Wakilii

Bakwanye Trading Co. Ltd v Bollore Africa Logistics Uganda Ltd (HCT-00-CC 393 of 2012)

High Court · [2014] UGCOMMC 123 · 2014 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages arising from loss of goods during transport, with defendant's counterclaim for unpaid freight charges and third party proceedings against insurer and subcontractor
Decision
Plaintiff awarded net damages of USD 988.50 after set-off against defendant's successful counterclaim; 2nd third party liable to indemnify defendant; 1st third party not liable

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that failure to deliver goods due to robbery on a known dangerous route constitutes fundamental breach of a carriage contract, rendering exclusion clauses inapplicable. The defendant freight forwarder was found liable for the full value of lost cocoa at USD 66,293.50, notwithstanding standard terms placing risk on the cargo owner. Cocoa recovered by police and held as exhibits could not be credited against the plaintiff's claim as the plaintiff never had beneficial use. Set-off applied for the defendant's admitted counterclaim for unpaid freight. The insurer was not liable due to late notice. The subcontractor was liable to indemnify the defendant.

Outcome

Plaintiff awarded net damages of USD 988.50 after set-off against defendant's successful counterclaim; 2nd third party liable to indemnify defendant; 1st third party not liable

Facts

In January and February 2011, the plaintiff contracted the defendant freight forwarder to transport two containers of cocoa (220 bags each) from Kampala to Switzerland via Nairobi-Mombasa. The first container was attacked by robbers and 109 bags were lost. The second container was hijacked entirely with all 220 bags lost. Police recovered 103 bags which were held as exhibits and later sold, with the plaintiff receiving no proceeds. The defendant admitted the losses but relied on standard trading terms placing goods at owner's risk and requiring the owner to insure. The plaintiff sued for the value of the lost cocoa. The defendant counterclaimed for USD 63,305 in unpaid freight charges accumulated between February 2011 and July 2012, which the plaintiff admitted retaining pending the outcome of this suit. The defendant joined its insurer and subcontractor as third parties seeking indemnity.

Issues

  1. Whether the defendant is liable to compensate the plaintiff for the loss of 109 and 220 bags of cocoa respectively as claimed and if so what value the defendant would be liable for
  2. Whether the plaintiff is indebted to the defendant as claimed in the counterclaim
  3. Whether the 1st third party (insurer) is liable to indemnify the defendant
  4. Whether the 2nd third party (subcontractor) is liable to indemnify the defendant

Orders

  • Judgment entered in favour of the plaintiff against the defendant for USD 66,293.50
  • Judgment entered in favour of the defendant (counterclaimant) against the plaintiff for USD 63,305.00
  • Set-off applied reducing the defendant's net liability to USD 988.50
  • No interest awarded on special damages to either party
  • No general damages awarded to either party
  • Costs of the suit awarded to the plaintiff
  • 1st third party (Jubilee Insurance Company Ltd) found not liable to indemnify the defendant
  • 2nd third party (Manson (U) Ltd) found liable to indemnify the defendant

Rules and key headnotes

Contract Law — Fundamental Breach — Exemption Clauses — Effect on Liability
An exclusion clause in a contract of carriage exempting the carrier from liability for loss unless negligence is proved does not protect the carrier where failure to deliver the goods amounts to a fundamental breach of the contract.
Tort Law — Negligence — Carriers — Known Risks on Route
A carrier who fails to take precautions against robbery on a route where robberies are known to occur is negligent, and such negligence removes the protection of an exclusion clause in a contract of bailment.
Damages & Quantum — Valuation of Lost Goods — Evidence of Purchase Price
Where goods are lost in transit, the value of the goods for the purpose of assessing damages is the purchase price agreed between the consignor and the overseas buyer, not the flat value used for tax purposes in the country of export.
Damages & Quantum — Recovery of Goods as Exhibits — Credit Against Claim
Goods recovered by police and held as exhibits which the plaintiff cannot sell, process, transport, or otherwise deal with, and which are later disposed of by police without the plaintiff receiving proceeds, cannot be treated as goods recovered by the plaintiff for the purpose of reducing the defendant's liability.
Insurance — Notice of Loss — Condition Precedent to Recovery
A stipulation in an insurance policy requiring the insured to declare claims within a specified time is a condition precedent to recovery, and no claim is maintainable unless the duty is performed in accordance with the terms of the stipulation.
Contract Law — Third Party Indemnity — Fundamental Breach by Subcontractor
Where a subcontractor engaged by a carrier fails to deliver goods due to robbery, and such failure amounts to a fundamental breach, the subcontractor cannot rely on exclusion clauses and is liable to indemnify the carrier.
Damages & Quantum — General Damages — Interest — Voluntary Retention of Funds
Where a defendant voluntarily leaves money with the plaintiff pending determination of the case, neither party can claim general damages or interest on special damages, as neither was deprived of the use of the money.

Cases cited (3)

  • Warsley v Wood (1796) 6 Term Rep 710
  • SDV Transami (U) Ltd v Nsibambi Enterprises (2008) ULR 497
  • SDV Transami (U) Ltd v Nsibambi Enterprises (2008) ULR 501

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bakwanye Trading Co. Ltd v Bollore Africa Logistics Uganda Ltd (HCT-00-CC 393 of 2012) [2014] UGCommC 123 (2 September 2014)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.