Earthquip PNG Limited v PNG Transport Holdings Limited (2012) N4652

• Jurisdiction: Papua New Guinea
• Judge: Gabi, J
• Judgment Date: 19 April 2012
• Court: National Court
• Docket Number: WS NO. 1866 OF 2005
• Citation: (2012) N4652
• Year: 2012
• Judgement Number: N4652

Full Title: WS NO. 1866 OF 2005; Earthquip PNG Limited v PNG Transport Holdings Limited (2012) N4652

National Court: Gabi, J

Judgment Delivered: 19 April 2012

N4652

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1866 OF 2005

BETWEEN

EARTHQUIP PNG LIMITED

Plaintiff

AND

PNG TRANSPORT HOLDINGS LIMITED

Defendant

Lae : Gabi, J

2012 : 19 April

CONTRACT - claim for damages for breach of contract – allegations of mis- delivery of cartage – whether certain clauses of ‘Conditions of Carriage’ form part of the contract – whether defendant is liable for breach of contract – evidence suggests container being misdelivered - defendant breached contract - Judgment entered for plaintiff with damages, interest and costs to be assessed.

Facts

The defendant was engaged to deliver a container to the plaintiff’s yard at China Town but instead delivered it to PNG Readymix yard at China Town. The plaintiff had engaged the defendant on a number of previous occasions and this was the first time the defendant had misdelivered a container belonging to the plaintiff. Upon discovery that the container had been placed in PNG Readymix yard, the plaintiff asked the defendant to move it to its yard at China Town but the defendant failed to do so. While the container was at PNG Readymix yard, it was broken into and a number of items were stolen. The plaintiff claims damages for breach of contract.

Held;

The container was misdelivered and that the defendant breached the contract. Judgment is entered for the plaintiff with damages, interest and costs to be assessed.

Cases cited

Papua New Guinea Cases

Dowsett Engineering (New Guinea) Pty Ltd v Edward and R. E Jordan trading as Jordan Lighting [1979] PNGLR 426

Edward v R.E Jordan trading as Jordan Lighting and Dowsett Engineering (New Guinea) Pty Ltd [1978] PNGLR 273

Lawrence Win v General Auto Centre Ltd (2009) N3680

Rabaul Stevedores Ltd v Benedict and Nancy Seeto [1984] PNGLR 248

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

Overseas cases

L’Estrange v Gaucob [1934] 2 KB 394

McCutcheon v David MacBrayne Ltd [1964] 1 All ER 430 at 435

Olley v Marlborough Court [1949] 1 All ER

Thornton v Shoe Lane Parking [1971] 2 WLR 585

Counsel

P. Ousi, for the Plaintiff

B. Kogora, for the Defendant

JUDGMENT

19 April, 2012

1. GABI, J: Introduction: The plaintiff claims damages for breach of contract. The defendant was engaged to deliver a container to the plaintiff’s yard at China Town but instead delivered it to PNG Readymix yard at China Town. The plaintiff had engaged the defendant on a number of previous occasions and this was the first time the defendant had misdelivered a container belonging to the plaintiff. Upon discovery that the container had been placed in PNG Readymix yard, the plaintiff asked the defendant to move it to its yard at China Town but the defendant failed to do so. While the container was at PNG Readymix yard, it was broken into and a number of items were stolen.

2. The defendant’s case is that the misdirection was a result of instructions by the plaintiff’s employees, particularly Susan Watpore and Augustine Romogiam, to deliver the container to PNG Readymix yard due to unavailability of space in the plaintiff’s yard and that the signature of Augustine Romogiam on the delivery docket indicates acceptance by the plaintiff that it had been delivered in accordance with the contract pursuant to clause 7 of the Conditions of Carriage. Even if the container were misdelivered, the defendant is absolved from liability pursuant to clause 5 of the delivery docket, which excludes the carrier from liability.

3. The issues are: (i) whether clauses 5 and 7 of the Conditions of Carriage form part of the contract; and (ii) whether the defendant breached the contract.

4. The trial proceeded by way of affidavit evidence and oral testimonies. The following affidavits were tendered into evidence: (i) affidavit of David Warner dated 13th September 2010 (Exhibit P1); (ii) affidavit of Susan Watpore dated 10th September 2010 (Exhibit P3); (iii) affidavit of Armstrong Suvia dated 12th October 2010 (Exhibit D1); (iv) affidavit of Geoff Baker dated 12th October 2010 (Exhibit D4); and (v) affidavit of Carol Luhan dated 12th October 2010 (Exhibit D5). The deponents of the affidavits also gave sworn oral evidence.

Facts

5. On 4th November 2004, the plaintiff raised a Purchase Order number 782 requesting the defendant to pick up a container from the Lae Port Services wharf and deliver to Earthquip yard at China Town. The description of the job required to be performed written on the Purchase Order was:

“PLEASE PROVIDE SERVICE TO PICK UP 1 x 20 FT CONTAINER (#TRLU2813054) AT WHARF AND DELIVER TO CHINATOWN YARD.”

The driver picked up the container and delivered it to PNG Readymix yard, a different location, also in China Town. On delivery of the container to PNG Readymix yard, Augustine Romogiam, an employee of the plaintiff, signed the delivery docket. On realising that the container was delivered to the wrong location, the plaintiff requested the defendant to pick up the container and have it delivered to its yard at China Town but the defendant failed to do so. Whilst the container was at PNG Readymix yard, it was broken into and a number of personal items were stolen.

Evidence

The Plaintiff

6. David Warner is the Managing Director of the plaintiff. In 2004, the plaintiff had a container of assorted goods shipped from Kimbe to Lae. On

4th November 2004, he authorised a Purchase Order to be issued to the defendant to pick up the container from Lae Wharf and deliver it to the plaintiff’s yard at China Town. The person authorised to deal with the defendant regarding this matter was Susan Watpore, not Augustine Romogiam or Rachael Malis. The container was picked up and delivered to PNG Readymix yard without authority from either the plaintiff or any of its authorised officers. The delivery docket was signed at 4.15 pm by Augustine Romogiam, who had no authority to sign, and did so without inspecting the container. At the time he signed the delivery docket, Augustine Romogiam was employed by Hydraulics PNG, not by the plaintiff. The defendant had been engaged by the plaintiff previously and this was the first time it had misdelivered goods belonging to the plaintiff. The conditions of carriage at the back of the delivery docket have never been shown to him nor have they agreed to be included as terms of the agreement.

7. Susan Watpore was employed by the plaintiff as the company supervisor at the time the container was allegedly misdelivered. She was answerable to

Mr. David Warriner and corroborated his evidence that Augustine Romogiam was employed by Hydraulics PNG, which was also owned by Mr. Warriner, and had no authority to sign the delivery docket. On 4th November 2004, she called Armstrong Suvia, who was the Transport Supervisor with the defendant, to pick up the container at Lae Wharf and deliver to the plaintiff’s yard at China Town. This was followed by the issuance of a Purchase Order before she left the office at 3:36 pm due to illness. Prior to leaving the office she instructed Rachael Malis to follow up the matter. On her return to work on 5th November 2004, Susan Watpore learned that the container was not delivered to the plaintiff’s yard but instead delivered to PNG Readymix yard so she rang Armstrong Suvia to pick up the container and have it delivered to the plaintiff’s yard at China Town. This was not done so she called Armstrong Suvia again on 6th, 8th , 9th , 10th and 11th November 2004. The container was broken into on 10th and 11th November 2004. It was finally picked up and delivered to the plaintiff’s yard at 4.00 pm on 11th November 2004. According to her, there was enough room to place the container at the plaintiff’s yard from 4th to 11th November 2004. The conditions of carriage at the back of the delivery docket were never shown to her prior to the formation of the contract.

The Defendant

8. Armstrong Suvia has been employed by the defendant for twenty-one (21) years and at the time of the alleged incident he was the Transport Supervisor. As the supervisor, all the drivers are answerable to him. After each delivery the driver would return the purchase order and the delivery docket to him. In this case, he was told by the defendant’s driver, Boni Moses, that the plaintiff’s employees, Susan Watpore and Augustine Romogiam, directed him to place the container at PNG Readymix yard because there was not enough space at the plaintiff’s yard. He explained that when a client requests delivery, he/she would raise a Purchase Order giving description of the container, where to pick it from and the location to be delivered. When the container is delivered the customer signs the delivery docket after been satisfied that it is in “good order and condition”. The delivery comes to an end when the customer accepts and signs the delivery docket. The delivery docket was signed by Augustine Romogiam. When there is a change in the delivery location the customer would call him and advice of the change of...