FREY & ZUSLI, Agent for ELDER DEMPSTER LINES, LTD., Appellant, v. YUNIS BROS. & CO., Successor to RESAMNY BROS., by RAFIC RESAMNY, Agent, Appellee.

APPEAL FROM JUDGMENT IN CONTRACT ACTION.

Argued April 25-27, May 1, 2, November 30, December 29, 1939. Decided December 29, 1939.

1. All goods brought into any port of entry of the Republic of Liberia must be landed at designated wharves, customs sheds, or bonded warehouses where the goods will be detained until entry is passed, proper duties are paid, and all customs requirements are satisfied.

2. Goods so landed and detained may be released to the consignee only upon endorsement of a “duplicate,” or copy of a transire, bearing a notation by *a. qualified customs officer that duty has been paid and all other customs requirements have been met and bearing the customs seal.

3. Where a carrier showed by documentary evidence that it had discharged goods, transported under a contract of affreightment, into a bonded warehouse of the Government at the port of entry, the carrier had fulfilled its duty under the contract to deliver the goods to the consignee, although, when the consignees attempted to take delivery of the goods from the warehouse, said goods could not be found.

Libellant, now appellee, was awarded judgment in the lower court against libellee, now appellant, for damages arising out of libellee’s failure to deliver to libellant goods, transported by libellee under a contract of affreightment and deposited by it in a bonded warehouse upon landing at a port of entry of the Republic. On appeal to the Supreme Court, judgment reversed.

A. Dash Wilson for appellants. S. David Coleman and D. B. Cooper for appellees.

MR. CHIEF JUSTICE GRIMES delivered the opinion of the Court.

Goods brought into any of the ports of entry of this Republic may be landed only into a bonded warehouse. Of these there are two recognized kinds, the one public and the other private.

According to the Revised Statutes of Liberia, the following has been prescribed :

“1. .. . All goods must be landed at the designated wharves, Customs sheds, or warehouses, where they will be detained until entry is passed and proper duties paid ; and all steamer purchases, passengers and their baggage, Kru shipboys and baggage shall be landed only at the Government Wharf.

“2. . . . All boats coming from or going to vessels within the harbour, or coming from or going to other places, must go to the Government Customs Wharf for inspection, under penalty of a fine not less than one hundred nor more than one thousand dollars.” Rev. Stat. § 821.

“After landing, all foreign imported goods are disposed of as follows, namely:

“1. . . . They shall be placed in the Government Warehouse, and are there held until the duty on them is paid ; or

“2. . . . They shall be deposited in the approved private landing warehouses and held there in custody under revenue lock, until the proper import entries have been passed and the duties are paid thereon ; and the Wharfinger shall be responsible for the proper storage thereof.” 1 Rev. Stat. § 822.

The aforesaid provision is made because on almost all goods imported into the Republic the Government assesses and collects an import duty, to secure which the Government insists upon retaining a lien on the goods until a responsible customs official, usually the Collector of Customs or Chief Clerk of Customs, certifies that the lien has been satisfied by payment of the duty or that no duty is chargeable on said goods. Goods thus landed and secured in a public or private bonded warehouse may be released to a consignee only upon an endorsement upon that one of several entries known in customs parlance as the “duplicate,” or the corresponding copy of a transire, bearing a notation by one of the two abovementioned principal customs officers of the port that duty has been paid and/or all other customs requirements have been met and bearing the customs seal.

These are some of the general rules which have been in effect in all the customs houses of this Republic since the enactment in 1906 of the statute above quoted. These rules are stated at the beginning of this opinion as an introduction to the principal issue upon which the case to be decided turns.

Said case, we may now observe, grew out of a contract of affreightment, entered into between Yunis Brothers & Co., successor to Resamny Brothers, shippers, and Elder Dempster Lines & Co., Ltd., common carrier, for the transport of twelve packages of merchandise from Monrovia to Cape Palmas by the latter’s motor vessel Swedru on December 13, 1937. The ship arrived at the port of Harper in the late afternoon of December 14, 1937, discharged her cargo, and cleared during the night. Next day when Resamny Brothers went to take delivery of their twelve packages marked “R.B.” and numbered consecutively 3002 through 3013, inclusive, it was discovered that one of these, a bale numbered 3002, supposed to contain cottons, could not be found.

The foregoing law and facts are not disputed. The principal issues arise out of the questions : (1) Was the missing parcel landed or not? (2) In the event the parcel was landed, as appellant contends, and not delivered to appellee, as said appellee avers, to whom should appellee have recourse for its missing goods which had been handed over to appellant to be by it transported to Cape Palmas and there delivered to the appellee?

Several other questions raised in the court below and decided by the trial judge, some of major and others of minor importance, were reargued before us, but the two abovestated questions are those which appear to us to be the principal ones necessary to be considered at this time in order to arrive at a just decision of this case.

The witnesses for libellants, now appellees, testified in the court below that said package, a bale numbered 3002, was never landed from the Swedru.

Rafic Resamny, agent for the firm now appellee, testified that he sent one Weah, his watchman, to check the goods landed from said Swedru and said watchman returned and reported that one bale numbered 3002 had not been landed. This report, Resamny said, was made to him in the presence of one Abbas Abraham and one Albert Gemayel, and the record before us shows that the last two mentioned witnesses, as well as Weah, were each called and each testified under oath that to the best of his knowledge said bale was never delivered to the consignee, Yunis Brothers, nor landed from the Swedru. We must remark, however, that, with the exception of the testimony of witness Weah, the only witness to go to the customs house on the day after said ship had cleared, the testimony of all the other witnesses was secondary.

Appellee also secured from the Collector of Customs an official certificate of the non-delivery of said bale, which reads as follows:

“REPUBLIC OF LIBERIA
Bureau of Revenues
Monrovia.
CERTIFICATE OF LANDING

“To WHOM IT MAY CONCERN:
“HARPER, CAPE PALMAS,
May 10,1938.

“This is to certify that according to the records of this office, Bale #3002, ex. m.s. `SWEDRU’ 14-12-37, shipped from Monrovia by Messrs. Resamny Brothers, was short received by Messrs. Resamny Brothers of Harper, Cape Palmas, for which their representative Mr. Rafic Resamny has signed our official transire.

“Given under our hand and seal of office the date above first mentioned.
“Office seal hereon affixed
(Sgd.) LAFAYETTE TOLES.
Collector of Customs, Port of Harper.
“Office fee : $2.40.”

Of the witnesses for libellee, now appellant, the only two whom we shall quote were one C. L. Ramus, agent of the carrier company, and one J. Lafayette Toles, the Collector of Customs at the port at the time of the trial and the immediate successor of Collector Tisdell who was in charge of the said port at the time of the incident which is the subject of this suit.

The witness Ramus stated that he left the ship in the last boat on the night when said cargo was discharged, inquiring from the purser before so doing if all the goods had been landed and receiving an affirmative reply; that on the following day when consignee claimed short delivery and short landing of the bale numbered 3002, he, Ramus, checked the tallies made on board and at the wharf and found that two packages, both numbered 3003, one of which was a case of milk and the other of which was the supposed missing bale, had been landed ; that, nevertheless, he had passed appellee’s claim on to the purser of the ship, then at sea, who had in due course replied confirming the impression he, witness Ramus, formerly had that one of the two packages numbered 3003 had been wrongly numbered and was really the missing bale number 3002.

Even more cogent than this testimony was that of the Collector of Customs, Mr. J. Lafayette Toles, who, not having been in charge of the port of Harper when the goods in question were landed and the manifest checked and filed away, had no personal knowledge of the facts; but the certificates which he produced in court, as well as the answers he gave during his examination and crossexamination by counsel on both sides, were the result of his findings from the records of his office at the time he took over, which records he produced in court upon writs of duces tecum. The substance of said testimony may be epitomized as follows : there were three sets of tallies which he had examined, one taken at the hatch on board the ship by a ship’s officer and a customs tally officer, a second taken on the wharf, and a third taken in the warehouse. These tallies, Toles testified, were carelessly made by the customs officer. On one there was noted as having been landed a parcel marked “R.B. #613” and on another a parcel marked “R.B. #13013,” although neither one of those numbers was on any parcel consigned to the mark “R.B./C.P.” because the marks, as aforementioned, ran consecutively from numbers 3002 through 3013 inclusive, and in the warehouse tallies there were noted two parcels each numbered 3003. These were important discrepancies which Mr. Toles felt should have been observed and noted at the time of landing.

The customs regulations on the subject provide :

“Tally Officers stationed aboard vessels are to take a careful account of all marks and numbers, quantities and description of packages discharged overside the vessel on which they are stationed. This account will be written in duplicate on the slip issued to them. All boat-slips are to be numbered consecutively with name, date and officer’s signature, and is to be handed by the coxswain of the boat to the wharf tally officer on landing.

“That officer will check all boat loads of cargo carefully with the boat-slips issued by the officer on board; and an accurate and neat tally of all packages landed at his particular wharf is to be entered in ink into his wharf tally. Any discrepancy found between the boat-slip and the cargo is to be noted in the remarks column. Officers will take care to fill in the various particulars required on the outside of the wharftally.” W. J. Lamont, Customs Notices and Regulations for 1906 (compilation reissued by S. de la Rue in brochure with administrative circulars up to 1925).

“Every boat arriving at the wharf with packages of goods from a vessel on the roads must produce the tally sent by the customs tally officer on the wharf. If any head-man arrives without the tally slip, his name is to be taken and noted in the wharf tally book by the tally officer. He will then proceed to enter into the wharf tally book a clear and legible tally of the packages landed, showing marks, numbers, quantities and description of the packages landed. He will compare the ship tally with the packages actually landed, and if he discovers any difference he is to note the same on the back of the tally slip, and certify to it as follows :

” ‘Short-tallied on board and landed on wharf :
J. W. 425 One case
J. W. 26 One bale
J. ROBERTS
Wharf Tally Officer
12 June 1909.’

“If he finds on the other hand, that some package or packages entered on the steamer slip are not in the boat at all, this is to be regarded as a serious matter and probably a case of smuggling and the fact is to be duly noted on the back of the slip as follows:

” ‘Short-landed W. & H. 4537, One bale
J. HENSON
Wharf Tally Officer
18 June 1909

“The name of the headman of the boat is also to be recorded on the back of the slip. The attention of senior wharfinger or inspector is to be called to such discrepancy by the wharf tally officer at the earliest available opportunity. A careful tally of the marks and numbers, quantities and descriptions of all packages is to be made in the proper wharf tally books, which will be supplied by the senior wharfinger.” Id. §§ 26-28, at 56.

In spite of this confused state of affairs, the collector further testified that he had discovered two other very important facts : (1) Every parcel listed on the manifest, as well as on the customs transire under which the goods had been transported from Monrovia to Cape Palmas, had received a double ticket by a responsible officer of customs, the first of which indicated that the goods had been landed into the Government’s bonded warehouse and the second of which might or might not have indicated delivery to the consignee; (2) After searching the book in which were kept copies of letters to masters of ships, the collector discovered that no letter noting that any parcels had been short-landed had ever been sent by his predecessor to the master of the ship Swedru about the consignment now in question. Hence the collector summed up, as his official opinion, that he was certain that all twelve packages consigned to appellee had been received in the customs bonded warehouse, but that he could not be sure that all twelve packages had been delivered to consignee because of the neglect of the customs officers to make proper notations on the documents they handled.

The above is an exceedingly brief resume of the facts bearing upon what appears to this Court to be the real kernel of this case, as submitted to the trial judge and upon which he, on July 8, 1938, rendered a decree that libellant should recover from libellee a sum of fortythree pounds for the missing bale and for all costs of court.

To this decree libellee has excepted and has prosecuted this appeal to this Court upon a bill of exceptions containing twelve counts, all of which have been exhaustively argued before us. The issues raised in them had apparently been carefully examined and decided by the trial court, and the rulings on them have been interesting and informative, especially upon the issue of whether or not a certain clause in the bill of lading pleaded by libellee was immoral. But after a very exhaustive study of the records certified to us and a careful reading of the several citations of law made in the court below, we are of the opinion that too much time was given to points which appear to us to have been of minor importance and, hence, which tended to confuse the issues and that the analysis of the case we have here made is the only correct view, based upon records from the trial court, that can ultimately be taken of the case.

From the foregoing it appears to us that the delivery of said missing bale numbered 3002 to consignee, now appellee, has not been conclusively proven, but that the appellant, the owner of the Swedru, has satisfactorily established by documentary evidence of an official character, which is proof of a much higher grade than mere oral testimony, that it has complied with the contract of affreightment and has satisfied its duty to deliver the goods by discharging the twelve packages into the bonded warehouse of the Government of Liberia at Harper, the nearest the laws of the country permitted appellant to come in delivering the packages to Yunis Brothers, the consignee.

We cannot at this stage give a more detailed answer to the second of the two questions submitted for our consideration, since the Government, the owner of the customs warehouse in which were received the twelve packages, has not yet had its day in court. See Tubman v. Murdoch, [1934] LRSC 26; 4 L.L.R. 179 (1934) ; Wolo v. Wolo[1937] LRSC 12; , 5 L.L.R. 423 ( 1937)

It follows, then, that the judgment of the trial court is reversed and libellant, now appellee, is ordered to pay all costs. It is hereby so ordered.

Judgment reversed.