April 17, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Jennifer Abena Dadzie of the High Court (Commercial Division) decided a dispute arising from damage to a 2011 Audi Q7 TDI shipped by a private businessman and evangelist on the Hoegh Masan 43 to Tema, Ghana. After discharge, the vehicle had dents and scratches on all four doors, a damaged right-side mirror, and theft of accessories. A pre‑discharge report showed no ignition key, leading the 3rd Defendant stevedores to issue a protest/indemnity and discharge the car with a forklift, taking precautions. Comparing pre‑shipment and post‑discharge photographs, the court found damage occurred during or after discharge, not during the voyage. The Plaintiff failed to prove negligence by the stevedores. Construing clauses 15 and 16 (Himalaya) and clause 14 of the bill of lading, the court held the stevedores are protected by the carrier’s exemptions and limits, the carrier is liable in principle, but liability is capped at US$500 absent a declared value. General damages were denied, with costs of GH¢2,000 awarded against the 1st and 2nd Defendants.
“The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.
Per Lord Mansfield in the case of Hamilton v Mendes [1761] 97 ER 787. In this case, the Plaintiff who describes himself as a private business man and an evangelist purchased a slightly used 2011 model of a vehicle, an Audi Q7 TDI, which he arranged to be shipped on board the vessel Hoegh Masan 43 belonging to the 1st Defendant shipping line from the United States of America bound for Tema in Ghana as the port of destination.
After the discharge of the vehicle from the vessel at the Tema Port, to his dismay, he found the vehicle was damaged, to wit, all four doors had dents and scratch marks, cracks and damages to the right side mirror, damage, which he says was not present at the time he purchased the vehicle and at the time he consigned it to the ship and the CD loader in the glove compartment of the vehicle had also been ripped off and stolen together with two floor carpets.
Upon these facts, on October 27, 2014, the Plaintiff sued the 1st Defendant, as the Carrier, the 2nd Defendant as the agent of the 1st Defendant Carrier in Ghana and the 3rd Defendant, the stevedoring company that was engaged by the 1st Defendant to offload the cargo off the vessel, jointly and severally for the following reliefs:
“(a) General damages in the sum of Forty Two Thousand Six Hundred and Ninety Four Ghana Cedis Ninety Three Pesewas (GH¢42, 694. 93), being the replacement cost of the parts of the vehicle damaged and/or stolen.
b) Costs of litigation, including lawyer’s fees.
After Pre-trial, the following issues were set down for trial:
“i. Whether or not at the pre-discharge inspection it was revealed that there was no key to the vehicle and same had dents and scratches
ii. Whether or not the 3rd Defendant was negligent in the handling of the Plaintiff’s vehicle at the Tema port.
iii. Whether or not 3rd Defendant issued a protest and indemnity notice against all non-drivable vehicles on board the vessel.
iv. Whether or not by reason of said protest and indemnity notice 3rd Defendant is absolved from any liability.
”In disposing of this matter, I intend to resolve these issues together and in no particular order, in accordance with the law and the evidence adduced in the case.
The first question that arises in my mind is at what p