International airline Emirates has disputed a Sh120 million claim made against it by telecommunications firm Safaricom, arising from damage to a consignment of goods imported in December 2012. Emirates has shifted blame to the telecoms operator for the damage caused by flash floods, arguing that Safaricom failed to pick up the consignment even after being notified of its arrival at the Jomo Kenyatta International Airport (JKIA) cargo holding area. Safaricom lodged the suit after a consignment of mobile phones, SIM cards and telecommunications equipment worth $2 million (Sh180 million) was damaged by floods that breached a cargo holding bay at JKIA operated by Transglobal Cargo Centre, which has also been enjoined to the suit. “If indeed there were floods which resulted in damage to Safaricom’s consignment, it was a consequence of Safaricom’s own negligence in failing to act even after being notified of the arrival of its cargo as required,” says Emirates in its defense. Emirates has denied any acts of negligence in the incident, and claims Safaricom should have picked up the consignment at the earliest possible opportunity. Safaricom wants Emirates and Transglobal compelled to refund it Sh120 million for the damaged goods over their alleged negligence in not ensuring the cargo stayed intact until delivery to the telecoms operator. “It was Emirates’ duty to inform Safaricom as soon as the cargo arrived. Emirates and Transglobal failed to notify Safaricom of arrival of the cargo, denying the plaintiff an opportunity to take delivery of the cargo in time and before flooding,” Safaricom claims in court filings. Emirates has further claimed that Safaricom sent its demand letter outside the time stipulated by international law hence the airline cannot be compelled to pay for the damage. Safaricom filed the suit on February 19, 2014, over a year after the consignment was damaged. “There was no notice or complaint of the alleged damage within the time stipulated by law in matters relating to damage to cargo. Emirates admits to having received a demand note from Safaricom but it was not able to honour the same due to the reasons aforesaid,” added the airline. Safaricom’s consignment was damaged between December 25 and December 27 after a heavy downpour in Nairobi. Transglobal has denied Safaricom’s allegation that it knew of the rains following an announcement by the Meteorological Department. The cargo handler holds that the flood warnings did not affect its JKIA area of operation hence it cannot be faulted. “Nairobi area, within which Transglobal operates, was not mentioned in the warnings as an area to watch out for. Transglobal did not have sufficient time to minimise the risk (to goods stored) in its warehouse,” the cargo handler said. The firm further claims that its JKIA offices were closed between December 25 and 27, 2012 when the damage to the cargo occurred thus it cannot be blamed for the damage. Safaricom, however, insists that Transglobal was responsible for the goods until they had been delivered to the telco, regardless of the holiday closure. The telecoms operator also insists that the High Court has the power to determine the dispute despite Transglobal’s claim that only an arbitrator can sort out any issues arising from a damage complaint. While Emirates admitted that the High Court has the power to determine the suit, Transglobal insists that its operations contract with the international airline provides that any disputes will be referred to an arbitrator. “Under the Standard Ground Handling Agreement (SGHA), any disputes arising between the airline and Transglobal will be referred to arbitration. Transglobal has not entered into any contract with Safaricom in respect of the consignment herein,” the cargo handler said. Safaricom, however, says that it is not part of the contract Emirates and Transglobal signed for the handling of cargo in Nairobi, hence its only avenue for seeking justice lies with the High Court. The cargo handler, Safaricom holds, can be held responsible for the damage by virtue of being Emirates’ recipient of the goods in Nairobi. Transglobal also argues that the contract it has with Emirates exempts it from liability in the event of loss or damage to goods stored in its warehouse unless it is done intentionally. “The carrier (Emirates) shall not make any claim against the handler in the event of loss, damage, death, injury or loss to the third parties (Safaricom) unless done with the intent to cause damage, loss or death,” Transglobal insists. Safaricom had blamed the cargo handler for using the wrong type of pallets, which protect cargo while it is in a box. The telco said Transglobal should have used bigger pallets to minimise damage to the cargo. Tranglobal, however, says the size of the pallets do not matter. The firm also denies having stored the cargo in the lower decks of the warehouse, as it insists the water rose to unforeseen levels to damage the goods.
Posted on: Fri, 16 Jan 2015 06:28:55 +0000
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