Court allows damages against negligent trailer operator but dismisses claim against shipowners.

[*84] 1966 Januray 24

(VASSILIADES, J.)

ADMIRALTY JURISDICTION

John Doan,

Plaintiff,

v.

Lion Mediterranean Shipping Agency and. another,

Defendants.

(Admiralty Action No. 16/65).

Admiralty - Damages - Damage to Plaintiff's goods while discharged from ship on to trailers operated by first defendants - Liability - Negligence - Costs.

Practice - Costs - Claim for damages against two defendants - Plaintiff successful only against one of them - Reasonable, in all the circumstances, for the Plaintiff to have sued both defendants - Unsuccessful defendant ordered to pay both Plaintiff's and successful defendant's costs (Bullock order).

S. G. McBride, for the Plaintiff.

A. Antoniades, for Defendants No.2.

Defendants No. 1 , not appearing.

JUDGMENT

The following Judgment was delivered by:-

VASSILIADES, J.; The plaintiff in this action is a Foreman of Buildings and Works in the employment of the British Ministry of Public Buildings and Works. Regional Headquarters, East Mediterranean Region, Cyprus.

In the autumn of 1964, on expiry of his contract with the Ministry, he packed his personal effects and household utensils, in five cases, which were forwarded, through the Services agencies, back to his home in England, in the [*85] usual course. Before his departure from Cyprus, however, the Ministry offered renewal of his service for another "tour", as he called it, which he accepted. Arrangements were then made for the return of the plaintiff's five cases from Liverpool hack to Cyprus.

On. the 30th October, 1964, the five cases in question, were loaded with other Ministry stores, on the m.v. "Karnak" belonging to the 2nd defendants; and a bill of lading for plaintiff's cases was issued, in the ordinary course. This bill of lading is before, the Court as exhibit 1, and it shows that the cases were to be delivered to plaintiff c/o the Ministry's Regional Headquarters, Famagusta. On the back of this exhibit, there is the "certificate for use at port of discharge", which shows that the ship arrived at Famagusta on the 16th November, 1964, and commenced delivery of her cargo on the same day. At the same part of the exhibit, there is the rubber stamp signature of the first defendants, confirming that the first report of damage to the goods described in the bill of lading, was made on the same date; and that the. goods had "been received" by them, "without prejudice to non-apparent loss or damage", as the printed form reads.

The plaintiff was called to Famagusta, where he found that three of his five cases, had been duly discharged from the ship, and carried through the Customs to their destination; but the other two cases were found on the quay, where they had just been recovered from the sea by an Army diver. They had been unloaded on a trailer together with other goods, and while the trailer was still on the quay, it was inadvertently [*86] pushed into the water, with all the goods thereon, including plaintiff's two cases. The packages so recovered, were taken to the Customs, where, in the presence of the plaintiff and others, they were examined by a Lloyd's Surveyor for the damage suffered by falling into the sea. A copy of the Surveyor's report is before the Court as exhibit 3, showing under item "f" , on page 1, and the particulars given on the next page, that a number of articles in the cases represented a loss amounting to £34.705 mils, while other items were partly damaged, representing an additional loss of £18.650 mils. The total of this damage, £53.355 mils, is plaintiff's claim in the present action.

Other attempts at recovery of the damage having apparently failed, the plaintiff wrote to the first defendants, (who had handled, as War Department and R.A.F. Contractors, the Ministry stores and other goods unloaded from m.v. Karnak, on the 16th November, 1964) exhibit 4, making a claim for the damage in question. In reply the first defendants wrote exhibit 5, dated 21st January, 1965, with copy to the Officer Commanding the Unit where the plaintiff was attached. They repudiated liability on the grounds stated in their letter, paragraph

(a) of which reads:-

"Your boxes only came into our possession for onward despatch, after they had been released from the Custom's shed No.6, where they had been removed on the request of the R.A.F. Officers after their fall into the sea and finally surveyed".

The Officer Commanding plaintiff's Unit wrote to the first defendants in this connection, exhibit 6 dated [*87] 25th January, 1965, with copy to the plaintiff, citing in paragraph 3 of his letter, the part of the "cargo handling contract 1964/65" under which the first defendants handled the Ministry goods unloaded from the m.v. Karnak, confirming the fact, (in paragraph 2 of the letter) that the trailer on which pliantiff's cases were found, when they fell into the sea, was a trailer operated by the defendants.

Eventually the plaintiff consulted his advocate, who wrote to the first defendants exhibit 7, on the 17th February, 1965, making a claim for this damage. After a reminder as per exhibit 8a, the first defendants replied on the 5th March, 1965, rejecting liability (exhibit 8b).

"For your kind information - they say in their letterour firm is only bound by contract with the Servicesto perform the duties of a handling agent. It is regretted that we must reject liability for the alleged damage, because the stores never came into our possesion nor did we ever sign as having accepted same".

In view of this attitude on the part of the first defendants, plaintiff's advocate addressed himself on the 2nd April, 1965, as per exhibit 2a, to the agents of the ship owners, the second defendants herein. Their reply dated 5th April, 1965, is exhibit 2b:-

"It is correct - they say - that two cases of the above consignment fell into the sea on 16.11.64, but the accident occurred only after the packages had already left the vessel's care, and you realise that someone else, other than the shipowner should [* 88] be contacted for the settlement of the claim which, as you say, amounts to £53.355 mils".

Apparently referring to exhibit 1 (the bill of lading) these defendants say in their letter, that the Army agents presented to them (the second defendants) "clean-receipted B/L duly endorsed by them to the effect that the parcel under subject was received in full and without any remark". These defendants, moreover confirm by their letter that -

"the two cases in question, fell into the sea with various other packages with the trailer of the W.D. & R.A.F. Contractors (The British Army Agents mentioned in paragraph 3 are one and the same firm) when the latter was forced off the quay and into the sea by a third party trailer (one of the trailers of the Customs Porters Association)."

In these circumstances - plaintiff's advocate explained - the action was filed against both, the shipowners and the Contractors, to whom the former alleged that they had delivered the goods. The writ, filed on the 5th November,1965, was duly served on the first defendants at their place of business on the 16th December, 1965; and on the second defendants on the 14th December. Until about 11.30 a.m. when this case was called this morning, the first defendants had neither entered an appearance, nor were they in Court; and the claim against them went undefended.

On the evidence before me, I have no difficulty in finding as a fact that plaintiff's goods were discharged from the ship on to trailers operated by the first defendantsas shipping agents handling cargo from m.v, Karnak, under a [*89] contract with the British War Department. While on one of such trailers together with other goods, discharged from the same ship, the plaintiff's two cases went into the sea and suffered the damage described and assessed in exhibit 3.

The first defendants' allegation, (contained in their letter, exhibit 5) that plaintiff's boxes in question, only came into their possession "after they had been released from the Custom's shed", is incorrect. Their trailer was at the side of the ship, ready to receive the goods in the ordinary course of defendants' business as Army contractors. And in fact, the cases were on the trailer when the latter fell into the sea with all the goods found thereon. If any further confirmation of whose trailer that was, may be found in exhibit 10; but even without it, I would have no hesitation in finding as above.

At the conclusion of the evidence, plaintiff's advocate conceded, quite rightly in my opinion, that he could not press the claim against the shipowners (the second defendants). The liability of the first defendants, for the damage to plaintiff's goods, when they fell into the sea, with their trailer, owing to these defendants negligence to take proper care of the goods, has, in my opinion, been fully established. The extent of the damage, has never been really in question; although the plaintiff in the witness-box said that in his assessment, the damage was £65 to £70. Very rightly, I think, the claim was confined to the amount assessed by Lloyd's Assessor, i.e. £53.355 mils. There will be judgment for plaintiff against the first defendants, for £53.350 mils. The claim against the second defendants shall stand dismissed.[*90]

As regards costs, I take the view that the second defendants are entitled to their costs against the plaintiff. And that the plaintiff is entitled to his costs against the first defendants, plus the amount of costs to be awarded against him in favour of the second defendants.

It seems clear to me, on the evidence, that the refusal of the first defendants to admit their liability and their effort to avoid part of the facts on which the claim was being made, (namely that the goods were damaged while on their trailer) was the cause, of this litigation. And it also seems to me that plaintiff did not act unreasonably in joining the second defendants, in the circumstances. At the time of the filing of the action, his advocate was not in possession of the documents supplied by the second defendants at the trial, showing the correct position, as far as facts were concerned. In these circumstances, I see no reason why the plaintiff should bear the loss of the costs awarded to the second defendants against him. I am strengthened in this view by the judgment of MacKenna J, in Bowmaker (Commercial) Ltd., v. Day and another, Burt, Third Party, And W. Harold Perry Ltd., Fourth Party, reported in Part 4.2, W.L.R. 1965, page 1396 where the learned Judge had to consider the question of costs arising in a case with several litigants, and conflicting interests.

In the result there will be judgment for the plaintiff against the first defendants for £53.350 mils with £24.800 mils costs (including £10 awarded in favour of the second defendants). Action against the second defendants dismissed, with £10 costs payable by the plaintiff.

Judgment and order

for costs accordingly.