Bel-Car Import & Export Company Ltd v National Canners Ltd
| Jurisdiction | Belize |
| Judge | Sosa, P.,Morrison, J.A.,Awich, J.A.,MORRISON, J.A.,AWICH, J.A. |
| Judgment Date | 27 March 2015 |
| Neutral Citation | BZ 2015 CA 5 |
| Docket Number | Civil Appeal 2 of 2013 |
| Court | Court of Appeal (Belize) |
| Date | 27 March 2015 |
Court of Appeal
Sosa, P.; Morrison, J.A.; Awich, J.A.
Civil Appeal 2 of 2013
F Lumor SC for the appellant.
N Ebanks for the respondent.
Contract Law - Breach of Contract — Sale of Goods — Beans for canning for human consumption — Sale by description and sample — C.I.F Contract of sale of goods — Whether the labelling a contract as a contract of C.I.F was sufficient — Consideration of Comptoir d' Achat et de Vente du Boerendond Belg S.A v. Luis de Ridder Limitada [1949] A.C. 293 and Arnhold Karberg & Co. v. Blytha, Green, Jourdain Schneider & Co v. Burgett & Newsam [1916] 1 K.B. 495 — Whether the Respondent delivered or tendered delivery of beans that accorded with the terms of the contract of sale between the parties — Consideration of Ireland v. Livingston [1872] L.R. 5 HL 395 and Sanders Brothers v. Mclean & Co. 11 Q.B.D. 327 — Bull of lading, policy of insurance and invoice for goods — Symbolic delivery stage — Consideration of Kwei Tek Chao v. British Trader and Shippers [1954] 2 Q.B. 459 — Effect of the acceptance of beans which did not accord with the contents — Whether the Appellants was permitted to accept delivery of the goods from the other containers and yet still reject some of the bags of goods where some were not of mercantile quality — Burden of proof — Consideration of Robins v. National Trust Company Limited [1927] A.C. 515 — Appeal dismissed — Section 16(a), 17, 32, 34 and 38 of the Sale of Goods Act, Cap. 261
This appeal should, in my opinion, be dismissed. I concur in the reasons for judgment given, and the orders proposed, by my learned Brother, Awich JA, in his judgment, which I have read in draft.
SIR MANUEL SOSA, P.
I have had the benefit of reading in draft the judgment prepared by my learned brother, Awich JA. I agree with his reasoning and conclusion, and have nothing to add.
Inspite of the several submissions skilfully made by learned counsel Mr. Lumor SC, for Bel-Car Export and Import Company Limited, the appellant, I propose in this judgement that, this appeal be dismissed, the judgement of the learned trial judge then, Hafiz — Bertram J be affirmed, and National Canners Limited, the respondent, have its costs in the appeal, and in the court below in the terms ordered by the trial judge. My reasons are set out below.
In March, 2007, the appellant, Bel-Car Export & Import Company Limited, of Belize, acting on a commercial purchase order placed by the respondent, National Canners Limited, of Trinidad and Tobago, sold to the respondent 1512 bags of beans, each weighing 100 pounds. The description of the beans given in the order was: “2007 crop, double cleaned canning quality light red kidney beans from a sample lot received for evaluation February, 2007 and approved March 02, 2007.” It was stated further that:
“Shipment to be representative of sample lot, sample (sic) should not contain stones and/or extraneous matter.”
The purchase price was US$46.25 per bag, the total price being US$69,930.00 CIF. It was paid in advance of shipping the beans. Shipment was to be in 3 containers from Belize to Trinidad and Tobago, each container carrying 504 bags. The first container was to arrive at port in Trinidad and Tobago on or about 17, March 2007, and the second and third before the end of March 2007. The contract of sale was comprised of several memoranda.
The appellant had sent a sample of the beans to the respondent before the sale. The sample was examined and approved by the respondent. A report on the examination, and the approval was adduced as evidence. There was no issue about the description, condition and appearance of the sample.
The appellant shipped the first container of the beans and issued a CARICOM invoice No. 7107 on 7 March, 2007 for US$23,356.25, part of the purchase price. The first shipment was not part of the respondent's claim in the court below, and is not a subject matter of this appeal. However, the appellant complains that, the learned trial judge, erred by accepting in the trial evidence regarding delivery and examination of the beans in the first shipment, and of payment for that shipment.
The complaint is merited only to the extent that, much of the evidence about the state of the beans in the first shipment was adduced to prove that the bad state of the beans in the first shipment was the same as the state of the beans in the second shipment, that is, the state of the beans in the second and third containers. It does not appear, however, from the records that the evidence complained about led to or influenced the findings of fact and the decisions that the trial judge reached regarding the state of the beans in the second and third containers when the beans were received and examined by the respondent. There were several items of other and sufficient direct evidence regarding the description and state of the beans in the second and third containers that supported the findings of fact and the decisions that the judge reached.
Besides, the evidence regarding the first shipment was relevant and admissible as proof of what parties had accepted or not, in the course of dealing with each other, as reasonable opportunity to be afforded to the respondent to examine the beans, and to decide whether to accept or reject them. The evidence was also relevant and admissible as proof of a sum, if any, that would be refunded from the global purchase price which included the price of the beans in the first shipment, and as proof of damage, if any. I would at the outset reject the ground of appeal that, all the evidence regarding the beans in the first shipment was wrongly admitted by the trial judge.
A summary of some of the important direct items of evidence about the beans in the second and third containers are the following. On 26 or 27 March, 2007 the appellant presented at the port in Belize the two loads of beans, each comprised of 504 bags, for shipping. The two containers were dispatched on 28 March, on the same ship, the MV Palencia. The shipment arrived at the port in Port -of- Spain, Trinidad and Tobago, on the 23 or 25 April, 2007. There was no issue about the date of shipping and the date of arrival. The two containers of beans were cleared, that is, checked by Trinidad and Tobago authorities and handed over to the respondent, about a day after the date of arrival. The respondent took the beans to its warehouse. Its witness Afzal Rahamut, stated: “upon receipt of the second and third containers we conducted a sorting exercise, 22 (twenty two) bags from each container were inspected, canned and subsequently released.” He stated further: “We proceeded with the sorting of the full container loads on April 27, 2007, our agents examined the beans and discovered [that] the shipments of beans were contaminated with live and dead snails. When we detected the presence of snails, we immediately stopped processing the beans and contacted the supplier and his agent for their feedback.”
But in email exchange between Eris Garvin, acting for the respondent, and Ramesh Jaimani, acting for the appellant, Garvin stated something different, she stated that, “sorting of the first container started on May 10, 2007”, and “sorting of the second container started on May 11, 2007.” The emails were the following:
“Ramesh.
— Original Message –
From: Ramesh & Babes
To: National Canners Limited
Sent: Wednesdays May 23, 2007 1:49 PM
Subject: Questions on RKB container from Bel-Car
Dear Mrs. Garvin,
The Board of Directors of Bel-Car is aware of the complaint from National Canners on the last two containers of RKB shipped to you.
They require answers to the following questions as well as the lab report. Please supply the information at your earliest convenience.
What day was (sic) the two containers cleared?
When did the sorting exercise began (sic) on the first containers?
When did it began (sic) on the second container?
After how many bags in the sorting exercise was (sic) snail shells discovered?
How many snails per bag?
I await your response on the above.”
“From: eris garvin
To: Ramesh Jaimani
Sent: Thursday, May 31, 2007 4:46 PM
Subject: REJECTED RED KIDNEY BEANS WITH SNAILS FROM BELCAR
Good Afternoon Mr. Jaimani,
We refer to your email of May 23, 2007 and hereby respond to the questions raised as follows:
No: 1 — The two (2) containers were cleared on April 23, 2007.
No: 2 — Sorting of the first container started on May 10, 2007.
No: 3 — Sorting of the second container, started May 11, 2007.
No: 4 — In the first container, after sorting 74 bags, snails were discovered.
No: 5 — In the second container, after sorting 3 bags, snails were discovered
No: 6 — Snails were found among the bags sorted in a range of 0–12.
Please let us have your urgent comments by return email.
With thanks and kind regards
ERIS R GARVIN
Purchasing Department
NATIONAL CANNERS LIMITED
EMAIL: nclerisgarvin@yahoo.com”
On 18 June, 2007 by a letter of that date, the respondent stated that it rejected, “the entire shipment”, on the ground that live and dead snails had been found in the bags that had been “sorted.” By the expression, “the entire shipment”, the respondent meant all the beans in the second and third containers shipped together on the MV Palencia. The letter further informed the appellant that, the respondent was waiting for disposal instruction from the appellant, and demanded refund of the purchase price. Furthermore, the letter advised that a statement of account for “clearance charges” would be forwarded to the appellant for payment. The respondent sent a reminder letter on 29 June, 2007.
On 8 July, 2007 the appellant wrote to the respondent rejecting the claim that, the beans had snails among them. The appellant stated that, the beans...
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