Mobay Undersea Tours Ltd and Fireman's Fund Insurance Company v Port Services Ltd

• Jurisdiction: Jamaica
• Judge: RECKORD, J
• Judgment Date: 07 February 2001
• Judgment citation (vLex): [2001] 2 JJC 0701
• Court: Supreme Court (Jamaica)
• Date: 07 February 2001

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO C. L. M-023 OF 1996

BETWEEN

MOBAY UNDERSEA TOURS LIMITED

1 ^ST PLAINTIFF

AND

FIREMAN'S FUND INSURANCE COMPANY

2 ^ND PLAINTIFF

AND

PORT SERVICES LIMITED

DEFENDANT

Mr. Dennis Goffe, Q.C. and Mrs. M. Champagne, Attorneys-at-Law for the plaintiff instructed by Messrs. Myers Fletcher & Gordon.

Mr. Gordon Robinson for the defendant instructed by Mrs. Winsome Marsh of Nunes, Scholefield, Deleon & Co.

BAILMENT - Bailees of cargo - Breach of duty - Negligence - Claim for damages

RECKORD, J

1 On the 26 ^th of January, 1996, the plaintiffs through their attorneys-at-law filed an action in the Supreme Court claiming damages against the defendant for breach of duty and or negligence and or breach of duty as bailees of the cargo, by themselves, through their servants and or agents, on the 27 ^th of January, 1995, while discharging the said cargo from the motor vessel INAGUA TANIA at berth 2, Western Terminals in Kingston, the defendant and or their servants and or agents so negligently handled the said cargo that they severely damaged same causing the plaintiffs to suffer loss and damage and incur expenses.

2 Arising from the filing of this action are two summonses. The first by defendant filed on the 17 ^th of March, 2000, applying for an order, that "The action filed against the defendant be dismissed for want of prosecution. The second one by the plaintiffs filed on the 14 ^th of April, 2000, applying for an order pursuant to section 192 of the Judicature (Civil Procedure Code) Law that " the plaintiffs be granted leave to file their statement of claim herein out of time within 7 days of the date hereof."

3 Following arguments by attorneys on both sides, I decided that both summonses would be heard together.

4 The plaintiff owned a semi-submersible vessel named the Coral See which was shipped to Jamaica from the United States of America. While it was being unloaded in Jamaica by the defendant, it fell on the deck and was badly damaged. Hence, the plaintiff's action.

5 In support of the defendant's summons to dismiss the action Mr. Philip Henry managing director of the defendant company at all relevant times in an affidavit sworn to on the 10 ^th of February, 2000 and filed herein, has stated 舒

• (a) That one of the defendant's employees who witnessed the incident complained of by the plaintiffs has died and the others have left the defendant's employ.

• (b) That the past employees are Mr. Louis Deer, deceased, 9 ^th September, 1996, operations manager at the time, Mr Freddie Hooke -

  Super-cargo Mr. Noel Carr - operations manager both of whom have migrated and exact whereabouts are not personally known to the defendant.

  Mr. Hugh Gordon, retired - his address is known.

  That the plaintiffs' delay in prosecuting this matter has prejudiced the defendant's chance of effectively defending this matter.

6 Mr. Henry was cross-examined on his affidavit. Although he knew of the damage, he was not present - his operations manager had taken statement from employees and others who were there. They all gave written statements dated the 31 ^st of January, 1995 i.e. within 4 days of the incident. He admitted that general manager Mr. Alva Wood, who also gave written statement, is still employed to the company. He is not certain he witnessed the incident.

7 In support of the plaintiff's summons for extension of time, Mrs. Champagne, attorney-at-Law, said in her affidavit of the 10 ^th of January, 2000, that the delay in filing the statement of claim arose because her firm did not have complete instructions from the plaintiff in relation to the details of the claim being made. Because the suit relates to causes of action in relation to negligence and breach of contract, those would not be statute barred until January 26, 2001. The defendants would not be prejudiced if the court grants the order in terms of the summons. She submitted a copy of the proposed statement of claim in a further affidavit dated 24 ^th January, 2000.

8 Mr. Goffe, Q.C. submitted that only in exceptional circumstances that a court will strike out an action for want of prosecution where the limitation period has not expired. Mr. Goffe further submitted that there were unprecedented features not found in other cases.

• (a) Issue is joined as to what is the limitation period.

• (b) That the applicable law is American

• (c) That there are two contradicting opinions placed before the court by two United States legal experts

• (d) If the court finds...