Mediterranean Shipping Co SA v Wheat Board of Kenya the MV Pantera [1988] KECA 117 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a shipowner must prove actual delay before charging a cargo receiver demurrage when berthing delays are beyond the receiver's control.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant proved a claim for demurrage for one day (16 January 1978) against the consignee
- 2.When the consignee's obligation to take delivery arises under a 'as fast as the vessel can deliver' bill of lading clause given the custom of the Port of Mombasa
- 3.Whether the consignee's duty arose before or only after berthing of the vessel
- 4.Who bore the burden of proving that more than a reasonable time was taken
- 5.Whether the trial judge erred in applying the law to his findings of fact
Key legal issues
#Commencement of the consignee's delivery obligation
The obligation to take delivery as fast as the vessel can deliver, where no fixed time is stipulated, is to take delivery within a reasonable time, and at Mombasa grain discharge begins only once the vessel is berthed with the Port Authority's assent
Clause 5 of the bill of lading fixed no time for discharge. Authoritative construction shows such clauses require delivery within a reasonable time, assessed on the natural conditions, custom and actual state of the port and the consignee's conduct. By custom at Mombasa grain goes direct into railway wagons or lorries at a berth, so berthing precedes any duty on the consignee, and allocation of berths is the exclusive prerogative of the Kenya Ports Authority, whose decisions the consignee cannot control.
Burden of proof in demurrage claims
The shipowner claiming demurrage must first prove that more than a reasonable time was taken and make out a prima facie case before the burden passes to the consignee to show diligence
Drawing on Hick v Raymond & Reid and Lyle Shipping, the court held the plaintiff must show that a reasonable time was exceeded. Unlike The Arne, where a prima facie case arose from actual delay in discharge, here the Pantera discharged without delay once berthed, and the appellant's shifting case on which day was lost meant no prima facie case was established; even if it was, the respondent's arrangements with wagons and lorries answered it.
Effect of the Port Authority's berthing discretion
Delay caused by the berthing committee's allocation decisions, including preference for the Boston Maru, is not attributable to the consignee, who could not attend or influence the committee
The berthing plan is made daily by the Kenya Ports Authority with the Kenya Cargo Handling Services, Kenya Railways and ships' agents; consignees are not represented. The preference for the Boston Maru, which arrived first and was ready to load, was reasonable and within the Authority's discretion. The respondent could not have prevailed on the committee to allocate an earlier berth, and did all it could by procuring wagons and switching to lorries on 16 January 1978.
Legal principles established
#- Under a bill of lading clause providing delivery 'as fast as the vessel can deliver' without fixed time, the consignee must take delivery within a reasonable time, judged by all circumstances including the custom of the port of discharge
- Where, by the custom of the port, cereals must be discharged at a berth directly into wagons or lorries, the consignee's obligation to unload does not commence until the ship is berthed with the assent of the harbour authorities
- The plaintiff/shipowner bears the burden of proving that more than a reasonable time was taken before the onus shifts to the defendant to show diligence
- Where, without default of the consignee, the ship cannot reach a berth at once, the risk of delay falls on the shipowner, not the consignee
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Held that under a 'as fast as the vessel can deliver' clause the consignee's obligation is to take delivery within a reasonable time, judged by the custom of the port; at Mombasa discharge of grain required the vessel to be berthed, and allocation of berths was the exclusive discretion of the Kenya Ports Authority. The appellant failed to prove any delay before 17 January 1978 and, even if a prima facie case arose, the respondent had done all it could.
It is the plaintiff in a case such as this, who must carry the burden to show that more than a reasonable time was taken.p. 6
Wrote the judgment
Added a separate concurring judgment agreeing the appeal should be dismissed. Emphasised that discharge is a joint act of shipowner and consignee regulated by the custom of the port, and that where no berth has been allocated the risk of delay falls on the shipowner, not the consignee.
In my view the plaintiff did not prove its case for damages of one day the 17th January, 1978. The learned trial judge was right in his findings. I would also dismiss this appeal with costs.p. 8
Wrote the judgment
Delivered a separate concurring judgment agreeing with Platt and Gachuhi JJA that the trial judge (Aragon J) correctly dismissed the plaintiff's demurrage claim, since the duty to place wagons alongside lay with the Kenya Ports Authority and the defendant made prompt alternative arrangements with lorries.
I would for my part respectfully agree with the learned trial judge that the plaintiff has failed to show that the defendant was in any way responsible for a delay in taking delivery in its cargop. 8
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal (not stated by provision in judgment)
Relief refused
#Demurrage for one day (16 January 1978)
No delay was proved before 17 January 1978; berthing decisions were matters within the sole discretion of the Ports Authority and beyond the consignee's control
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the case of such a clause, the consignee's obligation is to take delivery of his cargo within a reasonable time.
The consignee fulfils his obligation, however protracted the delay may be so long as such delay is attributable to causes beyond his control, and he has acted neither negligently nor unreasonably.
It is the plaintiff in a case such as this, who must carry the burden to show that more than a reasonable time was taken.
The learned Judge came to the right conclusion, his view of the circumstances of this case was on the whole sound, and I would dismiss this appeal with costs.
In my view the plaintiff did not prove its case for damages of one day the 17th January, 1978. The learned trial judge was right in his findings. I would also dismiss this appeal with costs.
Accordingly I agree with my Lords Platt and Gachuhi JJA in regards to the orders they propose.
Issues in the judgment
#Exact day of judgment not stated; the judgment is dated only 'January, 1988'
Internal typographical inconsistencies in dates of arrival and events (e.g. arrival in January 1978 but references to 11th to 13th January 1970, and claim described as for 16th January but Gachuhi JA refers to damages for the 17th January)
The exact case number and names of the parties are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mediterranean Shipping Co SA v Wheat Board of Kenya the MV Pantera [1988] KECA 117 (KLR)", Case Analysis (1988). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/117/eng@1988-01-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.