BHUNU
J: The defendant is a cargo handling
company which is in the business of handling airline cargo whereas the
plaintiff is one of its customers. Most issues in this case are common cause.
The undisputed facts are that on 3 March 2008 a shipment of the plaintiff
arrived on board Martnair at the defendant's premises at the Harare International
Airport. The consignment
comprised electrical goods and equipment valued at US$44 202-50 and was duly
stored in defendant's warehouse.
As
at 8 March 2008 the consignment was in the defendant's warehouse pending
clearance and subsequent collection by the plaintiff. The consignment was
however found missing when the plaintiff went to collect it on 14 April 2008.
The
plaintiff is now demanding payment of US$44 242-50 being the value of the goods
lost plus costs of suit alleging that the defendant's employees were grossly
negligent in causing the loss. The defendant denied that its employees were
negligent in the manner alleged or at all.
The
issues for determination as defined at the pretrial conference are:
- On what legal basis is the defendant liable to the
plaintiff?
- Did the defendant exercise reasonable care while the
consignment was in its custody?
- Is the defendant liable for the loss of the
consignment and if so is the defendant liable to the plaintiff for
compensation in the amount claimed?
Ms
Florence Sigudu Matambo the plaintiff's executive director gave evidence for
the plaintiff. She confirmed that the defendant received its consignment of
electrical goods valued at US$44 202-50 comprising transistor spares for radio
transmitters for the whole country. As proof of the value of the consignment
she pointed to the invoice attached to the summons. She also relied on the
airway bill which they received from the defendant for purposes of customs
clearance to enable them to clear the goods before collecting them from the
defendant.
She
further confirmed that when they went to collect the consignment after clearing
the goods with customs the consignment was found missing. On 14 April 2008 the
defendant wrote to them confirming that the consignment was definitely received
but was now missing from their warehouse. The letter reads:
“Dear
Sir,
MISSING SHIPMENT 129-3963-9165
EXMP8317-030308
Reference is
made to the above captioned subject and our numerous telephone conversations.
Please be advised that the state of affairs on the said matter remains as was
from the time your organization intended to collect shipment after customs
formalities
Shipment arrived
on board Martinair on 3 March 2008 and was stored in the warehouse as per
normal procedures. On 8 March a monthly bay check was conducted as per
procedures information on paper indicates that shipment was indeed still in the
warehouse pending customs clearance and subsequent collection.
It was after
clearance that shipment was discovered missing. All efforts to locate same have
proved negative and how it mysteriously disappeared from the warehouse still
remains an unsolved puzzle to this day.
We sincerely
regret the inconveniencies rendered to your organization as a result of this
mishap and want to assure you that an act of this magnitude will not repeat
itself in the future.” (my emphasis).
The
defendant's apology and assurance that such a loss will never occur again
amounts to an admission of guilty and that it was within its power to avoid the
loss.
Apparently
having accepted responsibility the defendant wrote to their insurers seeking
compensation for the plaintiff. On 3 September the defendant wrote to the plaintiff
advising that its insurers had refused to compensate the applicant. The letter
reads.
“Dear Sir/Madam
Re: CLAIM FOR MISSING SHIPMENT
Please be
advised that our insurers, AON Zimbabwe (Pvt) Ltd have advised us that they are
not in a position to meet the claim for your missing shipment. We have a
warehouse liability Policy and the claim falls outside the scope of this
policy. The shipment is not claimable as it falls under the 'unexplained or
unaccounted, mysterious disappearance' category. Written correspondence from
AON Zimbabwe (Pvt) Ltd is attached for ease of reference.”
It
is only after the defendant's insurers had declined to compensate the loss that
the defendant started to deny responsibility. It is clear however, that the
plaintiff had no contract with the defendant's insurers. The defendant's
liability depended on its own culpability regardless of whether or not their
insurers had honoured their claim for compensation.
Ms
Matambo insisted in her evidence that the defendant owed the plaintiff a duty
of care. Its liability therefore flowed from its breach of the duty of care.
The defendant having accepted responsibility for the safe custody of the
consignment it obviously had a duty of care towards the plaintiff. That being
the case, it had the obligation to account to the plaintiff for the whereabouts
or fate of the consignment while it was under its custody. It also had the same
obligation towards its insurers yet when asked to account for the whereabouts
of the consignment by both parties the best the defendant could say was that it
did not know as the consignment had suffered a mysterious disappearance.
That
explanation falls far too short of discharging the duty of accounting for the
property to both its insurers and the plaintiff. The insurers can hardly be
faulted for refusing to indemnify the defendant when it was unable to account
for the property. Likewise the plaintiff was entitled to claim compensation in
the absence of a reasonable explanation of what had happened to the consignment
In
the ordinary human experience guarded property in a warehouse does not simply
mysteriously disappear into thin air without someone being negligent. There is
therefore a presumption that the defendant and its employees were negligent.
The adage res ipsa loquita, that is to say, the facts speak
for themselves applies.
That
being the case the defendant bore the onus of proving that it was not negligent
as alleged or at all. The defendant and its employees' explanation however fell
far too short of discharging that onus because all what they could say is that
the consignment which it was their duty to safeguard suffered mysterious
disappearance. That defence in my view amounts to a bear denial.
There
is equally no merit in the defendant's partial defence to the effect that the
plaintiff's failure to declare the value of the cargo so that it could have
taken extra care of the property upon payment of an extra charge amounted to
contributory negligence. That argument does not wash because the defendant was presented
with the necessary invoices and way bill showing the value of the property
before it assumed the duty of care over the property.
It
therefore took responsibility of the consignment well knowing its value. Having
voluntarily assumed risk over the care of the property well knowing its value
it cannot therefore attribute contributory negligence to anyone. Volenti non fit Injuria, that is to say, one cannot be heard to complain where
he has consented to the harm being done. Voluntary assumption of risk amounts
to liability when the obligation is not properly discharged.
As
regards the value of the lost property the plaintiff established beyond
question through relevant invoices and way bill that the missing property was
valued at US$44 202-50.
In
the result the plaintiff's claim can only succeed. It is accordingly ordered
that:
- The defendant be and is hereby ordered to pay the
plaintiff the sum of US$44 202-50 (Forty four thousand two hundred and two
United States Dollars being damages for the plaintiff's lost consignment.
- The defendant be and is hereby ordered to pay costs
of suit.
Musunga and Associates, plaintiff's legal practitioners.
Gill Godlonton &
Gerrans, defendant's legal practitioners
