On the 26 January 2018, the Cloister of Appeal was asked to adjudge on the case Mediterranean Trading Shipping Aggregation Limited and Dr. Cedric Mifsud for Atwood Oceanics Australia Pty Ltd v. Tristar Freight Services Limited in which the actor aggregation (‘Tristar’) was sued for amercement for the accident of appurtenances that were destroyed in a fire.
Atwood Oceanics Australia Pty Ltd (‘Atwood’) affianced Mediterranean Trading Shipping Aggregation Limited (‘Mediterranean Company’) to carriage accessories acclimated on oil rigs from Malta to Perth, Australia. On the 1 August 2011, aloft instructions from Tristar, the plaintiff Mediterranean Aggregation placed the accessories in a barn in Cospicua for them to be able for transport. The actor aggregation again issued a Bill of Lading, which adumbrated that the accessories was to be alien on the 14 August 2011. The actor aggregation additionally issued an balance for the carriage of the goods. On the 17th August 2011, there was blaze in the breadth and the actor aggregation wrote to the plaintiff Mediterranean Aggregation to acquaint it that their accessories was absolutely destroyed in this incident.
The plaintiffs accordingly sued Tristar and asked the Cloister to cash amercement in their favour as for advantage of the accident of the appurtenances claiming that the defendants had breached their acknowledged obligation to bear the appurtenances on the 14 August and that the accident occurred on annual of the defendant’s apathy because the appurtenances should accept been on their way to Australia back the blaze took abode in the warehouse.
In their reply, the defendants pleaded, amidst added pleas, that the Bill of Lading was never active and accordingly was not a bounden arrangement and accordingly it could not be captivated accountable appear the aboriginal plaintiff Mediterranean Company. Tristar additionally pleaded that it could not be captivated accountable for acknowledged amercement as there was no argumentative accord amid itself and Atwood.
During the proceedings, defendants argued that the activity is based on a aperture of arrangement due to the Bill of Lading. Its aboriginal altercation that the Bill of Lading was not bounden as it was still in abstract form, and had accordingly not yet been agreed, was alone by the Court. The Cloister captivated that the Bill of Lading was in actuality still bounden as the actor accepted that the appurtenances would be alien on the 6 August and again already this did not booty abode on the 14 August and additionally issued an balance for this service.
Once the bounden attributes of the Bill of Lading was confirmed, the actor again claimed that its acknowledged relationship, was with Mediterranean Company, which did not ache any accident on annual of the non achievement of the contract, and not with Atwood. The Aboriginal Hall Civil Cloister disqualified that although the acknowledged accord was amid Tristar and Mediterranean Company, this did not beggarly that there was no argumentative accord amid the actor and Atwood. The defendant’s accountability appear Atwood arose from abomination law (Articles 1031 and 1032 of the Civil Code). Article 1031 of the Civil Code states that ‘every being shall be accountable for accident which occurs through his fault’ and back the appurtenances should accept been en avenue to their final destination back they were destroyed in the fire, this accident could be attributed to the actor company.
In the defendant’s abortion to fulfil his acknowledged obligations, it became accountable appear Atwood as it did not exercise the appropriate akin of activity .
Furthermore, beneath Article 1033 of the Civil Code:
Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or appetite of attention, is accusable of any act or blank basic a aperture of
the assignment imposed by law, shall be accountable for any accident consistent therefrom.
The actor aggregation had a assignment imposed by law, beneath Article 1126 of the Civil Code ambidextrous with the obligation to bottle things deposited in its care. The accident for the appurtenances anesthetized on to the actor aggregation already those appurtenances were in its possession.
Therefore the cloister captivated that Tristar was amenable to backpack out obligations it affected unless it is a case of force majeure. So already the actor took control of the goods, he was answerable to bottle it and ensure that no accident occurs as the accident and peril of the affair anesthetized on to defendant. The Cloister captivated the actor accountable for the amercement due to the actuality that it was amenable for the adjournment in the commitment of the goods. The accountability was on the actor to prove to the cloister that the accessories was kept in a safe abode and it was the defendants assignment to ensure that until the appurtenances were exported they were kept safe and looked afterwards as one would his own things.
Both the Aboriginal Hall Civil Cloister as able-bodied as the Cloister of Appeal, accepting advised all the plaintiff’s claims and the defendant’s amuse which included the above, ordered the defalcation of amercement in Atwood’s favour and begin the actor accountable appear Atwood for the accident of the goods. Customs abstracts announce that the amount of the accessories is 2k whilst the absolute amount is 18K.
Dr. Elise Dingli is an Advocate at Ganado Advocates
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