Automated Summary
Key Facts
This is a case where Defendant Inchape Shipping Services raised preliminary objections against Plaintiff Shabbir Moosa's suit regarding a Bill of Lading dispute for container No. MOTU 0539255/MOLAE 08455/CA4 containing motor vehicle tires. The Plaintiff claimed the Defendant failed to deliver the consignment, while the Defendant argued the container was delivered at TICS verification yard on 21st August 2009. The court found the Plaintiff had not presented the original Bill of Lading to the Defendant and the container was delivered at the port of discharge, therefore the Plaint does not disclose a cause of action and was rejected with costs.
Transaction Type
Bill of Lading shipment and delivery of motor vehicle tires consignment from Singapore/Dubai to Dar es Salaam
Issues
- The court examined whether the Defendant fulfilled its contractual obligations. The Defendant demonstrated it delivered the container to the port of discharge as required by the contract of affreightment, and the Plaintiff had not presented the original Bill of Lading to the Defendant to request delivery order issuance.
- The court considered whether there is privity of contract between the Plaintiff and Defendant. The Defendant argued that under the Bills of Lading Act and law of contract, only parties to a contract can sue or be sued. The Defendant was named as an agent of Mitsui O.S.K. Lines Ltd on the Bill of Lading, not as a principal party to the contract of affreightment.
- The court examined whether the Plaintiff has a valid cause of action against the Defendant. The Defendant argued the Plaintiff had no cause of action as the Defendant was merely an agent of the principal carrier, and the principal had already discharged its duty by delivering the container to the port. The Plaintiff's claim was based on the Bill of Lading and alleged failure to issue delivery order.
Holdings
The court ruled that the Plaint does not disclose a cause of action against the Defendant, Inchape Shipping Services, because the Defendant had discharged its contractual duty to deliver the container at the port of Dar es Salaam. The Plaintiff, as importer/consignee, failed to present the original Bill of Lading to the Defendant, which disentitled the Plaintiff from claiming non-delivery. The court found that the container was delivered to TICS verification yard awaiting clearance by the Plaintiff as per the port-to-port contract of carriage. Consequently, the Plaint was rejected with costs under Order VII Rule 11(f) of the Civil Procedure Code.
Remedies
The court rejected the Plaint under Order VII Rule 11(f) of the Civil Procedure Code because it does not disclose a cause of action, and ordered the Plaintiff to pay costs.
Legal Principles
The court applies the doctrine of privity of contract under section 181(1) of the Law of Contract Act [Cap.433 R.E. 2002], which holds that only parties to a contract can sue or be sued under a contract. The Defendant, Inchape Shipping Services, being an agent of the Bill of Lading issuer and not a party to the contract of affreightment, cannot be held personally liable. The Bills of Lading Act, 1855 of England (statute of general application) further entitles only the holder of a Bill of Lading or endorsee to sue and recover on it. The court also references the principle from Dunlop Pneumatic Tyre Co. Ltd vs. Selfridge & Co. Ltd that a stranger to a contract cannot enforce it in personam.
Precedent Name
- MOHALAL MATHURADAS BROTHERS VS. EAST AFRICA NAVIGATOTRS LIMITED
- DUNLOP PNEUMATIC TYE CO. LTD VS. SELFRIDGE & CO. LTD
- JOHN M. BYOMBALIRWA VS. AGENCEY MARITIME INTERNATIONAL
Cited Statute
- Law of Contract Act [Cap.433 R.E. 2002]
- Bills of Lading Act, 1855 of England
- Shipping Agency Act No.13 of 2002
- Civil Procedure Code Order VII Rule 1(e)
Judge Name
R.V. Makaramba
Passage Text
- The fact that the container has been delivered by the Defendant at the port of discharge as per the contract of affreightment and that the said container was delivered at the terminal operator TICT's verification yard where it is awaiting to be cleared by the Plaintiff as per the contract of carriage which is port-to-port also disentitles the Plaintiff from making any claim against the Defendant.
- The central issue is the Bill of Lading which describes the terms of carriage showing the place of receipt to be QINGDAO-CY and the place of delivery as DAR ES SALAAM and within the scope of the contract of affreightment as evidenced by the Bill of Lading, it was the carrier's responsibility, the Defendant's herein to deliver the disputed container and deliver it at the port of Dar es Salaam which duty has been fulfilled and the Plaintiff does not dispute this fact.
- In the event and for the foregoing reasons the Plaint does not disclose a cause of action and in terms Order VII Rule 11(f) it is hereby rejected with costs. Order accordingly.
Damages / Relief Type
Compensatory damages sought for value of consignment and loss of business (special and general damages) - amount not specified