On 5 July 2018, the plaintiff filed a suit against two defendants for the loss of 23,040 kg Kenyan avocados contained in 5,760 cartons, which were carried from Mombasa, Kenya, to King Abdullah Port, Saudi Arabia. The plaintiff was the shipper, the first defendant was the ship agent, and the second defendant was Mediterranean Shipping Co SA.

The entire batch of avocados was rotten when it was delivered on 3 July 2017. The cargo was carried under a bill of lading, indicating that the cargo was received in good order and condition and was to be maintained at 5^o C during the voyage. According to the plaintiff, this temperature was not maintained. The plaintiff claimed USD 319,075 for the losses it incurred from the second defendant’s breach, consisting of the value of the cargo, penalties, disposal expenses, and legal costs.

The defendants argued, among other things, that: (a) the Court had no jurisdiction; (b) the suit ought to have been filed within one year of the delivery of the goods; and (c) their liability cannot exceed USD 500 or GBP 100 under the Hague-Visby Rules.

Held: The defendants were ordered to pay USD 48,541 for damages and USD 2,347 for costs.

The Court had jurisdiction notwithstanding a clause in the bill of lading conferring jurisdiction on a foreign court. The carriage contract was concluded in Kenya for the carriage of Kenyan products to Saudi Arabia. The first defendant and the plaintiff were Kenyan companies. By being asked to sue in London, the plaintiff was being asked not to sue. A forum selection clause that restricts the parties’ access to justice is not binding. There was no connection between the dispute and the High Court in London. Ships sailing to Kenya’s shores need to know that Kenya will exercise jurisdiction over them and will not cede an inch of its sovereignty to other States. The choice of the High Court in London was neither consciously made nor in support of public policy. Furthermore, by filing their defence, the defendants have lost their right to challenge the jurisdiction.

It was incumbent upon the defendants to prove that the damage occurred independent of their negligence, breach of duty of care, or breach of contract. There was no evidence to show how the rotting might have occurred independent of the defendant’s negligence. Nevertheless, when no evidence is tendered, the Court must not automatically find that the evidence is unrebutted. The plaintiff must tender some credible evidence to the effect that, prima facie, the defendants were to blame for negligence or breach of contract. The plaintiff had submitted such evidence, which was not contradicted by the defendants. The cause was shown to be temperatures which were higher than 5^o C agreed upon by the parties.

The relevant time bar was the one-year limit set out in the bill of lading. Carriage of goods by sea contracts do not rule out any limitation period set out in statute. Furthermore, the plaintiff's loss occurred when the goods were destroyed on 24 July 2017, which was less than one year. It was thus not necessary to determine the legality of the clause. It was of doubtful legality. Section 2 of the Carriage of Goods by Sea Act (based on the Hague Rules) did not give a one-year time bar. The parties could not contract out of the statute.

There was no doubt that the cargo was spoiled at the port of departure. Therefore, liability lay squarely with the first and second defendants. The first defendant was the local representative of the second defendant. They were liable jointly and severally. However, after the payment, the agent was entitled to be indemnified by the principal.

The plaintiff's compensation is to be calculated on the basis of the normal value of goods of the same kind or quality. The market price consists of invoice value plus freight and insurance if paid. If there is no invoice, or the invoice is not bona fide, then the market value is calculated by reference to the market value of such goods at the place and time they are delivered or should have been delivered.

If the Hague-Visby Rules applied compulsorily to this bill of lading, the maximum limit would be GBP 100 per package. This works out at GBP 576,000. If US COGSA applied, the limit would be USD 500 per package, which works out as USD 2,880,000. The bill of lading indicated 5,760 packages, and there was no basis for combining all 5,760 packages into one pallet.

Clause 7 of the bill of lading provided for compensation by reference to the actual market value of the avocados. The parties did not give market values for the cargo. The Court was entitled to take judicial notice of the market values in the international markets. This was USD 1.65 per kg in 2017 when the cause of action arose. Freight was already admitted to be USD 2,435. Penalties under Saudi law for the delay amounted to 20% of the cargo value.