Breach Of Contract: Court Asks Maersk Nigeria Limited To Pay N6.4B Damages



A Federal High Court sitting in Lagos has ordered a Thailand shipping company Maerskline Thailand Limited and its Nigerian subsidiary,  Maersk Nigeria limited to pay the sum of  N6,474,132.180 to a Nigerian company BP Investment Limited for negligence in handling its cargo.

The judgement of the court was as a result of a suit filed  by BP Investment Limited.

The company averred that by bill of lading number 556474847 the defendant was contacted by the Shipper K K Rice Inter trade company Limited to carry on board their vessel the company’s consignment of Rice in 40 containers from Thailand to Apapa Nigeria in good order and conditions.

The 40 containers was split into two shipment with consignment bill lading number 556474847 containing 39 containers and consignment with Bill lading number 557122511 containing 1 container after it was discovered in transit at Algeria that one of the containers was damaged.

The Shipper K K Intertrade was informed about the slipt on 23rd of May, 2012 before the arrival of the Cargo., but the Shipper K K Rice Intertrade informed the plaintiff on May 29, 2012 about the spilt consequently two different bill of lading were issued to the plaintiff.

The consignment containing 39 containers arrived at Apapa on May 29, 2012 while the second consignment containing 1 container arrived Apapa Port on August 8, 2012.

The plaintiff contended that it was the negligence of the defendants to have split the consignment knowing that it will occasion delay in clearing its goods, The Plaintiff approach the defendant to issue a single bill of lading to enable it clear its goods with the Risk Assessment Report but the defendants decline to issue a single bill of lading. Splitting the containers into two bill of ladings constituted negligence on the part of the defendants and same has resulted in the incurred losses and damages suffered by the plaintiff

Consequently, the plaintiff claims against the defendants are as follows, The sum of N6,465,750,000 only being special damages for negligence and breach of contract by the defendants in respect of the demurrage charge paid to APM Terminal at Apapa Ports as demurrage charge.

The sum of N8,382,180 only being special damages for negligence and or breach of contract by the defendants in respect of the demurrage charge paid to the defendants.

Interest on the said amount claimed at the rate of 21 per cent per annum until judgement is entered and thereafter at the rate of 10 per cent until full liquidation by defendants.

Alternatively the sum of N14 million as general damages for loss suffered by the plaintiff.

However the defendants in their defence stated that the defendants entered a contract of carriage with plaintiff to carry its consignment containing 40 Containers from Thailand to Apapa, it was discovered that one of the plaintiffs Container was damaged.

The defendants further contended that in exercise of reasonable care the defendants splits the plaintiffs container in other to fulfill its obligation to deliver the plaintiffs cargo in sound condition and the plaintiff was aware that the carrier had split the consignment into two.

Consequently, the defendants contended that since the Plaintiff had knowledge of the split, it should have taken steps to regularise its shipping documents to correspond with the two bills.

The defendants stated that as a gesture of goodwill waived N1,500,000 on appeal by the plaintiff, consequently denied being negligent in the best interest of the Plaintiff to deliver the consignment in good condition.

The defendants further contended that there was no connection between the defendants with APM Terminals as the claim for refund of N6,465,730,000  the plaintiff paid to APM Terminal is misdirected against the defendants.

In her judgement, the Presiding Judge Justice Hadiza Shagari,said, “From the facts and circumstances of this case the defendants were negligent by the late information of the cargo split and for not acting appropriately to send the bill of lading on the two consignments for the consignee to prepare for the clearing of their cargo which resulted in the acclaimed demurrage.

The defendant owns a duty of care in the handling of the cargo and there is legal duty to take reasonable care to avoid acts or omission that will prejudice the other party,but then the same omission of the defendants resulted in the demurrage accrued on the cargo of the plaintiff which by preponderance of evidence and facts is not the fault of the Plaintiff.

Consequently, the defendants consequences for neglecting to act by sending to the plaintiff the required document to clear their cargo, the defendants acted negligently.

The whole scenario point to the fact that the defendants were actually negligent in their responsibility by the single act of not transmitting the information for the container split on time and in furtherance to that by not availing the Plaintiff necessary documents to enable them process the clearing of their Cargo.

It is trite law that a defendant will be liable for those consequences of its negligent act which are too remote in law if a reasonable man would not have foreseen them.

Thus foreseen is the criterion not only for the question whether a duty of care is owned, but also for the question whether damages is or is not too remote.

Once damage is foreseeable the defendant is liable for all the direct consequences of his act whether they are foreseeable or not.

On the whole I hold that the defendant was negligent in their action and therefore the Plaintiff are not liable to demurrage their cargo.

I therefore grant reliefs sought by the plaintiff in this suit.


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