FARMEX LTD. vs. ROYAL DUTCH AIRLINES (KLM) AND ANOTHER [1987]DLHC740

Date	1987-03-18
Suit No.
Citation No.	[1987]DLHC740

LUTTERODT J.

SAM OKUDZETO FOR THE PLAINTIFFS.

VIDAL BUCKLE FOR THE FIRST DEFENDANTS.

JOE REINDORF (WITH HIM ADUAMA-OSEI) FOR THE SECOND DEFENDANTS

[1987]DLHC740
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													<main id="main" class="content" style="min-height: 60rem" >FARMEX LTD. <o:p></o:p>vs. <o:p></o:p>ROYAL DUTCH AIRLINES (KLM) AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1987-88] 2 GLR 650<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
18 MARCH 1987<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">

SAM OKUDZETO FOR THE PLAINTIFFS. <o:p></o:p>

VIDAL BUCKLE FOR THE FIRST DEFENDANTS. <o:p></o:p>

JOE REINDORF (WITH HIM ADUAMA-OSEI) FOR THE SECOND
DEFENDANTS<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">

LUTTERODT J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF LUTTERODT J.<o:p></o:p>On or
about 29 November 1985 the plaintiffs, exporters of fruits, namely mangoes and
pineapples, contracted with the two defendants to transport a quantity of
mangoes from Accra to a consignee—Messrs W. Coustavallis Ltd. of 43 Ashton
Lane, Cheshire, London. The first defendants were to carry the goods from Accra
to Kano, while the second defendants were to transship same to London, the
final destination. However, when the goods arrived at Gatwick Airport, London,
customs officials declared it unfit for human consumption. Exhibit B, the
customs clearance request form, shows the goods were “condemned by Public
Health Officers and surrendered to the Crown without charge”, and I am quite sure
they were consequently destroyed.<o:p></o:p><o:p>&nbsp;</o:p>It was
the British Caledonian Airways, the second defendants, which voluntarily
surrendered the goods to the Crawley Borough Council for the simple reason that
they were decomposed: see exhibit C tendered on 17 October 1986.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs consequently instituted this action claiming against the defendants <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">“jointly
and severally for damages for breach of duty in and about the carriage and
delivery of the plaintiffs’ consignment of mangoes and interest on the said
damages.” They brought this action because none of the defendants would accept
liability and indemnify them for the loss arising out of the non-performance of
the contract. My duty therefore, will be to find out whether or not the
plaintiffs are entitled to their claim. As far as the plaintiff’s are concerned
(as stated in paragraph 4 of the statement of claim) it was because “the
defendants failed to deliver the said consignment on time that their spoilage
and destruction could not be prevented.”<o:p></o:p><o:p>&nbsp;</o:p>On the
part of the first defendants whose case I shall deal with first, by paragraph 6
of their amended statement of defence, “the plaintiffs’ negligence in not
advising the second defendants to take immediate delivery of the plaintiffs’
said goods as agreed and in not properly marking the packages containing the
said goods caused the delay of three days before the second defendants could
take delivery of the said goods.”<o:p></o:p><o:p>&nbsp;</o:p>Furthermore,
it is the contention of the first defendants that they were not responsible for
any delay in the transportation of the plaintiffs’ goods which could have
resulted in damage to them or at all and that in any case they took all
necessary measures to avoid damage or loss to the plaintiffs’ goods and any
damage which must have occurred in relation thereto was caused by or
contributed to by the plaintiffs’ negligence; accordingly the first defendants
are not liable or are completely exonerated from liability, having regard to
articles 20 and 21 of the Warsaw Convention, 1929 (vide paragraph 11 of their
amended statement of defence).<o:p></o:p><o:p>&nbsp;</o:p>In any case, paragraph 4 of the amended statement of defence
is not any different from paragraph 6 of the original defence filed on 2
February 1986; but paragraph 11 does raise very pertinent triable issues. For this
reason, I am glad that the plaintiffs’ application of 21 July 1987, stating
that only one issue—a legal issue—arose for determination</main>