A Federal High Court in Lagos has fixed April 9 for a 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, who held the brief of Emmanuel Ekpenyong withdrew their application for default judgment and lawyers to the defendants moved their application to regularise their statements of defence before the court.
In the suit marked: FHC/L/CS/1034/2024 and filed on June 14, 2024, by a human and constitutional lawyer, Emmanuel Ekpenyong, Cargomark Investments and Logistics Limited and Sunrise Estate Development Limited are listed as 1st and 2nd plaintiffs respectively while the Five Star Logistics Limited, terminal operation Company at Tincan Island, Lagos, Nigeria is the 2nd defendant.
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 a 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 the 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 and 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 and added that, though his client received a letter dated December 11, 2023, from the 1st plaintiff as well as the demand notice dated May 30, 2024, and that, 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”.
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 an email of August 10, 2023,” he added.
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