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  • Shipcare Ltd. vs. Owners of M. V. Fortunato
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  • 2003-11-03
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Shipcare Ltd. vs. Owners of M. V. Fortunato

SHIPCARE LIMITED

THE M. V. AFRICAN HYACINTH

V

THE OWNERS OF THE M. V. FORTUNATO

GHOGAS TRADING S. A.

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

PIUS OLAYIWOLA ADEREMI, JCA ( Read the Lead Judgment ) CHRISTOPHER MITCHELL CHUKWUMAH-ENEH, JCA

CA/L/148/98

TUESDAY, 2ND JULY, 2002

EVIDENCE - Irreconcilable conflicting affidavit and counter-affidavit -  Treatment of

EVIDENCE - Irreconcilable conflicting oral evidence - Veracity of How tested

EVIDENCE - Proof - Onus of proof in civil cases - On whom lies -

When shifts

FAIR HEARING - Meaning of

FAIR HEARING - True test of

LEGAL PRACTITIONER - Duty on to refrain from using uncharitable and unprofessional language

SHIPPING LAW - Actual fault - What amounts to

SHIPPING LAW - Appointment of competent and qualified master or captain of a vessel - Sine qua non for a shipowner to enjoy limitation of liability

SHIPPING LAW - Constructive guilt - Scope of

SHIPPING LAW - Presumption of unseaworthiness - Circumstances in which it may arise

SHIPPING LAW - Ship owner’s liability in law for acts of his servant or for breach of duty personal to him - Whether can make him guilty of actual fault as to deprive him his right to limitation of guilt

SHIPPING LAW - Seaworthiness of a vessel - Conditions precedent thereto

SHIPPING LAW - Unseaworthiness of a ship - How determined

WORDS AND PHRASES - ‘Fair hearing’ - Meaning of WORDS AND PHRASES - ‘Actual fault’ - What amounts to

Issues:

1.             Whether the learned trial Judge was entitled to resolve the conflicting averments in the affidavits on the question whether or not the vessel was ‘navigating’ at the time of the collision without calling for oral evidence.

2.             Whether the learned trial Judge was right to have dismissed the plaintiff’s suit without having made a finding that the collision occurred as a result of the actual fault or privity of the appellant shipowner:

3.             Whether the plaintiffs were given a fair hearing on the issue of non-compliance with pilotage regulations in respect of which they had no notice.

4.             Whether the learned trial Judge was justified in finding that the collision occurred partly because the M/T Africa Hyacinth had not complied with the mandatory requirements regarding pilotage in a compulsory pilotage district.

5.             Whether the learned trial Judge was justified in finding that the M/T African Hyacinth was seaworthy.

Facts:

The appellants who were the owners of a Motor Tanker called

“African Hyacinta” by a summons brought as plaintiffs in the Federal High Court Lagos, Coram Ukeje J. against the respondents as defendants, claimed a limitation of their liability in respect of damage resulting from the collision between their vessel and the respondents’ vessel, the M. V. Fortunato of the Port Panama. The collision occurred at Warri on 11th April, 1997. In support of the summons were 13 paragraphs affidavit and an 18-paragraph further affidavit together with four exhibits. The respondent, in opposing the summons filed 26-paragraph counter-affidavit together with four exhibits. Sequel to the argument of counsel on the application and in a considered judgment delivered on 18/12/92 the learned trial Judge in dismissing the claim of the appellants held that the vessel was seaworthy and fit as at the time of the collision and that the case is not a proper case in which to grant the appellants leave to limit their liability in terms of their claim. Being dissatisfied with the decision, the appellants appealed to the Court of Appeal. The respondents also cross-appealed on the issue of the seaworthiness of the Motor Tanker African Hyacinth at the time of the collision.