MEK VERKSTED <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 90<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 JULY 1976<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NO APPEARANCE BY OR ON BEHALF OF THE APPELLANTS.<o:p></o:p>

H. V. A. FRANKLIN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ARCHER, ANIN AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>Akers Mek
Verksted, as charterer, entered into a contract of charterparty with the owners
of the steamship Cado Frio for the transportation of mackerel from Norway to
Ghana. Tema was the port of discharge and the mackerel was consigned to the
appellants as the purchasers. It appears that throughout the negotiations for
the sale, the appellants were not aware of the conditions and terms of the
charterparty as regards demurrage. When the ship arrived at Tema she could not
dock because of congestion at the berths and she was therefore anchored outside
the harbour.<o:p></o:p><o:p>&nbsp;</o:p>Under the
terms of the charterparty, the following conditions as to discharging and
demurrage, were agreed between the owners and the charterer:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“DISCHARGING
(6) Cargo to be discharged charterers at their risk and expense at a rate of
125 tons per hatch per day. Time to commence at 1 p.m. if notice of readiness
to discharge is given before noon, and at 6 a.m. next working day if notice
given during office hours after noon. Time lost in waiting for berth to count
as discharge time. DEMURRAGE (7) Demurrage at the rate of £300 (three hundred)
pounds per day or pro rata for any part of a day, payable day by day, to be
allowed merchants altogether at ports of loading and discharging.”<o:p></o:p><o:p>&nbsp;</o:p>It follows
that when the ship arrived at Tema on 2 December 1963 at 7.30 a.m. and was
unable to dock, the time allowed for discharging the mackerel fish began to
run. Moreover, the time allowed for discharging the cargo was fixed at two
days, five hours and five minutes from 2 December 1963 at 1 p.m. The ship
remained outside the harbour until it berthed on 9 December 1963 at 6.20 a.m.
and commenced discharging on 10 December 1963 at 7.30 a.m. For various reasons,
the unloading took more time than had been agreed to or envisaged. Both the
shipowners and Akers were unhappy about the considerable delay and after a
series of correspondence between Akers and the appellants, the latter
guaranteed the payment of the demurrage.<o:p></o:p><o:p>&nbsp;</o:p>The ship
was finally unloaded on 8 January 1964. The agents of the shipowners then
submitted a bill for demurrage calculated as follows: time commenced to count
as from 2 December 1963, at 1 p.m.; and as the time allowed for discharging was
two days five hours and five minutes, the vessel came on demurrage on 4
December 1963 at 6.35 p.m. until 8 January 1964 at 6.30 p.m. The total number
of days during which demurrage was payable was therefore 34 days, 23 hours, 55
minutes at £300 per day. The total demurrage amounted to £10,498 19s. 2d. The
appellants resisted this amount and contended that time commenced to run as
from 10 December 1963 when the ship began discharging the cargo till 8 January
1964, when the ship was finally unloaded, i.e. 30 days. The appellants also
claimed that ten days out of these 30 days were non-working days and as such
they were liable to pay demurrage for twenty days only at £300 per day i.e.
£6,000.<o:p></o:p><o:p>&nbsp;</o:p>Nearly
six years after this transaction, Akers had no alternative but to sue the
appellants, by a specially endorsed writ, for the balance of the purchase price
of the mackerel in addition to the sum of £10,498 19s. 2d. in respect of
demurrage. The appellants defended the action and put in a counterclaim. In the
High Court at Accra, the learned trial judge found no merit in the counterclaim
and dismissed it. He also entered judgment for Akers in respect of the
outstanding balance of the purchase price of the mackerel but reduced the claim
for demurrage from £10,498 to £6,000 and thereby upheld the appellants’
contention that they were liable to pay demurrage for twenty days only. The
reasons f</main>