C. M. B. TRANSPORT OF BELGIUM, represented by its Registered Agent, MESSRS. DENCO SHIPPING LINES, Appellant, v. MESSRS. FAMILY TEXTILE CENTER, Appellee.

APPEAL FROM A JUDGMENT OF THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: March 19, 2001. Decided: July 5, 2001.

1. The measure of damages in an action of damages for the lost of or damage to goods should be predicated upon the market value of the said goods agreed to between the plaintiff and the seller of the goods or on the purchase price of the goods, rather than the selling price of the goods agreed to between the plaintiff and its customer.

2. A carrier is responsible for all losses or damages which may happen to goods while in its charge for the purpose of its employment.

3. The acceptance stamp put on a blank bill of lading by the carrier’s agent constitutes acceptance of the goods, and the delivery of the goods by the shipper to the port constitutes delivery of the goods to the carrier although not physically received by the carrier.

4. The failure of a carrier to reject goods delivered to the port for its transport by a shipper, with the full knowledge of the existence of a military crisis, constitutes acceptance of the goods by the carrier and precludes the carrier from arguing inability to ship the goods based on the said crisis.

5. The Bureau of Customs of the Ministry of Finance and the Ministry of Commerce are the appropriate authorities of the government to whom the market value of goods are declared by a consignee or purchaser, and the declaration made to them shall constitute the value of the goods in the absence of any receipt of purchase.

The appellant, C. M. B. Transport of Belgium appealed from a judgment entered by the trial court confirming the verdict of the jury awarding the appellee, Family Textile Center, special damages and general damages for goods which the appellee claimed were accepted by and delivered to the appellant for transport from Monrovia, Liberia, to Lome, Togo. The appellee had paid the freight charges for the shipment of the goods and had secured from the agent of the appellant a stamped blank bill of lading, pending the arrival of the appellant’s vessel to Monrovia. However, when the vessel arrived in Monrovia, it departed the port without taking on board the appellee’s goods which had been containerized and delivered to the Freeport of Monrovia, under the care of the National Port Authority. The vessel had departed Monrovia abruptly because of an upsurge of fighting at the Freeport of Monrovia. In the course of the fighting the appellee’s goods were damaged and stolen. The appellee therefore demanded payment of the value of the goods from the appellant. When the latter refused to pay, the appellee commenced an action of damages. A verdict was returned by the jury in favor of the appellee, which was affirmed by the trial court in a final judgment. From that judgment the appellant appealed to the Supreme Court.

The Supreme Court agreed with the appellee that the stamping of the blank bill of lading by the appellant’s agent constituted acceptance of the appellee’s goods, and that the delivery of the containerized goods to the Freeport of Monrovia into the custody of the National Port Authority constituted delivery to the appellant, even though the latter did not take physical delivery of the goods. The Court held that the appellant was aware of the existence of the crisis in Monrovia when it agreed to accept the appellee’s goods, and hence, was liable for the loss of or damage to the goods because of the departure of the appellant’s vessel from the Freeport of Monrovia without the appellee’s goods being loaded on board due to the military hostilities which had developed at the Freeport of Monrovia.

The Court, however, rejected the amount awarded, stating that the measure of damages should have been the price of the goods agreed to between the appellee and the seller of the goods rather than the price agreed to between the appellee and its customer in Togo, as had been determined by the jury and the trial judge. The Court noted that no receipts had been presented to show the price paid for the goods by the appellee, but that the appellee had represented to the customs and commerce authorities of Liberia a certain value which the appellee had said was the value of the goods and upon which it had paid custom duties to the Government of Liberia. The Court opined that the agencies of the government which had determined the value of the goods were the appropriate authorities to make such assessment and determine such value. Hence, the value stated should constitute the measure of damages to be awarded the appellee. However, the Court adjudged that because it was clear that the goods could not have been ordered or purchased from abroad with Liberian dollars, the represented value should be in United States dollars rather than Liberian dollars. Accordingly, the Court affirmed the judgment of the trial court but with the modification that the damages be reduced to reflect the represented value of the goods to the Liberian authorities and that the value be paid in United States dollars.

M Kron Yangbe and Jamesetta Howard of the Cooper and Togbah Law Offices appeared for the appellant. Flaawgaa R. McFarland of the Flaawgaa R. McFarland Legal Services appeared for the appellee.

MR. JUSTICE SACKOR delivered the opinion of the Court.

This case, an action of damages instituted by the appellee against the appellant for breach of transport contract, is before us on appeal for the second time.

On the 1 6th day of February 1995, this Court, in an opinion handed down at the October Term, A. D. 1994, reversed the judgment of the trial court in favor of the appellee and remanded the case for a new trial. The basis for the reversal of the trial court’s judgment and the remand of the case for a new trial was that the verdict of the trial jury was not in harmony with the evidence adduced at the trial.

The certified records transmitted to this Court reveal that Family Textile Center, the appellee herein, requested the services of C. M. B. Transport Belgium, by and thru its registered agent, Denco Shipping Lines, for the shipment of its goods to Lome, Togo, on the vessel “Concordia”. Upon the appellee approaching the agent of C. M. B. Transport of Belgium on the 26th day of June, A. D. 1990, for the purpose aforesaid, a blank bill of lading, known as combined transport bill of lading, was issued to the appellee. The bill of lading, which was filled in by the appellee, described the goods which were to be shipped, the names and addresses of the shipper and consignee, the name of the vessel, and the port of discharge, named as Lome, Togo. The appellee was sent to the National Port Authority for three empty containers owned by C.M.B. Transport of Belgium to load the goods for shipment. Thereafter, the appellee took the containers to the National Port Authority, subsequent to the loading of the goods therein, and paid the port charges of five hundred ten Liberian dollars (L$510.00). Denco Shipping Lines, the registered agent of C.M.B. of Belgium, then placed a stamp on the blank bill of lading which reads: “ACCEPTANCE SSIMV CONCORDIA 084-S. Due Monrovia June 27, 1990. Dated June 26,1990.” This acceptance was “subject to the Master’s confirmation storage charges, if any, for the shippers account”. Family Textile Center paid the freight charges in the amount of US$3,900.00 dollars to Denco Shipping Lines, as evidenced by a receipt issued by Denco on June 27, 1990, indicating thereon the notation part payment.

The vessel arrived in Liberia on the 27th day of June, A. D. 1990, and berthed at the Freeport of Monrovia. The vessel, however, left abruptly for the next port of call without loading the goods of the appellee due to shooting at the port.

On the 18th day of May, A. D. 1992, Family Textile Center, appellee herein, wrote a letter to Denco Shipping Lines relative to the containers with the goods entrusted to the appellant for shipment to Lome, Togo. The appellee requested the appellant to pay the total amount of US$63,309.00 (sixty-three thousand three hundred nine United States dollars) for the entire consignment. Denco Shipping Lines forwarded the demand letter to the appellant, its principal. C.M.B. Transport of Belgium, the principal, replied Denco Shipping Lines on the 28th day of September, A. D. 1992, stating, among other things, the following: (a) that the appellee had submitted the goods during the crisis in Monrovia; (b) that Denco had never accepted responsibility for the goods since the responsibility of a carrier commences only when the ship tackle upon loading; (c) that the goods were never loaded on board the vessel; and (d) that the matter was legally time barred, thereby repudiating the claim of the appellee.

On the 22nd day of February, A. D. 1993, the appellee instituted in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, at its March Term, A. D. 1993, before His Honour M. Wilkins Wright, then Resident Circuit Court Judge, an action of damages for a breach of contract against the appellant. In count 4 of the compliant, the plaintiff, appellee herein, claimed that the value of the goods in the three (3) containers that were lost was US$63,309.00; that it lost a further US$3,900.00 US, being the payment for freight of the goods from Liberia to Lome, Togo, L$75.00, represen-ting customs shipment fees, L$510.00 for port handling charges, and L$3,000.00, representing transportation from Water Street to the port, and labor cost. Thus, the total extra expenses was L$3,585.00. The appellee alleged in count 5 of its compliant that Denco Shipping Lines, the agent of C.M.B. Transport of Belgium, accepted the goods contained in the three containers and that the payments made by it to Denco Shipping Lines for the shipment of the goods constituted a transport contract. The appellee therefore prayed the trial court to award it the sum of US$67,209.00 and L$3,585.00 as spe-cial damages, and general damages in an unspecified amount.

The appellant, for its part, filed a 5-count answer to the complaint, wherein it denied any liability to the appellee. In count 1 of the answer, the appellant admitted the existence of the contract between the parties in litigation to transport the goods of the appellee on board the Appellant C.M.B. Trans-port vessel to Lome, Togo. The appellant also admitted that the appellee was given a consignment of three containers for the storage of the goods. The appellant, however, contended that the actual implementation of the contract with regard to the shipment of the said goods was to commence with the loading of the goods on the vessel; that is, “when the tackle is attached to the container to be taken up on the vessel and this never occurred”. The appellant also alleged that the goods that were stored by the appellee in the containers at the port were never delivered to the appellant because the vessel departed Liberia due to shooting at the port before the goods could be delivered to it.

In counts 2 and 3 of the answer, the appellant disclaimed liability on the ground that the goods were never loaded on the vessel of the appellant, noting that the liability of the carrier is limited to the loss of, or damage to the goods from the time of loading of the vessel up to and including the discharge of the goods by the vessel.

The appellant alleged in count 4 of its answer that it had offered to pay the appellee the amount that it, the appellant, had received from the appellee for the shipment of the goods, but that it was unable to make immediate payment to the appellee due to the presence of ECOMOG on the premises of the National Port Authority.

The appellant also filed a motion for summary judgment and a motion to dismiss the complaint. These motions were resisted, heard, and denied. The trial judge also dismissed the answer of the appellant and ruled this case to jury trial on the complaint and reply. At the close of the evidence, the trial jury awarded the appellee the sum of US$63,000.00 as special damages and US$45,000.00 as general damages. The appel-lant excepted to the verdict and filed a motion for a new trial, which was denied. The verdict of the trial jury was accordingly affirmed by the trial judge in his final judgment. The appellant excepted to the judgment and appealed there-from to this Court of last resort for review and final determination.

This Court, in its opinion handed down at the October Term, A. D. 1994, reversed the judgment of the trial court and remanded the case for the purpose earlier stated in this opinion. The new trial of the case commenced on Monday, November 6, 1995, same being the 35th day jury’s session of the September Term, A. D. 1995 of the trial court, presided over by His Honour Sebron J. Hall. Following the resting of evidence by the appellee, the appellant filed a motion for judgment during trial. This motion was resisted, argued, and denied by the trial judge on the 27th day of November 1995. Whereupon, the appellant proceeded to produce evidence to refute the appellee’s claim of liability of both special and general damages. On the 7th day of December, A. D. 1995, the trial jury brought a verdict awarding the plaintiff US$63,309.00 as special damages and L$250,000.00 as gene-ral damages. The appellant again excepted to the verdict and filed a motion for new trial, which was resisted by the appellee, argued before the trial court, and denied by the trial judge. The trial judge then rendered final judgment on December 12, 1995, confirming the verdict of the jury. The appellant excepted to the judgment and announced an appeal to this Court upon a 7-count bill of exceptions. This Court deems counts 3, 5, and 7 to be relevant to the determination of the case.

In count 3 of the bill of exceptions, the appellant alleged that the trial judge committed a reversal error when he denied its motion for judgment during trial since the appellee’s letter of May 27, 1991 clearly admitted that the appellant’s vessel had departed Liberia without loading the appellee’s goods on board due to shooting at the Freeport of Monrovia. However, a careful perusal of C. M. B. Transport of Belgium’s letter of September 28, 1992 showed that the company admitted the fact that the appellee had submitted the goods during the 1990 crisis to the appellant. The appellant was duty bound to secure the goods of the appellee since it did not reject the goods submitted to it during the crisis. Hence, count 3 of the appellant’s bill of exception is not sustained.

In count 5 of the bill of exceptions, the appellant contended that the verdict of the jury was against the weight of the evidenced adduced at the trial. We shall pass upon this count later in this opinion.

In count 7 of its bill of exceptions, the appellant alleged that the trial judge omitted to charge the empaneled jury on the issue of the impossibility of performance, non-collabora-tion, the principles of principal and agency, admission, and lack of contract between the parties relative to the shipment of the goods, as well as the contract with respect to currency under section 71.5 of the Revenue and Finance Law. We shall also pass upon this count later in this opinion.

Growing out of the bill of exceptions, the appellant raised and argued six points before this Court. However, we deem only points 1 and 2 to be relevant for the determination of this case. The first point of contention set forth by the appellant was that there was no new evidence, either oral or written, adduced at the trial to warrant the award of special damages in the sum of US$63,309.00 and L$250,000.00 as general damages. The appellant maintained that the award of special damages in United States dollars should have been predicated upon allegations specifically pleaded in the complaint and proved at the trial. The appellant asserted that the appellee had failed during the trial to produce a consular invoice for the goods imported from China so as to prove during the trial the value of the goods in United States dollars. Further, the appellant argued that its failure to take delivery of the goods was not due to its negligence, but to the civil war in Liberia, over which it had no control. Moreover, the appellant disclaimed liability for the loss of the goods on the ground that the National Port Authority which has control of the Freeport of Monrovia was charged with the responsibility to take care of the goods because it had custody of the said goods.

The second contention raised by the appellant is that the appellee cannot recover the value of goods which is more than the declared price of the goods for which it paid custom duty to the government. The appellant urged this Court to take judicial notice of customs transhipment entries #010248 and 010959, wherein the CIF estimated value of the goods was stated to be the amount of L$12,990.00 for entry #010248 and L$1,224.00 for entry #010959, giving a total amount of L$14,2l4.00 for the entire goods. Hence, the appellant stressed and argued that the declared value of the goods by the appellee to the Ministry of Finance of L$14,214.00, for which the appellee paid taxes to the government, was the actual value of the goods. The appellant contended that the appellee had not only failed to specifically plead and prove its special damages, as require by law, but that it had also failed to prove that the special damages were those shown in the customs transshipment entries.

The appellee, on the other hand, raised and argued two points before this Court. With regard to the first contention point, the appellee argued that the market value of the goods was not and should not be based upon the market value placed on the goods by the appellee and the seller in China, but that the cost of the goods should be predicated upon the agreed price between the appellee and its customer in Lome, Togo. Hence, the appellee urged this Court not to determine the market value of the goods upon the market value between the appellee and the seller in China since the cost of goods is now determined from a second sales contract between the appellee and its customer in Lome, Togo. The appellee therefore prayed this Court to confirm the judgment of the trial court.

There are three paramount issues presented for the determination of this case. They are:

1. Whether or not the evidence adduced at the trial established the special damages of US$63,309.00?

2. Whether or not a contract of affreightment was consum-mated between the appellant and the appellee?

3. Whether or not the cost of the goods should be predicated upon the market value between the appellee and the seller in China?

We shall discuss these issues in a reverse order. With regard to the issue of whether or not the cost of the goods should be predicated upon the market value between the appellee and the seller in China, this Court observed from the records that the appellee purchased goods from China and decided to sell the goods to its customer in Lome, Togo. However, the goods were never loaded and shipped to Togo for the reason stated in this opinion, supra. The appellee contended that this Court should not determine the market value of the goods base upon the sales contract between the buyer, appellee herein, and the seller in China. Instead, the appellee stressed that the cost of the goods should be based upon the selling price agreed to between the appellee and its customer in Lome, Togo. This Court disagrees with the contention of the appellee and holds that the cost of the goods is predicated upon the market value of said goods between the appellee and the seller in China. In other words, the goods in question were purchased by appellee from China. Hence, the measure of damages for injury thereto or loss thereof is the market value of the goods that appellee purchased from the seller in China, rather than the selling price agreed upon between the appellee and its customer in Lome, Togo.

This Court opined in its October Term, A. D. 1994 opinion that the document marked P/1 by the trial court, and admitted into evidence, was not an invoice to the appellee for the cost of the goods, but to its customer, the consignee in Lome, Togo. This Court also held in that opinion that instead of showing the cost of the goods to the appellee, the document carried the appellee’s selling price to its customer in Mali. We still uphold our previous opinion relative to this issue in this opinion.

The second issue in this case is whether or not a contract of affreightment was consummated between the appellant and the appellee? The answer to this question is in the affirmative. This Court also decided this issue in its October Term, A. D. 1994 opinion, wherein this Court held that a contract of affreightment was consummated between the parties, and that the appellant was responsible for the shipment of the cargo and any damages consequent upon the loss thereof. A carrier is held responsible for all losses or damages which may happen to goods while in its charge for the purpose of its employment. Compagnie Francaise de L’afrique Occisentale (CFAO) v. Kamara, [1964] LRSC 33; 16 LLR 23, 35 (1964). This Court also held in that opinion that the acceptance stamp of Denco Shipping Lines on the blank bill of lading constituted acceptance of the goods, and that the delivery of the goods to the Freeport of Monrovia constituted delivery of the goods to the appellant.

We pause for a moment to pass upon the issue of impossibility of performance. The appellant contended that the goods of the appellee were not shipped due to the act of civil war. This issue of impossibility of performance was never pleaded in the answer of the appellant. Furthermore the appellant admitted in its letter of September 28, 1992 that the goods were submitted to the agent of the appellant during the crisis. The records in this case are devoid of any evidence indicating the rejection of the goods by the appellant. Thus, the appellant cannot argue before this Court its inability to ship the goods of the appellee since the appellant was aware of the nature of the crisis and accepted the goods.

The third and final issue for the determination of the case is whether or not the evidence adduced at the trial established the special damages of US$63,309.00. The answer to this question is no. A careful scrutiny of the records in the case clearly showed that the declaration made by the appellee in the transhipment entry forms placed the value of the entire goods at L$14,2l4.00. The appellee paid the duty of L$1,045.60 to the Government of Liberia on the represented value of the goods. The appellee also failed to specifically plead and prove its special damages as to the value of the goods purchased from China. A recourse to the testimonies of the appellee’s first witness on the cross, Mr. Kamal A. Kamal, revealed that the market value of the goods was determined by the Bureau of Customs and the Ministry of Commerce. The witness also testified that the appellee had obtained from the Bureau of Customs three transhipment entries showing that the goods were under bond. Further, Mr. Kamal testified that the value declared on the transshipment was the same value stated on the bond. See the minutes of court, sheets 4 and 5, of the 35th day’s jury session, Monday, November 6, 1995. We deem it expedient to hereunder quote the question and answer on the cross-examination for the benefit of this opinion:

“Q. Mr. Witness in this case, could you tell us the price declared on the transhipment entry form of the Bureau of Custom?

A. The value that is on the original invoice is exactly the value of the transhipment entry.” See Sheet 5, 35th day’s jury session, Monday, November 6, 1995.”

The testimonies of the appellee’s witness on the cross showed that the value of the goods on the original invoice was the same as the value on the transhipment entry declared by the appellee to the Ministry of Finance for which the appellee paid a duty to the Government of Liberia on the assessed value. The Bureau of Customs and the Ministry of Commerce are the appropriate authorities of Government to whom the appellee declared the market value of its goods. It therefore follows that the declaration made by the appellee to the Bureau of Customs prompted the Ministry of Finance to determine the duty to be paid by the appellee for the shipment of its goods to Lome, Togo.

During the hearing of this case, counsel for the appellee contended that the cost of the goods was US$59,799.00. He denied that the value of the goods was $14,214.00, as claimed by the appellant, and stated that he did not know where the appellant got the transhipment entries indicating the cost of the goods. When asked which document the appellant received from the Government of Liberia evidencing the value of the goods, he answered: “Your Honour, this is why we quoted another law, the end of a contract.” We are of the opinion that the appellee failed to establish before this Court the relevant document from the Government of Liberia indica-ting the value of the goods for the amount of US$59,799.00. However, we concede the argument of the appellee that it was impossible to purchase goods from China in Liberian dollars as was argued by the appellant. We therefore hold that the amount contained in the transhipment entry forms should be United States dollars.

The certified records before this Court indicate the value of the goods declared by the appellee to the Ministry of Finance to be the amount contained in the custom transhipment entry forms. The appellee failed to specifically plead and prove the special damages as to the cost of the goods, other than what was indicated in the transshipment document. The verdict of the jury was therefore contrary to the weight of the evidence adduced at the trial.

Wherefore, and in view of the foregoing, it is the consi-dered opinion of this Court that the judgment of the lower court is hereby affirmed with the modification that the cost of the goods should conform to the custom transhipment entry of US$14,214.00, plus freight and port charges. The general damages of L$250,000.00 shall remain the same. The Clerk of this Court is hereby ordered to send a mandate to the court below informing the judge presiding therein to resume jurisdiction over the case and give effect to this opinion. Costs are ruled against the appellant. And it is hereby so ordered.

Judgment affirmed with modification.