(SGD) T. Gould
VICE PRESIDENT
IN THE FIJI COURT OF APPEAL
Appellate Jurisdiction
Civil Appeal No. 7 of 1979
BETWEEN:
BURNS PHILP (SOUTH SEAS) COMPANY LIMITED
Appellant
AND:
MARINE PACIFIC LIMITED
Respondent
Mr. G.P. Shankar and Mr. A.K. Singh for the Appellant
Mr. H. Lateef and Mr. F.S. Lateef for the Respondent
Date of Hearing: 12 July 1975
Delivery of judgment: 25 July 1979
JUDGEMENT OF SPRING J.A
I have had the advantage of reading the judgement of the learned Vice President in this appeal and with respect agree with his reasoning and conclusions.
According to the evidence, the appellant and respondent have had a lengthy business association and no doubt each had confidence in the other that any contract entered into between them would be carried out in terms of their agreement. The contract of affreightment is governed principally by the terms of the Bill of Lading which includes an exception clause stamped thereon which reads:-
"Carried on deck at shipper's risk without responsibility for loss or damage howsoever caused."
The exemption clause is incorporated into the contract between the parties and it is apparent that the appellant was fully aware of the terms thereof as the learned Judge in the Court below said:-
"The exclusion clause is additional to the General Conditions printed at the back of the bill of lading and was incorporated into the contract before the parties signed it with full notice of it. This was done before the goods were taken to the wharf. According to Drala, plaintiff's shipping clerk, the two parties have dealt with each other for a considerable time and the plaintiff was fully aware of the exclusion clause. Unlike most tickets cases where the weaker party has little choice or say in the matter, the parties here are both large business firms and were dealing on equal terms. Both knew that the goods would be carried on the deck of an open barge toed by a steamer."
The question, as I see it, is one of interpretation. The exemption clause in the instant case was part and parcel of the contract made between the appellant and the respondent and the scope and ambit of the exemption clause is a question of construction having regard to the contract as a whole.
Effect has to be given to every part of a contract; effect must be given to the exemption clause just as much as to the body of the contract unless they are clearly contradictory of one another.
Therefore, I respectfully agree with the learned Vice President that interpreting the contract of affreightment, including the exemption clause as a whole, the respondent has, with the acquiescence of the appellant, limited its liability and is not liable for loss suffered by the appellant.
Accordingly I would dismiss the appeal with costs to the respondent.