Meridian Success International Ltd. & Metal Material Corporation v. Catrons Havana Cuba

CACV000063/1995

IN THE COURT OF APPEAL

1995, No. 63
(Civil)

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Coram : Hon Nazareth, V.-P., Bokhary and Godfrey, JJ.A.

Date of hearing: 29 June 1995

Date of delivery of judgment: 29 June 1995

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J U D G M E N T

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Godfrey, J.A. (delivering the judgment of the Court) :

1. This is an appeal from an order of Mr Justice Mayo, made on 10 February 1995 under O14 of the Rules of the Supreme Court, whereby the learned judge, without a trial, gave summary judgment for the plaintiffs on their claim against the defendant.

2. The claim made by the plaintiffs in the action arose as follows.

3. In October 1994, the plaintiffs shipped a cargo of steel wire rods in coils on board the "Itabo" ("the vessel") at Ilychevsk, Ukraine. The cargo was discharged at Shekou in the People's Republic of China.

4. The defendant owed a contractual duty to the plaintiffs to deliver to the plaintiffs the requisite amount of the steel wire rods in coils, which was 5022.896 metric tons. However, say the plaintiffs, the defendant made short delivery. They were short of 606.196 metric tons.

5. Surveys of the vessel were carried out in October 1994 by the appointed inspection bureau at Shekou before and after discharge of the cargo. These confirmed a short delivery of 606.196 metric tons, which all parties then accepted.

6. The calculated short landing of 606.296 metric tons was based on what appears to have been a careful and proper procedure for assessing the weight, taking into account all the relevant considerations which ought to be taken into account in this sort of calculation, when the weight of the vessel is checked in order to discover the actual weight of the cargo discharged.

7. But in a subsequent survey report of 30 November 1994, made by MCW International Surveyors Ltd., the latter stated as follows :

"However, we were not satisfy with the above findings, although all parties concerned in Shekou insisted that the figures stated had been carefully observed and cross-checked by themselves and should be correct. We carried out an investigation at Beilun on vessel's arrival. From the first Draft Survey prior to discharge of cargo, we made adjustment as follows :-"

and they set out a new set of calculations based, of course, on conditions wholly different from those prevailing at Shekou. They came to an adjustment of the calculated short landing, which they now fixed at 146.496 metric tons. They concluded, in the paragraph of their report headed "FINAL" by saying :

"The information contained herein is, to the best of our knowledge and belief, TRUE AND CORRECT."

8. This further survey may be said to suffer from a number of deficiencies, which were identified by Counsel for the plaintiffs in his helpful argument. The further survey was not one to which "all parties concerned" had assented; the conditions were different; no good reason for having it at all had been advanced. Counsel suggested it was of little or no value. The judge clearly agreed. In effect, he tried the case; and decided it in favour of the plaintiffs, as can be seen from his judgment.

9. The judge said of the further survey that it was undertaken independently; no one from the plaintiffs was invited to attend. He pointed out that no satisfactory reason had been given why the further survey was undertaken. He suggested that no plausible explanation had been forthcoming for the discrepant results. He said that the defendant had failed to satisfy him that there was a triable issue as to the true amount of the shortfall.

10. Was the judge right to approach the matter in this way?

11. In our judgment, he was not. Order 14 is designed to enable a plaintiff, when the defendant has no defence to the action, to get a judgment earlier than he would do if he had to wait to win at the trial. But in the instant case, there is a genuine dispute between the parties as to the amount of the shortfall. There is no suggestion that the further survey report is a sham; or anything of that sort. In our judgment, at this stage we have to accept it as credible evidence supporting the defendant's case. Whatever a judge may make of it, after the surveyor responsible for the report is cross-examined, we do not pause to enquire. We simply have to consider whether the defendant is, on this material, entitled to a trial of the issue between the parties; i.e. whether the shortfall was as large as the plaintiffs contend or as small as the defendant contends. It seems to us that the defendant is plainly entitled to a trial of that issue.

12. For these reasons, we will allow the appeal; set aside the order of the judge; and give the defendant unconditional leave to defend.

Representation:

Mr John Scott (M/s Ng & Partners) for Appellant/Defendant

Mr Clifford Smith (M/s Ince & Co.) for Respondents/Plaintiffs