GH - JOHN HOLT SHIPPING SERVICES v. EDWARD NASSAR & CO., LTD

JUDGMENT OF ARCHER J.A.

The respondents, Edward Nassar & Co., Ltd., imported twenty cases of Handy Plast Strips from Hamburg for delivery at Takoradi. The appellants, John Holt Shipping Services, were the agents for the carriers, the Guinea Gulf Line Limited. The goods were shipped from Hamburg on the boat Elizabeth Holt and arrived at Takoradi harbour on 24 March 1962. At the time of the arrival of the goods at Takoradi, the bill of lading, which constituted the legal title of the respondents to the goods, had not been received. Later when the respondents were in possession of the bill of lading, they called for the delivery of the goods, but the goods could not be traced in the public warehouse at Takoradi harbour. There was a clear evidence that the goods were safely unloaded from the Elizabeth Holt into the public warehouse. The police investigated the alleged loss and instituted criminal proceedings against certain persons for stealing the goods. All of the accused were acquitted.

Thereupon, the respondents sued the appellants for failing to deliver the goods in accordance with the terms of the bill of lading and claimed £G1,050 damages being the market value of the goods. The High Court, sitting at Sekondi, gave judgment for the respondents. The appellants appealed against the judgment. The following additional grounds of appeal were argued:

"(1) The learned judge was wrong in not holding that the tally clause was conclusive.

(2) The learned judge ought to have dismissed the action since at the material time the defendants were acting on behalf of the plaintiffs and not as agents for the Guinea Gulf Line Limited, the ship owners.

[p.207]

(3) The learned judge erred in law in holding that the defendants were not covered by the protection and exemption clause in the bill of lading or in the Hague Rules.

(4) The learned judge erred in law in holding that action was not time-barred.

(5) the learned judge found the defendants liable upon a cause of action not relied upon or pleaded by the plaintiffs.”

This is a straight forward appeal and no useful purpose will be served by considering each ground of appeal separately. Instead, it is intended to pose one question, the answer to which will cover all the grounds of appeal argued. Do the Hague rules apply to the respondents’ claim? The answer is no. Clause (1) of the bill of lading reads as follows:

“Application of Public Law - Where the port of shipment is in territory where legislation giving c