ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD
1990
SUPREME COURT
GHANA
CORAM
- ADADE AG CJ
- WUAKU
- AMUA-SEKYI
- AIKINS
- EDWARD WIREDU JJSC
Areas of Law
- Aviation Law
- Contract Law
- Commercial Law
1990
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana considered an appeal involving Farmex Ltd’s shipment of fresh mangoes to its UK customer, B. Coustavallis Ltd, routed via Kano after British Caledonian Airways (BCal) could not lift directly from Accra due to a fuel shortage. KLM carried the cargo to Kano but its purser negligently over-carried the air waybill (AWB) to Amsterdam, leaving both KLM and BCal’s Kano offices without documentation. The AWB explicitly directed notification of BCal Kano and connection with BCal’s flight BR 366 on 1 December 1985, but the goods were not transshipped then. BCal, which had regularly carried Farmex’s perishable mangoes and arranged the rerouting, failed to communicate timely instructions despite knowing that Accra–Kano telexes were unreliable and that time was of the essence. The cargo was accepted on 4 December and flown on 6 December, arriving rotten and destroyed. The Court dismissed both defendants’ appeals, held KLM and BCal jointly and severally liable, corrected damages to £23,800 payable in sterling, and restored interest from 1 December 1985 to payment.
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,