Cedric Flowers v Arturo Vasquez
| Jurisdiction | Belize |
| Judge | Madam Justice Sonya Young |
| Judgment Date | 27 January 2021 |
| Court | Supreme Court (Belize) |
| Docket Number | CLAIM NO. 732 OF 2018 |
| Date | 27 January 2021 |
THE SUPREME COURT OF BELIZE, A.D. 2018
the Honourable Madam Justice Sonya Young
CLAIM NO. 732 OF 2018
Receiver and Manager of
Auctioneer
Receiver and Manager of
Ms. Velda Flowers, Counsel for the Claimant.
Mr. Jose Alpuche, Counsel for the 1 st Defendant.
KEYWORDS: Tort — Conversion — Negligence — Bailee — Gratuitous Bailee — Involuntary Bailee — Reasonable Care — Damages
This matter began as a claim in conversion of a container and its contents owned by the Claimant as well as the Claimant's goods stored in another container not owned by the Claimant. The Claimant made no claim for this other container but sought the return of the container he owned or a replacement, a full account or inventory of the contents of both containers, the replacement value of all unrecovered items, damages, costs and interests.
The Claimant alleges that the containers had been left on the Port of Belize Ltd (PBL) compound. When PBL went into receivership, the Claimant said he spoke with the 1 st Defendant, as Receiver, to retrieve his property but was given what I term the proverbial runaround and was never allowed to access his property. Eventually, his container was auctioned off. His goods were reported to him as stolen and he has suffered loss.
The 1 st Defendant says the Claimant did indicate that he had a container with goods on the PBL compound but he never proved ownership, identified it or provided a list of contents. In fact, he never made any further inquiry about the container until a year later when the containers in a particular location on the compound had been auctioned by a third party for whom the Ancillary Defendant was the Receiver. Although the 1 st Defendant vehemently denies the claim, he seeks an indemnity from the third party for any wrong he may be found liable for.
The case has evolved into one of pure negligence in bailment. I say this because the Claimant, in his submissions, only once referred to conversion and the only case provided in support dealt entirely with the duty of a Bailee and the standard of care of a gratuitous bailment. The Court is of the view that the Claimant realized, as stated in Winfield and Jolowitz on Tort 17th Edition paragraph 17–6 that “(a)t common law there must be some deliberate act depriving the claimant of his rights; if this element was lacking there was no conversion. Thus if a bailee negligently allowed goods in his charge to be destroyed the claimant's loss is just the same as if the bailee had wrongfully sold them to a third party but there was no conversion.”
The Claim in conversion is therefore dismissed without any further consideration and the Court now turns its attention to the issue of bailment.
Counsel for the Claimant drew a definition of bailment from Chitty on Contracts, 3rd Ed, vol II, 33-003, 197 which restated Pollock and Wright as follows, “Any person is to be considered as a Bailee who, otherwise than as a servant, either receives possession of a thing for another or consents to receive or hold possession of a thing for another upon an undertaking with the other person either to keep and return or to deliver to him the specific thing or to convey and apply the specific thing according to the directions antecedent or future of the person.”
Counsel for the Defendant relied on Halsbury Laws of England (Vol 4 (2020) para. 101:- “Under modern law, a bailment arises whenever one person (the bailee) is voluntarily in possession of goods belonging to another person (the bailor). The legal relationship of bailor and bailee can exist independently of any contract, and is created by the voluntary taking into custody of goods which are the property of another, as in cases of sub-bailment or of bailment by finding. The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibility for the safekeeping of the goods. A claim against a bailee can be regarded as a claim on its own, sui generis, arising out of the possession had by the bailee of the goods.”
The Claimant urged the Court to find that a bailment existed prior to Mr. Vasquez's appointment. I am unable to do so. In the Claimant's statement of case, he does not even allude to the manner in or the process by which the goods were placed there. In this witness statement, he simply said “Mr. Espat informed me that the container would have to be relocated. At the same time, he offered to transport them to the Port of Belize Ltd. Compound (Port compound) where he indicated he was relocating his own container and heavy equipment. He assured me that my belongings would be safe and accessible.”
Mr. Espat was stated to be the majority owner (99%) and chairman of PBL. In his submissions, the Claimant offered that as chairman and majority shareholder Mr. Espat could authorize the storage on behalf of the company. He provides no evidence to support this. The Claimant was well aware, as a director of PBL, (not a stranger to PBL) that if his property was being stored formally under arrangements with PBL it could not simply be done through the Chairman's informal offer to assist.
To my mind, the arrangements were made between Mr. Espat personally and the Claimant. The containers were being stored on Mr. Espat's property originally and they were moved by Mr. Espat to another location which happened to be the PBL compound. The Claimant paid no storage fees, he signed no storage agreement and by his own admission he could be turned away by a security guard with impunity. This does not demonstrate any arrangement whatsoever with PBL.
In fact, the Claimant himself stated “I had no formal storage arrangement for my belongings at the Port of Belize. I believe such was as a consequence of my relationship with Espat and the Port of Belize that I was able to store my belongings on the Port compound.” There is simply no evidence whatsoever to convince this Court that arrangements were made between PBL and the Claimant for storage or that PBL assumed any responsibility for the Claimant's property. But this is not determinative of the matter.
The question which now arises is whether the 1 st Defendant became a bailee of the Claimant's goods. While the Claimant does not address the possibility that there may not have been a bailment in existence with PBL prior to the appointment of the 1 st Defendant, he does submit that steps were taken by the 1 st Defendant to reinforce possession. Firstly, when the containers were broken into and the inventory made. This Court agrees that if it is proven that the 1 st Defendant, in his capacity as sued, did break into and inventory the containers that would certainly be proof positive of possession or show of dominion.
So we consider the evidence. In his witness statement the Claimant avers that at his meeting with Mr. Vasquez in March, 2012 Mr. Vasquez interrupted his conversation on the items in the containers and informed that he had already broken in and inventoried their contents. However, in his letter to Mr. Vasquez dated April 30, 2013 he recounts the details of that meeting without once stating that Mr. Vasquez had admitted to making such an inventory. One would expect such a pertinent or vital bit of information to be included. Moreover, unless Mr. Vasquez somehow knew the Claimant's container personally his ability to recall the contents would be utterly unbelievable.
In that same letter, when the Claimant speaks of a telephone conversation with Mr. Vasquez held after he noticed the auction advert in the newspaper (found as a fact to be around December of 2012) he says quite clearly: “During that conversation….. you further stated that you had broken the locks of the containers and done a complete inventory upon assuming the receivership…..”
The Court notes that the auction was being done by INDECO Enterprises Ltd. (INDECO) and that the Claimant accepts this because he exhibits the auctioneer's return for such an auction as CF8.1. The Court also accepts the Claimant's versions of events in the letter to Mr. Vasquez which was written in 2013 when the details would have been fresher and clearer in his mind. The Court is comfortable doing this particularly because the 1 st Defendant has always denied the Claimant's version contained in his witness statement. Considering the time and nature of the inquiry, ‘the receivership’ more likely than not would have referred to INDECO.
There is also an email addressed to one Lyndon Giuseppi from the Claimant written on the 13 th December but which states that it was in July or August that the 1 st Defendant had informed the Claimant that a full inventory had been done. Again, this contradicts what the Claimant has said in his witness statement and renders it unreliable.
The Court finds as a fact that if the containers had been broken open and inventoried it was under the receivership of INDECO and had nothing whatsoever to do with PBL.
The Court considers, secondly, the submission that the 1 st Defendant refused to allow the Claimant to take possession of his property. The Court again turns to the letter written to the 1 st Defendant. In that letter, the Claimant states that from the first meeting he presented his original purchase receipt for the container. He has held steadfast to that and this Court can find no reason to doubt him, especially since the 1st Defendant admitted receiving the letter but never responded to it to refute these...
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