COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE, A French Firm Transacting Business in Liberia, by its Agent, P. MALAIZE, Appellant, v. ALHAJI MOMOLU KAMARA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 18, 1964. Decided May 22, 1964. 1. The liability of a common carrier for the safe carriage and delivery of goods begins with their complete delivery to, and acceptance by, a person lawfully authorized, for immediate transportation. 2. The general principles which determine when there has been a complete delivery of freight to a carrier generally determine the question as to a delivery to a carrier by water. 3. Goods need not be actually placed on the deck of a vessel to constitute a delivery; if they come within the control and custody of the officers of the vessel for the purpose of shipment, or are delivered for transportation to the vessel’s owners or agent, the contract of carriage has commenced. 4. Personal delivery is not always essential to establish a carrier’s liability; by custom or course of dealing a valid delivery may be made by deposit of � the goods on the dock at or near the vessel and the giving of notice to the proper officer or agent. 5. A common carrier is responsible for the safe transportation and delivery of goods received by him for carriage and can justify or excuse a default only when occasioned by act of God or public enemy. 6. The carriage of goods is a form of bailment, so that a common carrier is liable as an ordinary bailee for negligence, and his liability is not confined merely to such losses as are the consequences of his own negligence or want of skill, but he is also held responsible for all losses or damage which may happen to goods while in his charge for the purpose of his employment, though occasioned by unavoidable accident or by any casualty whatever, except those occasioned by act of God or public enemy. 7. A bill of lading is a contract in writing for carriage from one port to another and the safe delivery of goods received for transportation, the said goods to be delivered to the consignee at the place of destination named in the contract and to be delivered within a certain time for a consideration. 8. A contract of affreightment is an agreement between shipper and carrier to perform for a consideration, and a promise that performance will be consummated in keeping with the express understanding of the parties; and any violation of said express understanding is a breach of promise and constitutes an injury. 9. Ocean carriers contracting to transport cargo for shippers should observe due diligence to deliver safely as well as within reasonable time; otherwise 23 24 LIBERIAN LAW REPORTS the said carriers are liable for any damage resulting from delay, or loss due to delay. 10. Counsel fees will not be allowed as damages where an action is based upon loss of the market value of goods ; damages recoverable in such case will be the value of the goods so lost. On appeal, a judgment for the plaintiff in an action for damages for breach of a common carrier’s contract was affirmed except for the award of damages which was modified. Winfred Smallwood for appellant. Samuel B. Cole for appellee. MR. JUSTICE PIERRE delivered the opinion of the Court. Common carriers of goods, and what are their responsibilities under the contracts of affreightment which they enter into with shippers, would seem to be first among the principles to be settled in this case of damages for breach of a contract. The law recognizes two main classes of ocean carriers : ( ) private carriers who, though not regularly engaged in transportation as a business, undertake to convey goods on their vessels ; and (2) common carriers who, in regular business, hold themselves out for hire, and are therefore obligated by law to undertake the transportation of goods, and who are responsible under the law of bailment for the safe delivery of such goods to the designated place of destination within a specified time. It is with this second class of carriers that we are particularly concerned ; and in this connection we might mention that even common carriers of passengers, licensed and allowed to use public facilities for that purpose, have the same duty to the public to fulfill the terms of their transportation obligations. In this case the appellee, desiring to ship a consignment of kola nuts to Dakar, approached the appellant’s agent in Monrovia and asked for shipping space to do LIBERIAN LAW REPORTS 25 so by one of the appellant’s vessels. In order to get in touch with one of their ships on the coast, the appellant’s agent required the appellee to pay a sum of $100 for them to send a telegram, and he would be advised later of the possibility. He paid the amount and was sent for some time later and informed that not only was taking his kola nuts for shipment to Dakar possible, but that the consignment would be shipped by their vessel, the Jean Mermoz, calling at Monrovia on April 27, 1961, and that this ship would take the kola nuts for transportation to Dakar on the condition that he have the consignment in Monrovia by April 26, 1961, a day before the ship was due to arrive. He is alleged to have chartered four trucks which brought the consignment of 35o hampers of kola nuts from Ganta to Monrovia, arriving on April 25, 1961, two days before the ship’s arrival. The 35o hampers were delivered to the appellant who requested payment in advance of shipping charges in the sum of $647.50, which amount the appellee paid and was receipted for. In reliance upon the acceptance of the kola nuts and the payment of the amount charged, and in keeping with the understanding then and there had between them, the appellee secured and processed the necessary customs and other documents to facilitate export of his kola nuts to Dakar. In compliance with the appellant’s instructions, the appellee had the 35o hampers of kola nuts taken to the Free Port of Monrovia and unloaded on the dock from whence the ship was to take them to Dakar on April 27, 1961. The Jean Mermoz arrived on the date scheduled and took passengers and cargo, but left without loading the consignment of kola nuts for the transportation of which the appellee had been required to pay $647.50 as freight charges. The consignment was allowed to remain on the dock in Monrovia until the arrival of another ship of the same line, the General Mangin, almost a month later, which resulted in the kola nuts not reaching Dakar until May 21, 1961. 26 LIBERIAN LAW REPORTS Upon arrival of the kola nuts in Dakar it was discovered that the entire shipment had spoiled as a result of the length of time the consignment had lain on the dock in Monrovia occasioned by the Jean Mermoz having left them when she sailed from Monrovia. On May 23, 1961, two days after the ship had docked in Dakar, the consignee wrote the following letter in which he refused to take delivery of the consignment: “Gentlemen: “I have the honor of informing you of the arrival of 3so hampers of kolas which must be embarked by the M/S Mangin that arrived at Dakar on May 21, 1961. “The kolas arrived completely damaged, which obliges me not to take delivery of, neither to take charge of, for a merchandise which have already been stocked since last April the 26th must not arrive in excellent condition. “The Company of Monrovia, judging that the kolas commencing to be burned, have been poured in the hampers of new bags without leaves. “I pray you kindly take into consideration the arrival of the defects because I will not pledge myself to take delivery. “Hoping that request will be received graciously, please accept, gentlemen, distinguished greetings.” The appellant’s reaction to this letter is not shown in the record; but on June 9, 1961, 16 days after the consignee in Dakar had refused the consignment, appellee’s counsel in Monrovia wrote the following letter to the appellant’s agent: “Mr. Agent: “Our client, Mr. Alhaji Momolu Kamara of the City of Monrovia, has made the following complaints against your Company: “1. That upon your instruction he brought down to Monrovia from Ganta, Central Province, LIBERIAN LAW REPORTS 27 350 hampers of kola nuts which you received on April 25, 1961, giving him all assurances that said kola nuts would be shipped by one of your Company’s ships, Jean Mermoz, scheduled to leave Monrovia for Dakar on April 27, 1961. “2. That prior to the arrival and departure of said ship, all incidental expenses, including the port charges as well as the processing of export entry for the transportation of said kola nuts, were paid and the kola nuts handed to your representative who received them at the dock, thereby relieving him of all responsibility. “3. That although the said ship which you said would transport the kola nuts did call at and depart from the Free Port of Monrovia on April 27, 1961 as scheduled, you failed to ship our client’s said kola nuts. “4. That after you failed to ship our client’s kola nuts on the day scheduled, and you further promised to make shipment at another date, our client has informed us that he told you that said kola nuts could not be kept for any time longer than eight days. “5. That besides taking from the hampers specially made for their preservation a large quantity of the kola nuts and putting them in bags, you permitted them to remain on the dock for several weeks until they got spoiled before you shipped what balance remained to Daker against our client’s protest. That our client’s customers in Daker have ra”6. dioed him to the effect that all the kola nuts were spoiled when they arrived at Dakar and therefore they have abandoned them. “Our client wishes this office to inform you that this 28 LIBERIAN LAW REPORTS action of yours has caused him great damage for which you are responsible, to wit: 350 hampers of kola nuts @ $5.00 $1,750.00 Packing 35o @ $3.00 each 1,050.00 Transportation from Ganta/Monrovia 700.00 @ $2.00 Amount your company charged as freight and other expenses 647.50 Dock charges 45.50 Passage for boys sent to supervise and handle kola nuts at Dakar 47.50 $4,240.50 “This does not include customs charges and the profit that would have come to our client from the sale, which he intended using to purchase cows from Dakar for the Monrovian market. Our client further informed us that a hamper of kola nuts of that size is sold in Dakar for $20; which is to say that the sale of the kola nuts in Dakar would yield a selling price of $7,000. “As it is the policy of this office not to go to court unless as a matter of cannot-help, and now that we have given you a picture of all the surrounding circumstances, we will be glad to get your observation, so as to be in a position to see whether we can amicably adjust this matter between you and our client. “Your failure to take advantage of our advice will leave us no alternative but to take legal steps against you for the recovery of the damages thus sustained.” Apparently this letter was either forgotten or treated with indifference, for on June 19, 1961, ten days after the first letter from appellee’s counsel to appellant’s agent, another letter was written by appellee’s counsel; and this I also quote hereunder : “Dear Agent: “This office addressed you a letter on the loth of LIBERIAN LAW REPORTS 29 this month in interest of our client, Momolu Kamara, reporting damages suffered by him as a result of your failure to ship his kola nuts to Dakar at the time promised. It is now over a week and we have not been favored with even a letter of acknowledgement. “This is to inform you that unless we get a reply to our letter within twenty-four hours after the receipt of this letter, we will have no alternative but to immediately institute action against you for recovery of the loss our client sustained.” There must have been some delay in delivery of the Company’s reply to the letter of June 9, 1961, for a letter written by the Company’s representative on June 16, 1961, is in the record, and it reads as follows : “Dear Sirs: “We acknowledge receipt of your letter regarding the complaint of your client Mr. Alhadji Momolu Kamara about a shipment of kola nuts. “We have to point out the following facts which will enlighten you on the whole affair. When Mr. Alhadji Momolu Kamara called at our office asking information about facilities to ship a lot of kola nuts to Dakar, he was advised that we could not guarantee to ship the kola nuts on a particular mail boat because, owing to conditions prevailing in the port, we had no assurance of getting a berth for our ships and we had no assurance to be able to dispose of the only lighter which can be full at the time the ships will call at Monrovia. However, we told Mr. Alhadji that we shall do our best to ship the kola nuts by the first opportunity. “The Jean Mermoz called at Monrovia on April 27, 1961, at 6:3o A.M. It was not before io:oo A.M. that the Port Authority sent a pilot to bring the ship in the basin, although we have a written assurance from the port that mail boats will be berthed immediately upon arrival. Ship calls being limited to an 30 LIBERIAN LAW REPORTS average of four hours, Monrovia Port Authority delay did not grant enough time to ship consignment of kola nuts. “You are no doubt aware that Monrovia Port Authority has the monopoly of all handling and transporting equipment. We therefore accept cargoes under the condition that Monrovia Port Authority provides necessary equipment and the necessary time to embark passengers, their luggage and the freight. “Cargo under ship’s responsibility as soon as is on board. The consignment of kola nuts did not leave port warehouse. The ship cannot therefore be held responsible for goods which were port’s care. “We suggest you send your claim to Monrovia Port Authority which is responsible for the delay occurred to the shipment of this consignment of kola nuts.” There matters respecting the kola nuts rested until the December term, 1961, of the civil law court, when appellee brought this action of damages for breach of contract. In the amended answer which the Company’s representative filed, they said that although it was true that they had agreed to ship Kamara’s 35o hampers of kola nuts to Dakar by the Jean Mermoz which arrived in Monrovia on April 27, 1961, yet the Company was not responsible that their vessel had not carried the cargo because the hampers were never loaded on board their ship, and until that was done they had no responsibility. They contend this was the responsibility of the Port Authority since the said Authority was responsible for not having brought the ship into port for some three hours after it had arrived outside the breakwater. They say that the ship, being a mail boat, could not remain in any port longer than a certain time; consequently, the Port Authority should have piloted the ship promptly so as to have facilitated the vessel taking all of the cargo which the company had contracted for her to take within LIBERIAN LAW REPORTS 31 the limited time her schedule allowed her to remain in port. They further contended that there was no negligence or refusal on their part to take the kola nuts ; but that, due to the fact that the ship had to be anchored in the basin for lack of space at a pier, loading cargo aboard her had to be done by lighter; that all of the lighters operating at the port are owned by the Port Authority; and that they did make application for lighter service to take the kola nuts to the vessel but were told no lighter was available. It is still further contended by the appellants that whilst it is true that the Jean Mermoz, which should have carried the consignment, left without them, the Company nevertheless transported the kola nuts by another of their ships, the General Mangin, so that they thereby completely performed their side of the contract in taking the consignment to Dakar. Damage to the kola nuts, they claim, had already taken place when the consignment was placed on board the General Mangin and this damage was caused by the Port Authority’s delay in servicing the Jean Mermoz in time on April 27, 1961, when she had arrived at 6:3o in the morning. They therefore deny that they are liable in damages to the appellee, and contend that he should make any claims he might have on the Port Authority. This is the case brought before us on appeal, judgment having been rendered in favor of appellee in the court below. During the arguments here–and it appears that this point was brought into the case at the trial by one of the witnesses–the appellant’s counsel contended strongly that the carrier’s responsibility for the cargo only began when the consignment was placed within reach of the ship’s hook; and that, up to that time, the owner of the cargo had full. responsibility. This contention does not harmonize with certain acts of the appellant respecting the cargo before it reached the ship. We have not been able LIBERIAN LAW REPORTS 32 to agree with this contention, nor do common-law authorities agree with it. For the benefit of this opinion, I will quote a few law writers on a carrier’s liability to cargo owners or shippers. “As in the case of other common carriers, the liability of a vessel for the safe carriage and delivery of goods begins with their complete delivery to and acceptance by a person lawfully authorized, for immediate transportation. The general principles which determine when there has been a completed delivery of freight to a carrier generally determine the question as to a delivery to a carrier by water. Goods need not be actually placed on the deck to constitute a delivery; if they come within the control and custody of the officers of the vessel for the purpose of shipment, the contract of carriage has commenced.” 48 AM. JUR. 259-260 Shipping 379. “It would serve no good purpose to multiply authorities on this point, for nothing is better settled than that if a ship enters upon the performance of its work, or any step has been taken towards such performance, the ship becomes pledged to the complete execution of the contract and may be proceeded against in rem for nonperformance.” Petersburg, N.U.C.9W .S. Line v. Norfolk, V a. Peanut Co., 172 F. 321, 324 (4th Cir. 1909). In this connection we would like to observe that although the behavior of the appellant respecting the cargo and the Jean Mermoz was in harmony with this stated rule, the contention that responsibility only begins for the carrier when the cargo reaches the deck of the ship is strange considering that the appellant made application for lighter service to take the kola nuts aboard the ship. Of course the appellant claims that the effort was fruitless, and that the appellant was told that a lighter was not available. But a fact which seems to contradict this contention is that the appellant, instead of the shipper, should have applied for lighter service. � LIBERIAN LAW REPORTS 33 “Personal delivery is not always essential to fix the vessel’s liability, and by custom or course of dealing a valid delivery may be made by deposit of the goods on the dock at or near the vessel and the giving of notice to the proper officer or agent.” 48 AM. JUR. 260 Shipping � 380. In this case, the shipment of kola nuts was delivered to the appellant’s agent who directed where it should be placed on the dock; and to be sure of its proper placement on the dock he sent a representative of the Company with the owner to take it there. Here is the owner’s uncontradicted testimony to that effect: “When the hampers of kola nuts were brought to Monrovia I went and reported same to the agent. The agent gave me one of his employees whose name I do not know and ordered him to go and take delivery of the kola nuts at the dock, which was done.” Moreover, a regular receipt had been issued by the appellant’s agent, accepting payment of freight charges which had been demanded of the owner for shipment of his kola nuts to Dakar by the Jean Mermoz which left Monrovia on April 27, 1961. Appellant has not denied this, so there is no doubt of appellant’s having accepted the consignment for shipment. Here is the testimony of John Powell, the manager at the Free Port where the kola nuts were delivered and from whence they should have been shipped to Dakar on April 27, 1961, by the Jean Mermoz: “Q. Please look at document marked by court P-2 and say what you recognize it to be. “A. This is a warehouse receipt showing receipt of 35o bags of kola nuts. “Q. Please look at document marked by court P-3 and say what you recognize it to be and explain for the benefit of the court and jury what is the difference between this and P-2 which you have just identified. “A. P-3 is the general acceptance for the agent of 34 LIBERIAN LAW REPORTS the vessel on behalf of the carrying company to the Free Port of Monrovia for 350 bags of kola nuts to be shipped by one Mr. Kamara from Monrovia to Dakar. The difference between this document and P-2 is that P-3 is just a notification from the agent, in this case African and Overseas Agency, that they are prepared to accept on behalf of the Jean Mermoz 35o bags of kola nuts. In other words, it is an authority to the port that this consignment has been accepted by the vessel; whereas P-2 is from the Port Management Company showing that all duties and charges have been paid and that the goods may now be shipped.” The fact that acceptance of the kola nuts by the appellant for transportation to Dakar by the Jean Mermoz on April 27, 1961, has been so clearly established from various angles immediately brings into focus the peculiarity of the appellant’s disclaimer of responsibility for what happened to the cargo which had been accepted for shipment. As I have read from authorities, acceptance and responsibility are not separable under the laW controlling carriage of goods by ocean vessels. In fact, responsibility begins immediately with the acceptance of the cargo for shipment. The ground upon which the appellant disclaims responsibility after acceptance of the cargo is not clearly defined, but there seems to be no reasonable or legal basis upon which the appellant could avoid liability under the existing circumstances; and here is yet another authority to support this view : “At common law, it has been long settled that a carrier is responsible for the safe transportation and delivery of goods received by him for carriage, and can justify or excuse a default only when occasioned by the act of God or the public enemy. Hence, while a contract for the carriage of goods is of course a form LIBERIAN LAW REPORTS 35 of bailment so that a common carrier is liable, as an ordinary bailee, for negligence, his liability is not confined merely to such losses as are the consequences of his own negligence or want of skill, but he is also held responsible for all losses or damage which may happen to goods while in his ‘ c harge for the purpose of his employment, though occasioned by unavoidable accident or by any casualty wiatever, except only as above mentioned.” 4 R.C.L. 097-698 Carriers � 175. We inquired of appellant’s counsel during oral argument before us as to whether a bill of lading was issued for the consignment of kola nuts, but a direct answer to this question was not given. Nevertheless he admitted that a receipt was issued for the kola nuts, and this fact was testified to at the trial. But whether or not there was a regular bill of lading, the appellant’s representative in Monrovia admits agreement to transport the consignment by ship on April 27, 1961, after having received it for that purpose ; and here is the admission in Count of the amended answer : “Defendant says that though it is true that he agreed to carry the 35o hampers of kola nuts to Dakar on one of his ships called Jean Mermoz which was due to leave Monrovia on April 27, 1961, yet he denies that he undertook responsibility for the said kola nuts before they were placed on his ship.” Appellant does not deny receipt of the sum of $647.50, ocean freight charges, as consideration for the contract to transport the kola nuts ; nor has appellant denied that the promise to perform this act of carrying was not performed in keeping with the terms of the understanding with appellee. There is plenty of evidence to show that the consignment which should have left Monrovia on April 27, 1961, was some three weeks late in arriving at the contracted destination within the time specified for the ship’s arrival there and that, as a result of this delay, the whole shipment was spoiled and lost. 36 LIBERIAN LAW REPORTS Appellant has not denied this either, but rather contends that the loss was not its responsibility. A strange reasoning! A bill of lading has been authoritatively defined as follows : “An instrument issued by the carrier to the consignor consisting of a receipt for the goods and an agreement to carry them from the place of shipment to the place of destination, is a bill of lading. Of course it is not essential that a bill of lading be issued, for in the absence of such instrument the rights of the shipper and the duty of the carrier are to be determined by the common law.” 6 CYC 417 Carriers. We have no definite proof that a bill of lading was prepared for this consignment of kola nuts, but as I have just read, the presence of one is immaterial to show the existence of a contract of affreightment between the appellee and the appellant. A contract of affreightment is an agreement between shipper and carrier to perform for a consideration and a promise that performance will be consummated in keeping with the express understanding of the parties ; and any violation of said express understanding is a breach of promise and constitutes an injury. In this case, the understanding was that for $647.5o the appellant would transport from Monrovia to Dakar 350 hampers of kola nuts by the ship Jean Mermoz which sailed from Monrovia on April 27, 1961; and it has been alleged and proved that this promise was never carried into effect by the appellant although the appellee performed his part of the express understanding. The deviation from the terms of the contract made between the shipper and the carrier was a definite breach of the contract. “It will be readily understood from the preceding discussion that no special contract is necessary, and that the delivery of the goods to the carrier and their acceptance by him for transportation give rise to duties which are determined by principles of law with- 37 LIBERIAN LAW REPORTS out any express agreement, and that, while limitations of liability may be agreed upon, and stipulations inserted in the bill of lading or shipping receipt may be binding on the parties as a contract, yet the mere receipt of the goods, marked with their destination is sufficient to give rise to contractual obligations without regard to the issuance of any shipping receipt or bill of lading. If, however, there is a special contract between the shipper and the carrier, the terms of such contract, so far as it is valid, will determine the rights and liabilities of the parties. Moreover, the contract may be in parole. A bill of lading is not the only evidence of the terms of a special contract.” 6 CYC 427 Carriers. Ocean carriers contracting to transport cargo for shipping should observe due diligence to deliver safely as well as within reasonable time ; otherwise the said carriers are liable for any damage resulting from delay or any loss due to delay. It is to be recalled that not only did the appellant’s representative admit in the amended answer that it had agreed to transport the kola nuts to Dakar, but also admitted that it had agreed to do so at a specified time and by a particular ship. In this connection I will quote the following authorities : “Owners of vessels, like other carriers of goods, undertake to transport and deliver goods received for carriage not only in safety, but in due time; and for damage caused by undue delay in carriage or delivery, both vessel and owner are liable.” 48 AM. JUR. 273 Shipping � 400. “While, in the absence of an express contract, no rule of law exists specifying the exact time within which delivery must be made, still the authorities generally agree that there is an implied promise to carry and deliver within a reasonable time. In other words the law requires of common carriers due diligence, this being as much a part of their contract as the obligation to deliver the property transported in 38 LIBERIAN LAW REPORTS good condition, and if any unreasonable and unnecessary delay occurs, either in the transportation thereof or its delivery after arrival at the terminus of the route, for the immediate and proximate damages resulting from such neglect of duty the carrier is liable.” 4 R.C.L. 737-738 Carriers � 206. “The carrier’s common-law liability as an insurer for loss or injury to the goods does not cover damages not involving direct loss of or injury to the goods themselves occasioned by delay in transportation. As to the diligence and care required in completing the express or implied contract for transportation, the rule is that the carrier is bound to use reasonable diligence and care and that only negligence will render him liable unless a stipulated time is fixed in the contract. If, however, damages result from failure, without good excuse, to deliver the goods at their destination within a reasonable time, the carrier is liable for such damages.” 6 CYC 442 Carriers. We know from the record of the trial, from the pleadings, and from the correspondence exchanged before this suit was instituted, that although the goods were placed on the dock in time for the vessel to have taken them, yet the goods were left behind, and thereby that the part of the contract fixing the time at which the goods should have been sent from Monrovia was violated. This violation has been shown to be the cause of loss of the entire shipment, since the delay occasioned by the shipment being left behind resulted in deterioration of the goods. Appellant apparently expressed an awareness of responsibility for this happening in its subsequent effort to get a ship of another line to take appellee’s cargo of kola nuts ; and in this connection here is the appellee’s testimony at the trial: “They asked me how long will the kola nuts stay without deterioration. I told him [the agent] that the kola nuts can only stay not longer than eight days before it starts getting rotten, he told me that I must LIBERIAN LAW REPORTS 39 not be afraid ; he will see one Mr. Joe Hansen and see to it that the kola nuts be shipped before, or within eight days; this was on Friday evening. He invited me to come to his office. I went to his office and he took his phone and phoned the shipping agency and requested that I return on Monday. When I got there on Monday he said to me : ‘Do not be afraid. Your kola nuts will not be spoiled ; I will see that they be shipped within eight days.’ This did not delay my fears ; I continued to go there regularly. Instead of eight days, the kola nuts stayed at the dock for 23 days.” This testimony found in the record was not denied, rebutted, or challenged on cross-examination ; it therefore causes one to wonder why the appellant showed so much concern for getting the kola nuts shipped within eight days after the ship had left them on the dock if appellant did not feel a sense of guilt growing out of responsibility. And in this light, appellant’s concern about getting the kola nuts to Dakar within eight days is all the more strange in view of appellant’s present contention to the effect that the Port Authority should be blamed for the Jean Mermoz having left the consignment on the dock. Another phase of this case which deserves comment is the question of where responsibility should be placed for lack of lighter facilities to put the kola nuts on board the Jean Mermoz. The appellant claims that all lighters used at the Free Port belong to the Port Authority and that, when the appellant applied for a lighter to take the consignment aboard that day, appellant was told that none was available. A letter found in the record, and written by the Port Director June 28, 1961, addressed to appellee’s lawyer, gives a different impression on this point. Here is the letter word for word: “Dear Sir, “With reference to your letter of June 9, 1961, File No. SLAF/361/61, and our conversation of the 27th 40 LIBERIAN LAW REPORTS instant, I refer to the allegation made by Mr. R. F. D. Smallwood that the Monrovia Port Authority had placed a time limit on the ship Jean Mermoz which arrived on April 27th, 1961. “On the contrary, the ship’s agents and the captain of the vessel refused to stay long enough to receive the kola nuts. The time limit was set by the agent and the vessel’s captain because they wished to make the next port up the coast of West Africa at a specified time. The Port Authority was ready and willing to load those kola nuts but was unable to do so owing to the early departure of the Jean Mermoz. “I trust that this explanation is satisfactory for your use.” This letter was made profert and filed with appellee’s amended complaint. The truthfulness of its contents is not impeached by appellant’s amended answer, Count 2 of which seems to deal with the facts established by said letter. Here is Count 2 of the amended answer on the point : “Defendant submits that as a carrier of goods his responsibility for the said kola nuts commenced only when they were loaded on his ship, and therefore when the ship Jean Mermoz, which did arrive on April 27, 1961, was brought into port after remaining outside for several hours, a limited time was allowed by the Port Authority and the loading was never done by the Port Authority before the period of stay ran out and she had to leave ; hence there was no negligence or refusal on the part of the defendant to carry the kola nuts on the ship.” It is to be remembered that the appellant has contended that its effort to get lighter facilities to take the kola nuts aboard had failed, and that the Port Authority had informed the appellant that none was available. The pleadings now show that it might not have been so much a question of lack of lighter facilities as of the time limit LIBERIAN LAW REPORTS 41 within which the ship could have conveniently remained in the Free Port of Monrovia. However, we do not deem this to be important to the determination of this case. The question of the Free Port of Monrovia’s responsibility for cargo placed on the dock for shipment by common carriers was a subject of testimony at the trial ; and since the appellant has saddled the Port Authority with responsibility for delay in shipment of the kola nuts, it might be well that we quote the testimony of the Port Director on this point. He was examined at the trial as follows : Q. Mr. Witness, please tell us for the benefit of the court and jury, what is the Port Authority’s responsibility with regard to shipment after all formalities of government have been met and said cargo turned over to the shipping agent for shipment. “A. The responsibility of the Port Authority toward cargo being shipped out of the port, is to receive, warehouse and deliver to the cargo hook of the ship designated by the shipper or his agent. The Port Authority has no responsibility beyond this point. “Q. Or in other words Mr. Witness, I gather that the shipping agency is responsible for the loading of cargo into the ship which it represents; am I correct? “A. Yes sir, you are correct.” This testimony, when added to what is found in the record of the trial, to the effect that the Jean Mermoz not only took passengers from the port of Monrovia on April 27, 1961, but also took cargo, leaves one with a peculiar impression as to why appellee’s cargo was not also shipped. The fact that passengers sailed by this ship is found in appellant’s letter written to Mr. Frank Powell of the Port Authority dated April 28, 1961, and 42 LIBERIAN LAW REPORTS filed as Exhibit A to defendant’s amended answer; and the fact that other cargo was shipped that day, and by the Jean Mermoz, is found in the minutes for November 5, 1962. Damages asked for in the complaint are under two headings : 1. $7,000, as the alleged Dakar market value of the 35o hampers of kola nuts shown to have been spoilt and lost. 2. $3oo, representing counsel fees charged for bringing the present action for loss of the kola nuts. Appellant has not questioned the alleged market value of the kola nuts, but has contended, in Count 4 of the amended answer, that counsel fees are not recoverable in actions for damages. We are inclined to agree with this view, and cite Kashouh v. Manly-Cole, is L.L.R. 554 (1964), in which decision we held that counsel fees and costs of litigation are not recoverable as damages. Here is a quotation of authority on the point: “Upon the same principle as heretofore stated the courts will not as a general rule allow attorney’s fees to be recovered as part of the damages in an action, unless the wrong or injury complained of is connected with some circumstance of aggravation or malice, but even in such cases the courts are very loathe to depart from the well established rule, and when only compensatory damages are sought counsel fees will usually be denied as an element of damages.” 13 CYC 8o-81 Damages. Counsel fees will not be allowed as damages where an action is based upon loss of the market value of goods; damages recoverable in such case will be the value of the goods so lost. We therefore hold in this case that the amount of $300 representing attorney’s fees paid for bringing the action is not recoverable as damages sustained in the loss of the kola nuts; and this amount is therefore disallowed. LIBERIAN LAW REPORTS 43 It is our opinion that liability of the appellant for loss of the consignment of kola nuts has been established and was the immediate result of the failure of the vessel Jean Merrnoz to have taken and transported the kola nuts in keeping with her representative’s contract of affreightment made with the appellee ; that the said failure of the vessel to have performed in keeping with the terms of the contract was a breach of contract; and that any damage or loss resulting therefrom is recoverable in an action of damages. We hold that the loss of the market value of appellee’s kola nuts, which he would have been able to get on the Dakar market had the consignment arrived in proper condition, is collectible in damages from the appellant in keeping with the common-law rule controlling liability of common carriers. The judgment of the court below is therefore affirmed in so far as it does not include counsel fees. And it is so ordered. Affirmed as modified.