Maersk Sealand v. Far East Trading & Others
(1) A/S D/S SVENBORG (2) D/A/ AF 1912 A/S (Trading in
Partnership as MAERSK SEALAND) v (1) FAR EAST TRADING COTE D'IVOIRE (2) FARES
NAJI KHALIL (3) DARWICHE FAWZIHASSAN (4) KHALIL ABDUL KARIM (2004)
In this case, the claimants, Maersk Sealand, were awarded damages against the fourth defendant, Mr Khalil, for the loss they, as carriers, had sustained in consequence of delivering six containers of frozen meat against bills of lading that Mr Khalil had forged. The judge was satisfied that the claimants had discharged the high burden of proof that is required when fraud is alleged
DMC Category Rating: Confirmed
Mr Khalil filed a defence to the claim in which he admitted
presenting the bills to the Claimants’ agent but denied knowing they were
forgeries, if indeed they were. Mr Khalil did not appear and was not represented
at trial. The Claimants chose to proceed with a trial on the merits rather than
to enter judgment in default, in order to avoid any difficulty with enforcement
of the judgment against the security they had already obtained.
On the evidence, the bills presented were clearly forged and it was Mr Khalil who presented them. His companies were named as consignees in the forged bills. Expert evidence identified the signature on the reverse of the bills as that of Mr Khalil. In the absence of a satisfactory explanation as to why he presented the bills, the court inferred that he had knowledge that the bills were forged when he presented them. By presenting the bills in return for the delivery of the containers Mr Khalil impliedly represented that the bills were genuine. That representation was made dishonestly and induced the claimants into delivering the containers. The Claimants’ agents in the Congo were not able to discover that the bills differed from the originals since they lacked the ability to compare the bills as tendered with the Claimants’ electronic record of the original bills. Mr Khalil thereby committed the tort of deceit.
As a result of this deceit, the Claimants had suffered loss and
damage, in particular the liability they had incurred to the shippers, being the
parties entitled to delivery of the containers. The judge held that the
Claimants were entitled to recover the payments made in this regard, together
with the legal fees they had incurred in investigating the shippers’ claims.
The judge said that he was quite certain that these costs had been incurred by
reason of Mr Khalil’s deceit. In addition, the Claimants were awarded interest
These Case Notes have been prepared with care, but neither the Editor nor the International and other Contributors can guarantee that they are free from error, nor that they contain every pertinent point. Reliance should not therefore be placed upon them without independent verification. The Editor and the International and other Contributors disclaim all liability for any loss of whatsoever nature and howsoever arising as a result of others acting or refraining from acting in reliance on the contents of this website and the information to which it gives access. The Editor claims copyright in the content of the website.