คำพิพากษาศาลทรัพย์สินทางปัญญาฯ

อันนี้เป็นคำแปลคำพิพาษาศาลทรัพย์สินฯ ที่เราต้องแปลให้ลูกความต่างชาติอ่าน เพื่อให้เค้าตัดสินใจว่าจะอุทธรณ์ฏีกาต่อไปดีหรือไม่ เผอิญผมไม่มีตัวภาษาไทย จึงลงแต่ตัวภาษาอังกฤษให้ดูเป็นแนวทางการแปล
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(Translation)
(31) Of Court use
Judgment Garuda Emblem

Case Black no. Gor Kor 000/2546
Case Red no. Gor Kor 000/2548

In the Name of His Majesty the King
Central Intellectual Property and International Trade Court
On this 16th September 2005
Civil Action

0000 limited company plaintiff
Versus
0000 limited company the 1st
0000 limited company the 2nd
0000 Shipping limited company the 3rd defendant

Matter of Carriage of goods by sea, Insurance, Subrogation

The plaintiff filed complaint stating that the plaintiff himself, the 1st and the 2nd defendant are juristic person in type of limited company. The plaintiff is registered at Australia with the objective of undertaking non-life insurance business. The 1st and the 2nd defendants are registered at Bangkok Partnership and Company Registration Office, and are local agents that enter into contract of carriage of goods by sea for foreign carrier. The 3rd defendant, the carrier, is foreign juristic person that is domiciled abroad. The plaintiff had insured against loss for 2 shipments of electronic equipment in category of adapter and current switching that Delta Electronics (Thailand) limited public company, the assured, had sold to Dell Computer (China) limited company. For the first shipment, goods in quantity of 5,280 pieces were insured for the coverage of US$ 148,117.06. The assured hired the 1st defendant, acting as local agent of foreign carrier named Sea Navigator, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Sea Navigator subsequently transshipped goods into another vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China it was found that goods in quantity of 1,216 pieces were soaked and damaged, thereby were unable to be further used or sold. The plaintiff, as insurer, was liable for the damages of US$ 47,436.06. For the second shipment, goods in quantity of 5,464 pieces were insured for the coverage of US$ 145,594.48. The assured hired the 1st defendant, acting as local agent of Sea Navigator the foreign carrier, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, the local agent of the 3rd defendant, to transport such goods. When the vessel arrived at Xia Men, People Republic of China, it was found that the container was leaked, and some water seeped into container and damaged goods in quantity of 2,044 pieces. Such damaged goods were unable to be further used or sold. The plaintiff was liable for damages of US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages was covered under the insurance policy, the plaintiff compensated the assured and was subrogated to right against all three defendants. The plaintiff called the three defendants to make repayment, they however failed to comply. The plaintiff move this court to adjudge the three defendants, jointly or severally, pay him for compensation in 2 shipments equal to Baht 5,330,033.73 together with interest up to the filing date equal to Baht 62,426, and for interest of 7.5 per annum accruing on such principal amount after the filing date until payment is made in full.
The 1st defendant filed answer defending that the plaintiff had no power to file the complaint, since the power of attorney is incorrect and unlawful, because it was not executed by the plaintiff’s authorized director and was not sworn before notary public. The 1st defendant is merely agent of the shipper that is Delta Electronics (Thailand) public limited company, and did not undertake, in its usual course of business, the carriage of goods by sea for remuneration. The 1st defendant was not a sub-carrier or involved as carrier at any part of carriage, and did not act or sign in capacity of agent of the 3rd defendant. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. The 1st defendant did not undertake the stuffing of goods into container, but the shipper himself did it at his own expense. If the damage occurred, it was caused by nature of the goods or by force majeure, because goods were stored in close-sealed and impermeable container. If the damage occurred during the course of carriage, it occurred while the goods were beyond the 1st defendant’s supervision. Pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, the consignee has to advise any defect or damage of goods while taking delivery or within 15 days thereafter, but the consignee failed to do so. If the damage was under the responsibility of the carrier, the carrier liability was limited to not exceeding Baht 30 per kilogram for the net weight of goods. The goods in question weighted 9,244.4 kilogram, the carrier’s liability was limited to not exceeding Baht 277,332. The plaintiff was not subrogated to the assured’s right to file this complaint. The 1st defendant pray for dismissal of complaint.
The 2nd defendant filed answer defending that the 2nd defendant was the ship agent, which was considered as the work contractor of the 3rd defendant. The 2nd defendant was not the carrier or actual carrier, and was not remunerated by freight charge, but by commission fee. Bill of lading is merely evidence of contract on carriage of goods by sea, it is however not the contract itself. The 2nd defendant was not the agent in entering into the contract with the shipper. The dispute in this action is not governed by section 824 of Civil and Commercial Code, but is governed by Carriage of Goods by Sea Act B.E. 2534. Thus the plaintiff must, pursuant to section 3 of Civil Procedure Code, directly claim against carrier or actual carrier who is the principal that has domicile abroad. Section 43 of Carriage of Goods by Sea Act B.E. 2534 does not prescribe that the agent shall be liable toward the injured. The plaintiff failed to present any evidence of subrogation. The goods in question were not damaged during the carriage, so the loss was not covered by the insurance policy between the plaintiff and the shipper. The ownership of the goods in question had already been transferred to the buyer upon the goods were shipped on board. So it was not the seller but the buyer that was entitled to demand damages from the plaintiff. In undertaking those 2 shipments of goods, the 3rd defendant used container that was in good condition in compliance with international standard, and the owner of the goods took delivery and handed over container without any objection. If the plaintiff did suffer damage, it should not exceed Baht 200,000. Because the goods were not completely damaged, and the plaintiff failed to sell the salvage thereof, in order to reduce amount of damages. The 2nd defendant pray for dismissal of complaint.
The 3rd defendant was in default of answer and appearance. The plaintiff filed motion moving the court to give default judgment in favor of the plaintiff.
On trial process, the plaintiff produced evidence that he is juristic person in type of limited company, and registered at Australia with the business objective of undertaking non-life insurance as detailed in copy of affidavit accompanied by its translation, the exhibit marked as Jor 1. The plaintiff, by power of attorney, appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to file complaint and initiate legal action on behalf of the plaintiff. Also the power of attorney was sworn before Australian notary public as detailed in copy thereof accompanied by its translation, the exhibit marked as Jor 2. The plaintiff was granted license from Department of Insurance, Ministry of Commerce to undertake non-life insurance business in Thailand detailed in copy of license thereof, the exhibit marked as Jor 3. The 1st and the 2nd defendant are juristic person in type of limited company, and are registered at Bangkok Partnership and Company Registration Office detailed in copies of affidavit; the exhibits marked as Jor 4 and Jor 5 respectively. The 2nd defendant was acting as local agent of the 3rd defendant, which is a company that is registered and domiciled abroad, for entering into contract of carriage of goods by sea within 2 years before filing this complaint. The plaintiff insured against loss for 2 shipments of electronic equipment, in category of adapter and current switching, that Delta Electronics (Thailand) public limited company, as the assured, had sold to Dell Computer (China) limited company. The plaintiff was obliged to compensate the assured, if the goods suffer damage irrespective of part of carriage, however the first US$ 500 of the damages could be deducted by the plaintiff. The coverage amount is 115 percent of the price of goods. The 15 percent surplus was freight charge and other expenses detailed in certificate of open policy by sea; the exhibit marked as Jor 6 and Jor 17. The first shipment of goods was in quantity of 5,280 pieces. The goods was packed in cartons and then placed on 15 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 7 and Jor 8 respectively. The plaintiff insured against loss for the coverage of US$ 148,117.06. The assured hired the 1st defendant, as local agent of Sea Navigator vessel the foreign carrier, to transport the goods from Bangkok to Xie Men, People Republic of China. Upon fully and orderly receiving of goods, the 1st defendant issued bill of lading to the shipper, specifying that the issuance was for the carrier, not that on behalf of the shipper, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 9. Such bill of lading specified the condition of carriage as port to door service, which mean the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stored goods suffer damage before the container is unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper. The 1st defendant subsequently hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Upon fully and orderly receiving of goods, the 2nd defendant issued bill of lading to the 1st defendant detailed in copy thereof accompanied by its translation; exhibit marked as Jor 10. Sea Navigator subsequently transshipped goods into vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China on August 8th, 2002 it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container number CAXU 6166224 accompanied by its translation; exhibit marked as Jor 27. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 11. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding show that 5 pallets of goods was damaged, detailed in survey report of container and photography accompanied by its translation; exhibit marked as Jor 12. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make in-depth survey and evaluation of damage. Such company interviewed person, who supervised the stuffing of goods into container. The testimony was given that the container is checked to ensure its good condition before each shipment. The cartons of goods are checked, and they must be replaced if found that they are torn. The stuffing of goods into container is always made indoors. If it is raining or cloudy the goods shall not be stuffed into container. The stuffing of goods into container always observe this standard. So the goods shall never be moisten or soaked while being stuffed into the container. Details appear in a testimony of Mr. AAAA BBBB, exhibit marked as Jor 13. Mclalence (Thailand) limited company and shipper’s engineer also jointly made survey, and found that goods of 4 pallets were soaked. Metal part of goods got rusted. The carton has apparent sign of being soaked. Details appear in preliminary survey report made by Mclalence (Thailand) limited company accompanied by its translation, exhibit marked as Jor 14. Another goods of 5 pallets were subsequently sent back. Damaged goods were totaling to 1,216 pieces. Damaged goods were partially sampled for performance inspection, and found that some pieces did not pass the standard. After considering goods condition, the shipper was of opinion that they could not be delivered to customer, because moist may cause the goods get rusted and also shorten its life span. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, who is foreign expert. Such company advised that since the shipper uses high standard of inspection, it is acceptable to reject such goods, detailed in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. Mclalence (Thailand) limited company advised the plaintiff to pay damages only for the first 4 pallets of goods, since the last 5 pallets of damaged goods were likely to be caused by the consignee himself in keeping delivered goods. Damages covered by policy is in the amount of US$47,936.06. The surveyor gave opinion that goods were soaked while they were being transshipped at Hong Kong. Details appear in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 14 and Jor 15 respectively. All damaged goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company. In destruction of salvage, Mclalence (Thailand) limited company examined and confirmed that salvage was from damaged goods, and also sent his representative to witness. Photography was taken while conducting destruction of salvage, however such photography was lost. The plaintiff deducted the first US$500 of damages, so the balance of damages under plaintiff’s responsible is US$ 47,436.06. The second shipment of goods was in quantity of 5,464 pieces. The goods was packed in cartons and then placed on 17 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 18 and Jor 19 respectively. The plaintiff insured against loss for the coverage of US$ 145,594.48. The assured hired the 1st defendant, as local agent of vessel named Courier, to transport goods from Bangkok to Xie Men, People Republic of China. The 1st defendant issued bill of lading to the shipper, specifying that the 1st defendant issue for the carrier, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 20. Such bill of lading specified the condition of carriage as port to door service. The 1st defendant subsequently hired the 2nd defendant, local agent of the 3rd defendant, to transport such goods. The 2nd defendant issued bill of lading in name of the 3rd defendant to the 1st defendant detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 21. When the vessel arrived at Xia Men, People Republic of China, it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container of serial number KHLU 5213500 accompanied by its translation and copy of photography of container; exhibit marked as Jor 28 and Jor 30 respectively. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 22. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding in detail appeared in survey report on container and photography with its translation; exhibit marked as Jor 23. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make survey and evaluation of damage. Such company interview person, who supervised the stuffing of goods into container, and was confirmed that goods were in good order and not wet, while being stuffed into container. Also Mclalence (Thailand) limited company made survey, and found that goods of 9 pallets were soaked in quantity of 2,044 pieces. The surveyor gave opinion that the goods got soaked because container was leak, allowing water seeped into container, detailed in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 24 and Jor 25 respectively. In survey jointly made between surveyor and shipper’s QC engineer, it was found the cartons were torn and stained by water, some goods got rusted. An internal examination found that inner cover got rusted and electronic equipment were corroded with rust up to their legs. There was white stain, like salt stain, on the equipment. A test of electrical performance by sampling found exploding of 2 pieces of defect, which exceed customer-specified standard. Details appear in analysis report; exhibit marked as Jor 32. The shipper rejected all goods that were sent back, since they were not in reliable condition. For pieces that could not be tested, since lack of testing instrument, a consequent test found that they got rusted. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, such company advised that goods exposed to water for certain period then were significantly defective, so manufacturer could not accept. Details appear in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. The shipper sent claim letter to the 1st defendant claiming damages in total amount of US$ 79,487.89, and also sent its copy to Mclalence (Thailand) limited company. Details appear in copy of claim letter accompanied by its translation; exhibit marked as Jor 31. The salvage of goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company, so they were not compatible to other computer or equipment, and were unable to be sold to other person. Photography was taken while destroying salvage, however camera and photography were lost. The plaintiff deduct the first US$500 of damages, and the balance of damages under plaintiff’s responsible is US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages are covered by the policy, the plaintiff compensated the assured, detailed in receipt and letter of subrogation; exhibit marked as Jor 16 and Jor 26. The plaintiff was then subrogated to the assured’s right against all three defendants, for the first shipment in amount of Baht 1,999,904.29 and the second shipment in amount of Baht 3,333,129.44. Totaling of Baht 5,333,033.73 together with interest of 7.5 per annum from 9 July 2003, that the plaintiff made payment, until payment is made to the plaintiff in full. Before filing this complaint, the plaintiff commissioned his lawyer to sent claim letter to all three defendants, they however failed to comply.
The 1st defendant produced evidence that, concerning the carriage of goods, he was merely the agent of the shipper in arranging ship agent and carrier, and in managing logistic matters detailed in the affidavit; exhibit marked as Lor 1 and Lor 22. The 1st defendant did not undertake carriage of goods by sea for remuneration in its usual course of business, and he was not sub-carrier or involved as carrier at any part of carriage. The 1st defendant did not act or sign in capacity of agent of the 3rd defendant. The shipper had sold goods to Dell Computer (China) limited company in 2 shipments, detailed in invoice and packing list, exhibit marked as Jor 5 to Jor 10 and Jor 11 to Jor 17 for the first and second shipment respectively. The shipper contacted and hired the 1st defendant to be his agent in arranging vessel and reserving container, on 23 July BE 2545 for the first shipment and on 21 August BE2545 for the second shipment. The 1st defendant arranged the 2nd defendant as ship agent for both shipments. And the 1st defendant sent fax informing the shipper to prepare and hand over goods of 2 shipments to agent of the 2nd defendant for further carriage. Details appeared in the copies of such faxes; exhibit marked as Lor 18 and Lor 19. The shipper handed over goods to the 1st defendant accompanied by their particular shipment detailed in exhibits marked as Lor 20 and Lor 21. The 1st defendant issued to the shipper a house bill of lading to be evidence that the 1st defendant received and kept goods on behalf of the shipper. Details appear in bill of lading; exhibit marked as Jor 9 and Jor 10. Since carriage of goods in this action was in condition of CY/CY, the shipper stuffed goods into container by himself. The 1st defendant subsequently handed over goods to the 2nd defendant as ship agent. The 2nd defendant issued to the 1st defendant a bill of lading, specifying the 1st defendant as a shipper, Bax Global Warehousing limited company in People Republic of Chinas as consignee and the 3rd defendant as a carrier, detailed bill of lading; exhibit marked as Jor 10 and Jor 21. The bill of lading marked as Jor 9 and Jor 10, as issued by the 1st defendant to the shipper, was non-negotiable and not specifying price of goods. So such bills of lading were not evidence and contract of carriage of goods by sea, but merely evidence that goods were received by the 1st defendant in capacity of agent of shipper for further arrangement of carriage. The 1st defendant was not the agent of the 3rd defendant, but the 2nd defendant was. The 1st defendant paid the 2nd defendant for freight charge, detailed in receipt/tax invoice; exhibit marked as Lor 23 and Lor 24. If the damages occurred and the carrier was liable therefor. The carrier’s liability is limited to not exceeding Baht 30 per kilogram for the net weight of goods. Goods in this action weighted 9,244.4 kilogram, the carrier’s liability is limited to not exceeding Baht 277,332 pursuant to section 58 of Carriage of Goods by Sea Act BE 2534. The plaintiff was not subrogated to right to file complaint. The damage is not stemmed from negligence or fault of the carrier.
The 2nd defendant produced evidence that he received his remuneration by commission fee, not by freight charge. The 2nd defendant’s objective does not include undertaking of carriage of goods by sea, also he is not multimodal carrier that shall be liable in this action. The shipper contacted its agent that is the 1st defendant, then the 1st defendant contacted the 2nd defendant that is the agent of the 3rd defendant. The transportation was made in 2 shipments. Upon shipping goods on board, the 2nd defendant issued bill of lading, exhibit marked as Jor 10 and Jor 21, on behalf of agent of the 3rd defendant as the carrier. Such 2 shipments were under condition of CY/CY that the shipper has to receive container in good condition and undertake the stuffing by himself at his factory. When the 2nd defendant was contacted for reserving vessel, he contacted R.S. Container Depot limited company, which was entrusted by the 3rd defendant to keep container. For the first shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 27 July 2002, detailed in letter re container condition assurance dated 29 August 2002; exhibit marked as Lor 25. The goods were subsequently stuffed in container on 29 July 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 30 July 2002 and were shipped on board on 31 July 2002 detailed in document showing dispute of loading container; exhibit marked as Lor 3. The first shipment was carried out by Sea Navigator vessel. Goods were transshipped into Blue Diamond vessel at Hong Kong. For the second shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 24 August 2002. The goods were subsequently stuffed in container on 26 August 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 27 August 2002 and were shipped on board on 28 August 2002, for carriage by Courier vessel, and transshipped into Silver Ocean vessel at Hong Kong, detailed in document showing dispute of loading container; exhibit marked as Lor 3. In the second shipment, Uni Thai Port made survey that container was in good order before lifting on board. Such survey specifying that container KHLU 5213500 order 42 was in orderly fashion and stored in hold of vessel that shall not be exposed to rain, detailed in survey report of Uni Thai Port; exhibit marked as Lor 26 and Lor 27. However, according to daily rain report of department of meteorology, Bang Bor station, Samutphrakarn province, there was raining at shipper’s company during the time of stuffing goods into container. On 29 July 2002 stuffing, there was raining in quantity of 5 millimeter; and on 26 August 2002 stuffing for the second shipment, there was raining in quantity of 0.5 millimeter. When there is raining, ambient air will has hign humidity. In the second shipment, particular in “OUTTURN LIST FOR CONTAINER”, exhibit marked as Lor 28, read “NIL” that was navigation term means that container was in good order and damaged free. So the 2nd defendant is not liable toward the plaintiff. If the shipper suffered damage, it should not exceed Baht 200,000. Because all the salvage of goods were destroyed, if the salvage were sold then amount of damages should be reduced. Furthermore the bill of lading issued by the 2nd defendant specified clause to exempt the 2nd defendant’s liability. The 2nd defendant shall not be liable for damage occurred during carriage, because he is merely carrier’s agent, detailed in copy of back-side of bill of lading accompanied by its translation; exhibit marked as Lor 29.
After considering evidences taken, the facts, as not argued by parties, was established that the plaintiff insured against loss of goods in question that Delta Electronics (Thailand) public company as the assured had sold to Dell Computer (China) limited company for 2 shipment. Details appeared in certificate of open policy by sea; exhibit marked as Jor 6 and Jor 17. The assured hired the 1st defendant to transport goods from Bangkok to Xia Men, People Republic of China. When the 1st defendant received goods, stuffed in container by the shipper, the 1st defendant issued bill of lading to the shipper. The 1st defendant then hired the 2nd defendant to transport goods. When the goods were transported to place of destination, if was found that some goods, of each shipment, suffered damage.
The first issue to be decided is whether the plaintiff had right to file the complaint. For this issue, the 1st defendant defended that power of attorney was not executed by the plaintiff’s authorized director and was not sworn before notary public. So the power of attorney was incorrect and unlawful. The plaintiff present witness statement of Ms Vasana Sae-Ung, the plaintiff’s employer in compensation section, and present the copy of the plaintiff’s limited company affidavit accompanied by its translation; exhibit marked as Jor 1, and copy of power of attorney accompanied by its translation; exhibit marked as Jor 2. Altogether showing that the plaintiff appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to manage and initiate legal action in name of the plaintiff. The power of attorney was sworn before Australian notary public. It was found that such affidavit and power of attorney were supporting documents that the plaintiff presented to Department of Insurance, Ministry of Commerce in applying for license to undertake non-life insurance business in Thailand. And such copies of documents were certified their correctness by insurance official rank 6. So it is believable the documents were examined by relevant official and were true and correct ones. Those document clearly specify that Ms Suphannee Juthidumrongphan was entrusted by the plaintiff to manage and initiate legal action in the name of the plaintiff, and those exhibit marked Lor 1 and Lor 2 bear the signature of Mr M I Thorborn, an Australian notary public. The 1st defendant failed to disprove the plaintiff’s evidence on this issue, so facts was established that the power of attorney was lawful. The plaintiff had power to file the complaint.
The next issue to be decided is whether goods suffered damage while they were under supervision of the carrier. Since goods in question were transported under term of CY/CY, which mean carrier shall receive container, already stuffed with goods by shipper, and load container on board then transport to place of destination. So Delta Electronics (Thailand) limited company, the shipper, had duty to stuff goods into container by himself. The issue is whether goods initially suffered damage at the stage of being stuffed into container by the shipper. The plaintiff present witness statement of Mr AAAA BBBB, the shipper’s supervisor in shipping section, that the stuffing of goods into container always observe the same standard. That is the container shall be checked before goods were stuffed therein, if found any problems new container shall be required. In preparing goods according to packing list, goods’ carton shall be checked first, if found that a carton is torn, goods shall be re-carton. The stuffing of goods into container shall be made in-door, under roof. If it is raining or cloudy, goods shall not be stuffed in to container. So the goods shall never be moisten or soaked before or during stuffing into container. After examining photograph of stuffing place of the shipper as appeared in survey report, exhibit marked as Jor 14 picture no 7 to 10, it was found that the stuffing place is building that has roof. The building has a gate that the container’s door could extrude into. Even there was some clearance between the container and such gate, there however existed only about 50 centimeter for each side. On the top side, there was plastic roof that could cover the clearance and prevent rain exposure. Although some rain mist could go through side clearance, as cross-examined by the 1st defendant’s lawyer, but it is believed that it must be in very small amount. After considering characteristic of damage for 2 shipment of goods in question, as appeared in survey report in Jor 12 and Jor 23, it was expressly seen that good in question for 2 shipment were soaked in manner like they were being immersed in water for certain period of time, that caused thick-papered cartons being distorted from their original shape. Such characteristic can not be caused from merely rain mist or lack of dryer, as contended by the 1st and 2nd defendant. And although the 2nd defendant adduced daily rain report of Department of Meteorology, exhibit marked as Lor 4, that there was raining in area that the shipper’s factory located on the date of stuffing goods into container. However, apart from the uncertainty of whether it rained at the shipper factory, such exhibit was merely e-mail correspondence that no relevant agency certified its true and correctness. Also content contained therein did not indicate that to what amount is considered as heavy rain. Rain in amount of 5 and 0.5 millimeter may be in very slight, since that exhibit indicate on particular of raining in May 2003 as high as to 26.3 millimeter. Thus it was decided that the exhibit marked as Lor 4 was unreliable. The plaintiff’s evidence out-proves than the defendants’ evidence, so it was decided that goods in question of 2 shipments were in orderly fashion upon being stuffed into container. The 2nd defendant present evidence of the orderly receiving of container of goods in question, by assuring the container condition for the first shipment and by orderly lifted container into vessel for the second shipment. Details appeared in letter re container condition assurance and container survey by port, exhibit marked as Lor 25 and Lor 27 respectively. The facts was established that the shipper orderly handed over container to the carrier. When the first shipment of goods in question arrived at port of destination in Xia Men, People Republic of China on 8 August 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number CAXU 6166224 accompanied by its translation, exhibit marked as Jor 27. When the second shipment of goods in question arrived at port of destination in Xia Men, People Republic of China 9 September 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number KHLU 5213500 accompanied by its translation and copy of photography of container, exhibit marked as Jor 28 and Jor 30 respectively. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, were made by China Ocean Shipping Tally limited company, the person who was entrusted to release container at port of destination. Mr CCCC DDDD, the 2nd defendant’s employee, also testified and submit exhibit marked as Lor 28 that China Ocean Shipping Tally limited company was agent of the carrier at port of destination. So it was believed by the testimony of the 2nd defendant’s witness that China Ocean Shipping Tally limited company was agent of carrier who had duty to release container at port of destination. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, indicated that they were made by China Ocean Shipping Tally limited company at Xia Men branch, that branch name was identical to name of city of destination, and such report also specified container serial number identical to as indicated in bills of lading, exhibit marked as Jor 9, Jor 10, Jor 20 and Jor 21. Such unstuffing reports were clearly remarked that the goods had been soaked before unstuffing container. Even such exhibits were made in Chinese language, but the 1st and 2nd defendants failed to disprove the correctness of the plaintiff’s translation. The fact was established by the plaintiff’s evidence that goods in question suffered damage before unstuffing container. Even for the second shipment, the 2nd defendant adduced exhibit marked as Lor 28, referred in English as “OUTTURN LIST OF CONTAINER”, however the 2nd defendant failed to present the exact fact as supported by such exhibit. The 2nd defendant’s witness groundlessly testified that “NIL” was indicated in the exhibit, and under navigation term it mean container was in good order and damage free. However exhibit as Lor 29 provided no details of container serial number, so whether it included container serial number KHLU 5213500, that stuffed with goods in question, was unknown. The 2nd defendant’s evidence failed to disprove the plaintiff’s evidence. And bills of lading exhibit Jor 9 and Jor 10, which issued to shipper by the 1st defendant, indicated term of transportation as “PORT TO DOOR SERVICE”, which means the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stuffed goods suffer damage before the container was unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper as earlier decided. The fact was established that goods in question suffered damage while they were under supervision of the carrier.
The next issue to be decided is whether all three defendants were liable for damage of goods in question. The 1st defendant contended that he does not undertake, in its usual course of business, the carriage of goods by sea for remuneration. Also the 1st defendant is not a sub-carrier or involved as carrier at any part of carriage, and he does not act or sign in capacity of agent of the 3rd defendant, but he is agent of the shipper. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. However after considering bill of lading, exhibit marked as Jor 9 and Jor 20, it was found that both documents’ heading clearly state the 1st defendant’s name as issuer and Dell Computer (China) as consignee. Those bills of lading provided no particular concerning the receiving of goods from the shipper, but all particulars concerning carriage was fully provided i.e. consignee, vessel, place of loading, place of destination, goods description, and terms of transportation and service. Lastly the 1st defendant stamped his seal in the blank for issuer, stated therein that he issued as agent of carrier, contrary to his contention as agent of shipper. And even the 1st defendant stated that he was agent of carrier, there was however no other carrier’s name provided in those headings except only the 1st defendant’s name. So the bills of lading were personally issued by the 1st defendant in his name, and both bills of lading were evidence of contract of carriage of good by sea between the 1st defendant and the shipper. Ms Viraporn Supaso, the 1st defendant’s employee, give testimony against cross-examination admitting that the 1st defendant charged freight to the shipper in amount that was higher than amount that the 1st defendant paid to the 2nd defendant, detail in receipts; exhibit marked as Lor 23 and Lor 24. Altogether show that the 1st defendant undertakes the carriage of goods by sea for remuneration in its usual course of business, so he is carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. The 1st defendant as the carrier was liable for damage of goods occurred during his supervision of goods, pursuant to section 39. For contention that the consignee failed to advise any defective or damage of goods while taking delivery or within 15 days thereafter pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, it was decided that such contention was irrelevant since the defective or damage had clearly appeared before taking delivery, details in copy report on unstuffing container; exhibit marked as Jor 27 and Jor 28.
For the 2nd and 3rd defendants’ liability, the 2nd defendant testified that he was ship agent, so he was considered the word contractor of the 3rd defendant. This fact was consistently revealed in both the plaintiff’s complaint and the 1st defendant’s trial. Especially in bills of lading issued by the 2nd defendant, exhibit marked as Jor 10 and Jor 21, expressly specify that the issuance is made in capacity of agent of the 3rd defendant, the carrier. And the witness statement of Ms Viraporn, the 1st defendant’s witness, stating that the 1st defendant made contact with the 2nd defendant as ship agent in arranging vessel. So the 3rd defendant was not contracting party with the shipper in contract of carriage of goods by sea, but the 3rd defendant was entrusted the shipper to transport under such contract. The 3rd defendant is thus the actual carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. Since the 3rd defendant was entrusted by the 1st defendant to carry out a through transportation of goods in question, the 3rd defendant was then liable, as joint debtor with the 1st defendant, for damage occurred while goods was under his supervision, pursuant to section 45 and 44. The 2nd defendant was merely agent of the 3rd defendant, thus was not carrier or actual carrier that was jointly liable for damage of goods in question. Even the 2nd defendants as agent entered into contract on behalf the 3rd defendant as principal who was foreign juristic person and was domiciled abroad. However the 2nd defendant did not enter into contract with the shipper directly, but the 1st defendant. The 3rd defendant’s liability toward the shipper is prescribed by provision of law, that is not the liability toward the shipper under the contract. So such liability could not be stretchy construed to include the 2nd defendant that was agent of the actual carrier. It is decided that the 2nd defendant shall not be personally liable toward the shipper or the plaintiff pursuant to section 824 of Civil and Commercial Code.
The final issue to be decided is how much the 1st and 3rd defendants are liable for damages toward the plaintiff. The plaintiff adduced the amount of damages as determined in final survey report, exhibit marked as Jor 15 and Jor 25. The plaintiff had paid the assured for such amount of damages, and adduced the subrogation over the three defendants. For first shipment there was Baht 1,999,904.29 of damages, for the second shipment there was Baht 3,333,129.44, detailed letters of subrogation, exhibit marked as Jor 16 and Jor 26, the totaling was of Baht 5,333,033.73 together with interest. However the carrier’s liability, pursuant to the first paragraph of section 58 of Carriage of Goods by Sea Act BE 2534, is limited to Baht 10,000 per shipping unit or Baht 30 per kilogram for the net weight of goods, whichever is greater. Since there appear no event that make liability limitation unenforceable as pursuant to section 60, the 1st and 3rd defendants’ liability shall be limited by provision of law. Even goods in question were transported by container system for one container in each shipment, but in such transportation specified the quantity and kinds of packages in bills of lading, exhibits marked as Jor 9, Jor 10, Jor 20 and Jor 21. So the quantity of goods in question was 105 cartons and 122 cartons, totaling in 227 shipping units. Pursuant to section 59(1) the carrier’s liability shall be limited to Baht 2,270,000 that is the greater amount . For the contention of the plaintiff that goods were in quantity of 5,280 pieces and 5,464 pieces, it is decided that those were details of goods that could not be considered as shipping units.
The court hereby adjudge the 1st and 3rd defendant to jointly or severally pay the plaintiff in amount of Baht 2,270,000 together with the interest of 7.5 per annum outstanding on such principal amount from 9 July 2003 until payment is made in full. The plaintiff’s cost shall be jointly or severally paid by the 1st and 3rd defendant, lawyer’s fee is determined at Baht 20,000 and for court fee at amount of claim won by the plaintiff. The plaintiff’s complaint against the 2nd defendant shall be dismissed, and any costs arisen thereby shall be borne by each party.