ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD.
1989
COURT OF APPEAL
GHANA
CORAM
- OSEI-HWERE
- LAMPTEY
- ESSIEM JJ.A
Areas of Law
- Aviation Law
- Contract Law
- Commercial Law
- Conflict of Laws
1989
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Farmex Ltd., a Ghana exporter, arranged to ship mangoes to H. Coulsavalis Ltd. in London. After British Caledonian (BCal) could not carry the cargo due to fuel shortages, an alternative route was set: KLM would fly the cargo to Kano for connection to BCal the next day. KLMs purser mistakenly overcarried the air waybill to Amsterdam, so BCal refused acceptance on 2 and 3 December until its Kano office received a late telex on 4 December. The shipment finally arrived in London six days late and was condemned as unfit for consumption. The High Court found both carriers liable and awarded a323,800, and the Court of Appeals majority (Essiem J.A. with Lamptey J.A. concurring) affirmed liability under Article 19 of the Warsaw Convention, rejected exoneration under Articles 20 and 21 and BCals volenti defense, permitted judgment in sterling, but set aside interest. Osei-Hwere J.A. dissented, advocating dismissal. The appeal was dismissed.
The plaintiffs are exporters of fruits and the defendants are air carriers. The case of the plaintiffs is that in November 1985 they arranged to ship a consignment of mangoes to a consignee in London. They did their booking with the second defendants, British Caledonian, which confirmed the booking. However, “at the last minute," as the managing director of the plaintiff company put it in [p.50] his evidence-in-chief, British Caledonian could not take the cargo because there was a fuel shortage in Lagos.
The sales manager of British Caledonian, one Mr Macasuley, gave the plaintiffs an alternative means to ship the mangoes on K.L.M. to Kano for transit connection with the British Caledonian flight the next day. This arrangement was agreed to by K.L.M., the first defendants herein. Accordingly, the plaintiffs gave them the shipping instructions and handed over the cargo to them, i.e. K.L.M.
The evidence indicates that the cargo left Kotoka International Airport, Accra on 29 November 1985. However as the consignee did not receive the goods on the expected day he sent a telex message to the plaintiffs and reported to them that the goods had not reached him. As can be expected, the plaintiffs contacted K.L.M. from whom they learnt that the purser of K.L.M. had mistakenly taken the relevant documents to Amsterdam instead of handing them over to their office in Kano. The mangoes did get to London eventually but were declared unwholesome and unfit for human consumption.
The evidence shows that the cargo of mangoes reached the consignee in London six days after the day they were expected to reach him. The plaintiffs therefore contacted the defendants but none of them would accept responsibility for the delay which the plaintiffs contended was the cause of the mangoes going rotten. The plaintiffs therefore instituted this action against the defendants jointly and severally. The indorsement on the writ of summons reads:
"The plaintiffs claim against the defendants jointly and severally for damages for breach of duty in and about the carriage and delivery of plaintiffs' consignment of mangoes and interest on the said damages."
The substance of the plaintiffs' case is that the defendants delayed the delivery of the goods and thereby caused the mangoes to get spoiled. They therefore hold them liable jointly and severally for the loss they have suffered. They set out the loss suffered in these terms:
"Particulars of Special Damages:
That by virtue of the spoilag