The plaintiff sued Seafreight Pty Ltd, Wridgways (New Guinea) Pty Ltd, and David Collins for damages for breach of duty regarding the carriage, storage, and delivery of goods by sea. This proceeding concerns only the plaintiff and the first defendant, Seafreight Pty Ltd (Seafreight).

The plaintiff argued that in July 1973 at Loloho, he placed a number of personal possessions in two large crates. Arrangements were made for the carriage of the crates from Kieta to Port Moresby on the MV Arasjo. The goods disappeared. It is not in contest that the plaintiff's goods have been lost. Seafreight, however, seeks to limit the quantum of damages pursuant to the provisions of the Sea-Carriage of Goods Act 1951. It is claimed that under art 4.5 in the Second Schedule to the Act, the liability of Seafreight is limited to GBP 100 per package or unit which, on the calculations by Seafreight, amounts to PGK 366.22, the amount paid into Court.

Section 4 of the Sea-Carriage of Goods Act 1951 is in the following terms:

Subject to the provisions of this Act, the Rules contained in the Second Schedule to this Act (in this Act referred to as the Rules) shall have effect in relation to and in connexion with the carriage of goods by sea in ships carrying goods from any port or place in Papua New Guinea to any other port or place whether in or outside Papua New Guinea.

Held: Judgment for the plaintiff in the sum of PGK 3,500.

The term 'carriage of goods' is defined in art 1.e of the Second Schedule to the Act to cover the period from the time that the goods are loaded on to the time when they are discharged from the ship. Article 2 provides that under every contract of carriage of goods by sea, the carrier, in relation to the loading, handling, storage, carriage, custody, care and discharge shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities set forth in the Rules.

The question immediately arises whether the loss of the goods occurred during the time between the loading on, and the ultimate discharge of the goods, or whether it occurred at a time subsequent to discharge. It is essential to the Seafreight claim to be within the protective provisions of art 4.5 or of cl 19 of the bill of lading that it be shown that the loss of the goods occurred during the time between the loading of the goods and their subsequent discharge from the ship.

The evidence on this aspect of the matter is sparse. Such evidence as there is suggests that the goods arrived in Port Moresby and were lost subsequent to discharge from the ship.

The assertion is made by Seafreight that it is within the protective provisions previously referred to. The onus lies upon Seafreight to establish the facts necessary to bring it within the protection. This seems to accord with the general rule of evidence that the party who asserts must prove its allegation. In Pyrene Co Ltd v Scindia Navigation Co Ltd [1954] 2 QB 402 (CMI2100), a case in which the shipper made a claim to limitation of liability identical with that made in the present case. Devlin J said:

It is therefore for the defendants to establish that they are entitled to limit their liability. To do this they must show privity of contract between themselves and the plaintiffs, that the contract incorporated the rules, and that the rules are effective to limit their liability.

Seafreight has failed to show that the loss of the goods occurred during the 'carriage of goods' within the meaning of that term in the Rules, and accordingly its claim to limitation of liability under art 4.5 and cl 19 must fail. If, as appears quite possible, the goods were lost subsequent to discharge from the ship, it was open to Seafreight to seek the protection of cl 5 of the bill of lading. However, by suffering judgment against it by default, this course is not open to it in this proceeding.

Reliance was placed by counsel for Seafreight upon the decision of the Court of Appeal in The Glendarroch [1894] P 226 as authority for the proposition that the onus lies upon the plaintiff to establish that the loss of goods did not occur during the 'carriage of goods' within the defined meaning of that term. In that case the goods were carried on terms excepting perils of the sea but not excepting negligence. It was held that whilst the burden of proving that the loss was attributable to an exception clause lies on the party setting it up (that is, the defendant), there was however a further factor effecting liability, namely, negligence and that proof of that factor lay upon the person alleging it, namely, the plaintiff. The defendant in this case does not derive any assistance from that decision.

Turning to the question of damages, in this case there is no evidence of the price at which goods comparable to those lost by the plaintiff could be purchased in Port Moresby. There is no evidence whether there was, at the relevant time, a market in Port Moresby for similar goods. It must be kept in mind that the goods lost by the plaintiff consisted of electrical equipment, photographic equipment, clothing, books, films, photographs, and tape recordings. Many of these items were items of personal value to the plaintiff, and may well have had little or no value to other persons. Other items involved consisted of second-hand equipment with respect to which there would be no regular market in Port Moresby. In all the circumstances, the proper method of assessing the value of the lost goods is to adopt as a guide their cost price to the plaintiff. This would not involve loading the value of the goods in a manner adverse to the defendant.

In all the circumstances, an award of PGK 3,500 represents what the evidence supports as a reasonable recompense for the plaintiff's loss.