Delta Kikori Ltd (DKL) claimed PGK 156,720 for cargo services from ANDQ Trading Ltd (ATL). ATL denied being indebted to DKL. ATL claimed that it had already paid DKL PGK 61,611.40, and was prepared to pay the balance upon the provision of the copies of the relevant bills of lading and shipping notices. DKL had failed to produce copies of the requested documents.

Held: Action dismissed.

The issues for the Court are as follows:

(1) Has DKL established its case on the required standard of proof?

(2) Is the failure to produce the relevant bills of lading and shipping notices in evidence fatal to DKL's claim?

(3) Are mere verbal assertions and quoting of the numbers of bills of lading sufficient evidence?

Despite two adjournments, DKL's lawyer did not make any helpful submissions. On the other hand, ATL's submission usefully refers to the Sea-Carriage of Goods Act 1951, Cap 261 (the Act). Section 2 of the Act states in clear terms that the Hague Rules contained in the Schedule to the Act apply to 'the carriage of goods by sea in ships carrying goods' to and from ports within and outside the country. Section 4 of the Act specifically provides for bills of lading and stipulates that:

Every bill of lading or similar document of title issued in the country that contains or is evidence of any contract to which the Rules apply shall contain an express statement that it is to have effect subject to the provisions of the Rules as applied by this Act.

Section 5 then provides that '[a] bill of lading issued in accordance with Article III (3) of the Rules shall for all purposes be deemed to be a valid bill of lading'. Article 3.1 of the Schedule to the Act provides that a 'carrier is bound, before and at the beginning of the voyage, to exercise due diligence' in terms of taking due and proper care of the goods entrusted to the carrier's hands. Article 3.3 requires the carrier, its master, or agent to issue the shipper a bill of lading after receiving the goods into its charge. Based on the information supplied by the shipper, the bill of lading should show, among others, the 'leading marks necessary for identification of the goods' and the 'number of packages or pieces, or the quantity or weight' received for shipment. Article 3.4 states in clear terms that '[a] bill of lading is prima facie evidence of the receipt by the carrier of the goods as described in the bill'.

When there is a dispute over shipment or lack of shipment of goods and payment for such services, adducing a bill of lading into evidence is critical. It would help to answer all of the questions that might arise from the point of receiving the goods for shipment, having them delivered to their destination, all matters in between, and the payment or discharge of all other relevant duties and responsibilities.

The reason this matter has not settled is DKL's failure to produce either the original or a copy of the relevant documents. The relevant documents are the bills of lading and shipping notices corresponding to each of the invoices rendered and allegedly outstanding. ATL has made it clear that it will settle the claim if these documents can be produced to enable it to cross-check and verify DKL's claims. DKL has had more than enough time to look for the documents and produce them. Despite that, DKL has adduced no evidence explaining why it cannot produce either the originals, or the copies of the relevant bills of lading and shipping notices.

In these circumstances, no case has been made out for DKL by its verbal assertions quoting the relevant numbers of the bills of lading. DKL, as the plaintiff, had the burden to establish its case on the required standard, which it has failed to do. The first question should be answered in the negative. Consequently, the proceedings are dismissed.