Wakilii

Bushenyi Commercial Agencies Ltd v Freight Forwarders Kenya Ltd & 2 Ors (Cv.Cs.No. 809 Of 2005) (Cv.Cs.No. 809 of 2005)

High Court · [2009] UGHC 153 · 2009 Judgment for Plaintiff (Partial) AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for breach of contract of carriage, with third party proceedings
Decision
Plaintiff obtained judgment for net value of lost cargo after offset for clearing charges; third parties held jointly and severally liable to reimburse defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the defendant was liable to the plaintiff for the value of 1,758 cartons of batteries lost in transit. The first and second third parties, Uganda Railways Corporation and Kenya Railways Corporation, were jointly and severally liable to reimburse the defendant as they had jointly contracted to transport the cargo from Mombasa to Kampala. The internal arrangement whereby the second third party handed over cargo to the first third party at Malaba did not affect their joint liability. Plaintiff's claim for US$36,777.32 was partly offset by the defendant's successful counterclaim for clearing charges of US$12,995.20, resulting in a net judgment of US$23,782.12 for the plaintiff.

Outcome

Plaintiff obtained judgment for net value of lost cargo after offset for clearing charges; third parties held jointly and severally liable to reimburse defendant

Facts

The plaintiff contracted the defendant to clear and forward three containers containing 3,300 cartons of Tiger Head batteries from Mombasa Port, Kenya to Kampala, Uganda. The defendant contracted Uganda Railways Corporation and Kenya Railways Corporation jointly to transport the cargo by rail. Kenya Railways transported the cargo to Kisumu, then handed it over to Uganda Railways at Malaba, who transported it to Kampala. The containers were sealed and intact when handed over at each stage. Upon offloading at Kampala Railways goods shed, tally sheets dated 3 and 4 January 2003 revealed that 1,758 cartons (valued at US$20.92 per carton) were missing. The defendant denied responsibility and brought third party proceedings against both railway corporations. The plaintiff amended the plaint to sue all three parties. The defendant counterclaimed US$12,995.20 for clearing charges and US$5,745.99 for demurrage charges incurred during verification of the loss.

Issues

  1. Whether the defendant handed over to the first and second third parties a total of 3,300 containers of Tiger Head batteries.
  2. Whether the goods were lost in transit, and if so, whether they were lost by the first third party or the second third party.
  3. Whether the parties are entitled to the remedies sought.

Orders

  • Judgment entered for the plaintiff against the defendant in the sum of US$23,782.12 or its equivalent in Uganda shillings at the current obtaining rate of exchange.
  • The defendant's counter-claim partly allowed — defendant awarded US$12,995.20 as clearing charges to be subtracted from the plaintiff's award.
  • The first third party (Uganda Railway Corporation) and the second third party (Kenya Railways Corporation) ordered jointly and/or severally to reimburse the defendant in the sum of US$23,782.12 or its equivalent in Uganda shillings.
  • The first and second third parties ordered jointly and/or severally to pay to the defendant the sum of US$5,745.99 as demurrage charges.
  • The plaintiff awarded the costs of the suit as against the defendant.
  • The first and second third parties ordered to jointly and/or severally reimburse the defendant the costs of the suit the defendant is to pay to the plaintiff.

Rules and key headnotes

Contract Law — Breach of Contract of Carriage — Liability for Loss of Cargo in Transit
Where a freight forwarder contracts to clear, forward and transport cargo and engages rail transporters to perform the transportation, the forwarder remains liable to the consignee for loss of cargo occurring during transit, and is entitled to be reimbursed by the actual transporters.
Contract Law — Joint and Several Liability — Internal Arrangements Between Co-Contractors
Where two railway corporations jointly contract to transport cargo from point A to point C, an internal arrangement between them whereby one transports to an intermediate point B and hands over to the other does not affect their joint and several liability to the contracting party for loss occurring anywhere along the route.
Commercial Law — Carriage of Goods — Responsibility for Demurrage Charges
Demurrage charges incurred as a direct result of investigating and verifying loss of cargo are recoverable from the party responsible for the loss, not from the consignee who suffered the loss.
Commercial Law — Counterclaims — Set-Off of Clearing Charges Against Damages
Where a defendant freight forwarder successfully counterclaims for unpaid clearing charges, the amount recovered is properly set off against the damages awarded to the plaintiff for breach of the contract of carriage, resulting in a net judgment.

Full judgment

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

Bushenyi Commercial Agencies Ltd v Freight Forwarders Kenya Ltd & 2 Ors (Cv.Cs.No. 809 Of 2005) (Cv.Cs.No. 809 of 2005) [2009] UGHC 153 (8 October 2009)
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.