Fujitsu Microelectronics (Malaysia) Sdn Bhd and Others v Singapore Airlines Ltd and Others

JurisdictionSingapore
JudgeLim Teong Qwee JC
Judgment Date28 April 2000
Neutral Citation[2000] SGHC 72
Docket NumberSuit No 566 of 1998
Date28 April 2000
Year2000
Published date19 September 2003
Plaintiff CounselBelinda Ang Fong SC and Gerald Yee (Ang & Partners)
Citation[2000] SGHC 72
Defendant CounselLok Vi Ming and Ng Hwee Chong (Rodyk & Davidson)
CourtHigh Court (Singapore)
Subject Matterarts 22, 25 & 25A Warsaw Convention 1929 as amended by Hague Protocol 1955,Whether agent acting recklessly with knowledge that damage will probably result,Carriage of Goods by Air and Land,Contracts of carriage,Carriage of goods by air,Whether agent or agent's employees acting with intent to cause damage,Non-delivery of part of goods carried,Whether liability of carrier limited under Warsaw Convention,Whether liability of carrier's agent limited under Warsaw Convention

: This action arises out of the carriage by air of a consignment of integrated circuit (`IC`) dies from Tokyo (Japan) to Kuala Lumpur (Malaysia) via Singapore. The goods were shipped by the third plaintiff (`Kintetsu Japan`) and consigned to the fourth plaintiff (`Kintetsu Malaysia`). They were sold by the second plaintiff (`Fujitsu Japan`) to the first plaintiff (`Fujitsu Malaysia`) and in the shipment Kintetsu Japan and Kintetsu Malaysia acted as the forwarding agents of the respective parties.

The goods were carried by the first defendant (`SIA`) on its flight 011 which departed from Tokyo on 17 April 1996 bound for Singapore and at Singapore they were on-carried by SIA on its flight 100 which arrived at Kuala Lumpur at about 0710 hrs on 18 April 1996.
They were delivered to the second defendant (`MAS`) as SIA`s ground handling agent at the MAS Cargo Centre (`MCC`) where MAS carried on its business. The goods were packed in seven packages and all seven packages were received by MAS. An air waybill (`AWB 8994`) was issued in respect of the carriage of the goods.

On 19 April 1996 MAS delivered only six packages to Kintetsu Malaysia and on 20 May 1996 it issued a cargo/mail survey report (`CMR`).
The CMR was prepared by Mr Peter Francis who was employed by MAS in its import tracing department. It states:

Due to exhaustions in tracing for LPS P1/7 missing cargo outchecks, CMR raised to clofi.



`LPS`, `P` and `clofi` stand for `last part shipment`, `piece` and `close file`.
I think it means that MAS was unable to deliver the last of the seven packages. A copy of the CMR was given to Kintetsu Malaysia.

This action was commenced by writ issued just a few days before the expiry of two years from the date of arrival of flight 100 at Kuala Lumpur.
The plaintiffs claim against SIA damages for breach of the contract of carriage evidenced by AWB 8994 or breach of duty as bailee of the goods and against MAS damages for breach of duty as bailee and/or for negligence and/or for conversion. The claim against the third defendant was discontinued at the commencement of the trial. At the conclusion I gave judgment for the plaintiffs and I intimated that I would see counsel in chambers to give directions as to damages. In the meanwhile SIA and MAS have given notice of appeal and these are my written grounds.

It is common ground that the Warsaw Convention for the unification of certain rules relating to international carriage by air with the amendments made to it by the Hague Protocol (`Warsaw (Hague) Convention`) applies to the carriage of the IC dies in this case and that its provisions have the force of law under s 3 of the Carriage by Air Act.
Article 22 of the Warsaw (Hague) Convention provides:

(2)(a) In the carriage ... of cargo, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the ... consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the ... consignor`s actual interest in delivery at destination.



It is also common ground that no special declaration of interest has been made by Kintetsu Japan or anyone else.
SIA admits the carriage of the goods and their delivery into the custody of MAS and notwithstanding its defence as pleaded it did not deny the non-delivery of one of the seven packages. Its case is that it is entitled to limit its liability under art 22.

Article 25A(1) of the Warsaw (Hague) Convention provides:

If an action is brought against a servant or agent of the carrier arising out of damage to which this Convention relates, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the limits of liability which that carrier himself is entitled to invoke under Article 22.



MAS admits the delivery to it of the seven packages at MCC and that it was `not in a position` to deliver one of them.
I think it means that it failed to deliver one of the packages as alleged in the statement of claim. Its case is that at all material times it was the agent of SIA and it acted within the scope of its employment and is entitled to limit its liability under art 22.

Article 25 provides:

The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.



and art 25A(3) provides:

The provisions of paragraphs (1) and (2) of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.



The plaintiffs` case is that the loss resulted from `acts or omissions of [SIA] and/or [MAS] ... done, or omitted to be done, with [intent] to cause damage and/or recklessly and with knowledge that damage would probably result within the meaning of Article 25 and/or Article 25A (as the case may be) of the [Warsaw (Hague) Convention]`.
It is for the plaintiffs to prove that SIA or MAS either (1) acted with intent to cause damage or (2) acted recklessly and with knowledge that damage would probably result.

Intent to cause damage

Ms Ang referred to Swiss Bank Corp v Air Canada (1987) 44 DLR (4d) 680. In that case a package was handed to one employee of the carrier who handed it to another in the course of their respective duties. The package then disappeared. The trial judge found that the package was stolen by one of the carrier`s employees. On appeal Pratte J said at p 683:

... if, as the judge held, the parcel was stolen by the [carrier`s] employees, the latter as thieves must of necessity have had the intent described in art 25 of the Convention.



I agree that if the employees of MAS have stolen the undelivered package then the damage must have resulted from an act of the employees done with intent to cause damage within the meaning of arts 25 and 25A(3) of the Warsaw (Hague) Convention.


Mr Rahmat bin Mokhtar is what is described as an import break down clerk employed by MAS.
When the IC dies arrived at Kuala Lumpur on 18 April 1996 he was working at the MCC. He was in charge of a `break down` team of three employees including himself. At any time there would be seven to ten such teams working in the break down area depending on the volume of import cargo. He would be given a cargo manifest with `particulars of the shipments which [he] was required to breakdown and distribute in the cargo bins for storage` as he said in his affidavit.

Mr Rahmat referred to the manifest dated 18 April 1996 with particulars of the shipment of seven packages under AWB 8994 and he said in his affidavit that from the endorsements appearing there it was he who did the break down.
The IC dies were carried as part of a consolidated shipment and the manifest shows that seven consolidated shipments including the shipment under AWB 8994 were carried on one of the pallets. `Breaking down` a pallet is the process of removing the covers, separating the shipments and putting the packages into bins for storage until delivery to the respective consignees. This was what Mr Rahmat did in respect of the seven consolidated shipments on one of the pallets.

The bins are rectangular pallets measuring 4 ft x 8 ft or square pallets measuring 4 ft x 4 ft protected on three sides by wire netting to a height of 4 ft. They are placed on open shelves for storage in double rows to a height of four bins.
The bins are placed with the open sides facing each other on the shelves. The location of each bin is identified by a number and this number is clearly marked also on the bin.

When the pallet with the IC dies was broken down bins were brought by fork-lift to the break down area.
It was Mr Rahmat who assigned the packages to the bins for storage. He decided which packages went into which bins. In this case he assigned all the packages from six of the consolidated shipments and one package from one consolidated shipment to bin H031/C-6. The packages from the six consolidated shipments included the seven packages containing the IC dies. He said in his affidavit that he would ensure that the correct number of packages in each shipment in accordance with the information in the manifest were put in the designated bin before he endorsed the bin number on the manifest. In this case the manifest was so endorsed and I find that all seven packages were placed in bin H031/C-6.

Mr Rahmat said that once the storage bin was loaded it would be taken by fork-lift and placed in its designated location.
That must have been what occurred that day. Under cross-examination he said he did not accompany the fork-lift to the designated location in this case. He said that when the fork-lift left with the bins for storage he brought the manifest to the break down officer who would key in the location of the cargo in the computer system. What the officer did was to key in the information provided to him in the manifest.

The printout from the computer (`UBOA`) shows an entry at 1047 hrs on 18 April 1996 to the effect that all seven packages of the shipment under AWB 8994 were stored at location H031/C-6.
The entries are serially numbered and this is entry 9. The computer system keeps a record of the cargo (`CAR`) under each air waybill. (`UBOA` and `CAR` are acronyms commonly used by the employees of MAS working at the MCC but no one has said with any degree of certainty what they...

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