EFFASCO LIMITED vs. SCANSHIP (GH) LIMITED [2001]DLSC2364

Date	2001-02-21
Suit No.	CIVIL APPEAL NO. 4/2000
Citation No.	[2001]DLSC2364

AMPIAH J.S.C. (PRESIDING)

KPEGAH J.S.C

ADJABENG J.S.C

ACQUAH J.S.C

ATUGUBA J.S.C.

MR. KWAKU PAINTSIL WITH KINGSLEY YEBOAH AND

MISS RAHMATA ISSAHAQ-PELPUO FOR RESPONDENTS.

MR. STANLEY AMARTEIFIO FOR APPELLANTS.

[2001]DLSC2364
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													<main id="main" class="content" style="min-height: 60rem" >EFFASCO LIMITED<o:p></o:p>vs.<o:p></o:p>SCANSHIP (GH) LIMITED<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 4/2000<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: 21ST FEBRUARY,
2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR. KWAKU PAINTSIL WITH KINGSLEY YEBOAH AND<o:p></o:p>MISS RAHMATA ISSAHAQ-PELPUO FOR RESPONDENTS.<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">

MR. STANLEY AMARTEIFIO FOR
APPELLANTS.<o:p></o:p>

</div>CORAM:&nbsp; <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">

AMPIAH J.S.C.&nbsp;&nbsp; (PRESIDING), KPEGAH J.S.C., ADJABENG J.S.C.,
ACQUAH J.S.C., ATUGUBA J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ATUGUBA, J.S.C.:<o:p></o:p>The facts of this case,
briefly stated, are that on the 14th day of April, the
plaintiffs/respondents/respondents entered into a contract of carriage with the
Carriers, G &amp; C Lines, the defendants/appellants/appellants' principals in
London and owners of the vessel M/V Republic Di Genova, whereby plaintiffs'
cargo of 2 Road Rollers, 24 tubes of grease and 6 tins of brake fluid valued £57,507.00
were to be carried from Tilbury Port in England to Tema Port in Ghana.<o:p></o:p>The plaintiffs' said goods
were to be delivered by the defendants, the said agents of G &amp; C Lines.
Even though the container in which the said goods were put arrived at Tema
Port, the goods themselves were wholly lost at sea. The plaintiffs as
consignees therefore brought an action against the defendants claiming<o:p></o:p>i. The sum of £57,507.00 being the C
&amp; F value of the cargo; <o:p></o:p>ii. Damages of £200,000.00 for
negligence and/or fundamental breach of contract of carriage on the&nbsp; part of the carriers and their accredited
agents, Sequana Maritime Limited, who acted as shippers for and on behalf of
the carriers;<o:p></o:p>iii. Loss of use of two road rollers
from 22/5/92 till date of judgment at the rate of ¢120,000.00 per day.<o:p></o:p>The plaintiffs recovered
judgment from the High Court, constituted by Benin, J.A. sitting as an
additional judge of the High Court. This judgment was unanimously affirmed by
the Court of Appeal, coram Sapong, Essilfie-Bondzie and Baddoo, JJ.A.<o:p></o:p>From that judgment the
defendants have further appealed to this Court.&nbsp;
It was submitted at length by Mr. Kudjawu, Counsel for the defendants
that since the container in which the plaintiffs' goods were stored arrived at
Tema Harbour together with all other goods on board except those of the
plaintiffs, which had moved in the container, it should be inferred that the
plaintiffs' goods were lost through insufficient lashing or securing within the
container and as that was the plaintiffs' act they ought to fail having regard
to the terms of the bill of lading which exempted the carriers from liability
in those circumstances.<o:p></o:p>It was further submitted
that the Courts below erred in law in placing the onus of proof on the
defendants as to how the plaintiffs' goods were packed in the said container
since that is a fact peculiarly within the plaintiffs' knowledge.&nbsp; It is certainly a non sequitur to argue that
insufficiency of packing must necessarily be inferred in the circumstances of
this case.<o:p></o:p>There is no doctrine that
goods that are sufficiently packed can never move or that a plaintiff cannot
recover for negligence if his goods turn out to be the only ones lost or
damaged in a carriage by sea.<o:p></o:p>I, at any rate, hold that
the foregoing contentions have been superseded by the concurrent finding of
fact by the courts below that the goods had been sufficiently packed. The
plaintiffs led evidence, confirmed by Exhibit E which was admitted in evidence
without objection, that the plaintiffs' goods were wheel locked and side
blocked and secured by wire fasteners connected to the floor eyes of the
container. These measures were taken by the plaintiffs' agents, Lister Plant
Sales of England, obviously for an oceanic journey and there is no reason for
holding them to be insufficient.<o:p></o:p>Mr. Kudjawu further
submitted on behalf of the defendants that the stowing of the plaintiffs' goods
on the upper deck of the ship was covered by a custom or general practice and
also the terms of the contract.&nbsp; Mr. Kudjawu
however has not gone as far as showing that custom, general practice or the
contract authorized, warranted or covered the negligent stowing of the
goods.&nbsp; Indeed the contract of carriage
evidenced by the bill of lading required the defendants to properly and carefully
load, handle, stow, carry, keep, care for and discharge the goods.<o:p></o:p>Mr. Kudjawu however
contends that it was decided by the English House of Lords in ALBACORA S.R.L.
VRS. WESTCOTT &amp; LAURANCE LINE, LTD. (1966) 2 Lloyd's Law Reports 53 that
the expression<o:p></o:p>“&nbsp;
“properly” means in accordance with a sound system. A sound system does
not mean a system suited to all the weakness and idiosyncrasies of a particular
cargo, but a sound system under all circumstances in relation to the general
practice of carriage of goods by sea.” <o:p></o:p>(emphasis supplied). <o:p></o:p>Mr. Kudjawu must have had
in mind the speech of Lord Pearce in that case when he said at p. 62 as
follows:—<o:p></o:p>“The word "properly"
presumably adds something to the word "carefully”. In G.H. Renton &amp;
Co. Ltd. vrs. Palmyra Trading Corporation of Panama, [1957] A.C.149, this House
construed it as meaning ‘upon a sound system’. A sound system does not mean a
system suited to all the weaknesses and idiosyncrasies of a particular cargo,
but a sound system under all the circumstances in relation to the general
practice of carriage of goods by sea.&nbsp; It
is tantamount , I think, to efficiency.” <o:p></o:p>