Concurrent liabilities in Tort and Contract
The Case for Concurrence of Claims
Broadline Enterprises Ltd. V. Monterey Maritime
Corporation & anor[1]
and
Pacers Multi-Dynamics Ltd v. The M.V. Dancing Sister & anor[2]
are Nigerian Supreme Court authorities on the point that, as far as
carriage of goods by sea claims are concerned, there may coexist for the
benefit of a claimant, concurrent rights to sue in tort as well as under the
contract. Put conversely, parties to a carriage
by sea contract regardless of their obvious contractual duties may be held
liable for breaches of tortious duties in circumstances arising from the
performance or non-performance of terms of said contract.
In
the Monterey
case, the Plaintiff who had claimed against the defendants in both
contract and tort later applied to abandon its claim under the contract. The
Supreme Court setting aside the decisions of both the trial court and the Court
of Appeal held that said plaintiff was legally entitled to that approach. In
his leading judgment, Iguh JSC noted thus;
"...the
liability of a bailee may rest on an express contract between him and the owner
of the goods concerned. However, this notwithstanding, there is generally the
collateral liability in tort for negligence which arises from the breach of a
legal duty owed by the bailee to the owner of the goods. Both causes of action
were specifically pleaded in the writ of summons filed in the present case and
in the appellant's amended Statement of Claim. I entertain no doubt that the
appellant was entitled to abandon its cause of action in contract and to
prosecute its claim in tort[3].
In
the Dancing
Sister case, the appellant argued at the Supreme Court that being
both the owner of the goods – the subject matter of the case – and the endorsee in the blank to the relevant Bills of
Lading, it was thus entitled to claim for damages resulting from losses
occasioned inter alia by negligent
discharge of the goods from the ship. The court however found that the
appellant was not an endorsee of the bills of lading and that a charter party
relevant to the transaction had provided that “…Stevedores shall be considered
as owner's servants and the charterers/shippers/Receivers are not to be
responsible for any negligence of whatever nature, default or error in judgment
of the stevedores employed”. The court thus dismissed the appeal with costs.
Rhodes
Vivour JSC did not however conclude his judgment in the Dancing Sister case
without laying down various instances which could give rise to a cause of
action flowing from carriage by sea transactions. Citing with approval the English
Court of Appeal decision in "In Mitsui & Co. Ltd v. Fiota Mercante
Grancolombiana S.A 1988 2 Lloyds Law Reports p. 208, His Lordship
specified the said circumstances as follows[4]
a. the
shipper may sue in contract, assuming that he has not divested himself of his
rights by indorsement of the bill of Lading.
b. a
consignee named in the bill of Lading or an indorsee of the bill of Lading can
sue in contract under of the bill of Lading
c. an
implied contract can arise out of the circumstances in any particular case in
which delivery is taken of the part of discharge.
d. the
person who was the owner of the goods of the time when damage occurred can sue
in tort.
The
fourth point identified above again underscores the position that where a party
so entitled to sue in tort is additionally vested with a right of suit under a
contract, both rights may indeed coexist and may thus be available to the
claimant as alternatives. The position is a rebuttal to the privity of contract
fallacy – the contention, popular in some civil Law jurisdictions, that the
existence of a contract circumscribes liabilities to the terms therein.
A crucial Exception?
The fact that an English Court of Appeal
decision was substantially referenced by the Nigerian Supreme Court in The Dancing
Sister Case is perhaps impetus for noting here certain exceptions which English
cases admit to the concurrent liabilities position, which however were not
pointed out by the Supreme Court.
In
Henderson
v Merrett Syndicates [1994] 3 All ER 506, [1994] UKHL 5, [1995] 2 AC 145
Lord Goff of Chieveley Citing Le Dain J. in the Canadian case of Central
Trust Co. v. Rafuse (1986) 31 D.L.R. 4th 481, noted that while a plaintiff
has the right to assert the cause of action that appears to be the most
advantageous to him in respect of any particular legal consequence where
concurrent liability in tort and contract exists,
.
. .A concurrent or alternative liability in tort will not be admitted if its
effect would be to permit the plaintiff to circumvent or escape a contractual
exclusion or limitation of liability for the act or omission that would
constitute the tort.
Conclusion
Circumstances of exclusion
or limitation of liability in a contract arguably present the biggest
temptation to claimants and their solicitors to seek alternatives in tort.
Defendants are thus well advised to always object to this approach in all
relevant cases. Hopefully, one will see a Nigerian Supreme court authority on
this all important exception sooner than later.
