Dr Emeka Akabogu
CASE STUDY
The year 2003 was quite an eventful year for Alexander Enemaku.
Alexander had just received an email from work stating that he had been posted back to Abuja, Nigeria. Abuja? Where was he to start from? Alexander was posted to the Nigerian High Commission in Australia in 1998 and had grown fond of life over there. I mean, it’s been five whole years. And now it’s time to go back home. Alexander began to make plans. He called family and friends and told them of this new development. Some received it with so much joy while others were quite disappointed by the news. Anyway, since he owned a house in Abuja, accommodation was not going to be a problem. Rather than sell off some of his personal belongings, Alexander decided to move them all down to Nigeria. Transportation by sea seemed like a viable option to him, so he contacted a freight forwarding agency – Megatop Cargo Pty Limited (MCPL) to arrange the carriage.
MCPL charged Alexander the sum of 3,770 Australian dollars for its services. Alexander made the payment and was subsequently issued a bill of lading. The consignment was to be conveyed on the vessel, ‘MSC Lara’ and delivered three months after shipping. Alexander thereafter left for Abuja, expecting his properties to arrive three months from the day of shipment.
Three months passed and no one contacted him regarding the arrival of the goods. He wrote multiple emails and letters requesting information on the whereabouts of the goods but all his efforts turned up futile.
Unknown to Alexander, these were the makings of what would turn out a significant case in maritime law. This is a real case, not fiction.
At stake was not just the 3,770 Australian dollars, but an additional USD120,000 as value of Alexander’s cargo. It involved the Mediterranean Shipping Company (“MSC”), which only recently displaced Maersk as the world’s largest shipping line by container capacity. The court took a very interesting position in this case…
Alexander got increasingly impatient and after consultation with his lawyer, decided to involve the court in the matter.
Alexander brought an action in the Federal High Court of Lagos in 2005 against the owner of the vessel, the vessel itself, Comet shipping agencies Nigeria limited, Megatop Cargo Pty Limited and Australian Freight Forwarders Pty Ltd. Yes, he meant business. His claim included the 3,770 Australian dollars he paid for the shipping of the properties; 120,000 US Dollars being the value of the goods that were undelivered and damages for the pain and suffering caused by the non-delivery of the goods. The court ruled in Alexander’s favour.
The owners of “MSC Lara”, Mediterranean Shipping Co. S.A and the Vessel, “MSC Lara” did not like this at all and therefore filed an appeal at the Court of Appeal. Their grounds for appeal can be summarised into three:
1. Whether the judge was right in holding them liable for the non-delivery of Alexander’s goods since they were not a party to the bill of lading issued
2. Whether they had agreed to carry the properties and as such had a duty to deliver the said goods
3. Whether the court was right in awarding special damages of 120,000 US Dollars and 3,770 Australian Dollars against them
On the first issue, the Appellants argued that they were not a party to the contract as they were not in communication with Alexander neither did they issue him a bill of lading. Alexander contended that the bill of lading was signed at the bottom for and on behalf of the appellants as the carriers of the goods. The issue was resolved in favour of Alexander. The court held that in shipping matters, the bill of lading evidences a contract between the ship owner and the shipper of the cargo.
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On the second issue, the court stated that the first principle of marine cargo claims is that the carrier is liable for the loss or damage to cargo received in good order and turned out in bad order. Further, once a ship owner has received goods belonging to a shipper, he is estopped from denying there was a contract between it and the shipper. Therefore, the court ruled that the appellants had a duty to deliver Alexander’s properties
On the third issue, the court ruled that special damages which relate to all items of loss must be specifically proved. Alexander could prove he paid the sum of 3,770 Australian Dollars but had no credible evidence to prove that the goods that were lost were worth the sum of 120,000 US Dollars. The court therefore dismissed Alexander’s claim to 120,000 US Dollars.
In conclusion, the case of Mediterranean Shipping Co. S.A. & Anor v. Alexander Enemaku & Anor reiterated the principle that where a bill of lading is signed by or on behalf of the carrier, the carrier is liable under it. It also reinforces the principle that the carrier is prima facie liable for loss or damage to goods received in good condition under a bill of lading as stated in the case of M/V Caroline Maersk v Nokoy Investments Limited (2002) 12 NWLR (Pt.782) 472
P.S.: This case review is a recreation of an actual, publicly available, decided case in Nigeria. It is prepared by Akabogu & Associates, a specialist law firm for energy, maritime and international trade law in Nigeria.
*For further information, contact Dr. Emeka Akabogu ([email protected]).
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