The plaintiff claims for short shipment and damage to 9,000 tons of rice contained in 180,000 bags carried on the defendant's vessel from Kakinada, India, to Freetown, Sierra Leone. The plaintiff claims that the defendants failed to properly handle, load, stow, carry, keep, care for and discharge the cargo in good order and condition; and failed to ensure that the hatch covers were in good order and condition. The defendant argues that the goods were delivered in good condition but were short or damaged as a result of several factors including but not limited to the handling of the cargo by the stevedores and the pilferage of cargo while being discharged and/or stocked in the plaintiff's store.

Held: Judgment for the plaintiff.

What are the duties of the carrier? Counsel for the defendant submitted that, in Sierra Leone, the law governing the carriage of goods by sea is the United Nations Convention on the Carriage of Goods by Sea 1978 (Ratification) Act No 2 of 1988, otherwise known as the Hamburg Rules. Counsel further submitted that the Hague and Hague-Visby Rules have not been adopted and ratified in Sierra Leone. Therefore, only the Hamburg Rules are applicable. Counsel therefore relied on arts 4 and 5 of the Hamburg Rules in his submission that the period of responsibility of the carrier for cargo is from the port of loading, during the carriage, and at the port of discharge. He contended that in this case the defendant was in control of the cargo from the port of Kakinada in India until the goods arrived at the Queen Elizabeth II Quay in Freetown, but that the sale and purchase agreement provided that the plaintiff was responsible for discharge of the goods. Any damage that occurred while the cargo was being unloaded and while in the custody of the consignee was thus not the responsibility of the carrier.

Counsel for the plaintiff argued that the Hamburg Rules do not apply as they do not have the force of law in Sierra Leone, since no date on which the Act should come into force has been fixed by the President by notice in the Sierra Leone Gazette as is required by the Constitution of Sierra Leone 1991. Alternatively, counsel for the plaintiff argued that the Court should not consider the Hamburg Rules applicable as the defendant in its statement of defence had pleaded that it relied on the Hague and Hague-Visby Rules. Counsel contended that the plaintiff is taken by surprise by the defendant's reliance on the Hamburg Rules since it did not plead or rely on them in its statement of defence but rather had concurred with the plaintiff that the Hague and Hague-Visby Rules were applicable to the bills of lading.

With all due respect to counsel for the defendant, the main object of pleadings is for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to the Court to prove or defend. In as much as it is not imperative to plead a statute, in this case where the defendant has specifically pleaded that he relies on a particular statute or statutory provision, he is bound by those pleadings. He cannot now at the trial submit that those provisions are not applicable.

In the circumstance the Hamburg Rules do not apply and the issue of notice as required under the Hamburg Rules is not necessary in this case. In any case there is no reference to the failure to give the required notice in the pleadings, nor was the issue raised at the trial and only came up in counsel's written closing submissions.

Counsel referred to art 3.2 of the Hague Rules which provides that 'the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried'. Article 3.2 of the Hague-Visby Rules also makes similar provision. Counsel also referred the Court to Marine Cargo Claims by William Tetley QC, 2nd ed at p 249, where it states: 'Theft by the carrier or a crew member or other servant of an agent is the responsibility of the carrier by virtue of 4(2)(q) ... . "Stevedores" and other independent contractors are "agents" of the carrier and so the carrier is responsible for their theft as well.'

The law is therefore clear that stevedores are the agents of the carrier and that any theft by them during discharge is the responsibility of the carrier. There is no evidence before the Court that under the terms of the contract they are not liable for damage to the cargo of rice during discharge. Furthermore there is no evidence that the plaintiff was complicit in the theft of the rice by the stevedores as alleged by the defendant. The plaintiff has provided sufficient evidence to support its claim for the loss and damage suffered to its cargo. It has also satisfactorily established that the responsibility for the said loss and damage is with the carrier, the defendant.