By section 7, an endorsee or holder assumes the rights and liabilities of the consignee. But an endorsee or holder does not assume any rights or liabilities of the owner of a notifying address unless that owner also happens to be the person to whom the goods are consigned
The issue which falls to me to decide in this case is in my view of a limited nature. It is briefly whether the plaintiffs, C.I.L.E.V., as holders of four bills of lading covering consignments of goods shipped to Ghana in the defendants' boat are entitled upon presentation of the bills of lading and the proffer of payment for freight for those goods to the defendants to their release by the defendants to them. If that is so then whether the defendants in refusing to release the goods have not done wrong to the plaintiffs for which the plaintiffs are entitled to damages as well. The questions have in the course of the case been wrapped up in a mass of irrelevancies.
Goods covered by nine sets of bills of lading shipped by Fratelli Gondrand arrived at Takoradi harbour some time in April 1967. The evidence is that Gondrand are shipping agents carrying on business in Italy and that in this particular case they shipped the goods as agents of C.I.L.E.V. The goods were carried by the defendants' ship, The Bia River. The dispute, though not the whole of it, has raged over the person to whom the goods were shipped. The case of C.I.L.E.V. is that they were then a newly formed company in Italy. Four partners, of whom the general manager of the co-defendants, Chiavelli, was the one who formed this company. At the time of the shipment Chiavelli was the plaintiffs' representative in Ghana. They therefore shipped the goods so that on arrival, Chiavelli would be notified and that he in turn would inform the partners in Italy who would come to Ghana and arrange for their sale. The proceeds of the sale, they intended to use in establishing a business in this country. At the instance of Chiavelli the address for notification of the arrival of the goods was put on the bills of lading as "Timber Import Export, P.O. Box 288,'Takoradi (Ghana)."
Upon arrival of the goods some were cleared by Chiavelli. But later on some distrust set in between Chiavelli on the one hand and at least, two of his partners, Plerini, the chairman of C.I.L.E.V. and Galassi on the other C.I.L.E.V. relieved Chiavelli of his representation in Ghana. They tried subsequently to obtain release of the remaining goods but they were met by the defendants saying that the co-defendants, who to the defendants were the consignees, owed the defendants arrears of freight of N¢132,762.06. That the defendants had therefore placed a lien on the goods not yet released. To obtain these goods C.I.L.E.V. would have to pay the whole arrears. C.I.L.E.V.'s position was that they were not responsible for the arrears owed. By the co-defendants; they, C.I.L.E.V., were liable for and prepared to pay the freight on their own consignments of goods and no more.
This was the origin of the dispute. Each side has not seen fit to budge from his position. Meanwhile warehouse rents totalling over N¢42,000.00 have accumulated on the goods in favour of the Government. The rents continue to increase with each passing day but obviously each side believing in the righteousness of its cause has not until the writing of this judgment taken any step at least to check this burden from growing further. The position is further complicated by the facts that now the co-defendant claims the goods as theirs. They claim to have become owners as a result of a sale by C.I.L.F.V. to them. They have since the action started giving every encouragement to the defendants to refuse delivery to the plaintiffs so that the situation at the moment is that the defendants have made common
cause with the co-defendants to deny delivery of the goods to the plaintiffs.
The plaintiffs had earlier brought an action against Chiavelli and Timber Import-Export s.p.a. (Ghana) Ltd. in respect of part of the consignments. In that action the plaintiffs claimed the value of those goods which had already been cleared from the harbour. Chiavelli and the co-defendants in this action raised a preliminary objection as to the jurisdiction of this court to hear the case, producing in support an invoice which they said covered the transaction between themselves and the plaintiffs and which made the court in Modena, Italy, the competent court to deal with disputes arising out of the transaction evidenced by the invoice. I ruled in that case that though this court had jurisdiction to try the case, as the parties themselves had chosen the Italian court at Modena and as the circumstances of that case made that court the most convenient forum, the action ,should be stayed until the plaintiffs had sued the defendants in Modena (see C.I.L.E.V. v. Chiavelli  G.L.R. 651 ruling given on 27 November 1967 as reviewed on 15 February 1968; see  G.L.R. 160). The co-defendants in the present case thereby gained a respite until whatever action the plaintiffs chose to bring against them had been disposed of. I think it was in the spirit of stopping the Ghanaian courts from dealing with this present matter for as long as possible that they entered this case. Although they must have had earlier notice of the progress of the action, they came in after the plaintiffs' evidence had begun. The defendants in this case had also tried before to get this action stayed on the ground that the English courts were by agreement between the parties to the bills of lading the only competent courts to deal with the case. But as our courts equally have jurisdiction and there were not the circumstances favourable to the foreign court adjudicating instead of our courts on the matter, and, above all, as there were pressing reasons why this action should be quickly disposed of, I decided to hear the case (see my ruling in this case on 18 December 1967 reported in  G.L.R. 744). No sooner had the co-defendants sought and obtained leave to defend this action than they once more raised the point of jurisdiction as between themselves and the plaintiffs on the basis of the invoice mentioned before. The original issue raised as between the plaintiffs and defendants, to me, can be decided without disposing of the question of sale to the co-defendants or otherwise. I therefore decided to continue with the hearing. I must confess that having regard to the fact earlier adverted to, that the goods, the subject-matter of this case, are as distinct from those already delivered by the defendants, still in the State warehouse in this country where they continue to accumulate rent, this submission raised doubts in
me as to the bona fides of the co-defendants. Doubts which I have been unable throughout the case to dispel.
The action between the plaintiffs and the co-defendant as to whether there was a sale by the former to the latter or not has been stayed pending the Italian court's decision on it. I do not propose to decide this same matter in the case before me under the guise of deciding on the co-defendant's claim to be entitled to delivery as the owner of the goods. The issue I propose to confine myself to be whether a carrier is entitled to refuse delivery of goods to a person who presents the bills of lading to the goods. And if so, when he is thus entitled. This is an issue quite independent of whether there was a sale to the co-defendants or not.
According to C.I.L.E.V. the goods they now claim delivery of, namely, 256 cases of varnishes and brushes and 123 cases of furniture are covered by four bills of lading which they hold and have presented to the defendants as carriers, without succeeding in their objective of obtaining delivery. The bills of lading for the furniture and brushes were exhibited in evidence (see exhibits C1-4). A consignment of shirts was also held by the defendants under their lien. But during the pendency of the case the defendants delivered them to the co-defendants. A look at the bills of lading shows that they are on a common printed form. On it the shipper is given as S.N.T. Fratell Gondrand. Towards the top right hand corner there is a place for "notify address." Here is written "Timber Import Export, P.O. Box 288, Takoradi (Ghana)." A great deal was made by the defendants of this "notify address." The original position they took was that whoever appeared in that part of the bill of lading was the consignee of the goods. And I dare say there are times when the person to be notified is the same as the consignee of the goods. But it seems to me quite untenable to say that this is invariably so. There is a part towards the bottom right hand corner of the bill of lading where appears the following:
"Shipped on board in external apparent good order and condition. Weight, measure, marks, numbers, quantity, contents and values unknown. To be delivered subject to the terms and conditions set out on the face and back of this bill of lading in the like good order and condition at the aforesaid port unto ... or to his or their assigns; he or they paying freight as per note on the margin plus other charges incurred in accordance with the provisions contained in this bill of lading."
Where the person unto whom it is stated in this part that the goods are shipped differs from the one given in the "notify address," I cannot conceive the name given in that notify address being by any
stretch of the imagination described as the consignee. It is simple common sense that the consignee of goods is the person to whom the goods are sent and not necessarily the address to be notified of the arrival of the goods at its predestined port. All that the "notify address" means to me is that if the address given is notified of the arrival of the goods the person to whom they are consigned or to whom they ought to be delivered will come forward to take delivery of them. This person may be the owner of the address. But there is nothing preventing him from being someone with whom that owner may get in touch to collect his goods waiting for him at the harbour. A great deal of time was taken up with, and I am sure a pivotal point of the strategy of the defence was based on, the view the defendants held that the "notify address" necessarily yielded the name of the consignee. I am glad that in the end learned counsel for the defendants conceded that this was an erroneous view. In the particular bills of lading we are concerned with, it is said that the goods were shipped "unto order." Apparently this is not an unusual practice amongst commercial men. For quite often goods shipped are sold while in port and before clearance. Thus the new owner would be the person to whom delivery is to be made. On the particular bills of lading which concern us, the evidence of the defendants' representative and witness, Mr. Blesyn, was in this respect quite clear. He said:
"By the bills of lading exhibits C 1-4 the goods are to be delivered unto 'order.' They are consigned to 'order.' They are to be delivered unto the order of the shipper. As soon as the shipper has endorsed the bills of lading, he gives them to the person to whom the goods should be delivered. Whoever produces the bills will be given the goods by the shipping company. In this case the shippers have endorsed the bills."
On the face of the bills, Timber Import Export were not the consignees of the goods. The defendants therefore fell on the second leg of their defence on this point. It was that they were entitled to take the co-defendants as consignees because by the course of business the particular shippers always shipped their goods in accordance with the terms on the present bills of lading and whenever that was done, the co-defendants came forward and collected the goods. For this proposition the authorities of Wilson v. Kymer (1813) 1 M. &. S. 157 and Coleman v. Lambert (1839) 5 M. & W. 502 were cited. But those cases are on the liability to pay freight that could be implied from previous dealings of the parties where there is no bill of lading to show the nature of the agreement between them. In Wilson. v. Kymer (supra) it was held that the receipt of goods by the endorsers of a bill of lading, not under the bill of lading itself,
but under an order of the consignees for that purpose, was not of itself a sufficient ground to raise an implied undertaking to pay the freight. But that as it appeared from previous dealings that the defendant had been in the habit of receiving goods in the same manner and paying the freight for them, that was sufficient to raise such an implied promise Lord Ellenborough said at p. 168:
"Then the question is, taking what has been the dealing between these parties and the general usage of trade, whether the defendants, who received these goods, must not be taken to have received them under the same terms as they had always adopted in other cases, viz. under the same liability to pay freight as the original consignees were under.”
And Bayley J. said at p. 169, "[The defendants] must be understood as having agreed to pay the freight as upon former occasions, when the captain was used to send round to them for it; and they cannot be prejudiced by this, because they have got the goods." Coleman v. Lambert similarly was a case where there was no bill of lading governing the relations of the parties. And in it the court approved the decision in Wilson v. Kymer that evidence of previous dealings between the carrier and the consignee of goods could show that the consignee who is in general not liable, in the absence of a bill of lading, for the freight is so liable. I can appreciate these authorities being used in support of the proposition that although primarily the shippers are liable to the carrier for freight, where on previous occasions the goods have been delivered to the consignee, it is he who had paid the freight, and therefore this has created a course of business whereby the carrier looks to that consignee, upon delivery of the goods, to pay the freight. For as Bayley J. said, the consignee cannot be said to be prejudiced because he has received the goods. So that in this case if upon notification to Timber Import Export, the co-defendants had appeared to collect, the defendants might fairly say that although they were normally to ask for their freight from the shippers, the previous dealings between them and the co-defendants entitled them, the defendants, to look to the co-defendants for their freight. But I do not think that these authorities support the proposition that where goods are shipped under a bill of lading which expressly says that the carriers must deliver to the order of the shippers, just because on previous occasions the shipper had ordered that the goods be delivered to a particular person, so the carrier must deliver to that same person even though this time the shipper orders that they be delivered to another. The prejudice which such a conclusion would lead to is immense. An owner of goods cannot sell and have conveyed goods to any new customer if
he has by the particular carrier been dealing with one customer, even though his goods are conveyed each time by that carrier under a contract of carriage which says convey to the person I order you to. If he does so, he runs the risk of seeing the goods he has contracted to deliver to his purchaser being delivered by an obdurate carrier to someone whom he has never intended. Even more galling, the courts of justice to whom he might think of running for redress would set their seal of approval on such an obviously unjust solution. I cannot accept this as correct. I believe that such a principle would not only work injustice it would even gravely hamper the course of business. I do not therefore agree that the course of business entitles the defendants, as carriers, to pre-determine the consignee of goods which according to the bill of lading are to be delivered unto order and no more. I do not think any course of business entitles the carrier to ignore the wishes of the shipper which he has contracted to respect. Even if there was such a course of business, it must have been that unless otherwise told the goods shipped on the bills of lading must be delivered to the old customer. But in this case before delivery the defendants had been given ample warning that the goods were not meant for delivery to the co-defendants, whatever the course of business had established. Nothing prevented the defendants if they felt in doubt, from checking with Gondrand, the shippers, and they had abundant time to do it in. Did they do so? If they did, they chose not to tell me about it.
As said earlier, the bills of lading were on a common printed form used by the defendants. They seem to have misread their own form. For in taking the position that in the part reserved for "notify address" was necessarily to be found the name of the consignee, they took a decision which was to lead to grave consequences. The co-defendants to whom they had previously delivered goods had a large amount of accumulated freight unpaid. In the view of the defendants, therefore, the freight on the consignments in this case was, according to the terms of the bill of lading, to be added to the arrears and the whole amount paid as a condition for the delivery of these goods otherwise the defendants had a right to exercise their lien on the goods and have them sold. But this position would be false if the co-defendants were not the consignees of these particular goods. Because if they were not then whoever was to take the goods would be met with claims to which the co-defendants were liable but with which he had no connection whatsoever. Claims which in these circumstances would be unjustified.
After the goods had been shipped Gondrand endorsed these bills of lading thereby making them negotiable, and forwarded them to the plaintiffs. At the time the goods arrived Marino Chiavelli was the
representative of the plaintiffs in this country. Chiavelli is a man of considerable interest and in a way this whole dispute revolves around him. He gave evidence before me. Evidence which was illuminated by rare flashes of truth. He was a foundation partner and an administrator of the plaintiff company. Three others joined him in forming the company. In the partnership agreement, he was named as the company's representative in Ghana. The company was formed in early 1967. Chiavelli was also the general manager of the co-defendant-company. He told me that he had formed that company with a certain lady who resided in Europe. The co-defendants are an Italian company registered in Ghana where they have been doing business since about 1964. C.I.L.E.V. was not registered in Ghana and had no independent address in the country. Any communications for the plaintiffs in this country must therefore necessarily be addressed to Chiavelli whose address was the same as that of the co-defendants. The plaintiffs say that they addressed the consignment to Timber Import Export, P.O. Box 288, Takoradi (Ghana), which happens to be the address of Chiavelli, because he, their representative in Ghana, asked them to. The co-defendants say that that address, which is their address also, was used because the goods were sold to them. It is difficult to rule on this dispute without ruling on the action between the plaintiffs and the co-defendants and Chiavelli which has been stayed. The matter should be, as far as possible, left open. It is for the purposes of this action sufficient to say that the address used is not inconsistent with the plaintiffs’ story. When the goods arrived, Chiavelli sent a series of cables to the plaintiffs on them. I am not here saying the capacity in which he did so but here again his conduct is not inconsistent with the plaintiffs' story.
Both the chairman and one of the partners, Galassi, came to Ghana on account of their business interests in Ghana after the goods had arrived. The plaintiffs' version is that they came to see to the goods being cleared from the harbour and sold. The co-defendants through Chiavelli say it was because they were interested in entering into the timber trade. Some of the goods were cleared from the harbour before July. The circumstances leading to their being taken out are differently told by the plaintiffs and defendants.
In July 1967, the plaintiffs’ appointed one Carlo de Cocci as their attorney in this country. The validity of this appointment is disputed. But that need not detain us at the moment. According to the plaintiffs Chiavelli's representation here was withdrawn because they began suspecting that he was not acting in the interests of the company. Of course this is not acceptable to Chiavelli. But the fact remains that this de Cocci was sent a power of attorney executed by the chairman of the plaintiff-company. And on the basis of this power he
proceeded to act. He wrote on 24 July 1967, to the defendants and copied it to a number of people including Mrs. Justice Annie Jiagge, Chairman of the Assets Commission, with which Commission Chiavelli was at that time experiencing some difficulty, the following (see exhibit D):
"CLAIM OF PROPERTY
We learnt that you intend to take action against the Timber, Import Export (Mr. Marino Chiavelli) P.O. Box 288, Takoradi, for the refund of the amount of N¢132,762.06 which the said company must pay you.
On date 11 July 1967 your solicitor Mr. E. Kwasi Mensah, P.O. Box B14, Accra, wrote to the Timber Import Export and force to concerned offices, that you intend to seize part of the goods which arrived in Ghana 26 April 1967 on the 'Bia River' vessel.
In fact, he wants to act on the bills of lading Nos. 10/1, 10/2, 10/3, 10/4, 10/7.
Regarding the said bills of lading and consequently the goods, we precise to you that they are absolute property of the Italian company C.I.L.E.V.
The C.I.L.E.V. has got nothing to do with the debts that the Timber Import Export, or Ghana Timber Import or Mr Chiavelli have with the Black Star Line.
Therefore we remain at your disposal to proof the property of the goods as to the said bills of lading.
Waiting to hear from you with our best regards.
(Sgd.) (C. de COCCI)
ATTORNEY FOR THE C.I.L.E.V."
From this it would appear that the defendants had at that time exercised their lien on the goods. The lien was in fact exercised on 13 July 1967. Why they imposed a lien on part of the goods for the reasons they gave after part had already been delivered was never made clear to me. Though the letter warned that the goods over which the lien had been exercised were not the property of the person who owned the previously unsatisfied freight to the defendants, de Cocci had no reply to it. So he again wrote on 9 August 1967 (see exhibit E) in which he reminded the defendants that the goods were the absolute property of the plaintiffs and that the bills of lading were made "to order." He also made a pointed statement which after hearing this evidence I think quite justified, that Chiavelli
as the plaintiffs were ready to pay up the arrears accumulated by the co-defendants whom the defendants described as the plaintiff's subsidiary. This conclusion the defendants came to because as their letter said the co-defendants had used the same letter heads and trademark as the plaintiffs. Of course the defendants generous in granting the ten per cent rebate on the arrears as from 1964. But this generosity to a man who did not owe a pesewa of the original sum was wholly misplaced and was, as might be expected in such circumstances, rejected. On the face of that letter, it was copied to the general manager of the co-defendants, who is no other than the ambivalent Chiavelli. If there was one who could disabuse the minds of the defendants about the erroneous impression they had gained about the relations between C.I.L.E.V. and the co-defendants, it was he. But there is no evidence that he chose to do so. In a reply to the defendants written by the solicitor for the plaintiffs the defendants were however given notice that their conclusion was wrong. By letter dated 4 September 1967 (see exhibit G), the defendants were told:
"Your second paragraph is completely incorrect. My client's company was registered in Italy on 7 March 1967 with registration No. 124915. Secondly your assertion that the Ghana Timber Export Limited (sic) is a subsidiary of my client's company is unfounded. Perhaps you would care to peruse the regulations of the said company. In the circumstances I do not see how my client's company could be liable for the debts of the Ghana Timber Import Export Limited accrued since November 1964."
The plaintiffs again explained that the address of Timber Import Export had merely been used as a notifying address and that the plaintiffs who had the relevant bill of lading remained the owners of the goods. Subsequently, on 7 September 1967, there was a meeting at the defendants' offices at which the chairman of C.I.L.E.V., his secretary and de Cocci were present. Chiavelli was invited to this meeting. He failed to turn up. While the meeting was in progress the defendants' solicitor phoned him to come. He refused to. This ought to have roused the suspicion of the defendants as to his bona fides but from their subsequent conduct it does not seem to have had that effect. In his evidence, Chiavelli explained that he had refused to come to the meeting because by this time he had been wrongfully relieved of his position as the representative of the plaintiffs, company in Ghana. And as according to agreement the court in Modena was the one with jurisdiction to decide disputes between himself and the rest of his partners, he was not prepared to meet them anywhere except in court in Italy. This was extraordinary conduct in a man
who was the general manager of a company which claimed to have brought the goods being held by the defendants. He might have had his differences with his other partners in the plaintiff-company. But he knew these goods which the co-defendants had bought and which were therefore their property were lying in a warehouse in Ghana accumulating rent with every passing day. He knew the chairman of the plaintiff-company had come to claim the goods from the defendants as the plaintiffs. He knew that the defendants were prepared to hand over the goods to the plaintiffs, who at the time had the bills of lading, if only they paid a certain sum said to be arrears the co-defendants had accumulated. From his intervention in this court it is clear that he objected to such an eventuality. Yet because he was annoyed with the conduct of his partners in C.I.L.E V. he was prepared to absent himself from the meeting and they run the risk of the goods being lost or their being held at great cost to the company of which he was general manager. I find this incredible.
In a letter dated 15 September 1967 from the solicitor of the defendants, the reason why they exercised their lien is put beyond peradventure. That letter is worth reproducing. It says:
"Your letter ref. No. CILEV/SHABS/67 of 12 September 1967 addressed to my clients, Messrs. Black Star Line Limited, has been referred to me to reply thereto.
In compliance with your request my clients have instructed me to inform you that the contract of affreightment is embodied in the bills of lading covering the cargo mentioned in your letter. According to these bills of lading the shipper, Messrs. S.N.F.F. Gondrand and my clients mutually agreed, inter alia, that the carrier, his servants and agent shall have a lien and right of sale by public auction or otherwise in his or their discretion on the goods covered by the said bills of lading for freight in respect of the said goods, charges, expenses and any amounts payable to the carrier, under the provisions of the said bills of lading and also in respect of any previously unsatisfied freights and other charges and also for the costs and expenses of exercising the lien and right or sale.
By the Bills of Lading Act, 1855, s. 1 every consignee and an endorsee of a bill of lading to whom the property in the goods therein mentioned passes shall be liable for payments stipulated in the bill of lading although he is not a party to the contract evidenced in the bill. Therefore if your clients are consignees or endorsees who have acquired property by endorsement, they become liable to discharge all obligations and take advantage of the other terms in the contract of carriage as
I am informed that since 1964 the same shippers named in the bills of lading in question have been shipping goods to Messrs. Timber Import Export (Ghana) Limited of Takoradi for which the arrears of freight outstanding amounted to N¢132,762.06 as at 11 July 1967. After deducting the discount given by my clients, the balance of freight due is N¢86,748.03 plus other charges.
I was therefore instructed to exercise the carrier's lien on the goods covered by the bills of lading in question, and notice of this lien was accordingly given to all parties concerned on 13 July 1967.
My clients have not yet exercised their right of sale given by the bills of lading but intend to do so if they do not receive full payment of the amount of N¢86,748.03 plus other expenses from the holders or endorsees of the relevant bills of lading on or before Saturday, 16 September 1967.
In view of the foregoing I have advised my clients to ignore your warning against the lawful exercise of their carrier's lien and right of sale.
(Sgd.) E. KWASI MENSA
|SOLICITOR FOR BLACK STAR LINE."
This was apparently the last letter written by or on behalf of the defendants to the plaintiffs before the present action was instituted. The defendants' position was made quite clear in it. They had exercised their lien because the co-defendants owed them accumulated freight undischarged. The present batch of consignments was consigned on the face of the bills of lading to the co-defendants. The lien clause in the bills of lading entitled the defendants as carriers to hold and to sell these goods unless the endorsee or holder of the bills of lading paid the arrears of freight.
Now what was this lien clause? It is in the following form:
7. The carrier, his servants and agents shall have a lien and right of sale by public auction or otherwise in his or their discretion on the goods covered by this bill of lading for freight whether payable in advance or not, dead freight, demurrage, detention charges, expenses and for any amounts in any-wise to become payable to the carrier under the provisions of this bill of lading although the same may not be then ascertained or payable; and
also in respect of any previously unsatisfied freight, primage porterage fines, costs and other charges or amounts, due from the merchant to the carrier and also for the costs and expenses of exercising any such lien and right of sale. Nothing in this clause shall prevent the carrier from recovering from the merchant the differences between the amount due to the carrier and the net amount realised by the exercise of the rights given to the carrier under this clause."'
The expression "merchant" is not defined in any part of the bill of lading. But it would appear from the whole of the document that it describes the party with whom the carrier is entering the contract evidenced by the bill of lading. It would primarily cover the shippers, but it could cover others. I am certain though that it does not cover an address which has to be notified of the arrival of the goods at the port of destination. The bills of lading make the goods shipped deliverable unto order. The goods were not according to them consigned to the co-defendants. To whose order must the goods be delivered? The answer to this question which is quite obvious was supplied by the defendants. On the face of those documents to the order of the shippers. The shippers had endorsed the bills and sent them to the plaintiffs. The plaintiffs are endorsees from the shippers. They hold the bills of lading, not from the co-defendants who on the face of the bills of lading were not entitled to endorse and transfer them, but from the shippers, who at the time of shipment were actually acting as the agents of the plaintiffs. The defendants admit that the shippers owe them nothing. How, then, are the plaintiffs expected to pay the arrears claimed from them?
The Bills of Lading Act, 1855 (18 & 19 Vict., c. 111), of the United Kingdom Parliament was mentioned in the letter. The section there referred to is not different from section 7 of our Bills of Lading Act, 1961 (Act 42). By section 7, an endorsee or holder assumes the rights and liabilities of the consignee. But an endorsee or holder does not assume any rights or liabilities of the owner of a notifying address unless that owner also happens to be the person to whom the goods are consigned. And in this case I have held that he is not. It is understandable making a person who takes from a consignee steps into his shoes in respect of rights and liabilities but surely there is no sense in making a person responsible for the liabilities of one with whom he has no connection. There was no connection between C.I.L.E.V. and the co-defendants except the unfortunate fact that one of the partners in C.I. L.E.V. happened also to be the general manager and a partner in the co-defendant company. But that is not a basis for liability on a bill of lading. As the co-defendants were
not in the position to order whom the goods should be delivered unto, no holder of the bills of lading could be taken to assume any liability that they had acquired. The defendants made a mistake taking the co-defendants as the consignees. The bills of lading do not say so. Nor does this course of business they rely on, entitle them to. The exercise of a lien over goods which were not consigned to the co-defendants for debts owed by the co-defendants was, unless the co-defendants were the holders of the bills of lading, outside the scope of the lien clause. And at the time that the defendants were asked to deliver, the co-defendants were not holders of these bills of lading.
The defendants, no doubt, were interested in obtaining their money. So when they noticed that there was a dispute between the plaintiffs and the co-defendants, they seem to have thrown in their lot with the co-defendants. The only reason for this appears to me to be because they thought that by supporting the co-defendants they were more likely to obtain their arrears. Since the action started their conduct has been characterised by a mixture of stubbornness and a dash of adventurism. Starting from the position that the plaintiffs were the parent company of, or the holders from, the co-defendants, two propositions which were equally wrong, they now argue that the mere holding of a bill of lading does not give the plaintiffs the right to the goods if they had sold them to the co-defendants. As is shown by the pleadings, this question of sale is a late development in the thinking of the defendants. Up till the time they filed their defence it had not influenced their action in any way. They make use of the argument now because the co-defendants have raised it. But the defendants ought to know that whether there was a sale or not is a matter which is in dispute. The determination of that question has been left to the courts in Italy. But even if there had been a sale, was it the duty of the defendants to enforce it? What the terms and conditions were, were certainly not known to the defendants because they did not know about the purported sale until the actual hearing of this case. What they know was that a properly endorsed bill of lading had been presented to them by the plaintiffs. The defendants themselves concede that the person who is entitled to claim delivery of the cargo is the holder of the bill of lading whether as the consignee named therein or as an endorsee under a valid endorsement. In this they are supported by sound authority. As Lord Hatherley L.C. said in Barber v. Meyerstein (1870) L.R. 4 H. L. 317 at pp. 329-330:
"There has been adopted, for the convenience of mankind, a mode of dealing with property the possession of which cannot
be immediately delivered, namely, that of dealing with symbols of the property. In the case of goods which are at sea being transmitted from one country to another, you cannot deliver actual possession of them, therefore the bill of lading is considered to be a symbol of the goods, and its delivery to be a delivery of them. When they have arrived at the dock until they are delivered to some person who has the right to hold them the bill of lading still remains the only symbol that can be dealt with by way of assignment, or mortgage, or otherwise. As soon as delivery is made, or a warranty for delivery has been issued, or an order for delivery accepted (which in law would be equivalent to delivery), then those symbols replace the symbol which before existed. Until that time bills of lading are effective representations of ownership of the goods, and their force does not become extinguished until possession, or what is equivalent in law to possession, has been taken on the part of the person having a right to demand it."
See also Glyn Mills Currie & Co. v. East & West India Dock Co. (1882) 7 App.Cas. 591, H.L. The defendants themselves applied this principle when with full knowledge of the dispute between the plaintiffs and the co-defendants over the ownership of the goods consigned, and during the pendency of this suit, they delivered the consignment of shirts which formed part of this shipment to the co-defendants upon the latter presenting the bill of lading for those shirts. Obviously the defendants felt themselves discharged of their obligation as carriers, leaving the rival claimants to litigate the issue of ownership between themselves. I am of the opinion that the carrier discharges his obligation by delivering to the person who presents the bills of lading, even though another may have a right of action against that person over the ownership of the goods.
Nothing has been said against the validity of the endorsements by Gondrand, the shippers, in this case. But the defendants say that they are not bound to make delivery unless existing liens over the cargo are satisfied. There was no cause for the exercise of a lien on these goods. The basis for the supposed lien was erroneous. And therefore the lien was illegal. Yet even after this had been pointed out to the defendants, they persisted that the conditions of the lien had to be satisfied. In this the defendants argue as if a lien once placed on goods, however wrongfully, continues to attach until its wrongful condition has been met. I find this proposition oppressive and wholly unacceptable.
The duty of the defendants was to deliver the goods to the person to whom he had contracted to deliver them. In this case to the
assignee ordered by the shippers, Gondrand. That assignee has never been the co-defendants. When the goods were shipped, the shippers sent the bills of lading to the plaintiffs. It is true that some of the bills of lading or copies of them came at one time into the hands of Chiavelli. But this was at a time when he was also the representative of the plaintiffs in Ghana. So that his possession of them would not be inconsistent with the plaintiffs' desire to retain the bills of lading. Chiavelli at this time took delivery of some of the goods.
It is now suggested that this was a taking on behalf of the co-defendants. I do not think this taking is at all inconsistent with Chiavelli acting as the plaintiffs' representative which he indeed was at the time. I am here bound to say that while I leave the question of sale or otherwise open, where there is a conflict in the evidence outside this question between the plaintiffs and Chiavelli, for example, as to how the bills of lading or any copies of them came into or left the hands of Chiavelli, I prefer the evidence of the plaintiffs' witness. Nothing can be more ludicrous than Chiavelli's version of how he came to surrender the bills of lading now in the hands of the plaintiffs to them. A person who has nine bills of lading some of which had already been used by him to take delivery of goods says that he gave up the rest because he was told that they were required for registration in Italy. He asked no questions. Why was it not necessary to register those already used? Why were those unused not registered before? Why were those not used the particular ones requiring registration? All these are questions which would immediately occur to one in the position of Chiavelli as he described it. But none of them did. I am afraid I do not believe him.
Even if Chiavelli had at some stage before the action raised the question of sale to the defendants, and had shown them the invoices claiming that there had been a sale to the co-defendants, still the defendants must have wondered why the plaintiffs, the supposed vendors were keeping these particular bills of lading. Property in the goods passes in c.i.f. contracts with the delivery of the shipping documents to the consignee or the assignee. Although this is not to say, as was contended on behalf of the defendants, that the carrier is a party to and therefore governed by all those documents. His contract with the shipper is the contract of affreightment which is evidenced by the bill of lading. C.i.f. contracts are often made in which the vendors retain the bills of lading and when this is done the presumption is that they still retain the right to dispose of the goods otherwise than to the purchaser. In Arnhold Karberg & Co. v. Blythe, Green, Jourdain & Co.  2 K.B. 379 at p. 387, Scrutton J. (as he then was) made this point while drawing the distinction
between a vendor taking the bills of lading in his own name on the one hand and in the name of the purchaser on the other, as follows:
"where the seller by taking the bills of lading in his own name or to his own order has reserved the jus disponendi or power of dealing with the goods, the property does not pass on shipment, but is vested in the vendor until he receives payment from the buyer in exchange for the documents of title. If the seller has taken the bill of lading in the purchaser's name, but retains it as security for the price, the property appears to vest on the buyer's tendering the price."
Thus there may be genuine c.i.f. sales where the vendor retains the bills of lading and by passing them to persons other than the purchaser entitled those to claim delivery of the goods from the carrier. If the purchaser thinks the vendor's action is a breach of the contract of sale his right lies in an action against the vendor. And here mention may be made of the case of Trucks & Spares, Ltd. v. Maritime Agencies (Southampton), Ltd.  2 All E.R. 982, C.A. in which one Hamilton shipped goods from Southampton to Montreal, and, by arrangement with Hamilton, the carriers retained the bills of lading against payment of the general balance of an account owing to them by Hamilton. On arrival of the goods at Montreal, delivery was claimed by the plaintiffs on whose behalf an affidavit was filed in which it was stated that the plaintiffs were the purchasers of the goods. The plaintiffs brought an action against the carriers for the detinue of the goods and applied for an interim mandatory order directing the carriers to deliver the goods to them. It was held by the Court of Appeal in England that before the interim mandatory order could be made the court would require proof by the plaintiffs of their title to the goods. Production of the bills of lading was the proper proof at that stage of the action and that such proof ought to be given before a mandatory order was made. Denning L.J. (as he then was) put the point in this manner at p. 983:
"The question is whether that assertion [of ownership] is sufficient evidence of title so that this court can make a mandatory order for delivery. In my opinion, it is not. In cases of this kind the bill of lading is the evidence of title which should be produced. That is well known throughout the commercial world."
The only difference in the present case is that instead of an assertion on oath, the co-defendants produced an invoice, which having regard to the circumstances is open to more than one interpretation as to the nature of the transaction, as evidence of their title to the goods. I think it is insufficient. As the defendant's representative
said, the good ought to have been delivered to the one who produced the endorsed bills of lading; in this case to the plaintiffs. And they would have been, had the issues not been clouded by arrears owed by the co-defendants which had nothing to do with the plaintiffs and which the plaintiffs could not be taken to have assumed as they were not holding the bills of lading from the co-defendants but which the defendants insisted, and I think wrongly, that the plaintiffs should pay before delivery.
The defendants say that they had been put in an embarrassing position as they were not to know the internal workings of C.I.L.E.V. That is more reason why they should have acted with care and impartiality and not have supported one side merely because it suited them. They say that some of the goods had previously been cleared by Chiavelli. But that was not conclusive proof of the co-defendants' right to take delivery of the rest. Although general manager of the co-defendant company, Chiavelli was also at the material time he cleared the particular goods, the plaintiffs' representative in Ghana. The defendants say that the other partners in the plaintiff company had been coming to this country before their lien was placed and at no time did those partners make plain their claim on the goods or check with some authority like the Italian Embassy here on what should be done in this country to get goods cleared. Perhaps of all the propositions put forward in this case this was the most strange. As far as the other partners knew they were in touch with the defendants before the defendants imposed their lien because their partner and representative, Chiavelli, was. They did not understand English, only Chiavelli did. This Chiavelli himself admitted. They had yet had no occasion to suspect him. They were therefore completely dependent on him. Who in his right senses would in such circumstances, contact a third person to do the same job when his trusted representative is around apparently handling the matter for him?
The co-defendants have claimed that de Cocci has no locus stand to bring this action on behalf of the plaintiffs. That their general manager, Chiavelli, is the only person with capacity to do so and that in this case he has not chosen to. I have no doubt that Chiavelli has at the moment not the slightest intention of protecting the plaintiffs' interest in this country. He is piqued that his other partners claim to have relieved him of his representation in Ghana. According to him their action was illegal. He says he has taken action against the other partners on this in Italy. I think in terms of their articles of association his action is perfectly proper. And I would not presume to prejudge the issue for the Italian court. I may add here that a ruling I made in the course of the evidence was
misinterpreted by counsel for the co-defendants in his address. I did not say that the extract of the minutes of the meeting of C.I.L.E.V. in Italy on 24 July 1967, should become evidence only if evidence of the members of the company, the number notified for the meeting and the quorum which attended, was given. I said and meant the exact opposite. Such detail need not be given before the letter was accepted, though cross-examination on such matters may go to the weight to be attached to the extract.
As things are, the question is still open. It is sufficient for me to say that de Cocci has produced what appears to be a perfectly good power of attorney which entitles him to represent the plaintiffs, a company which includes Chiavelli, and I so hold. The power of attorney was executed by the chairman of C.I.L.E.V. who according to the partnership agreement was also the managing director of the company. Primarily he has the power to perform all acts for the advancement of the company's business. And had he appeared here on behalf of C.I.L.E.V., even though Chiavelli had been appointed the local representative, his authority as chairman and managing director of the whole company would have taken precedence over Chiavelli's local representation. He would surely have been granted audience. Besides Chiavelli was not appointed representative to the exclusion of all others. I cannot imagine that the partners intended creating a private fief, responsible to no one, for Chiavelli in making him their local representative. de Cocci's power of attorney was to represent the managing director. And what is more, the appointment was endorsed by a meeting of the company; whether or not Chiavelli continues as the local representative I am of the opinion that de Cocci can bring this action.
There are one or two ghosts raised which ought now to be laid. The defendants claimed that the goods were consigned to the co-defendants because they obtained the import licence for their entry into Ghana, and that the plaintiffs have no import licence for them. But this is no concern of the defendants. It is not part of the contract of affreightment of which they were a party. How the plaintiffs are to get the goods into this country is of little moment to the carrier as his duty should be to issue a delivery order to the one who produces the bill of lading. That person could make his own arrangement with the governmental authorities as to their entry. For all the defendants know the plaintiffs could if they themselves did not obtain a licence, sell to someone who has or could obtain it. The possession of an import licence is not a matter between the carrier and the merchant in the contract of affreightment. It is a matter between the merchant and the government.
The question of the invoice was also raised. I do not believe that the defendants saw these invoices before the action commenced. But if they did, the invoices played no part in their calculations. Their significance to them, if any, is of recent origin. In any event, having regard to the previous relations of the plaintiffs and Chiavelli, one can imagine several reasons why there should be an invoice on the goods without there being an actual sale. Then there was a letter from the Attorney-General's Office exhibited to show that an officer in the Attorney-General's office had also thought that the lien of the defendants was exercisable. That opinion has no better status in this case and is no weightier than those of counsel appearing in this case. It therefore does not add anything to the defendants' cause. Finally, markings on packages consigned are for purposes of identification. They need not in themselves show who the consignees of the goods are.
Whether there was a sale or not is a question still open for the Italian court at Modena to decide. The co-defendants may there show to the Italian court how they have managed to ship timber in excess of the value of the goods consigned to Ghana, especially where the Timber Marketing Board, under whose auspices the last and the largest shipment taken into account by the co-defendants was made, expect to be paid separately and claim to have received part-payment for the shipment. Above all there is evidence which is not denied by Chiavelli that the co-defendant-company is in the process of being wound up in Italy. This not a case of the co-defendants being a separate entity from the company in Italy. They are the same person doing business here because the company incorporated in Italy has been registered here under our laws. According to the evidence the co-defendant-company in Italy has been in this winding up process since 1966. In that condition the company exists only for the purposes of winding up by the liquidator and cannot, by the Italian Civil Code, the relevant part of which was put in evidence, undertake any fresh business. How such a company is able to enter into an ordinary contract of sale in Italy in 1967 as a purchaser for the purpose of a resale at a profit in Ghana is perhaps a question on which Marino Chiavelli may be able to satisfy the Italian court.
I give judgment for the plaintiffs. The defendants must issue them with a delivery order on the bills of lading tendered on due payment of the freight on those goods. The plaintiffs are also entitled to damages from the defendants. I cannot help thinking that the defendants have acted most irresponsibly. But I am not sure of the exact extent of the injury done to the plaintiffs. I should therefore want to hear evidence on this before assessing the damages payable.
By way of addendum, I should add that after I had adjourned for judgment and while considering my decision, my attention was drawn to the fact that one document which ought to have been stamped before being admitted in evidence had not been so stamped. I asked the registrar to issue a hearing notice to the parties so that I may raise the matter. Apparently instead of the hearing notice I asked for, the registrar issued notices for judgment. But this error I think makes no differences as I explained immediately counsel appeared the purpose for which I wanted them. According to the Stamp Act, 1965 (Act 311), as amended by the Stamp Act, 1965 (Amendment) Decree, 1968 (N.L.C.D. 160), no document requiring a stamp should be received in evidence unless it is stamped. This provision is to my mind a purely revenue matter and has otherwise nothing to do with the validity of the document. Stamp objections, as a result, are held to be for the court to take. It has even been said that it is unprofessional for counsel to take stamp objections unless the defect goes to the validity of the document: see Bowker v. Williamson (1889) 5 T.L.R. 382. It is true that my attention was first drawn to the fact that the particular document in question, namely, de Cocci's power of attorney, was not stamped while I was reading the written submissions of counsel for the co-defendants handed to the court. The document was tendered as exhibit A without objection. That does not of itself relieve the court of its duty to protect the revenue by refusing to admit it. The fact merely explains why the lack of stamp was overlooked. Being of the opinion that this was an error of the court which the court itself could correct, I called the parties so that I may point out this default of mine and the consequences it might lead to. The stamp duty and penalty were immediately paid. When stamp objections are taken at the appropriate time, the court receives the document objected to if the duty and penalty are paid to the registrar. There is also authority for the admission of an unstamped document upon counsel's undertaking that the stamp duty and penalty would be paid before the order of the court was drawn up: see In re Coolgardie Goldfields, Ltd.  1 Ch. 475. I thought I should perform my duty, even at this late stage, before I gave my judgment. I see no justice in a party being made to suffer through the fault, whether in whole or in part, of the court.