[1988] KECA 117 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: MASIME JA, GICHERU & KWACH Ag JJA)

CIVIL APPEAL NO 57 OF 1985

BETWEEN

MEDITERRANEAN SHIPPING CO SA...................................................... APPELLANT

AND

KENYA ALLIANCE INSURANCE

WHEAT BOARD OF KENYA THE MV PANTERA................................. RESPONDENT

(Appeal from the High Court at Mombasa, Aragon J)

JUDGMENT

January, 1988, Platt JAdelivered the following Judgment.

The appellant appeals against the judgment of the High Court whereby the appellant, as plaintiff in the suit, was held to have failed to establish the claim against the defendant now respondent. It will be convenient to refer to the parties as they are in this appeal, since the appellant is still seeking to establish his claim. The appellant is a shipowner, in whose ship the M V Pantera, a consignment of gift what was sent to the Government of Kenya, to be received by the Kenya Wheat Board represented by the Kenya Farmers Association in Mombasa. The appellant claimed demurrage, ultimately for one day the 16th January, 1978, during which it is said that the respondent failed to arrange to receive the wheat.

The respondent, in their amended defence, protested that there was no delay at all, but that assuming without admitting that there was a delay, that would have been caused by the scarcity of railway wagons over the availability of which the respondent had no control.

The respondent had made all necessary arrangements. Nevertheless when the non-availability of the railway wagons was brought to its notice, it took immediate and effective steps to provide road transport to take delivery of the wheat. The learned judge thought that the respondent had proved to be right and dismissed the appellant’s claim.

Mr.. Satish Gautama presenting the appellant’s appeal commenced with the remark that he accepted the primary findings of fact by the trial judge, but did not accept the inferences and conclusions drawn by him. Having compared the narrative of events set out in the judgment with the evidence recorded, it is a just remark with regard to the facts. Those primary facts may be described shortly.

On 9th January 1978, the Panteraarrived at the pilot station of the port of Mombasa at either 22. 00 or 23. 00 hours. The following day she was piloted into port and anchored at “C” anchorage, in the mainstream, awaiting a berth. From 11th to 13th January 1970 various attempts to allocate a berth were made; and the ship may have moved to “B” Anchorage. But the events of the 14th January were critical. The Panterawas not allotted berth 9 after the “Hellenic Wave”, that was given to the Boston Maru. The Panterawas given Berth 9 after the Boston Marufor the latter part of 17th January. The Panterawas berthed at berth 9 and started discharging cargo in at least the third shift. The appellant’s agent Ocean Freight Ltd was represented in court by Mr.. Msafari (PW 1). The latter stated clearly that when the discharge of wheat began on 17th January 1978 lorries were ready to receive it, and the claim only related to the delay before berthing of Panteraon 16th January 1978.

That is an unusual type of claim. It is more understandable that demurrage would arise after the ship had berthed, unless there was another place specified, and then the receiver delayed in receiving the cargo. But it is no doubt this feature which has caused the differences of opinion in this case. Mr.. Inamdar for the respondent was particular in his final address, to lay the foundation of his defence on the concept that it was the duty of defendant in law “… to arrange for receipt of cargo when vessel (was) was ready to discharge.” The vessel was ready to discharge on 17th January and by that date admittedly the respondent was not at fault. If there was prior fault, that was beyond the control of the respondent.

It is accepted that clause 5 set out in the contract of carriage, incorporated in the Bill of Lading is in a form, which has been authoritatively construed as meaning that no fixed time has been fixed within which the discharge is to take place. The claim is as follows:

“5. LOADING, DISCHARGNG AND DELIVERY OF THE CARGO

The merchant or his assignee shall take delivery of the goods and continue to receive the goods as fast as the vessel can deliver…”

The clause then goes on to deal with hours of work, which is not in point in this case.

In the case of such a clause, the consignee’s obligation is to take delivery of his cargo within a reasonable time. Reasonable time itself is to be judged on a consideration of all the circumstances which actually exist, from the arrival of the ship to the completion of the unloading. The consignee fulfils his obligation, however protracted the delay may be so long as such delay is attributable to causes beyond his control, and he has acted neither negligently nor unreasonably. The factors to be considered in the ascertainment of reasonable time, are the natural conditions of the port, the custom of the port, the actual state of affairs existing at the port, and the conduct of the consignee. (See Halsbury’s Laws of England, 4th Ed, Vol 43 paras 670 et seq Hick v Raymond & Reid[1895] AC 22; The Lyle Shipping Co Ltd v Corporation of Cardiff[1900] 2 QB 638; Hulthen v Steward & Co Ltd. [1903] AC 389).

The first of these aspects to be considered is the customs of the Port of Mombasa since any stipulation as to unloading is always construed as made with reference to the custom of the port of discharge. The first is that if cereals such as wheat are to be offloaded at Mombasa, it will be by direct delivery in railway wagons or lorries. Hence prior to the arrival of the ship the respondent had made firm arrangements with the Kenya Railways to provide sufficient rolling stock in the port to keep up with the dispatch programme for the wheat. That position was confirmed again on 11th January 1978 after the Panterahad entered the harbour and was lying at “C” Anchorage. It is clear that by the custom of the port, the ship would have to come alongside a berth for the discharge to take place into a railway wagon or lorry. Consequently it was the berthing of the vessel which attracted most attention in this case.

Once it is accepted that by Custom the ship had to be berthed as permitted by the Port Authority, then Goods & Co v Isaac[1892] 2 Q B 555, which was received by the High Court is of importance. In that case, the clause was that the ship was “to be discharged at usual freight berth as fast as steamer can deliver, as customary and when ordered by the Charters.” There was there a specific contract concerning the berth to be used which is not the case in the present appeal. But if the Port of Mombasa had by custom stipulated that cereals must be offloaded at berth, direct into Wagons or lorries, the arrival at the berth was vital. Then following Good & Co v Isaacwhere it was held, following Tharis Sulphur & Copper Co ltd v Morel Bros[1891] 21 QB 647, that the obligation upon the Chatterers to unload did not commence until the ship was berthed, that meant berthed with the assent of the harbour authorities. Moreover, it was held that “as fast as steamer can deliver” as customary, meant that discharge and delivery must be as fast as the custom of the port would allow. In applying this decision to the facts of this case, it would seem that one must observe how the ship came to berth, after which the duty of the consignee to unload would commence.

The second customary aspect to be noticed is the procedure of allotting berths to a ship.

There was evidence from the appellant’s agent that the latter sent the manifest to Kenya Ports Authority and the Kenya Cargo Handling Services for them to select the quay. The consignee arranges with the Kenya Ports Authority the mode of taking delivery and that was to be direct into railway wagons. It is not disputed that the Kenya Ports Authority is a parastatal organization set up by an Act of Parliament and that stevedoring is carried out by Kenya Cargo Handling Services an organization connected with the Authority. Everyday except Sundays, a berthing plan is produced, which is made in the operations room of Kenya Cargo Handling Services, and the circumstances of each ship are considered. The normal rule to be observed is that the ship which arrives first takes priority in being allocated a berth. But the plan made each day is not the final position as to what may happen. Ships may take more or less time to complete loading and discharging.

The Kenya Ports Authority reserves to itself overall discretion of deciding which ship will occupy which berth. Present at the making of this plan are the representatives of Kenya Cargo Handling Services, the Kenya Railways, the Ship’s agents who advise the Kenya Ports Authority on the situation regarding any ship. The consignee’s agents are not present. But if the consignee has arranged for wagons, then the Kenya Railways puts them at the disposal of the Kenya Cargo Handling Services. If the latter Services, requires wagons from Kenya Railways, the Railways will make them available. At the fact of the berthing plans are boxes in which the number of the Railways Wagons are inserted. It is usual for the’“placed” wagons to be less than required, at any rate as seen from Exhibits 12 to 22 berthing plans for 9th January to 26th January 1978.

All this is how Mr.. Msafiri, the appellant’s agent described the situation. Mr.. Abwoga of the Railways, (DW 1) stated that his representative at the Berthing Plan Committee was Mr.. Mukabi. The Kenya Ports Authority and the Kenya Cargo Handling Services requisition the wagons, and tell the Railways the number and the place where they are required. Thus while the Kenya Railways make the wagons available it is the Kenya Cargo Handling Services who determine the actual number to use for anyone day and the the shortage. Mr.. Abwoga had instructed Mr.. Mukabi to place wagons for direct discharge from the Panterain accordance with the Kenya Cargo Handling Services’ requirements.

All this evidence was accepted, and the effect is, that the consignee having the best arrangement he could with the Kenya Railways, must leave the matter to the organizations which decide on the berthing plan, and whilst he may make inquiries, as Mr.. Gautama insisted, he cannot influence the final berthing decisions. That is the prerogative of the Kenya Ports Authority. It was indeed conceded by Mr.. Macharia Muhuni, the appellant’s advocate at the trial, in his closing speech, that it was the duty of the respondent to arrange for provision of means of discharge and not actually to provide the means. This is the line Mr.. Inamdar has adopted on this appeal that the respondent had to procure the means but not actually to see that the transport was alongside.

If then, the respondent’s main responsibility arose after the Panterahad berthed, and the respondent had admittedly procured the means to take delivery of the wheat direct into wagons, (see Lyle Shipping Co v Corporation & Cardiff, above) how did it come about that lorries were used on 17th January 1978?

Mr.. Msafari had been nervous from the beginning that in practice the wagons would not be available. He drew that inference from the berthing plans. Mr.. Abwoga’s evidence is that the supply to Kenya Cargo Handling Services was always sufficient and exceeded actual demand. For some reason the statistics of the Railways and those on the berthing plans differ. All that can be said is that for some unknown reason the representatives of both the Kenya Cargo Handling Services and the Kenya Railways, advised the Ports Authorities that the Wagons are not available. They did so on 14th January, 1978 at the berthing Committee. Mr.. Msafari reacted violently. He telegraphed the Wheat Board of Kenya on 15th January, 1978, that the Panterahad lost its berth because the Wheat Board had failed to provide transport. He held the Wheat Board fully responsible for demurrage and demanded a deposit of CUS 10,000. 00 failing which his principals would seize the cargo. He strongly recommended a switch to road haulage. The Wheat Board acted at once, and by the time of the berthing plan Committee meeting on 16th January, 1978, Mr.. Msafari was able to report that lorries would be available. On 17th January 1978 that was the position.

Nevertheless Mr.. Msafari persisted in his claim for demurrage, and the source of the claim seems to be the Berthing Plan Committee meeting of 14th January 1978. Mr.. Msafari’s evidence of what occurred is not quite the same as that of Mr.. Bwango, a Senior Operations Officer employed by the Kenya Ports Authority. As the Authority has the final decision in berthing ships, and as Mr.. Bwango was called by the appellant (PW 2) it is his evidence that must be of great importance.

Mr.. Bwango explained the way that the Panterahad been scheduled at berth 11 on 13th January 1978, and berth 7 on 15th January and at berth 9 on 14th January 1978. (One sees how the consignee could not keep track of the wagons arriving in time each day at all these berths, and why it must be the authorities who arrange this). He says he attended the meeting on 14th January 1978.

“At that meeting agent for Boston Maruwho had arrived before Panteraand was waiting for berth to load informed that cargo was ready for loading. Hence as Boston Maruwas ready and had arrived before Panterashe took priority over Pantera. That is why Panteradid not berth on 14. 1.78 and why Pantera’s berth was allocated to Boston Maru. After allocating Boston Matu to Pantera’s former berth, meeting then began to plan for Pantera. It was then established that transport facilities were required for taking Pantera’s cargo. KPA rule is that all grain must be discharged directly in either rail or road transport, and it is not stored in shed. Hence Pantera’s cargo of wheat had been arranged for direct delivery in wagons by consignees. At the meeting on 14. 1.78 representatives of railways and Kenya Cargo Handling Services stated that there were no wagons to be placed available for Panteraat No 9 and hence Panteracould not be shifted to another berth same day.

It was hence decided to leave Panteraat the anchorage and review situation at meeting on 16. 1.78. If wagons had been available on 14. 1.78 there would still have been a berth available on 14. 1.78 and 15. 1.78. A berth would have been available on 16. 1.78. i.e No. 4 but railway representative indicated at meeting that wagons could not have been available for 1st shift on 16. 1.78. At meeting on 16. 1.78 plaintiff’s agent stated road transport would be made available if no wagons could be placed alongside but no berth was available on 16. 1.78 2nd or 3rd shift or 1st shift on 17. 1.78. ”

In fact Mr.. Msafari thought that a quay had become available on 15th January 1978 – ie No 8 and that is why he complained of the days idleness up to 17th January 1978 (see his letter Exh 1).

He also supported this by alleging that the “Hellenic Wave” which had been working at berth 9 on 13th January 1978 did not finish on14th January 1978. The authority allowed the Boston Maruto berth on 15th January, 1978 at berth 9. The Boston Maruremained there until the afternoon of 17th January, 1978 and then the Panteratook over. It then worked for 9 days at that berth.

The Kenya Ports Authority, on 20th January, 1978 answered Mr.. Msafari’s complaint that the delay was due to lack of wagons. That letter (Exh 2) was signed by Mr.. Bwango. His later account was that that was not so. If Mr.. Bwango’s evidence is accepted, the lack of railways wagons was not the real element in the decision to prefer the Boston Maru. That ship was only loading over a few days, the cargo was ready and she had arrived at Mombasa first. The authority’s decision to prefer her was quite reasonable. That preference was to last until the meeting on 16th January 1978. That meant that she would be allowed a berth after that time. By the time the meeting was held, there were no berths until 17th January, 1978.

The conclusion on the facts must be that either the lack of transport had played no part on 14th January, 1978, or if it had, in that case the respondent had no control over the decision to the Boston Maru. The Ports authority had not decided to berth the Panteraon 16th January, 1978, which it did not do because of lack of transport. Lorries were offered on 16th January. The authority had decided the reviewthe situation on 16th January and then decided on that day to berth the Panteraon 17th January. There is no case of a day lost on 16th January at all.

The Ports Authority had not made a decision which the consignees could not utilize.

In these circumstances, the learned Judge prima faciecame to a reasonable conclusion. But Mr.. Gautama argues that he did not. It would appear from the memorandum of appeal overall, that the appellant contends that the learned judge approached the problem in the wrong way. Whilst the learned judge considered the customs and practices at the Port of Mombasa, it seems that Mr.. Gautama wishes to stress the conduct of the consignees. As will be seen from the resume of the Law in Halsbury’s Laws of Englandreferred to above, the conduct of the consignee is indeed one of the factors to be taken into account in ascertaining what is a reasonable time (paras 671 and 675). Mr.. Gautama appeared to stress that it was the duty of the consignee to use reasonable diligence in receiving the cargo. To him, seemingly, reasonable diligence meant that when the shortage of wagons became apparent the consignee should have taken steps to prevent that becoming a factor in delaying the assignment of a berth. The Respondent should have asked the authorities what was delaying the allotment of the berth; if necessary the respondent’s agent should have got the wagons pushed to the berth. The agent could not just simply do nothing. It was for the respondent to show that they had acted diligently, relying on The Arne(above). The learned judge was therefore wrong in holding that the respondent had no control over the circumstances which caused delay in receiving the cargo. The judge had not specified what the circumstances were. The respondent’s arrangements were not sufficient to relieve the respondent of liability. The Judge was wrong to hold that the respondent did not have any duty to see to it that the wagons were actually placed alongside. The Judge was wrong not to accept the insufficiency of wagons as the explanation why the wheat was not received on 16th January, and indeed should not have allowed evidence that there was no scarcity when such scarcity had been pleaded.

The ultimate question then is which side failed to approach the problem correctly, or failed to establish its case?

It will be convenient to deal first with the The Arne. In that case there were two wagons to carry mainly pigiron (and old nails on the first voyage as well) it being stipulated in the two bills of lading, as follows:

“the goods to be taken from the ship by the consignees (at their expense) immediately after arrival and as fast as steamer can deliver, or the same will be transshipped into lighters, or landed, or warehoused at the expense and risk of the proprietors of such goods.”

It was admitted that on the first voyage, delivery commenced at 9. 00 am on Tuesday April 14, but was not completed until 12. 30 PM on Saturday April 18, the reasonable time having been upto Thursday April 16. Two days delay were claimed. On the second voyage in a similar calculation one day ten hours were claimed as a delay. These delays were claimed as due to the defendant’s not taking proper steps to see that sufficient railway wagons were provided. The defendants only answered the claim on the basis that a reasonable rate of discharge would be from 250 to 300 tons a day and not 500 tons as claimed by the plaintiff. The President of the Court had these observations to make at p 161:-

“I do not agree that the question of average quantity was material here, though in taking into consideration what the steamer could do, you have to consider the actual state of things – the appliances of the port, and the mode of delivery; still, that does not relieve the defendants from their liability to show that they have done all they could, and that it was not their fault. A prima faciecase is made against them, and there is no answer either set up, or which to my mind can be set up, to meet the case of the plaintiff. In these circumstances I am prepared to give judgment for the plaintiff”.

That case is instructive in its way, but not quite relevant. It is not possible to press the pleadings and facts in this case, into the mould of The Arne, because a defence is pleaded that the respondent had done all it could and that it was not at fault. But the value of the decision is that the plaintiffs there had made out a prima faciecase. That is clear because two extra days and one day and 10 hours extra were taken in discharging the ship. In he present case there was no delay in discharging the Panteraafter she reached berth 9. The appellant took upon itself to show that there was one day’s delay on the 16th January, because the Port Authority had not been able to allocate berth 4 on that day which was free.

There are two answers. The first is that there was no delay at all, because the actions of the Ports Authority are matters which form part of the customs at the Port and are not the responsibility of the respondent. Therefore the respondent’s duty arose only after berthing. The second is, that even if the respondent’s duty arose as soon as the Panterawas being considered for berthing, the respondent had no control over the decision of the Ports Authority. Having been apprised by Mr.. Msafari of what was being said, and had changed to lorries, the respondent had done all it could, first in procuring the wagons long before they were needed, and secondly in providing lorries as the appellant’s agent recommended. It is arguable that the appellant did not set up a prima faciecase at all; but if it did, it was answered. Hence The Arneis not in point.

Looking at this dispute from the point of view of the Lyle Shipping Co Ltdcase, one finds that as the facts were as found by the trial judge in effect saying that the consignees were not guilty of negligence, AL Smith L J poses the question for himself.

“Have the plaintiffs proved that the defendants have broken their contract with the plaintiffs that the cargo should be discharged with all dispatch as customary?’

Then the learned Lord Justice quoted Lord Herschell in Hick v Raymond(above)-

“The question is, has the appellant (the shipowner ) proved that this reasonable time has been exceeded? This depends upon what circumstances may be taken into consideration in determining whether more than a reasonable time was occupied?”

It is the plaintiff in a case such as this, who must carry the burden to show that more than a reasonable time was taken. It is then for the defendant to answer that he acted with all diligence and was not at fault. The appellant in this case gives the impression that he showed that more than a reasonable time was taken, and that the onus had passed to the respondent.

For my part I do not think that that was true. The appellant has never made a steady claim as to when this delay took place. Did it start on 15th January, the scheduled berthing for that day; or on 14th January, (another scheduled berthing); although in the end the claim was only for the 16th January a day when the Panterawas not given a berthing? So far from Mr.. Macharia Muhuni permitting himself to open his final address with the question “What defence is the defendant relying on?” He should have asked himself “Now what delay am I relying on?” and “why?” Having radically altered his case, it was that altered case which he had to explain that had been proved to a prima facieextent, before the burden of proof passed to the respondent.

The events of the 14th January, 1978 and the deliberations of the berthing committee cannot finally cast any reflection upon the respondents. At the risk of repetition it need only be said that the respondent had made all arrangements necessary by letter as well as telephone, for the supply of wagons as Mr.. Abwoga showed, and as Mr.. Msafari had ascertained had been agreed, from 6th January right up to 11th January, 1978. The berthing committee is a committee at which the respondent’s agent cannot attend; only the appellant’s agent can attend. The discretion to allocate a berth resides entirely in the Ports Authority. The discretion to call for and allocate wagons is that of Kenya Cargo Handling Services. Neither the Kenya Railways nor the respondent can force wagons on the Kenya Cargo Handling Services, and so the Kenya Ports Authority. It would certainly not be proper for the respondent to send a team of men to push wagons to berths the respondent imagines may be the berths allocated to it. While the chose of wagons was reasonable, it would appear that more control may be had over lorries.

But there may be a difference in transport costs. It was the Ports Authority’s decision to prefer the Boston Maruto the Panterafor several normal reasons, quite part from the alleged scarcity of wagons. It was the Ports Authority’s decision to consider the Pantera’s position again on the 16th January. By the time the berthing committee sat, there were no available berths, and the possibility of allocating berth 4 to the respondent did not arise, because the committee does not sit on Sundays. No allocation could be made before the mid-morning of 16th January. The 17th January was the earliest date. The respondent could not in any way have prevailed upon the committee to allocate berth 9 to the Panterainstead of the Boston Maru, or to receive an allocation before 17th January, 1978. But the respondent had done everything in its power to procure the wagons.

A word of praise is due to Mr.. Msafari who prevented the drift from getting worse. His prompt action on 15th January, saved the situation. As far as is known, he did not know that a negative attitude would be taken by the representatives of the Kenya Cargo Handling Services or the Kenya Railways, Mombasa before 14th January, 1978; neither did the respondent. There is no case for suspecting this attitude if Mr.. Abwoga’s evidence is reliable.

On this evidence the appellant had failed to prove any delay before 17th January, 1978. That vindicated the first defence set out in paragraph 3 of the amended defence. On the other hand, it was circumspect to allow for mishaps and put forward an alternative defence in paragraph 4 based on the possible scarcity of wagons. When the main defence and the alternative defence are considered carefully, it will be understood why evidence was called from Mr.. Abwoga as to the availability of wagons. It was to support the effective procuring of wagons on the one hand, and to show that the respondent had no control over Mukabi’s stand for the Kenya Railways or that of the representative of the Kenya Cargo Handling Services, on 14th January, 1978 in the berthing committee, and indeed the respondent could not have suspected such a stand by any circumstances of which he could be aware.

The learned Judge came to the right conclusion, his view of the circumstances of this case was on the whole sound, and I would dismiss this appeal with costs. As Gachuhi & Masime JJA agree it so ordered.

Gachuhi JA. I have read the judgment of Platt JA in draft form and I agree with it. However, I have this to add.

The real issue in this appeal is whether, the appellant had proved its claim in the High Court. Did the plaintiff discharge this burden? If the plaintiff had proved its claim and if the only defence available to the defendant was a blame on a third party, such defence would not have prevented the plaintiff from recovering damages.

The discharge of the cargo from the ship is the joint act of the shipowner and the consignee. The ship owner’s duty is to get the cargo out of the holds and to deliver it to the consignee whereas it is the consignee’s duty to take the delivery of it. The extent of their respective obligations in any particular case is regulated by the custom, if any, of the port of discharge (Halsbury’s4th Ed Vol 43 para. 660).

The Bill of lading provides.

“Discharging and delivery of the cargo shall be arranged by the carrier’s agent unless otherwise agreed …… The merchant or his assign shall take delivery of the goods and continue to receive the goods as fast as the vessel can deliver, and…”

In order for the ship to be able to deliver, it has to be berthed. The custom of the port is that the commodity to be discharged (wheat) was to be discharged on the railway wagons or on lorries. These wagons or lorries have to be on the quay where the ship is berthed. If the ship is not berthed it is not ready to discharge. If the wagons or lorries are not on the quay and the ship is there then the consignee is not ready to receive. Hence, the operation is a joint effort of the shipowner and the consignee.”

According to the evidence, there is a meeting of a committee held daily; comprising of the Port Authority, Kenya Cargo Handling Services Ltd., Kenya Railways and the representatives of the shipowners. The meeting allocates berths to the ships. At that meeting, the consignees are not represented, but the Kenya Cargo Handling Services Ltd could be representing them. But what happened in this case, is that the representative of the shipowner, in order to save the situation of any possible delay, acted as agent of the consignee in informing them that there were no rail wagons ready to receive the goods. At that time, the ship Panterahad not berthed. When it berthed on 17th January 1978, lorries were ready to receive the goods.

Panterawas to be allocated berth No 9. But another ship Boston Maruwhich had docked earlier had been allocated that berth for loading. No evidence to show that railway wagons could have been there when Boston Maruwas loading. Under the custom of the port, the ship had to be allocated a berth to be able to discharge. If no berth allocated the ship has to remain, anchored somewhere in the port. The claim of shortage of wagons does not really answer or improve the plaintiff’s claim in my view since the ship had not been allocated a berth. The evidence of the Railway representative is that there were wagons placed at the disposal of Kenya Cargo Handling Services in the Port.

In Halsbury’s4th Ed Vol 43 para 653 dealing with arrival at berth necessary provides:

“..If therefore, without any default on the part of the consignee, the ship is unable to reach her berth at once, as where the berth is already occupied or where the tides are too low to permit her to proceed for the present, the risk of delay falls on the shipowner and not on the consignee.. Unless, therefore, the contact expressly requires him to name a vacant berth, the berth named, if otherwise in order need not be vacant when the ship arrives in the port, and the shipowner is bound, if necessary, to wait for a reasonable time until the berth is free. In this case also the ship has not reached her destination until she has actually reached her berth, the risk of delay in the meanwhile falling on the shipowner….”

The contract does not name a specific berth and the shipowner cannot go to any berth unless it is allocated by the Port authority which is the custom and the Port Authority is the Authority in the port. I do not see how a claim can arise if the ship has not been allocated a berth and the ship is at the berth ready to discharge but the consignee is not ready to receive. In my view the plaintiff did not prove its case for damages of one day the 17th January, 1978. The learned trial judge was right in his findings. I would also dismiss this appeal with costs.

Masime Ag JA. This appeal arises from the judgment of the High Court at Mombasa (Aragon J) whereby he dismissed a claim by a shipper against a consignee for demurrage for alleged failure to take delivery of cargo as fast as the ship could discharge. There is no quarrel by the appellant with the directions by the learned judge as to the law applicable nor the findings of fact on the evidence adduced by both sides at the trial. Rather the appellant complains that the learned judge erred in his application of the law to the findings of fact and thereby erred in not finding that the consignee was liable to pay demurrage for one day.

The learned judge found as a fact that long before the ship arrived the defendant had arranged for railway wagons to be available and that indeed an excess of wagons were available at the port by the time the ship was ready to discharge. As per the customs at the port the duty of putting the wagons alongside the ship to facilitate discharge was upon the Kenya Ports Authority and the defendant could in no ways take over the duty.When the attention of the defendant was drawn to the failure of that authority to so deploy the wagons as to enable discharge immediate alternative arrangements for discharge into lorries and direct delivery were made. The plaintiff’s complaint seems to be that rather than taking that step the defendant should have undertaken investigation of the reasons why the Kenya Ports Authority failed to place the wagons alongside the ship to start discharge on 16. 01. 1978.

I would for my part respectfully agree with the learned trial judge that the plaintiff has failed to show that the defendant was in any way responsible for a delay in taking delivery in its cargo as fast as the “MV Pantera” to discharge it and concur with him that the plaintiff’s suit ought to be dismissed with costs in favour to the defendant.

Accordingly I agree with my Lords Platt and Gachuhi JJA in regards to the orders they propose.

Dated and delivered at Mombasa this January, 1988

H.G PLATT

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JUDGE OF APPEAL

J.M GACHUHI J

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JUDGE OF APPEAL

J.R.O MASIME

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AG. JUDGE OF APPEAL