Mediterranean Shipping Co SA v Wheat Board of Kenya the MV Pantera [1988] KECA 117 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a shipowner must prove actual delay before charging a cargo receiver demurrage when berthing delays are beyond the receiver's control.
What this practically means
#Executive summary
#Key legal issues
#Commencement of the consignee's delivery obligation
The obligation to take delivery as fast as the vessel can deliver, where no fixed time is stipulated, is to take delivery within a reasonable time, and at Mombasa grain discharge begins only once the vessel is berthed with the Port Authority's assent
Clause 5 of the bill of lading fixed no time for discharge. Authoritative construction shows such clauses require delivery within a reasonable time, assessed on the natural conditions, custom and actual state of the port and the consignee's conduct. By custom at Mombasa grain goes direct into railway wagons or lorries at a berth, so berthing precedes any duty on the consignee, and allocation of berths is the exclusive prerogative of the Kenya Ports Authority, whose decisions the consignee cannot control.
Burden of proof in demurrage claims
The shipowner claiming demurrage must first prove that more than a reasonable time was taken and make out a prima facie case before the burden passes to the consignee to show diligence
Drawing on Hick v Raymond & Reid and Lyle Shipping, the court held the plaintiff must show that a reasonable time was exceeded. Unlike The Arne, where a prima facie case arose from actual delay in discharge, here the Pantera discharged without delay once berthed, and the appellant's shifting case on which day was lost meant no prima facie case was established; even if it was, the respondent's arrangements with wagons and lorries answered it.
Effect of the Port Authority's berthing discretion
Delay caused by the berthing committee's allocation decisions, including preference for the Boston Maru, is not attributable to the consignee, who could not attend or influence the committee
The berthing plan is made daily by the Kenya Ports Authority with the Kenya Cargo Handling Services, Kenya Railways and ships' agents; consignees are not represented. The preference for the Boston Maru, which arrived first and was ready to load, was reasonable and within the Authority's discretion. The respondent could not have prevailed on the committee to allocate an earlier berth, and did all it could by procuring wagons and switching to lorries on 16 January 1978.
Legal principles established
#- Under a bill of lading clause providing delivery 'as fast as the vessel can deliver' without fixed time, the consignee must take delivery within a reasonable time, judged by all circumstances including the custom of the port of discharge
- Where, by the custom of the port, cereals must be discharged at a berth directly into wagons or lorries, the consignee's obligation to unload does not commence until the ship is berthed with the assent of the harbour authorities
- The plaintiff/shipowner bears the burden of proving that more than a reasonable time was taken before the onus shifts to the defendant to show diligence
- Where, without default of the consignee, the ship cannot reach a berth at once, the risk of delay falls on the shipowner, not the consignee
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal (not stated by provision in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mediterranean Shipping Co SA v Wheat Board of Kenya the MV Pantera [1988] KECA 117 (KLR)", Case Analysis (1988). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/117/eng@1988-01-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.