A/S D/S Svendborg D/S af 1912 A/S and Another v Ali Hussein Akar and Others
| Jurisdiction | England & Wales |
| Judge | Mr Julian Flaux QC |
| Judgment Date | 15 April 2003 |
| Neutral Citation | [2003] EWHC 797 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2001 Folio 954 |
| Date | 15 April 2003 |
[2003] EWHC 797 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Julian Flaux QC (Sitting as a Deputy High Court Judge)
Case No: 2001 Folio 954
Mr Ricky Diwan (instructed by Stephenson Harwood) for the claimants
The defendants were unrepresented
Hearing date: 8 April 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimants in this matter trade in partnership as Maersk Sealand, one of the largest operators of container lines in the world. The present claims are for damages consisting of costs and other losses and expenses incurred by the claimants in defending claims brought by various of the defendants in respect of two containers of textiles carried by the claimants from respectively China and India to Conakry, Guinea. The defendants are members of the Akar family, of Lebanese origin but based in Conakry, and companies established by them for their business purposes. The first defendant is the son of the fifth defendant and the third defendant is the sister of the fifth defendant. Mr Paolo Ghirardani, the claimants' solicitor, who gave evidence before me, has investigated a number of alleged shortage claims made by the Akar family over recent years. He said in his evidence that he had met both the first and the fifth defendants and that the fifth defendant was very much the patriarch of this business family, who funded and ran the operation and who was more dominant than his son. I accept that evidence. The second defendant is a company incorporated under the laws of Guinea through which both the first and fifth defendants conduct business, as is asserted on their behalf in proceedings against cargo underwriters in Hong Kong in respect of one of the containers. The second defendant is currently insolvent and the first defendant is in the process of putting it into liquidation. The fourth defendant (as its name suggests) is a company established by the third defendant through which she conducts her business.
In summary, the claimants' first claim is made against the first, second and fifth defendants and relates to a container said to contain 200 bales of cotton real wax shipped from Hsinkang, China to Conakry. The basis of the claim is that these defendants fraudulently represented when they took delivery of the container in Conakry that it was empty and that its contents had been lost whilst in the claimants' custody, whereas they or their agents had already removed the contents. These defendants then commenced two sets of proceedings in rem against the claimants in Hong Kong and further proceedings against the claimants' agents Maersk Guinee in Guinea claiming damages for non-delivery of the goods of some ten times the true value of the goods. Quite apart from the fact that, as the claimants contend, the claims are fraudulent and inflated, these proceedings are said to be in breach of the terms of the contract of carriage and/or the bailment between the claimants and the first and/or second and/or fifth defendants, specifically of the exclusive English law and jurisdiction clause at clause 27 of the Maersk bill of lading terms and of the undertaking in clause 3 of those terms not to sue servants or agents of the claimants. The claimants claim as damages for deceit and/or breach of the contract of carriage/bailment the costs and expenses incurred by them in investigating and defending the proceedings in Hong Kong and Guinea, together with an indemnity in respect of future such loss and expense. They also claim a declaration that the alleged claim for non-delivery of the goods is false and fraudulent.
The second claim is made against the third and fourth defendants and relates to a container said to contain 182 bales of cotton printed textiles shipped from India to Conakry claims have been made by these defendants in the Guinea courts in respect of an alleged delay in delivery of the goods Although the alleged delay was only for five days, these defendants are claiming for losses suffered by virtue of that delay equivalent to US$75,000, seven and a half times the value of the goods. The claimants' pleaded claim in these proceedings is for damages for breach of the contract of carriage, specifically again the exclusive English law and jurisdiction clause at clause 27 of the Maersk bill of lading. In their skeleton argument, the claimants reserved the right to plead an alternative claim in deceit, but it does not seem to me either necessary or appropriate to give permission to amend. The damages claimed are essentially as in the case of the first claim, the costs and expenses incurred by the claimants in investigating and defending the claims in Guinea. The claimants also claim an indemnity in respect of future costs and expenses. On further analysis and investigation at trial it emerged that at present, the claimants claim is really for the indemnity, no actual expenses separately relating to the second claim having been identified.
The defendants were unrepresented at the trial of the action and, indeed, have taken no part in the proceedings, although I am satisfied that they were duly served with the proceedings and that all relevant court documents (including translations into French of the witness statements and exhibits which form the documents before me) have also been served on the defendants and notice given to them that this trial was to take place on 7th and 8th April 2003. Despite the fact that the defendants did not take any part in the proceedings, the claimants did not seek judgment in default but invited the court to proceed with the trial (which the court has power to do pursuant to CPR Part 39.3), in order to improve their prospects of successfully enforcing any judgment of this court abroad. I was referred by Mr Diwan of Counsel, who appeared on behalf of the claimants, to the judgment of Mr Justice Colman in Berliner Bank v Karageorgis [1996] 1 Lloyd's Rep 426, recognising the value of proceeding with an uncontested trial for the purposes of enforcement of any judgment given.
5. The witness evidence before me consisted of (i) the statement of Mr Paolo Ghirardani a partner in the claimants' solicitors, Stephenson Harwood, who has the conduct of this matter and has investigated these claims and other alleged shortage claims advanced by the Akar family in recent years. He was also called as a witness and I had the opportunity to ask him a few questions by way of clarification; (ii) three other witness statements of witnesses who are beyond the seas and in respect of whom the claimants (as they are entitled to do) had served Civil Evidence Act notices: Mr Kristian Nielsen, at the relevant time the Managing Director of Maersk Guinee, Mr Mory Keita, shipping manager of Maersk Guinee and Mr David Gossanou, a surveyor with Compagnies des Experts Maritimes de Guinee ("CEM"). In addition, I was referred to and have considered the documentary evidence which was exhibited to the various witness statements and which has been organised in a chronological bundle, Bundle C.
6. In the circumstances, the question for me is whether as a matter of law and on the basis of the evidence, on a balance of probabilities, the claimants have established their claims.
The first claim
7. The bill of lading in respect of the first claim was dated Shenzhen 3 July 1999 and evidenced the shipment on the claimants' vessel MAERSK ANTWERP at Hsinkang, China on that day of a container UXXU 2441852 said by the shipper to contain 200 bales of 100 per cent cotton real wax in apparent good order and condition for carriage to Conakry. The shipper was named as Hebei Textiles Imp and Exp (Group) Corp of Shijiazhuang, China and the container was consigned to the order of the Beirut Riyad Bank SAL. The notify party was "Mr Aly Hossen Akar-Lamtex", ie the first and second defendants. The container had already been sealed by the shipper with seal number ML-CN0590345 before delivery to the claimants' agents in China.
8. The container was transhipped twice, first onto the SUSAN MAERSK at Hong Kong and then onto the CMBT OCEANIA at Algeciras, Spain. Whilst at Algeciras, the seal on the container was cut and the container was opened and inspected by SGS at the request of the shippers and/or the relevant defendants in order to present to Guinean Customs a "Bordereau de Taxation" from SGS enabling the Customs to assess duty payable on importation. According to Mr Neilsen, SGS is contracted by the Government of Guinea to conduct this assessment and does so by relying on inspections by its offices in other countries. In the present case, the Bordereau de Taxation (which is dated 3 September 1999) contains information which evidently derived from an invoice produced by the relevant defendants to SGS. It shows the seller as Benex International Corp of Hamburg, Germany, the importer as the first defendant and his transit agent as Sail Cheik Oumar. It also states the total value of the goods as 116,200 French Francs, with an FOB value after deduction of freight of 106,200 French Francs, equivalent to about US$15,000.
It was submitted by the claimants that Benex may not have been a genuine seller to the first and/or second and/or fifth defendants but named to secure some tax benefit deriving from purchase from Europe. Some support for that submission derives from the fact that in the proceedings which the first and fifth defendants commenced against their cargo underwriters in Hong...
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