clr/1981/1981_1_335.pdf

(1981)by a mobile crane,one of the boxesbroke open and an axle fell on his leg and injured him. Due to the nature of the goods in question, the unloading of which wasdangerous, the stevedores had to use double slings attached to the hook of the crane to keep the boxes level, so that they could be lifted and landed 5 safely. In this case the stevedores instead of using double slings they used a single sling and whilst the boxes were loaded, one of them instead of being lowered in a level position, itwas being lifted and unloaded in an inclined position which was increasing the danger of its breaking open. 10 The plaintiff's duty was to stand near the trailers which were on the dock to push the boxes on the trailer before they were loosened by the crane operator. Upon seeing that the boxes were lowered, ready to be loaded on the trailers, he tried to put the case on its proper side to be placed on the(railer but before 15 touching it the side of the box was detached and its contents staited falling out suddenly and before the plaintiff had any chanceto move away oneof theironaxles,whichhad fallen from the box, fell on his foot and injured him. According to the evidence of the plaintiff andhiswitnesses,whichremaineduncon- 20 tradicted, the box broke open as a result of its unsafe fastening on the winch of the crane. The unloading was supervised by a foreman whose duty was to see that the goods were safely unloaded. In an action by the plaintiff for damages against defendants I 25 as owners of the said ship and against defendants 2, as agents of defendants 1, the defendants contended: (a) That there was no relationship of master and servant between the defendants and the plaintiff because the persons responsible for the unloading of the ship 30 and for whoseaccount thedock porterswereemployed, were the consignees under the bills of lading in view oftheF.I.O.("free inand out")clauseembodied therein; (b) that the plaintiff was guilty of contributory negligence. The original bills of lading or certified copies thereof were 35 not produced in evidence and no explanation was given for this failure. The existence of the F.I.O. clause in the bills of lading was sought to be proved by oral evidence. Held,

(1)that it is wellestablished thatwhenprimary evidence 336 1 C.L.R. 5 10 15 20 Mahattou v. Viceroy Shipping can be adduced, especially in the case of documents.secondary evidence is not admissible unless the case comeswithin anyof therecognised exceptions to such rule (seePhipson on Evidence, 12th ed. paras. 1813-1822 pp. 755-762); that as the defendants failed to produce the original bills of lading or certified copies thereof without offering an explanation for such failure the oral evidence as 1o the existence of an F.I.O. clause in the bills of lading is not admissible.

(2){Afterstating theprinciples governing liabilityofshipping agents actingon behalfof ship-owners) that defendants 2 were acting all along as agents of the ship and its owners and that the plaintiff wasemployed bydefendants 1through their agents, defendants 2; that the operation of the unloading of the ship was a matter of the ship-owners to arrange; that they did so through their agents, who, acting as such, engaged for them port workers, stevedores, mobile cranes operating from the dock and crane operators; that, theiefore, the plainliff was the servant of defendants 1 and the action against defendants 2, fails; that in view, however, of the line of defence followed by defendants 2 in an unsuccessful effort to throw theblame on the consignees as being the employers of the plaintiff there will be no order as to costs in so far as the plaintiff and defendants 2 are concerned. 35

(3){After stating the principlesgoverningthe common law duty of a masterto providea safe system of work)that as the particular winch load which resulted in the accident was not safe; that as there was lack of supervision bythe foremen of the defendants whose duty was, upon seeing that the load was not properlyfixed,either to warn the labourers who were working on the dock to move away till this load was safely landed, or give any other directions to the crane operator for the safe landing of such box;and that as thestevedoresemployed by the defendants acted in a negligent way in failing to secure properly such heavy box, the accident was the lesult of the negligence of defendants 1. 40

(4){After stating the law governing contributory negligence) that as the accident occurred when the sling load was brought down over the trailer and the porters who wereon the dock had to push it towards the trailer; and as that the box broke open suddenly and its heavy contents spread out immediatelygiving 25 30 337 Mahattou τ. Viceroy Shipping

(1981)no time to the plaintiff to move away or take any precaution for his own safety defendants 1have failed to prove their allega­ tion of contributory negligence on the part of the plaintiff and they are solely toblamefor thisaccident;accordingly the plaintiff is entitled to the special and general damages (C£l,800.-) the 5 quantum of which has been agreed upon between the parries. Judgment for plaintiff against defendants 1 for C£l,800 with costs. Actionagainst defendants 2 dismissed with no orderas to 10 costs. Cases referred to: Djemal v. Zim Israel Navigation Co. Ltd. and Another

(1967)1 C.L.R. 227;

(1968)1 C.L.R. 309; Skapoullaros v.Nippon YusenKaishaandAnother

(1979)1C.L.R. 448; DomesticaLtd. v. Adriaticaand Another

(1981)1 C.L.R. 85; Kakou v. Adriaticaand Another

(1980)1 C.L.R. 357; Christodoulou v. Menicouand Others

(1966)1 C.L.R. 17. 15 Admiralty action. Admiralty action for special and general damages for personal injuries sustained by plaintiff on the ship "RONY" as a result of the negligence of the defendants. L. Pelekanosy for tte plaintiff. 20 Ph. Valiantis for L. Papaphilippou,for the defendants. ^5 Cur. adv. vult. SAVVIDES J. read the following judgment. The plaintiff in this action is a licensed porter working in the Larnaca Port. He is 49 years old. On the 15th December, 1977 whilst he was engaged in the unloading of ship RONY, at Larnaca Port, ^0 he met with an accident as a result of which the present action emanated. It is the allegation of the plaintiff that the accident was the result of the negligence of defendants 1, the owners of the ship, and of defendants 2, their agents, who were responsible for the unloading of the said vessel and who employed him for such purpose. The accident which gave cause to this action occurred under 338 ^5 1 CX.R. Mahattou v. Viceroy Shipping Sawides J. the following circumstances: The plaintiff together with other porters was working on the quay, loading on trailers goods which were being unloaded from the ship by a mobile crane. In the course of such unloading, a box containing 5 heavy iron axtes, broke open and one of such axles fell on the leg of the plaintiff and injured him. Plaintiff alleges that the accident was the result of breach of duty of care and negligence on the part of the defendants and negligence by their servants and employees. 10 The allegations of negligence and breach of duty, as set out in para. 4 of the petition, are to the effect that tlje defendants failed to takeany or sufficient precautions for the safety of the plaintiff, that they exposed theplaintiff toriskandinjury, that they failed to supply an adequate and/or safe system of work, 15 they failed to show reasonable diligenceinascertainingthat the plaintiff's place of work was safe enough, that they failed to warn the plaintiff of the possible danger and in any event that the doctrine of res ipsa loquitur applies in the present case. As a result of this accident the plaintiff suffered the injuries 20 set out in para. 6 of the petition and the special damages set out inpara. 7towhich I neednot refer in detail,in viewof the fact that the quantum of special and general damages was agreed upon in the course of the hearing of the action, at a figure of £1,800 (£1,150 for special damages and £650 for 25 general damages). By their amended joint answer the defendants deny any responsibility for this accident. They deny that any relationshipof master and servant existed between them and the plaintiff and allegethat theunloadingof goodsfrom theship RONY 30 .was carried out by the receivers and/or importers cf the goods in view of the fact that the bills of lading weie containing an F.I.O. clause, undei which the responsibility for unloading was casted upon the receivers of the goods. They further deny any negligence on their part and they also deny that they had 35 any control over the stevedores or any other person working ontheshipasaresult ofwhosenegligencetheaccident occurred. In conclusion they allegethat the plaintiff was guilty of contributory negligence in that he knew that it was dangerous to stand under a load sling during the unloading without taking 40 reasonable care for his own safety. 339 Sawides J. Mahattou r. Viceroy Shipping

(1981)Plaintiff's witnesses 1and 2 gave evidence in support of the plaintiff's version as to how the accident occurred. Their evidence has not been contradicted by any witness called by the defendants. Also plaintiff's witness 1, the Chief Porter supervisingtheportersworkingonthedockincludingtheplain- 5 tiff,andplaintiff's witness3,GeorghiosMikellides,PortManager oftheLarnaca Port,gaveevidenceastotheprocedureofloading and unloading of ships and the employment of labourers. According to such evidence, daily, at 11 a.m., a meeting is held at the office of the Port Manager, cf the agents of the 10 ships which are anchored within the port area waiting their turn for unloading, for the purpose of arranging the order in which the unloading or the loading of ships will commence. At such meeting, besides the ship's agents, the Port Pilots and the Port Manager attend and, on occasions, representatives 15 ofthe Licensed Porters' Association also attend, to be informed about the order of unloading. Each one of the ship's agents to whom beith is allotted for the following day, has to make arrangements through the labour office, for the supply of labourers for the variousgangs. Also,if the shiphasnocranes 20 on board, then the ship's agents have also to provide a crane operatingfrom thequayandfor thispurpose,theyhavetomake arrangements with thePortAuthorities for the supply of mobile cranes. According to the evidence of P.W.3, in this particular case, the ship had not sufficient cranes, and the ship's agents 25 (defendants 2), applied to the Port Authorities for the supply of two mobile cranes. Photocopy of their application was produced by consent as exhibit 1. Such cranes were supplied to defendants 2 under an express condition and/or undertaking signed by thsm on the application form, {exhibit I) which reads 30 as follows: "We also agrfe to bear the costs of any damages caused during the employment of the above cranes to any cargo or craft to be lifted and/or the crane and/or government or other private property and/or any person and/or indi- 35 vidua1,thereby absolving the government of any responsibility whatsoever for any such damage, loss and/or bodily injuries". The only witness who testified for the defendants, was one Andreas Fellas, who, at the material time, was the Managing 40 Director of defendants 2andwhohad resigned in themeantime. 340 1 CX.R. Mahattou v. Viceroy Shipping Savrides J. This witness, according to a statement made by counsel for the defendants, was called to produce certain documents which he was handling at the material time and which he thought, were still in his possession, but as in the meantime he had 5 resigned, counsel stated that he was intending to call another witness to produce such documents. Such documents were the bills of lading containing the alleged clause concerning the unloading of the goods. This witness said in his evidence that thebillsofladinginthepresentcasecontained an F.I.O.clause, 10 and explained that when there is such a clause, the ship and its agents undertake the unloading of the ship, but the agents \vill not hand the delivery order to the consignees unless the consignees reimburse the agents for the expenses incurred for the unloading and the loading. 15 According to para. 1 of the statement of claim, defendants 1are allegedtobetheownersoftheshipRONYand defendants 2 their agents, responsible for the unloading of the said ship. This allegation has not beendenied in the statement of defence. Furthermore, on the evidence adduced by the defendants, it 20 is admittad that defendants 2 were the agents of defendants 1 and at the material time they were operating for the account of the ship they were representing. The first issue which poses for consideration is whether the plaintiff was employed by the defendants or either of them in 25 the course of the unloading of the ship RONY. It is the allegation of the defendants that in the present case the persons responsible for the unloading of the ship and for whose account the dock porters were employed, were the consigneesunderthebillsofladinginviewoftheFIOclauseembo30 died inthe said bills. In consequence therewasno relationship of master and servant between the defendants and the plaintiff. What is the position under a bill of lading containing an FIOclausehasbeenexplained byP.W. 3andbyD.W.I. P.W.3 Georghios Mikellides, said in cross-examination: 35 "Q. Do you know what FIO means on a bill of lading? A. Yes. Q. Could you tell the Court? A. FIO means free in and out. 341 Sawides J. Mahattou v. Viceroy Shipping

(1981)Q. Who is responsible for the unloading of the cargo under a FIO term? A. Normally, in such cases, the recipient of the goods to be unloaded is responsible for this 'in-and-out' expenses. The agents may pay these expenses for account of the consignee of the cargo". 5 And D.W.I, said in his evidence in answer to a question put to him by the Court: "Q. When there is a FIO clause, does it mean that the consignee himself will go and make arrangements 10 for the unloading of the ship and its agents undertake the unloading, and the consignee has to reimburse them for the expenses incurred for such purpose? A. Yes, that is correct. Tfie ship and its agents will undertake the unloading of the ship, but the agents 15 will not hand a delivery order to the consignees, unless the consignees reimburse the agents for the expenses incurred for the unloading and the loading". And in cross-examination, the same witness said the following in respect of the employment of the labourers: 20 "Q. Who paid the labourers who were working on the quay? A. We paid them, but we collected what we paid for them from the consignees. Q. Whowasresponsibleinthefirstinstance,totheLabour 25 Office or the Porters Association to pay the wages of the labourers employed on the quay? A. The defendants 2 in this particular case were responsible to pay, but they were paying for the account of the consignees. If for any reason any of the con- 30 signees refused to pay, we were not going to issue a delivery order to him. The consignees have no connection with the labourers". Itisclearfrom theevidence of D.W.I, the Managing Director of the defendants 2 and P.W.3, that even where the bills of 35 lading contained an FIO clause, the porters engaged for the unloadingoftheshipwereemployed andpaid bythedefendants, 342 1 C.L.R. Mahattoa τ. Viceroy Shipping Savrides J. and the defendants were reimbursed from the consignees who were burdened with all "in-and-out" expenses. In case the consignees refused to pay such expenses, defendants 2 wore entitledtorefuse toissueadelivery orderenablingtheconsignees 5 to clear and collect the goods from the customs stores. In the present case, However, the oral evidence of D.W.I, that there was an FIOclause in thebills of lading, is not admissible in the absence of the original bills or certified copies thereof, whichhadtobeproducedandwhich counselfor thedefendants 10 said he was going to produce, something which he failed to do without offering any explanation for his failure to produce them. It is well established that when primary evidence can be adduced, especially in the case of documents, secondary evidence is not admissible. The only recognised exceptions 15 to such rule are: (a) When the original is a public or judicial document, or private one required by law to be enrolled or regi­ stered. (b) When theoriginal is inthepossession of the adversary. 20 - (c) When the original is in the possession of a stranger. (d) When the original has been lost or destroyed. (e) When the original could not be traced after proper and sufficient search for same has been carried out. (f) Incaseof impossibility orinconvenienceof production. 25 (g) In interlocutory proceedings. (Vide Phipson on Evidence, 12th Ed. paras. 18131822, pp. 755-762). In consequence,defendants have failed to prove their allega­ tion that thebills of lading were subject to an FIO clauseunder 30 which they were exempted from any liability which was shifted on the consignees as the persons who in fact employed the plaintiff. There is ampleevidence before me coming from the witnesses of both sides that the plaintiff was employed by the defendants. He was employed through his Association, who, 35 under the provisions of Cap. 184 and the Regulations annexed thereto and the subsequent amendments under Laws 38/73 . and 59/77, were the only licensed persons entitled to work in the port and this is the reason why they were employed by 343 Savvides J. Mahattou v. Viceroy Shipping

(1981)the defendants through their Association. As to the existence of the relationship of master and servant between plaintiff and defendants, P.W.2 said in his .evidence: "We weie bound by the instructions of the employees of the ship's agents or by the agents themselves as to how 5 to perform the work or if they do not like the way we were handling the unloading they give directions as to how they want it to take place", and also in the evidence of D.W.I, who said that the labourers working on the quay weie paid by the defendants. 10 In the result, I find that the plaintiff was in fact employed to work for the unloading ofthe ship RONY and was employed by the defendants for such purpose. Having found so, I am now coming to consider whether defendants 2 arejointly liable with defendants 1 or whether they were acting in the present 15 case merely as agents for the account of defendants 1. As I have already mentioned earlier in this judgment, the plaintiff in his petition allegesunder para. 1(

1. a)that the plaintiff was employed by defendants 1 and/or that he was employed by defendants 2 as agents and/or servants of defendants 1. 20 Also, under para. 1(
2. c)that defendants 2 were the agents of the ship owners, defendants 1. Throughout the evidence, defendants 2 are referred to as the ship's agents and that the plaintiff was employed to work on the ship. Also, D.W.I who gave evidence for the defendants said in his evidence that defen- 25 dants 2 were the ship's agents at the material time and as such they were operating for the account of the ship whichthey represented and his evidence on this issue was not contested. The legal principles with regaid to the liability of shipping agents acting on behalf of the ship owners have been explained 30 in a number of cases of this Court. (Vide Djemal v. Zim Israel Navigation Co. Ltd. and another

(1967)1 C.L.R. 227 and on appeal

(1968)1 C.L.R. 309; Skapullaros v.

1. Nippon Yusen Kaisha,
2. A.L. Mantovani &Sons Ltd.

(1979)1 C.L.R. 448; Domestica Ltd, v. Adriatica and Another

(1981)1C.L.R., 35 85; Kakou v. Adriatica and Another,

(1980)1 C.L.R. 357). From the evidence before me I am satisfied that defendants 2 were acting all along as agents of the ship and its owners 344 1 C.L.R. Mahattoa τ. Viceroy Shipping Sawides J. and that the plaintiff was employed by defendants 1 through their agents, defendants 2. Ths operation of the unloading of the ship was a matter of the ship owners to arrange. They did so through their agents, who, acting as such, engaged for 5 them port workers, stevedores, mobile cranes operating from the dock and craneoperatois. Intheresult, theaction against defendants 2 fails. In view, however, of the line of defence followed by defendants 2 in an unsuccessful effort to throw theblameontheconsignees as being theemployers of theplain10 tiff, I make no order for costs in so far as the plaintiff and defendants 2 are concerned. Having found that the relationship of master and servant between defendants 1 and the plaintiff has been established, I am now coming to consider whether any negligence and/or 15 breach of Common Law duty of care due by a master to his servant has been established. The circumstances under which the accident occurred and as described by the witnesses called for the plaintiff and which have notbeencontestedby anyevidencecalledby thedefendants 20 were as follows: The goods were unloaded from the hold of the ship by a mobib crane operating on the quay. Such crane, though belonging to the Poit Authorities was hired by the defendants on their undertaking, as already mentioned earlier, that in case of an accidentthey were personally respon25 sible for any injury caused to any person as a result of the operation of the said crane. Among the merchandise which was being unloaded there were some heavy wooden boxes of oblong shape containing mechanical parts. Dueto thenatureof such goods, theunloa30 ding of which was dangerous, the stevedores whc were working in the hold and who were employed by the defendants, had tc use double slings attached to the hook of the crane to keep the boxes level, so that they could be lifted and landed safely. In this particular case the stevedores instead of using double 35 slingthey used asingleslingandwhilsttheboxes wereunloaded, one of them instead of being lowered in a level position, it was being lifted and unloaded in an inclined position which was increasing the danger of its breaking open. On the deck theie was a foreman of the defendants supervising the unloading 49 and giving instructions to the stevedores who were working 345 Savvides J. Mahattou τ. Viceroy Shipping

(1981)in the hold and also to the crane operator as to when and how to lift and lower the goods. This foreman is known as the hatchman (koumandos). This foreman, whose duty, as already mentioned, was to see that the goods were safely unloaded must have seen, and it was his duty to see, that in the case of 5 this particular load one of the two boxes was being lowered in an inclined position and fastened with one sling instead of two slings to make its unloading safer. The plaintiff, whose duty was to stand near the trailers which were on the dock to push the boxes on the trailer before they 10 were loosened by the craneoperator, upon seeing that the boxes were lowered, ready to be loaded on the trailers, tried to put the case on its propei side to be placed on the trailer, but before touching it the side of the box was detached and its contents started falling out suddenly and, before the plaintiff had any 15 chance to move away one of the iron axles which had fallen from the box fell on his foot and injured him. According to thi evidence given by the plaintiff and his witnesses, the box broke open as a result of its unsafe fastering on the winch of the ciane. 20 The evidence called by the plaintiff concerning the circum­ stances of the accident stands uncontradicted by any witness who could be called by the defendants. It is in evidence that the unloading was taking place in the presence of one Andreas Georghiou, who was an employee of defendants 2 and also 25 Loukis Voas, who was the hatchman dnecting the procedure of the unloading and also of another foreman employed by the defendants, namely, Georghios Yerasimou, who was present at the time when this sling load was unleaded, but none of these witnesses—though mentioned by the plaintiff and his 30 witnesses in their evidence—was called tocontradictthe evidence adduced by the plaintiff. In the case of Kakou v. Adriatica {supra), recently delivered by me, I had the opportunity of dealing extensively with the Common Law duty of a master to provide a safe system of work 35 and proper supervision to avoid the cause of injury to any of his employees, and 1adopt what I havi said in that case concer­ ning such duty. In the present case, I am satisfied that the plaintiff has proved that: (

1. a)the system of work concerning the unloading of the 346 40 1 C.L.R. Mahattou v. Viceroy Snipping Sawldes J. particular winch load which resulted to the accident was not safe; 5 10 (
2. b)there was lack of proper supervision by the hatchman and the other foreman of the defendants whose duty was, upon seeingthat the load wasnot properly fixed, either to warn the labourers who were working on thedockto moveawaytillthisloadwassafely landed, or give any other directions to the crane operator for the safe landing of such box; (
3. c)the stevedores employed by the defendants acted in a negligentwayinfailing to secureproperlysuchheavy box. In the result I find that the accident was the result of the negligence of defendants 1. 15 20 I come now to the last issue before me, as to whether the plaintiff has contributed by his own negligence to this accident. The defendants by their amended answer, allege that there was contribution of negligenceon the part of the plaintiff in that: (
4. a)heknewor oughttohaveknown that itwasdangerous to stand under the sling load during the unloading; nevertheless, he remained there without moving to the side, and, (
5. b)he failed to take reasonable precautions for his own safety. 25 The position as to contributory negligence in Cyprus is the sameasinEngland andour section 57oftheCivilWrongsLaw, Cap. 148,reproduces theprovisions of the English LawRefoim (Contributory Negligence) Act, 1945. The principle is well established and has been followed for years. Even though 30 a servant, however, succeeds in establishing that his master's breachof dutywasa causeof hisinjuries, hemay,nevertheless, be found guilty of contributory negligence if there has been an act or omission on his part amounting to negligence, which has in fact caused the damage of which he complains (vide in 35 this respect among others Christodoulou v. Menicou& Others,

(1966)1 C.L.R., 17andtheEnglishauthoritiesreferred totherein and also Kakou v. Adriatica (supra)). 347 Sawides J. Mahattou v. Viceroy Shipping

(1981)According to the evidence the plaintiff had to stand near the trailers which were on the dock and on which the goods were loaded, after being lowered by the crane, for transportation to the Customs stores. It was his duty when the goods were being lowered to push them on the trailei, together with other 5 labourers who were working with him at such spot, before they were completely released by the crane operator. The accident occurred when the sling load was brought down over the trailer and the porters who were on the dock had to push it towards the trailer. It was at that timethat the accident occurred. The 10 box broke open suddenly and its heavy contents spread out immediately, giving no time to the plaintiff to move away or take any precautions for his own safety. The accident did not occur whilst the plaintiff was standing under the sling load, as alleged by the defendants, but whilst he was at its side. 15 On the evidence before me, I find that defendants 1 have failed to prove their allegation of contributory negligence on the part of the plaintiff, and, in the circumstances defendants 1 are solely to blame for this accident and the plaintiff is entitled to the special and general damages, the quantum of which has 20 been agreed upon between the parties. I, therefore, givejudgment for the plaintiff and against defendants 1 for C£l,800- with costs on such amount. The costs to be assessed by the Registrar. The action against defendants 2 stands dismissed with no 25 order for costs. Judgment for plaintiff against defendants 1 for C£l,800 with costs. Action against defendants 2 dismissed with no order 30 as to costs. 348