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Duffill v Baseman Cargo Limited [2012] WSSC 52 (6 July 2012)

SUPREME COURT OF SAMOA

Duffill v Baseman Cargo Limited [2012] WSSC 52

Case name: Duffill v Baseman Cargo Limited

Citation: [2012] WSSC 52

Decision date: 06 July 2012

Parties:
MARIA DUFFILL, retired of Vaivase-tai and Titahi Bay, Wellington New Zealand.
v
BASEMAN CARGO LIMITED, a company with its registered office in Wellington, New Zealand and
POLYNESIAN SHIPPING LINE a duly incorporated company having its registered office at Matautu-tai

Hearing date(s): 16 and 17 May 2012

File number(s): CP.78/11

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Mr F K Ainuu for plaintiff
Ms L Tamati for first defendant

Mr S Leung Wai for second defendant

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Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

CP.78/11

BETWEEN:

MARIA DUFFILL, retired of Vaivase-tai and Titahi Bay, Wellington New Zealand.
Plaintiff

AND:

BASEMAN CARGO LIMITED, a company with its registered office in Wellington, New Zealand.
First Defendant

AND:

POLYNESIAN SHIPPING LINE a duly incorporated company having its registered office at Matautu-tai.
Second Defendant

Counsels: Mr F K Ainuu for plaintiff
Ms L Tamati for first defendant
Mr S Leung Wai for second defendant

Hearing: 16 & 17 May 2012

Submissions: 12 June 2012

Decision: 06 July 2012

ORAL DECISION OF NELSON J

1. The plaintiff is a retiree resident at the relevant time in Wellington New Zealand. She moved permanently to Samoa in April 2010. The first defendant is a freight forwarding company based in Wellington and is managed by Mr Fata Faamausili. The second defendant is a shipping company which ships goods from New Zealand to Samoa. It has offices in both jurisdictions and owns warehousing and storage facilities located opposite the wharf in Apia.
2. As part of her move to Samoa the plaintiff engaged the first defendant to ship her personal effects. The shipment comprised one 20 ft container and a number of other items shipped loose or as break bulk freight. These proceedings concern the latter items.
3. Commonly such items are boxed labeled and shipped in other containers in order to make full use of the container space of a vessel. That appears to be what occurred here where the plaintiffs loose items were shipped in a separate container together with items belonging to other customers of the first defendant.
4. The plaintiff said she had boxed and labeled 96 items of miscellaneous materials which she delivered into the custody care and control of the first defendant to ship. She recorded each item in a book Exhibit “P-3” for the plaintiff. She was surprised when the first defendant gave her documentation Exhibit “P-1” for the plaintiff which listed only 81 items. It appears from the evidence I have heard that this is because the first defendant repackaged the consignment to make maximum use of the available container space by combining certain items. This is not unusual practice as items and packages will vary greatly in dimension and size and can be consolidated or combined in order to readily fit into an allocated space in a container. As explained by Mr Faamausili in his evidence container space is critical and a shipper always tries to make maximum use of what is available. It is clear from Exhibit “D-1” that the plaintiffs goods were shipped in a 40ft container together with the goods of other customers of the first defendant.
5. Unfortunately for the plaintiff she did not keep a separate inventory or list of her 96 items indentifying what was in each box. To compare against the first defendants list produced as exhibit “D-1” for the first defendant. The court cannot safely rely on the plaintiffs “P-3” book record as establishing the existence of the 96 items. The plaintiffs identifying red marks therein only number 58. I also have some difficulty with the values assigned to the various items by the plaintiff in the absence of receipts or substantiating documentation. I accept the plaintiff seems to be a very discerning buyer but without receipts or other validating documents, these are values that were recorded by the plaintiff herself and as per “P-3” for the purpose of “to replace anything that may damage or broken”. Some of the values assigned by her to the items appear extraordinarily excessive. There is also a question mark as to when the “P-3” book record was actually made.
6. The better evidence of the composition of the plaintiffs consignment is Exhibit “D-1” for the first defendant as verified by “P-1” for the plaintiff given to her after handover of the goods to the shipping company. The plaintiffs claim for the 96 items is also not assisted by her failure to definitively resolve the problem with the first defendant shipper before the goods even left New Zealand. Her evidence was she had her daughter ring the first defendant who promised but never delivered an updated list. No follow-up to that telephone call was made.
7. The plaintiffs goods were duly shipped to Samoa by the second defendant whom the first defendant retained for this purpose. The first defendant is a regular client of the second defendant shipping company. The documents Exhibit “D-2” for the defendants and ‘P-5” for the plaintiff indicates that the plaintiffs container and her break bulk goods were shipped on the MV Ratstor Voyage 64 that departed Auckland around 20 March 2010 and arrived in Samoa 26 March 2010. This was different to the shipping details given to the plaintiff see Exhibit “P-2” for the plaintiff which gave an ETA in Apia of 01 April 2010. As a consequence no plaintiff or plaintiffs representative was present to uplift her goods upon arrival in this country.
8. Upon discovering the ships early arrival the plaintiff rang her niece in Apia Mrs Julie Solofa to uplift the consignment. Mrs Solofa did this on 31 March 20110 some five days post the goods arrival in Apia. The evidence showed that because the container contained other customers goods it had by then been devaned and as per standard procedure for unclaimed cargo the plaintiffs goods were transferred to the second defendants warehouse to store pending uplift. When the goods were devaned a tally was performed by the second defendants tally clerk and the record of this tally was produced as part of Exhibit “D-5” for the second defendant. This shows 81 packages as per the container bill of lading was devaned.
9. When Mrs Solofa picked up the consignment the number of packages had increased from 81 to 95 in accordance with the delivery receipts signed by Mrs Solofa and produced as part of Exhibit “D-5”. Mrs Solofas evidence was she did not personally count the number of packages. In fact she did not know how many she was supposed to uplift but there were a large quantity of them enough to fill two dyna trucks which she had engaged for the purposes of delivery of the goods. She said she trusted the second defendants workers who assured her that what was uplifted was the entirety of the plaintiffs consignment. She drove the trucks to the plaintiffs house at Vaivase where the goods were unloaded and released into the custody of the plaintiffs son. There they were left by Mrs Solofa.
10. The second defendants explanation for the increased number of packages is that when the goods were unpacked to assess customs and other duties payable the goods were probably broken back down to their original state. This is not a non-sensical explanation and it is consistent with the evidence that I have heard.
11. There is no record of the unloading or counting and recording of the packages by the plaintiffs son. But it appears that the son rang the plaintiff in New Zealand and told her that only 57 packages were in fact received. The plaintiff asked Mrs Solofa to check on matters which Mrs Solofa did and was advised by the second defendant that all packages belonging to the plaintiff had been released. Matters could not be progressed further due to the plaintiffs absence from jurisdiction and due to the intervention of Easter weekend. She accordingly instructed Mrs Solofa to leave the matter until she travelled to Samoa.
12. When she arrived in Samoa she in the company of Mrs Solofa visited the second defendants warehouse and discovered three more packages belonging to her. This brought the total recovered packages to 60. The plaintiff has valued the 36 missing items at NZ$16,000 odd dollars. She also claims in these proceedings NZ$7,129.98 and US$ 2,500 for damage and broken items. No evidence was given as to damaged or broken items and plaintiffs counsel in the course of the trial agreed to forgo that part of her claim.
13. I also note that there was an absence of evidence as to where the goods were actually stored at the plaintiffs house at Vaivase awaiting her arrival and further that the plaintiff arrived about one week after delivery to the Vaivase premises. Further there was no evidence as to how secure the storage area was as the plaintiffs son was not called as a witness by the plaintiff.
14. Certain things are clear: 96 packages were delivered to the first defendant in Wellington for shipment to Samoa. For this and for her 20ft container the first defendant was paid in full by the plaintiff. To save space the first defendant repackaged the consignment into 81 pieces. Beyond the description contained in exhibit “D-1” for the first defendant it is not know what each individual package actually contained. The consignment was then shipped by the second defendant to Samoa on behalf of the first defendant. No direct contact existed between the plaintiff and the second defendant at any time. The contract of carriage was therefore between the plaintiff and the first defendant. The second defendant was at all material times the agent for the first defendant in giving effect to this contract. If the second defendant was negligent in the carrying out of its part in the matter that liability also attaches to the first defendant as principal and contractee to the plaintiff. If however the first defendant is found wanting liability does not necessarily therefore pass to the second defendant.

Decision:

15. In order for the plaintiff to succeed on the basis of breach of a contract of carriage or in negligence or bailment the plaintiff must establish as a matter of fact that the first defendant failed to perform the services contracted for namely safely shipping her consignment of 96 pieces from Wellington to Samoa. The evidence establishes 96 pieces were delivered into the custody care and control of the first defendant in Wellington and that 95 pieces were delivered at the other end in Apia into the possession of Mrs Solofa on the plaintiffs behalf. The evidence to the contrary is the complaint made by the plaintiffs son in a telephone call to her advising that only 57 pieces were actually received. But on such a crucial issue the plaintiff did not call her son or produce any other evidence to establish or substantiate the sons count of 57 pieces. I am accordingly not satisfied on the balance of probabilities on the plaintiffs own evidence that 36 pieces actually went missing or as to the value of the missing pieces which in my view have not been adequately identified.
16. It is for a plaintiff to prove his or her case and the standard of proof required is on the balance of probabilities. The court cannot say here with any certainty what happened in relation to the plaintiffs break bulk consignment. Perhaps there was miscounting by one or more persons in Apia. Perhaps some of her goods were stolen or lost while in the care and custody of the second defendant at its secure bonded warehouse across the road from the Apia Wharf. Perhaps the son is the missing key to the puzzle. Maybe he is the one who miscounted, a distinct possibility given the nature and size of this consignment which weighed some 850kilos or just over three-quarter of a ton and comprising a large number of pieces. Perhaps a third party removed the 36 items alleged to have disappeared from the shipment. Many scenarios are possible on the evidence the court has heard. Many possibilities but few probabilities.
17. Mrs Solofa on taking delivery did not herself perform a count. She said she trustingly left it to the second defendants workers whom she knew. The only counter at that point was the plaintiffs son who entered no appearance in these proceedings. And the goods lay at the plaintiffs Vaivase home for approximately one week before the plaintiff arrived after having been unloaded from the two delivering dyna trucks. Where they lay and how secure the area they lay in was not addressed by the evidence.
18. I accept that there are puzzling aspects in this case such as the three packages subsequently found at the second defendants warehouse. But the plaintiffs case must fail because the onus of proving it is on her and she cannot on the balance of probability establish that 36 pieces as a matter of fact did go missing while under the care custody and control of the second defendant the duly appointed agent of the first defendant with whom she had entered her contract of carriage. It also fails because even were she able to overcome that hurdle, I would have severe difficulty in affixing to the missing 36 items the values claimed by the plaintiff.
19. I sympathize with the plaintiff. On the whole she has not been well served by the defendants. Her action must be dismissed but in the circumstances the defendants will bear their own costs. Judgment will be entered in favour of the defendants. There will be no order made as to costs.
    

JUSTICE NELSON