T Kishen & Co (a firm) v Birkart South East Asia Pte Ltd (Dyna Movers Pte Ltd, Third Party)

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 28 September 1996
• Neutral Citation: [1996] SGCA 56
• Docket Number: Civil Appeal No 42 of 1996
• Date: 28 September 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Muthu Arusu (Drew & Napier)
• Citation: [1996] SGCA 56
• Defendant Counsel: Axel Chan (Khattar Wong & Partners),A Rajandran (Lee Rajandran & Joseph)
• Court: Court of Appeal (Singapore)
• Subject Matter: Sub-contract to third party trucking company,Whether respondents become bailees despite not having been in actual possession of goods,Bailment,Whether bailment established,Loss of goods,Whether claim based on constructive possession made out,Respondents engaged by appellants to transport goods for shipment,Bailees,Goods left unattended by appellants at warehouse pending collection by third party,Possession

This is an appeal against the High Court`s dismissal of the appellants` claim for damages arising from the loss of a consignment of goods (the goods) allegedly loaded into a shipping container. The appellants were also ordered to bear both the respondents` and third party`s costs.

The facts

The material facts are as follows. The appellants are a trading partnership, comprising one T Kishen (Kishen) and his wife. The respondents are freight forwarders. The third party is a trucking company engaged by the respondents under a sub-contract to carry goods. The appellants` case is that on 2 September 1991, they engaged the respondents to transport the container stuffed with the goods to the Port of Singapore Authority (PSA) Container Terminal for shipment to their buyers in Lagos, Nigeria. Despite the respondents` alleged assurance that the container would be collected on the evening of 2 September 1991, this was not done. The container was discovered by the third party to be missing on 5 September 1991. It was later recovered, but the goods allegedly loaded within were missing.

It is common ground that the container was the second of two containers stuffed by the appellants on the evening of 2 September 1991. We shall refer to these containers as `C1` and `C2`. That afternoon, C1 was stuffed by the appellants at the loading bay of their warehouse unit at the Metal Warehouse at Genting Lane (the warehouse). Pursuant to the appellants` instructions, C1 was then collected by the third party at about 6pm that evening.

The appellants claimed that following the removal of C1, C2 was stuffed with the goods at the same loading bay at the warehouse. From 6.30pm onwards, Kishen called Ricky Toh, an employee of the respondents, at least four to five times, at intervals of fifteen minutes. Kishen told Ricky Toh that C2 was ready for collection. Ricky Toh told him `okay` and said he would inform the third party. Kishen further alleged that Ricky Toh had assured him that the trucker (from the third party) would come and collect the container and that he could go home. On Kishen`s request, Ricky Toh gave him the third party`s office telephone number. They last spoke at about 8pm. Kishen claimed that he called the third party`s office at about 9pm and spoke to one Mr Goh, who allegedly told him that he had received the relevant instructions from Ricky Toh.

Kishen and his employee, one Bhagwandas Bachumal Shahri (Bhagwandas), both left the warehouse at about 9pm. They did not wait for the arrival of the trucker. According to Kishen, C2 was simply secured with a `simple padlock` and left next to the loading bay. The third party went to collect C2 on 5 September 1991 but failed to locate it.

The appellants founded their action on contract, bailment and negligence. In their statement of claim, it was pleaded that the respondents were in breach of their contractual duties as private carriers or bailees by virtue of their failure to promptly collect C2 as promised on 2 September 1991. Next, the respondents, having agreed to take possession of C2, were in constructive possession of it and were actual or constructive bailees or in a position whereby they owed the appellants a duty similar to those of a bailee. It was alleged that this duty was breached owing to the respondents` negligence in failing to take reasonable care of C2.

The respondents maintained in their defence that they were not bailees of the goods. They did not promise to collect C2 allegedly stuffed with the goods that night. The goods had not come into their possession. They denied owing the appellants any duty of care in respect of the goods. They also put the appellants to strict proof that they had in fact loaded the goods into C2. Finally, they relied on the exemption clauses contained in their standard trading conditions.

Subsequently, the respondents issued a third party notice to bring in the third party. The respondents claimed an indemnity and/or contribution from the third party in the event that they were held liable for the appellants` claim. The third party`s response was that there was no contract of bailment between the appellants and themselves. In any case, they did not promise either the respondents` servants or Kishen that they would collect C2 on 2 September 1991.

The learned trial judge opined that the dispute related primarily to factual issues. It was clear that actual physical possession of C2 remained with the appellants. However, the learned trial judge noted that this would not provide the respondents a complete defence. There was still the issue of whether the conventional rules of bailment could be extended to render the respondents liable as bailees. The learned judge found that it was necessary to determine whether Ricky Toh had indeed promised Kishen that C2 would be collected on the evening of 2 September 1991. He found that Ricky Toh made no such promise. It was further held that the appellants had failed to prove that they had loaded the goods into C2. On these two grounds, the appellants` claim was dismissed with costs.

The learned trial judge also noted that the respondents had sought to rely on the exemption clauses in their defence but he saw no necessity to determine whether the respondents could do so, having found for the respondents on the two grounds mentioned above.

The appeal

Before us, the appellants` primary argument was that the trial judge`s findings were not sustainable when viewed against the totality of the evidence and the overall probabilities. Counsel relied on the Privy Council decision on appeal from Singapore in Grace Shipping Line Inc & Anor v CF Sharp & Co (Malaya) Pte Ltd [1987] 1 MLJ 257; [1986] SLR 32. In that case, Lord Goff made the following observations [[1987] 1 MLJ 257 at p 265; [1986] SLR 32 at p 44]:

... in the present case, the trial judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the judge to have regard to the contemporary documents and to the overall probabilities.

The above principles are well-settled and so are the principles relating to when an appellate court will interfere with a trial judge`s findings of fact. Counsel for the appellants submitted that the contemporaneous conduct of the parties and the overall probabilities showed that the alleged assurance by Ricky Toh must have been given.

In particular, counsel emphasised that Ricky Toh had said `okay` in response to numerous telephone calls from Kishen. It was suggested that in the...