This is an appeal from a decision of the Court of Appeal affirming a decision of the Federal High Court whereby judgment was entered for the respondent, Nokoy Investment Ltd. The respondent, a registered Nigerian company carrying on the business of exporting seafood, entered into an agreement with Maersk (Nigeria) Ltd, the third appellant, to ship 1,202 cartons of frozen Atlantic gold shrimps valued at USD 71,516.50 in a vessel called the Christian Maersk, owned by the second appellant, from Lagos Port to Algeciras Port in Spain. The consignee of the shrimps was Tako Fish Corp, Panama. The shrimps were of good consumable quality when they were shipped from Lagos. They were sealed in a container at an acceptable temperature. It was common ground that the shrimps became bad. What was in dispute was when the shrimps deteriorated. The respondent claimed that it was during the period of carriage by sea, while the appellants asserted that the shrimps deteriorated after their arrival in Spain and because they should have been collected within two days but were not collected more than 30 days after arrival. The trial Judge preferred the respondent's version and found that the appellants had failed to discharge the burden on them of proving that the cargo had arrived in good condition. The appellants appealed to the Court of Appeal, which dismissed their appeal and confirmed the decision of the Federal High Court. This appeal is from the decision of the Court of Appeal.

The broad issues which arise from this appeal concern, among other things, the nature of the liability of the carrier and the quantum of damages awarded.

Held: Appeal allowed.

The nature of the liability of the carrier determines, to some extent, apart from the general burden of proof on the plaintiff, the particular burden of proof on the carrier. It is clear from the judgment of the trial Judge that he did not attempt to categorise the nature of the liability of the carrier. The Court of Appeal relied on art 3.8 of the Hague Rules to hold that the liability of the carrier is strict. It is difficult to see the immediate significance of art 3.8 to the question whether the contractual obligation of the carrier is strict, but it shows that a carrier cannot contract out of liability for negligence, whether such negligence is presumed or actual. Reliance on art 3.8 to describe the liability of the appellants as strict, even if erroneous, is not of any consequence to the result of the case. Both the trial Judge and the Court below accepted that absence of want of due care may be a defence available to the carrier. Their findings that such defence was not established is enough to make the issue raised by the respondent on this appeal as to the nature of the liability of the appellants an academic exercise.

Regarding the amount of damages to which the respondent is entitled, it is clear that in order to justify an award calculated on the invoice value the respondent must show that, in terms of art 4.5 of the Hague Rules, the invoice value has been declared by the shipper before shipment and inserted in the bill of lading. That has not been done. A shipper who claims that it is entitled to damages unlimited by the provisions of the first part of art 4.5, or similar terms in a bill of lading, must aver that the conditions are satisfied.

The question of limitation of the amount of compensation to which the carrier can be made liable does not arise unless and until the amount of compensation to which the shipper would have been entitled but for the limitation is first ascertained. By putting the emphasis of their argument on what the limit of compensation should be, the appellants seem to have proceeded on the footing that the value of the goods damaged exceeded the limit of permissible compensation either as agreed in the bill of lading or by the Rules. No reading of cl 6(2) of the bill of lading or art 4.5 could reasonably lead to the view that, regardless of the fact that the ascertained value of the goods is less than the limit stipulated, the plaintiff should still be awarded the upper limit, which is a ceiling. It is in this regard that the formulation of the respondent's claim as if the claim is by a prescribed fixed rate is flawed. Any claim to compensation computed without regard to the value of the goods and arrived at merely by multiplying the number of packages by GBP 100 and arriving at a sum of GBP 120,200 was erroneous. The trial court having proceeded on the footing that the value of the goods was USD 71,650.50, the next question is whether that value is beyond the stipulated limit for which the carrier could be liable. Taking judicial notice of the fact that USD 71,650.50 is far less than GBP 120,200, the alternative award of GBP 120,200 was erroneous. The range of permissible awards should really be between USD 71,650.50 at the highest, if the limit of GBP 100 per package is accepted, and NGN 240,400 at the lowest, if the limit is NGN 200 (nominal value) per package.

The question really is how is the limit of the carrier's liability to be determined? Is it at GBP 100 per package, or at NGN 200 (nominal value) per package, or at NGN 200 (gold value) per package? The answer turns on whether the applicable limit is, as stated in cl 6(2) of the bill of lading, 'GBP 100 lawful money of the United Kingdom per package or unit', or, as provided in art 4.5 of the Rules, NGN 200 per package or unit and, if the latter, whether the value of Naira, so stated, is nominal value or, in terms of art 9 of the Rules, gold value.

There is no doubt that the Carriage of Goods by Sea Act (Cap 44) gives effect to the Convention which gave birth to the Hague Rules. As far as our domestic laws are concerned the domesticated 'Hague Rules' are the rules contained in the 'draft Convention for the unification of certain rules relating to bills of lading' but 'with modifications in the Schedule to this Act'. In regard to those Rules, s 4 of the Act provides as follows: 'Every bill of lading or similar document of title issued in Nigeria, which contained or is evidence of any contract to which the Rules apply, shall contain an express statement that it is to have effect subject to the provisions of the said Rules as applied by this Act.'

It cannot be reasonable to construe cl 6(2) of the bill of lading as meaning that where our Rules, and not the Hague Rules, apply, the carrier's maximum liability would nevertheless be GBP 100 per package or unit, even though the Rules had fixed it at NGN 200. It must be noted that the figure NGN 200 in the Rules was arrived at as a result of the Decimal Currency Act (Cap 92 LFN 1990) whereby GBP 100 was converted to NGN 200. The conclusion seems inescapable that the limitation on the amount of damages that should be applied is the one provided for in art 4.5 of the Rules. If the Hague Rules referred to in cl 6(2) of the bill of lading are not the Rules in the Act, then the Hague Rules cannot be said to apply and the Rules in the Schedule to the Act must be applied. If the Rules in the Schedule to the Act are those inappropriately referred to as the Hague Rules in the bill of lading then the provisions of cl 6(2) are bad for internal inconsistency because if the Rules apply they would apply with the limitation of liability fixed at NGN 200 per package. The apparent reliance by the trial Court and the Court below on the principle of autonomy of contract, whereby those Courts seem to have held that the parties had by their contract fixed a higher limit, does not justify the conclusion that the limit of compensation should be calculated in British pounds sterling. The proper calculation is as stipulated in art 4.5 of the Rules subject to art 9 of the same Rules.

The remaining question is the effect of art 9 on the limitation of liability fixed at NGN 200 per package. The Hague Rules in their domesticated version had been received into our laws in 1926, long before 1990 when by revision of our laws '£100' in art 4.5 was altered to read 'N200'. The question which now arises, whether the NGN 200 in art 4.5 of the Rules was the nominal or paper value of Naira, would not have arisen had art 9 not been enacted. In such a case there would have been no doubt that the principle of nominalism would apply to the monetary unit stated. Some States have translated the sums indicated in the Convention into their national currency exercising the powers reserved in the Convention but without provision of a gold clause in their national legislation. An example is the United States which fixed the figure at USD 500 in its Carriage of Goods by Sea Act 1936. Another example was Canada which in its (now repealed) Carriage of Goods by Water Act C-27 by the Schedule to that Act fixed the limit of the carrier's or ship's liability at CAD 500 (art 4.5) and made it clear in its art 9 that 'the monetary units in these Rules are to be taken to be the lawful money of Canada'. There is a sufficient and convincing body of judicial pronouncements and academic opinion and the practical extra-legal approach of the shipping and insurance industries in England to justify a conclusion that the effect of art 9 in regard to art 4.5 is to make 'Naira' mentioned there, Naira at its gold value and not at its nominal and paper value.

Article 9 may have become anachronistic, but it remains part of our laws to which effect must be given. It may be that art 9 had been retained to achieve the purpose of any gold clause, which is to avoid the operation of the principles of nominalism. Be that as it may, where the provisions of a valid statute are clear and unambiguous and its application lead to no obvious absurdity, the Court does not need to inquire into the motive or wisdom of the lawmaker before it applies its provisions, nor should the difficulty or complexity in working out the implications of the provisions stop the Court from pronouncing its provisions part of the law.

The effect of the conclusion that Naira in art 4.5 means gold value of Naira is that, until that value is ascertained, it is not possible to know whether the value of the cargo put at USD 71,516.50 is in excess of that limit. There is no doubt that the respondent must be found entitled to USD $71,516.50 or the gold value of NGN 240,400 at such valuation date as the court may find appropriate after taking due evidence, whichever is less. The latter has not been ascertained. Besides, there is the question, which has not been well addressed, as to the relevant date of valuation of the Naira in terms of its gold value. It seems unrealistic to talk, as the court below had tried to do, about gold value of the Naira in 1926 when at that time there was no currency known as the Naira. Commercial transactions and legislation do not permit such a level of abstraction or fiction. If 1926 is relevant, the path of enquiry would seem to be to ascertain the par value of the pound (as applied to Nigeria) in 1926 in gold and by the principle of 'recurrent linking' relate the current Naira to that pound. That complex historical exercise is unnecessary. By virtue of s 1(2) of the Decimal Currency Act (Cap 92) the parity of the Naira is equivalent to 1.24414 grams fine gold.

As the Rules now stand, by virtue of art 9 the monetary unit (Naira) in art 4.5 is taken to be gold value. The effect of so doing, adapting the order of the Privy Council in Feist v Société Intercommunale Belge d'Electricité [1934] AC 161, is that every Naira comprised in the nominal amount of NGN 200 must be treated as representing the price of gold as specified in the Decimal Currency Act. It will be left to the trial High Court to determine, after further evidence and submissions, the market in which the price is determined and the date of calculation, ie whether at the date the carrier's obligation accrued or at the date when NGN 200 was inserted in the rules or at the date of the bill of lading.