Court
Alleged loss of cargo: Court fixes hearing date in action against MSC
A Federal High Court sitting in Lagos has fixed April 9 for definite hearing in a suit filed against the Mediterranean Shipping Company (MSC) Nigeria Limited over allegations of loss of cargo.
Justice Friday Nkemakonam Ogazi fixed the date after counsel to the plaintiffs, Oluwole Awe Esq., who held the brief of Emmanuel Ekpenyong Esq., withdrew their application for default judgment and lawyers to the defendants moved their application to regularise their statements of defence before the court.
Justice Ogazi adjourned the matter until April 9 and April 10, 2025 for hearing.
Also joined in the writ of summons as 2nd defendant is Five Star Logistics Limited, terminal operation Company at Tincan Island, Lagos, Nigeria.
In the suit marked: FHC/L/CS/1034/2024 and filed on June 14, 2024 by a human and constitutional lawyer, Emmanuel Ekpenyong of the law firm of Fred-Young & Evans LP, Cargomark Investments and Logistics Limited and Sunrise Estate Development Limited are listed as 1st and 2nd plaintiffs respectively.
The plaintiffs want the court to declare that, “The 1st defendant as the disclosed agent of Mediterranean Shipping Company S.A, the owner of Vessel MSC CORCOVADO III, Voyage No. POD/Terminal NGTIN/5 in Bill of Lading No. MEDUJ5050698 is personally liable for the act, default, omission or commission of Mediterranean Shipping Company SA against the plaintiffs.
“A declaration that the 1st defendant is liable for the default of Mediterranean Shipping Company SA to deliver Container Number: NONE0654928 containing Steel Security Fences covered by Bill of Lading No. MEDUJ5050698 to the plaintiffs since 19th June, 2023, the date of landing of its Vessel at Tincan, Lagos, Nigeria.
“A declaration that the 2nd defendant who has the duty to receive Container Number: NONE0654928 at its terminal upon its arrival at Tincan, Lagos, Nigeria and who received payment from the plaintiffs for its container Import Invoice has an obligation to ensure that the container is delivered to the plaintiffs”.
They also seek an order for the 1st defendant to pay the plaintiffs the sum of $ 84, 287. 90 or the naira equivalent at the parallel market rate at the date of liquidation of the sum as special and aggravated damages for loss of Container Number: NONE0654928.
“An order for the 1st defendant to pay the plaintiffs the sum of N100 million as general damages for loss of Container Number: NONE0654928, dent on their business reputation, increase in operating cost of construction and breach of the contract under the Bill of Lading No. MEDUJ5050698.
“An order for the 1st defendant to pay the plaintiffs, 10 per cent post judgment interest on the judgment sum from the date Judgment is delivered till the date of final liquidation.”
In their joint statement of claim, the 1st plaintiff, a licenced forwarding and clearing agent and limited liability company, is the consignee while the 2nd plaintiff, a limited liability company in the real estate development business, is the notify party under the Bill of Lading No. MEDUJ5050698.
The 1st plaintiff’s Operating Manager, Mr Amos Duru, in his written statement on oath, said the 1st defendant is the Nigerian subsidiary of Mediterranean Shipping Company SA, a global container shipping and logistics Company.
He said by a Bill of Lading No. MEDUJ5050698, the plaintiffs entered into a contract with Mediterranean Shipping Company SA (“the Carrier”) and the 1st defendant for shipment of the container from Cape Town, South Africa to Tincan, Apapa in Lagos, on 26th May, 2023 with the scheduled arrival date of 19th June, 2023.
“The 2nd plaintiff required the Steel Security Fences around the period of the scheduled date of landing to urgently complete some real estate construction in line with the timeline in its contract with its clients.
“After the scheduled date of landing, the 1st plaintiff’s representatives visited 2nd defendant’s port gate at Tincan, Apapa where the container was to be disembarked from the Carrier’s Vessel MSC CORCOVADO III, Voyage No. ZA319A, POD/Terminal NGTIN/5 Star (“the Vessel”), to effect necessary payments, identify the container and claim the same.”
Duru said the plaintiffs paid the sum of N437, 671. 23 through the 2nd defendant to clear the container and further stated that, after several months of searching for the container at the landing port, it was not found.
“Despite series of correspondences between the plaintiffs’ representatives and that of Mediterranean Shipping Company SA and the 1st defendant to locate the container, the container was not still found,”
“The plaintiffs aver that by virtue of Section 16 (3) of the Admiralty Jurisdiction Act, the 1st Defendant as the disclosed agent of the Carrier is personally liable for the loss of the Container and payment of the compensation sum for loss of the Container to the plaintiffs” he added.
In their separate statements of defence, the defendants denied the allegations.
The Mediterranean Shipping Company’s lawyer, Emmanuel Achukwu, SAN, opposed some of the paragraphs in the plaintiffs’ statement of claim.
Achukwu argued that his client did not enter into any contract with the plaintiffs for the shipment of the subject cargo to Nigeria.
“The Bill of Lading contract was entered into between the 1st defendant’s principal and the consignee named therein,” he said.
The lawyer said though his client received a letter dated December 11, 2023 from the 1st plaintiff as well as the demand notice dated May 30, 2024, he said the 1st defendant made it known that neither its principal nor the company is liable to pay compensation for the alleged loss of the subject container.
“The 1st defendant states that the subject container was duly discharged from the carrying vessel, MSC Corcovado Ill and delivered to Messrs Five Star Logistics Limited, the 2nd defendant herein on the 19th day of June, 2023”
“The Discharge Sheet received from the 2nd defendant shows that the container was duly discharged and delivered to the 2nd defendant, he said.
Achukwu said the suit should be dismissed against his client with substantial cost, because it lacks merit and it is frivolous.
The Five Star Logistic Ltd, in its statement of defence filed by Ame Ogie, denied being responsible for the cargo loss.
Ogie argued that despite repeated demands, neither the plaintiffs nor the 1st defendant had provided the 2nd defendant with evidence that container number NONE0654928 was actually shipped from South Africa and discharged into the custody of the 2nd defendant by the M.V. “MSC CORCOVADO III” Voyage number: ZA319A, at the 2nd defendant’s terminal at the Tin Can Island Port.
“The fact that the container was not discharged into the 2nd defendant’s custody was communicated to the 1st defendant in a email of August 10, 2023,” he added.
In the plaintiffs’ reply to the 1st defendant’s statement of claim, they contend that the 1st defendant is liable to pay compensation for the missing container because under the Bill of Lading, the 1st defendant had an obligation to ensure that the container was duly delivered to the plaintiffs.
“The 1st defendant failed to discharge this obligation.”
Also in the plaintiffs’ reply to the 2nd defendant’s statement of claim, they contend that even without confirming from its tally agent when and whether the 1st defendant discharged the container at its terminal, the 2nd defendant issued a container import invoice to the 1st plaintiff for clearing of the container and negligently issued a Discharge Sheet to the 1st defendant.