ROYAL DUTCH AIRLINES (KLM) AND ANOTHER vs. FARMEX LTD [1990]DLSC679

Date	1990-12-19
Suit No.
Citation No.	[1990]DLSC679

ADADE AG CJ

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

EDWARD WIREDU JSC

VIDAL BUCKLE FOR THE FIRST APPELLANTS.

JOE REINDORF (WITH HIM ADUMUA-OSEI) FOR THE SECOND APPELLANTS.

N A O AMEGATCHER (FOR OKUDZETO) FOR THE RESPONDENTS.

[1990]DLSC679
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													<main id="main" class="content" style="min-height: 60rem" >ROYAL DUTCH AIRLINES (KLM) AND ANOTHER <o:p></o:p>vs. <o:p></o:p>FARMEX LTD<o:p></o:p>[SUPREME COURT, ACCRA] <o:p></o:p>[1980] GLR 632<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:
19
DECEMBER 1990<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">

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

JOE REINDORF (WITH HIM ADUMUA-OSEI) FOR THE SECOND
APPELLANTS.<o:p></o:p>

N A O AMEGATCHER (FOR OKUDZETO) FOR THE
RESPONDENTS.<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">

ADADE AG CJ, WUAKU, AMUA-SEKYI, AIKINS
AND<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE AG CJ.<o:p></o:p>The facts
relevant to this appeal are set out in detail in the judgment of my brother
Aikins JSC. I need not repeat them. I agree also with his conclusions. I would
only add a few lines in Support.<o:p></o:p><o:p>&nbsp;</o:p>As
regards the liability of the first defendants, Royal Dutch Airlines (KLM), I
have not the slightest doubt. The plea that the contract was duly performed
when the consignment was deposited at the Kano Airport cannot stand up to much
examination. On their own showing, the first defendants knew that the final
destination of the consignment was not Kano, but London. Not only that, how the
goods were to get to London was also expressly stated on the air waybill (AWB),
exhibit 2, which accompanied the goods, and which was in the possession of the
first defendants.<o:p></o:p><o:p>&nbsp;</o:p>Both
defendants are experienced and reputable international air carriers. They use
and handle hundreds of air waybills daily in the course of their operations,
and are more than familiar with these documents. Exhibit 1, the air cargo
tariff, explains the significance of the various boxes on an air waybill. As
regards box 21, titled Handling Information, exhibit I states at p 104:<o:p></o:p>“This box
may be used to indicate any information, related to the handling of the
consignment for which a special area does not appear elsewhere on the AWB, for
example: The name and address of any person to be notified of arrival of the
consignment in addition to the consignee . . . Indication of where delivery
service is requested. Any other special handling information or instructions
relating to the shipment.”<o:p></o:p><o:p>&nbsp;</o:p>(The
emphasis is mine.) <o:p></o:p>The AWB
(exhibit 2) which was used in this case contained all the relevant handling
information and stated on its face, in a appropriate box: “NTY BCAL KANO TO
RAISE AWB TO LGW TO CONNECT WITH BR 366 ON I DECEMBER 1985.” The code words
used cannot be strange to anyone: Nty is notify, and LGW is London Gatwick
Airport. Therefore the first defendants’ duty did not stop with merely dumping
the cargo at the Kano Airport as contended by them. They were also to notify
the cargo to the second defendants’ officer, BCal, Kano by giving them the air
waybill and identifying the cargo to them. The air waybill would have intimated
to BCal that the consignment was to be carried by them on a specific flight to
London, viz flight No BR 366 of I December 1985. If the first defendants had
done this, I would have hesitated to attach any liability to them.<o:p></o:p><o:p>&nbsp;</o:p>On the
evidence, KLM, the first defendants, took off with the cargo on schedule from
Accra in the evening of 29 November 1985 at about 8.20 pm. It arrived in good
time at the Kano Airport “around midnight.” KLM had every opportunity to make
contact with BCal Kano, and hand over the goods and the accompanying papers.
They had the whole day of 30 November 1985 and the best part of I December
1985. They did not do this, all because their employee, the purser, acting in
the normal course of his employment, simply forgot to do what he should have
done, a</main>