ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD

JUDGMENT OF ADADE AG CJ.

The facts relevant to this appeal are set out in detail in the judgment of my brother Aikins JSC. I need not repeat them. I agree also with his conclusions. I would only add a few lines in Support.

As regards the liability of the first defendants, Royal Dutch Airlines (KLM), I have not the slightest doubt. The plea that the contract was duly performed when the consignment was deposited at the Kano Airport cannot stand up to much examination. On their own showing, the first defendants knew that the final destination of the consignment was not Kano, but London. Not only that, how the goods were to get to London was also expressly stated on the air waybill (AWB), exhibit 2, which accompanied the goods, and which was in the possession of the first defendants.

Both defendants are experienced and reputable international air carriers. They use and handle hundreds of air waybills daily in the course of their operations, and are more than familiar with these documents. Exhibit 1, the air cargo tariff, explains the significance of the various boxes on an air waybill. As regards box 21, titled Handling Information, exhibit I states at p 104:

"This box may be used to indicate any information, related to the handling of the consignment for which a special area does not appear elsewhere on the AWB, for example:

The name and address of any person to be notified of arrival of the consignment in addition to the consignee . . .

Indication of where delivery service is requested. Any other special handling information or instructions relating to the shipment."

(The emphasis is mine.) The AWB (exhibit 2) which was used in this case contained all the relevant handling information and stated on its face, in a appropriate box: "NTY BCAL KANO TO RAISE AWB TO LGW TO CONNECT WITH BR 366 ON I DECEMBER 1985." The code words used cannot be strange to anyone: Nty is notify, and LGW [p.628] is London Gatwick Airport. Therefore the first defendants' duty did not stop with merely dumping the cargo at the Kano Airport as contended by them. They were also to notify the cargo to the second defendants' officer, BCal, Kano by giving them the air waybill and identifying the cargo to them. The air waybill would have intimated to BCal that the consignment was to be carried by them on a specific flight to London, viz flight No BR 366 of I December 1985. If the first defendants had done this, I would have hesitated to attach any liability to them.

On the evidence,