1 C.L.R. 1988September 5 (P1KIS, J ) ABDULHAMIDBORGHOL&CO. Plaintiffs, v. THESHIP«AKAKPROGRESS»NOWLYINGAT THEPORTOFLIMASSOL, Defendant. (Admiralty Action No. 20/85). Evidence —Evidential burden — Written contract—Allegation that it wasvaried—Burden restsonpartypropounding such allegation Damages —Breach of contract—Confined to what /« objectively foreseeable. 5 10 Theagreementbetween thepartiesprovidedfortransportation oi cargo of goods by the defendant Ship from Italy «to Limassol in transit». The cargo was not discharged at Limassol, but at Tripoli, Lebanon. Hencethisactionfordamagesforbreach ofcontract.[The plaintiffs' claims as finally formulated, are: (i) U.S. $3,500.- the expense incurred for recovering the goods, less U.S. $750.- the freight that theywould have topay inany event. (ii)U.S.$2,000.-lossoccasionedbythedelaycausingthe plaintiffs tosellthe goods below cost. 15 20 The defendants denied liabilityalleging thattheport of discharge changed on the instructionsof the plaintiffs. Held:
(1)The evidential burden to substantiate variation of a wntten agreement restsonthepartypropounding the occurrenceof such change. In this case the defendant failed to substantiate their allegation.
(2)The defendants are guilty of a breach of contract in that contrarytothe termsofthe agreement- 505 Borghol &Co. v.Ship «Afcak Progress»
(1988)(a)theydischarged thegoodsataportotherthantheone specified intheagreement; and (b) delivered the goods to a person other than the plaintiffs the ownerof the goods.
(3)Claim (i)has been proved.
(4)Inthe absence of evidence astoa drop in the market valueof the products between the time at which the plaintiffs could reasonably expect to receive the goods at Limassol and the time of saleclaim (ii)isunsustainable. Judgment for the plaintiffs 10 /orUS Casesreferred to: " 2,750 plus costs. Saab and Another v. Holy Monastery of Ayios Neofytos
(1982)1 C.L.R. 499. Admiralty action. 15 Admiralty action for damages for breach of contract of carriage of goods by sea. A. Georghadjis, for the plaintiffs. A. Haviaras, for the defendant ship. Cur. adv. vult. PIKISJ. read the following judgment. Thisisan admiralty action for damages for breach of a contract of carriage of goods by sea (evidenced by a Bill of Lading), concluded between plaintiffs and defendants. The agreement provided for the transportation of a cargo of 5 2 8 cartons of camping gas from Italy «to Limassol in 2 5 transit».The freight was agreed at U.S. $ 7 5 0 . - payable at the port of destination. The cargo was not discharged at Limassol but at the port of Tripoli in the Lebanon. The case for the plaintiffs isthat the failure of the defendants to deliver the goods to the plaintiffs at the 3 0 specified port of destination constituted a breach of their agreement for which they should be held answerable in damages. The plaintiffs, after some probing, identified the recipients and located the goods in the Becaa Valley in the hands of the Lebanese firm of Hilbaowi & Borghol. According to plaintiffs this 3 5 is a classic case of misdelivery of goods occasioned by circumstances wholly within the knowledge of the defendants and 506 20 1 C.L.R. Borghol & Co. v.Ship «Akak Progress» PlklsJ . largely unexplained. To recover the goods the plaintiffs paid to Hilbaowi & Borghol, and others, the sum of U.S. $3,500.-representing' 5 (a)U.S.$750.-freight, and (b) U.S.$2,750.-warehousing andtransportationofthe goods. Because of the misdelivery of the goods in breach of the agreementthey lost, inadditiontotheabove (i)U.S.$5,000.-- estimated profit from thesale of the goods to a Saudi-Arabian customer,and JQ (ii)U.S $2,000.— arising from the eventual sale of the goods in the Lebanonata price below cost. In addition, they suffered - so it was alleged - inestimable damage resulting from the loss of the customer of the Saudi Arabian buyer. 15 Thedefendantsrefuted theclaimanddeniedliability for theloss allegedly suffered by the plaintiffs. Intheanswer to thepetitionit is alleged «that the final destination of the cargo in question was Lebanon and that the freight was payable at destination». In evidence,itwassuggestedtothewitness for theplaintiffs thatthere 20 was a deviation from the terms of the agreement respecting the port of the discharge of the goods on the instructions of the plaintiffs. Abdul Hamid Borghol, the chairman of the plaintiff company, testified in support of the claim and produced the Bill of Lading 25 (three original copies) confirming that Limassol was the port of destination.Alsoheproducedadelivery order evidencing receipt of the goods from Hilbaowi & Borghol and the charges paid for theirrecovery. Theexistence of theBillsof Lading inthehandsof the plaintiffs notwithstanding delivery of the goods, tends to 30 support their case thatthe thirdparties were not in any way their privies or agents. Mr.Borghol denied the existence of any family or commercial connectionwith the recipients of the goods. The cargo was delivered tothemwithouttheirconsentorauthority.He denied, as earlier indicated, the issuance of any instructions to 35 'he defendants todischarge thegoodsjo theLebanonatvariance ίο thespecific termsof theagreement. Despite the defence, the allegation in particular that an agreement was reached between the parties to vary the termsof 507 PiklsJ. Borghol &Co. v.Ship «Akak Progress»
(1988)the agreement as to the port of destination, no evidence was adduced to support it. The evidential burden to substantiate variation of a written agreement rests on the party propounding thecr:urrence'of sucK'criP,ige,irTtruscaserne'defendants.TheOrdJE witnesswhotestified forthedefendants wash'mii'Houri,"theirlocal 5 representative. The goods were, as he testified, redirected to the Lebanon oninstructionsfrom theirheadoffice intheLebanon.He attributed the non recovery of the Billof Ladingby hisprincipals to the warlike situation in the Lebanon. In his contention, Mr. Borghol tried to exploit this inability of the defendants and made 10 several suggestions for the conferment tohimof extra advantages that he refused; whereupon the present proceedings were instituted.Mr.Borghol testified thathesuggested toMr.Houri the transportation of the goods to Limassol, a contention denied by the latter. On consideration of the rival allegations as to what was exchanged between thetwowitnesses,noclearconclusioncanbe drawn therefrom. The case for the defendants that the original agreement was varied, remains unsubstantiated. Also unsubstantiated remains the contention of thedefendants thatthe 20 recipients of the goods in the Lebanon, namely Hilbaowi & Borghol, were inany way connected with the plaintiffs. Havingdulyappraised thefactsbefore meintheirtotality,Ifind that the defendants are guilty of a breach of contract in that contrary tothe terms of the agreement - 25 (a)theydischarged the goodsatTripoli that isa port other than the one specified inthe agreement; and (b)delivered the goods toa person otherthan the plaintiffs, the ownerof the goods. There remainstodecidethe damages towhichtheplaintiffs^are 30 entitled. Counsel for the plaintiffs abandoned, correctly in myview, the claimforeconomic lossarisingfrom thelossofthecontract ofsale to the Saudi-Arabian customer. In the absence of evidence that defendants were aware of this contract, damage is confined to 35 what is objectively foreseeable {Saab and Another v. Holy MonasteryofAyios Neophytos*). He confined theclaim to*(^82)lCLR.499at519,520. 508 15 1 C.L.R. Borghol & Co. v.Ship «AkakProgress» Pikls J . (i) U.S. $3,500.-- the expense incurred for recovering the goods, less U.S. $750.-- the freight thatthey would have to pay in any event, and 5 (ii) U.S. $2,000.-- loss occasioned by the delay causing the plaintiffs tosell thegoods below cost. Of thetwo claims onlythefirst issustainable. I find as a factthat theplaintiffs didincuran expense of U.S.$3,500.— for recovering the goods and that their action was, in the circumstances, within 10 reason and good sense. Therefore, they are entitled to U.S. $2,750.-- damages. The second part of their case to damages cannotbe upheld in the absence of evidence as to a drop in the market value of the products between thetimeatwhich theycouldreasonably expect 15 to-receive the goods at Limassol and the time of sale. In the absence ofsuchevidence it'isimpossible todiscernany noticeable damage)arising from thebreach of the defendants. Intheresultjudgmentisgivenfor theplaintiffs for U.S.$2,750. or its equivalent in Cyprus Pounds, plus costs on the scale of 20 claims corresponding totheamount recovered. ' Judgment for U.S. $2,750.pluscosts. τ 509