Rabtrad Niugini Pty Ltd v ABCO Pty Ltd [1990] PNGLR 155

• Jurisdiction: Papua New Guinea
• Judge: Doherty AJ
• Judgment Date: 20 April 1990
• Citation: [1990] PNGLR 155
• Court: National Court
• Year: 1990
• Judgement Number: N842

Full Title: Rabtrad Niugini Pty Ltd v ABCO Pty Ltd [1990] PNGLR 155

National Court: Doherty AJ

Judgment Delivered: 20 April 1990

N842

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RABTRAD NIUGINI PTY LTD

V

ABCO PTY LTD

Lae

Doherty AJ

22-23 March 1990

20 April 1990

CONTRACT — Implied terms — From dealings between parties — Customs clearance and forwarding agents — Contract to store goods — Standard terms of customs contracts not imported into storage contract by previous dealings.

BAILMENT — Bailment for reward — Warehousing — Loss or damage — Negligence — Onus of proof.

Held:

Where a company regularly engaged to act as customs clearance agents was engaged to "deconsolidate, palletise and store" a particular consignment of fish for which the importer itself had insufficient storage space:

(a) the terms and conditions of the standard contract of carriage as customs clearance agents could not be implied into the contract of storage by virtue of previous dealings between the parties;

(b) in the absence of a written agreement, the arrangement between the parties was one of bailment, any specific terms of which were to be implied from the conduct of the parties;

(c) where goods were lost or damaged while in possession of the company, the company bore the onus of disproving its negligence.

Levison v Patent Steam Carpet Cleaning Co Ltd [1978] QB 69 at 82; [1977] 3 All ER 498 at 505 and O'Regan v Hui Bros Transport Pty Ltd [1967-70] P&NGLR 261 at 267, applied.

Cases Cited

The following cases are cited in the judgment:

Burton v English (1883) 12 QBD 218.

Co-ordinated Air Services Pty Ltd v Aircair Pty Ltd [1988-89] PNGLR 549.

Kenyon, Son & Craven Ltd v Baxter Hoare and Co Ltd [1971] 1 WLR 519; [1971] 2 All ER 708.

Levison v Patent Steam Carpet Cleaning Co Ltd [1978] QB 69; [1977] 3 All ER 498.

McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125; [1964] 1 All ER 430.

Olley v Marlborough Court [1949] 1 KB 532; [1949] 1 All ER 127.

O'Regan v Hui Bros Transport Pty Ltd [1969-70] P&NGLR 261.

Romas-National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353.

Statement of Claim

These were proceedings in which the plaintiff sought damages for breach of a contract of bailment.

Counsel:

I Molloy and K Gamoga, for the plaintiff.

L Henao, for the defendant.

20 April 1990

DOHERTY AJ.: The plaintiff, Rabtrad Niugini Pty Ltd have sued the defendant ABCO Pty Ltd for breach of contract of bailment or in the alternative for negligence in the storage of the plaintiff's goods. The plaintiff called two witnesses (the operations manager and a director of the company) to give evidence as to the terms and conditions of their agreement and the facts which have led to this dispute.

The defendant elected not to give evidence although it has filed a defence disputing facts and alleging other facts. As a result, the evidence of the plaintiff as to events and the terms is unrebutted. The defendant instead relies on the terms of a standard contract between the parties, which it said was incorporated into this particular agreement. The plaintiff said that that contract and those terms related to a different agreement, an agreement for the services rendered by the defendant as customs clearance and delivery agents.

The evidence shows that Rabtrad Niugini Pty Ltd are in business as importers and wholesalers of, inter alia, tinned fish. This is a particularly popular item and as a result is one subject to a considerable amount of theft if not properly secured.

In February 1986, the parties had come to an agreement to use the defendant's services as customs clearance and delivery agents. The terms of that agreement were in a standard letter, which was put to the witnesses for the plaintiff by counsel for the defendant and admitted in evidence. It includes a term "storage — secured up to (6) six months, first month free; subsequent months to be negotiated if necessary". On the back of that document are terms and conditions, which include terms that:

"1. The carrier is not a common carrier and will accept no liability as such. The carrier reserves the right to refuse the carriage or transport of goods for any person, corporation or company and the carriage or transport of any class of goods at its discretion.

2. The goods are accepted by the Carrier subject to the following conditions:

(a) That they comply with the requirement of any applicable law relating to the nature, condition and packaging of the goods and the expenses and charges of the carrier in complying with the provisions of any such law or with any order or requirement thereunder or with the requirement of any harbour, dock, railway, shipping, customs, warehouse or other authority or company shall be paid by the consignor.

3.

(a) The Carrier shall not be under any liability for any loss of or damage to or mis-delivery, delay in delivery, concealed damage, deterioration, contamination, evaporation, non-delivery of goods held in their care, custody or control, or any consequential loss arising therefrom howsoever caused.

(b) In the event of the contract including any handling, installation, removal, assembly or erection of any kind whatsoever it is undertaken on the strict basis that the Carrier accepts no liability for any loss, damage or injury of any kind whatsoever, however arising, caused or incurred or occurring during any part of the movement. The disclaimer extends to include not only loss of or damage to itemised equipment itself, but loss, damage or injury to any person, property or thing damaged during the movement, and to include any loss consequently or otherwise arising from any loss, damage or injury aforesaid."

In October 1986, an employee of the plaintiff company noted that a consignment of tinned fish was deteriorating owing to the lack of proper storage facilities at the plaintiff's premises in Lae. He approached the defendant and reached an arrangement with the defendant company to store this tinned fish and it was taken in a container from the plaintiff's to the defendant's premises, where it was "deconsolidated" (or taken out of the container) and categorised into four categories from good to damaged fish depending on the state of the cartons and wrappers. This was stored with the worst cartons (referred to as "bad fish") being separated from the others.

The plaintiff said that it was expecting other consignments of tinned fish totalling 31 containers to arrive in December 1986 or January 1987 and was concerned about their storage conditions and where the fish should be stored. It had not previously had to store goods with any other company and had not stored with the defendant, other than the damaged fish, prior to this. A discussion was held with the defendant company about the storage of the 31 containers and an agreement reached that the 31 containers could be emptied and the contents loaded on pallets, the pallets rented to the plaintiff and the fish stored at the defendant's warehouse. The first 28 containers, and later three containers were taken directly to the defendant's warehouse on...