nahdi crusher company ltd vs diamond services ltd 2022 tzhccomd 398 12 october 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 134 OF 2021 BETWEEN NAHDI CRUSHER COMPANY LIMITED..................... PLAINTIFF VERSUS DIAMOND SHIPPING SERVICES LIMITED............... DEFENDANT Date of Last Order: 29th September, 2022 Date of Judgment: 12lh October, 2022 JUDGMENT MKEHA, J. The plaintiff, Nahdi Crusher Company Limited, a legal entity carrying on a business of transportation and logistics in the United Republic of Tanzania is suing the defendant, Diamond Shipping Services Limited, a Company registered and carrying out the business of shipping agency in Dar es salaam City for demurrage charges, General damages, interest plus costs of the suit arising from what the plaintiff described as the defendant's act of negligence in handling a bill of lading in a shipment of the plaintiff's cargo for inserting "final place of delivery" in a 1 |Page wrong part leaving the appropriate part prescribed final place of delivery blank. According to the plaint, 13 containers listed in the bill of lading, were shipped from Jeddah Saudi Arabia to the port of destination, Dar es salaam Tanzania. However, the Plaintiff did not smoothly receive her cargo as expected. When the plaint was filed, the following were the reliefs claimed by the plaintiff against the defendant: (i) A declaration that the defendant was negligent in dealing with the plaintiff; (ii) The defendant be ordered to pay the plaintiff compensation of United States Dollar 117.910.07 and Tanzania Shillings of 4, 794,000 being the storage charges and additional demurrage costs incurred by the plaintiff due to the defendant's negligence in the transaction; (iii) Compensation for the losses incurred for keeping the foreign experts by the plaintiff to be assessed by the honourable court; (iv) General damages as shall be assessed by the honorable court; (v) Costs of this suit and 2 |Page (vi) Any other reliefs this court deems fit to grant. The defendant filed a written statement of defence denying the plaintiff's allegations and claims. The defendant contended that she acted within the scope of the terms of the Bill of lading. According to her, the draft bill of lading was prepared pursuant to electronic advanced shipping instructions from the carrier and submitted to the plaintiff for approval. And that, the plaintiff had approved the draft as bearing information that was correct. Before commencement of hearing of the case, the following were framed as issues for determination: (a) Whether there was negligence committed by the defendant. (b) If the first issue is answered in the affirmative, whether there were damages suffered by the plaintiff. (c) To what reliefs are the parties entitled. Mr. Saleem Moor testified as the first witness for the plaintiff's case. This witness happened to be a clearing agent working with Twende Freight Forwarders Limited hired by the plaintiff. According to his own 3 |Page witness statement which this court admitted and adopted as evidence in chief of the witness, it was in October 2018 when the plaintiff engaged his services to clear all the 13 containers referred to in the bill of lading dated 14th October 2018 (Exhibit Pl). The cargo was intended to be delivered to the consignee in Dar es salaam and the final place of delivery was Al- Hushoom ICD. The said witness statement indicates that, in an effort to make sure that the cargo is cleared as per the instructions, he went through the TANCIS system to confirm the final place of delivery of the said containers and found that the 13 containers in the bill of lading in favour of the plaintiff were assigned to JEOFAG LOGISTICS LIMITED as their final place of delivery contrary to what was indicated in the bill of lading. The statement indicates further that, he advised the plaintiff to seek waiver of the costs from the defendant. However, the defendant offered only 5% waiver which was considered to be unreasonable due to the fact that, the fault was caused by the defendant. PWl further informed the court that, the defendant's act of failure.to indicate a proper final place of delivery in the appropriate place amounts to an act of negligence and omission to perform his duty with utmost good faith and care. According to PWl, if it were not for the 4 |Page defendant's act, Tanzania Revenue Authority would not have allocated the plaintiff's containers to a strange Inland Container Depot. In view of PWl, up to 21st March 2019 when the said containers were cleared, the defendant neglected taking care the situation by rectifying the mistakes or help the plaintiff with reasonable waiver on demurrage charges. According to PWl's witness statement, he communicated the said information to the Plaintiff's Principal Office through Mr. Abdallah Thabit Huwel who was not in agreement with the final place of delivery. The cargo was intended to be delivered to the consignee in Dar es salaam and the final place of delivery was at Al-hushoom ICD, a company which the plaintiff had an agreement with, to keep the containers free of charge for a specific period of time until when all clearances are over since they could not afford storage and demurrage costs at any other ICD. During cross examination, PWl stated that, the place of delivery was left blank and Hapag Lyoid was the one who made the mistake. PWl further stated that, whereas Hungary 1835E was the vessel written in the bill of lading, the vessel named in the tax invoice was VILDARDANNELLES. He 5 |Page also told the court that, the shipping line named in the tax invoice was CMA. The invoice is dated 23rd March 2019. In further proof of her case, the Plaintiff relied on Mr. ABDALLAH THABIT HUWEL as the second witness (PW2). He stated through his witness statement that, he was the Principal Officer of the plaintiff. He told the court that, in October 2018, the plaintiff purchased a crusher plant assembly part from MODERN TRADING AGENCIES CO LIMITED, a private company based in Jeddah Saudi Arabia. In efforts to make sure that the cargo reaches Dar es salaam Tanzania the said MODERN TRADING AGENCIES CO LIMITED engaged the services of the Defendant's principal office (Hapag Lloyd) in Saudi Arabia for shipping services. The shipper declared the place of delivery to be Dar es Salaam and final place of delivery to be Al- Hushoom Investments Limited. PW2's witness statement indicates that, it was the defendant's principal duty to indicate final place of delivery in the appropriate part of the bill of lading. The witness stated further that, although the defendant's principal indicated the details of the final place of delivery in the bill of lading but such declaration was made in a wrong in part. In view of PW2 the defendant's negligent act of failure to indicate the proper final place 6|Page of delivery caused the allocation of wrong inland Container Depot namely, JEOFAN LOGISTICS LIMITED contrary to the plaintiff's wishes. According to PW2, the plaintiff hired experts from abroad since November 2018 for assembling the crusher plant who costed the plaintiff a lot of money for their visa and stay in the country waiting for the clearance of the containers. PW2 stated further that, to avoid further escalation of storage charges, the plaintiff decided to pay the demurrage and storage costs on 2151 March 2019 and the said act was communicated to the defendant. According to PW2, because of failure to reach an amicable settlement between the parties, regarding the waiver of demurrage charges and storage costs, the plaintiff instituted the suit before this honourable court praying to be granted the reliefs indicated hereinabove. During cross examination, PW2 maintained that, the final place of delivery was written ICD of AL-HUSHOOM INVESTIMENTS LIMITED DAR ES SALAAM TANZANIA. In his view, the shipping line was duty bound to indicate the place of delivery at a proper part of the Bill of lading. Mr. Daniel Lameck Malongo (DWl) appeared as the first witness on part of the defence case. This witness happened to be the Documentation Manager working with the defendant Company and an agent of a 7 |Page Shipping line known as Hapag Lyoid. His witness statement was admitted and adopted in court as his evidence in chief without objection. According to DWl, the shipper, MODERN TRADING AGENCIES CO. LIMITED provides electronic advanced shipping instructions to shipping line services without declaring the final place of delivery and upon receipt of the electronic shipping instructions, a draft bill of lading is prepared by Hapag Llyod based on the.same instructions. DWl, denied the claim that the defendant acted negligently in handling the bill of lading thus causing the plaintiff to suffer the alleged damages, instead, the witness maintained that, the defendant acted within the scope of the terms of the Bill of lading. According to him, the draft bill of lading was prepared pursuant to electronic advanced shipping instructions and submitted to the shipper for approval. DWl further stated that, the said bill of lading with a blank box showing the place of delivery was duly approved by Modern Trading Agencies (shipper) (Exhibit D1 & D2). DWl further stated that, according to the Tanzania Ports Authority directions, the shipper's nomination is only valid if a name of dry port is inserted in the appropriate place named "place of delivery" on the face of bill of lading. Copy of the said directions dated 2501 July 2018 confirming the Authority' s directions was admitted as Exhibit D4. 8 |Page The witness statement indicates that, in the absence of the shipper's nomination filled in the appropriate place of delivery on the bill of lading, the defendant inquired on how to go about with the said containers from Tanzania International Container Terminal Services who informed the defendant to send the said plaintiff's container to JEFAG Logistics Limited under port extension and indeed the defendant complied with the instructions. During cross examination, DWl admitted that, the defendant acted as an agent for Hapag Lyoid who had no offices in Tanzania. DWl insisted that, as an agent, the defendant did what could have been done by any other reasonable agent. The witness admitted that, Hapag Lyoid had prepared the bill of lading. He further added that, it was the shipper who prepared the electronic Shipping instructions. Responding to questions put to him by way of cross examination, the witness maintained that, as per shipping practice the words ICD of AL-HUSHOOM Investment limited of Dar es salaam had no meaning. Mr. Hezron Gideon Mbembati testified as the second witness (DW2) for the defendant's case. This witness happened to be the Documentation Officer at the defendant's Company. According to his own witness statement which this court admitted and adopted as his evidence in 9 | Page chief, Modern Trading Agencies Co. Limited engaged Hapag Lyoid to provide the shipping services to the plaintiff. According to DW2 the shipper proceeded to fill the electronic shipping instructions which did not declare the place of delivery and upon receipt of the said instructions a draft bill of lading was prepared by the defendant's principal office and submitted to the shipper for approval. DW2 further stated that, in the Bill of lading received by the defendant, the place of delivery was left blank and pursuant to Tanzania Ports Authority directions, shippers' nomination is only valid where the name of a dry port is inserted in the appropriate place named "place of delivery" on the face of bill of lading. During cross examination, DW2 informed the court that, the Bill of lading and instructions indicated different vessels. DW2 stated that the Bill of lading was prepared at the shippers' instructions. In his view, there was no official declaration of place of delivery and the shipper's nomination had to be inserted at the appropriate place. The witness insisted that, the containers were sent to JEOFAG as per TPA's directives. The first issue for determination is whether there was negligence committed by the defendant. To respond to this issue, before I 10 | P a g e commence evaluating what the evidence on record reveals, it is I think necessary to define what a bill of lading is. According to Black's Law Dictionary, by Pryan A. Garner, 9th Edition, the following is the definition: "A document acknowledging the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation of those goods; a document that indicates the receipt of goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods" Basing on the definition hereinabove and the available literature on the subject, among other things, a bill of lading serves as a receipt and acknowledgement that goods of a certain kind, quantity and condition have been handed over for shipment. It also serves as a memorandum of the contract of affreightment concluded between the carrier and the shipper. Read: Admiralty and Maritime Law, Second Edition by Thomas J. Schoenbaum at page 507. Being an acknowledgement of receipt of goods by a carrier, the document is issued by the carrier. That being the case, the terms in the bill of lading have to be strictly construed against the issuer/carrier. In this case, the plaintiff's witnesses testified that the defendant was negligent by failing to allocate the final place of delivery in the 11 | P a g e appropriate place in the bill of lading. The defendant's witnesses testified to the effect that, whatever happened to the plaintiff's containers was because of the contributory negligence on part of the shipper who approved a wrongly filled bill of lading thereby inducing the defendant to believe that, everything had been correctly filled in the bill of lading. It turned out that, the bill of lading had been wrongly filled by the carrier, contrary to the shipper's declaration that he wished the place of delivery to be in Dar es Salaam, particularly, at AL-HUSHOOM INVESTMENTS LIMITED DAR ES SALAAM TANZANIA. See: Exhibit P1 and uncontroverted parts of testimonies of PWl and PW2 on this issue. See also: The Electronic Advanced Shipping Instruction (Exhibit Dl) in which the place of receipt was left blank. It is not disputed that it was the carrier's duty to fill properly the bill of lading in accordance with the shipper' s declaration, particulars regarding place of receipt of the plaintiff's cargo. Exhibit P1 indicates the way the defendant inserted the words indicating place of receipt in a wrong place. The foregoing analysis of evidence leads me into answering the first issue in the affirmative, that, indeed, there was negligence committed by the defendant. 12 | P a g e The second issue is whether there were damages suffered by the plaintiff. The defendant does not dispute the fact that, contrary to the plaintiff's declaration the Containers were pjaced at JEFAG logistics (T) Limited (Inland Container Depot). To clear the said containers from the said wrong destination occasioned by the defendant's negligence, the plaintiff had to make extra payments of USD 117,910.07 and TZS 4,794,000 being the storage charges and additional demurrage costs. See: Exhibit P8 collectively. This evidence justifies issuance of an order that the plaintiff be compensated. The plaintiff did not however, bring evidence of how much she spent as expenses for the up keep of foreign experts who had to stay in Tanzania for a long time waiting to assemble the plants delayed to be cleared. As such, the pleaded damages fall short of the required proof. For the foregoing reasoning, it is hereby decreed in favour of the plaintiff as follows; - (i) A declaration is made that the defendant was negligent in dealing with the plaintiff. (ii) The defendant shall pay the plaintiff compensation of USD 117,910.07 and TZS 4,794,000 being the storage charges and additional demurrage costs. 13 | P a g e (iii) The defendant shall pay the plaintiff TZS 5,000,000/= as general damages. (iv) The defendant shall pay the plaintiff an interest of 7% per annum on the decretal sum from the date of judgment to the date of payment in full. (v) The defendant is condemned to bear costs of the suit. DATED at DAR ES SALAAM this 12th October 2022. JUDGE 12/10/2022 Court: Judgment is delivered on this 12th day of October, 2022 in the presence of Mr. Nicodemus Agweyo learned advocate for the plaintiff and Ms. Jamardin learned advocate for the defendant. JUDGE 12/10/2022