Power Solutions Ltd (the plaintiff) bought cables from Zheng Zhou Cable Co Ltd in China. The consignment, comprising five containers of cables, was loaded onto a vessel belonging to CMA CGM Kenya Ltd (the first defendant) and a bill of lading was issued. The ship docked at the port of Mombasa around 29 April 2012. The first defendant's charges were settled and Kodiak Logistics Ltd was appointed as the plaintiff's clearing agent.

A dispute arose when the plaintiff’s agent was informed by Awanad Enterprises Ltd (the second defendant) that its consignment was not included in the manifest pages supplied by the first defendant. No arrangements were made to pick up the plaintiff's containers from the port and transfer them on time to the second defendant's container freight station (CFS) for clearance. As a consequence, by the time the consignment was transferred, the second defendant had already incurred storage charges charged by the Kenya Ports Authority (the third defendant).

The plaintiff sought a declaration of non-liability to pay storage charges to the defendants, a permanent injunction to restrain the defendants from dealing with its containers, general damages for wrongful detention and delay in the delivery of the consignment, and compensation for the full contract value of the consignment (USD 700,000). The second defendant counter-claimed for the storage charges incurred.

Held: The plaintiff's claims are dismissed; the second defendant's counter-claim is upheld in the sum of KES 15,088,410.

It is common ground that the cargo was safely delivered to the third defendant and that the first defendant promptly issued a delivery order to the plaintiff upon payment of all its charges. It is also common ground that the second defendant is an agent of the third defendant and that both of them blame the plaintiff and the first defendant for the delay in the removal of the containers from the port to avoid the accumulation of storage charges.

The Hamburg Rules disposed of the long list of exceptions which have hitherto shielded a carrier, and laid it down that the carrier is liable for loss attributable to its fault or the fault of its servants or agents. Article 5.1 states the position as follows: 'The carrier is liable for loss resulting from loss or damage to the goods, as well as from delay in delivery if the occurrence which caused the loss, damage, or delay took place while the goods were in his charge as defined in this Article unless the carrier proves that he, his servants, or agents took all measures that could reasonably be required to avoid the occurrence and its consequence.'

It is the duty of the ship's master to supply information to the third defendant. Section 38 of the Kenya Ports Authority Act provides that the 'master of any ship arriving in a port shall, if required, produce to an authorized employee ... such other information in relation to the ship, passengers and cargo thereof, as such employee may require'. In addition, s 16 of the East African Harbours Regulations 1970 on notification of expected arrival of ships provides as follows: 'The owners or agents of a ship proposing to call at a harbour shall as early as possible give notice in writing to the management on the form prescribed in schedule A hereto of the expected date and time of arrival of the ship, and shall give particulars in such notice of the nature and quantity of cargo to be loaded and/or discharged and other matters of importance.'

The first defendant produced in evidence an extract of the KRA (Kenya Revenue Authority) Manifest Management System which showed that it registered an EDI manifest with the KRA on 20 April 2012 which was approved on 22 April 2012. Once a shipping line lodges an EDI manifest with the KRA system which is approved, it maps automatically into the third defendant's system and becomes a CUSCAR (customs cargo report) which is registered in CATOS (the container automated terminal operation system) and is then compared with the BAY PLAN (container stowage plan). Upon reconciliation, the CFS and the clearing agent can see the documents in the system. Since reconciliation of the consignment was done on 22 April 2012, the cargo was visible in the system and therefore the plaintiff’s containers had no issues. It was the failure by the plaintiff to utilise the grace period to clear the cargo that led to the cargo incurring charges. Even if the second defendant's duty to ensure that the plaintiff's containers were removed in time was not diligently discharged, the bigger duty was upon the plaintiff as the consignee and the person with title to have the goods cleared with speed to avoid possible bottlenecks and resultant but avoidable port charges. The liability for any injury and loss resulting from that delay lies squarely upon the plaintiff.