Osborne v Montserrat Reporter Ltd et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 14 December 1990
• Neutral Citation: MS 1990 HC 4
• Docket Number: 82 of 1988
• Date: 14 December 1990

Osborne

and

Montserrat Reporter Ltd et al

Redhead, J.

82 of 1988

High Court

Tort - Defamation — Article written in newspaper alleging that money was paid on the basis of a claim presented for cargo which supposedly disappeared from the port — Allegations were false and highly defamatory of plaintiff — Fair comment comes into play when a plea of justification fails — Plea failed since the defendant have failed to justify the basis of every injurious imputation — Defendant only had a suspicion that money was not on board — Defendants were activated by malice — Damages awarded — Political gain recognised — Injunction granted.

Redhead, J.

1 The plaintiff, John Alfred Osborne, has been Chief Minister of Montserrat for the past twelve (12) years. In addition, or the past twenty-eight (28) years he has been trading between the island including Puerto Rico, St. Kitts, Nevis and Montserrat. The plaintiff manages a Shipping business, Great Western Shipping which owns two ships, The Western Sun and Western Star.

2 In Puerto Rico the plaintiff has a Shipping Agent, Adolpho Ferrer Luchessi. He has been the plaintiff's shipping agent for the past twenty (20) years.

3 In or about late November/early December 1986. the Western Sun sailed from Puerto Rico under the captaincy of Thomas Osborne, the bother of the plaintiff, arriving in Montserrat on or about 3rd December, 1986. The Western Sun had called in at the port of Basseterre, St. Kitts en route to Montserrat.

4 The Manifest (Exhibit G) shows that Western Sun off-loaded a large quantity of cargo at Port Plymouth on or about 3rd December, 1986. Shortly after the arrival of the boat into Port Plymouth, the plaintiff went down to the port, he says, to see how the off-loading was progressing. According to the plaintiff, Alston Thomas, a tally clerk at the port, drew his attention to, and I use the plaintiff's words - “three large enough packages” and told him that they were overlanded and marked St. Kitts.

5 The plaintiff in his testimony said he went with Alston Thomas and examined the packages and discovered that they were marked St. Kitts. There was nothing on the cartons that indicated what were the contents. So, according to the plaintiff, he tore open one of the boxes to examine what was in it and found that the box was filled with teflon tapes. He said, having realised the quantity of the tapes he told Thomas do not lose them because there are thousands of dollars in the boxes. The plaintiff testified that present at the time were Desmond Taylor and his tally clerk, Joseph Silcott.

6 Desmond Taylor gave evidence on behalf of the plaintiff. Later in the judgment I shall examine his evidence. Joseph Silcott was not called as a witness. The plaintiff testified that Joseph Silcott has since retired and is a very old man.

7 The plaintiff in his testimony said that he left the three boxes in the warehouse. On 2nd January, 1987 the captain, Thomas Osborne, came to him and spoke with him about the boxes. As a result he went with the captain to the Port in search of Alston At the Port he spoke with Alston Thomas. The plaintiff said:–

“I asked Thomas what happened to the three boxes. He said he could not find them. I asked him what he meant by he could not find them. He said he was looking for them and could not find them. Before the end of the day, I heard certain things. I went back to Thomas and told him that I was giving him two days in which to return the boxes otherwise he would loose his job.

After two days had expired, I returned to the Port. I saw Alston Thomas. I asked him what is the position about the three boxes. He told me that he cannot find them. I told him I am going to report the matter to the Manager and to the police because I was convinced that he took them. After I told him I was going to the police he said, Oh it was only one box. After he said that to me. I knew he was the guy who showed me the boxes. I realise that he was a thief and a liar. He said it was really three boxes but two were marked Romeo. I formed the opinion that he stole the boxes. When I saw the three boxes there was no markings indicating that it belonged to Romeo. No other markings but St. Kitts. I looked at the manifest showing nineteen (19) boxes and nine (9) boxes for Romeo. None those boxes fit the description of the boxes I saw marked for St. Kitts.”

8 I have quoted extensively the alleged conversation between plaintiff and Thomas as given in evidence by the plaintiff, because having regard to the articles which were written and published by the defendants, it is my view that the crucial here, is whether one box or three boxes for St. Kitts were overlanded in Montserrat.

9 The plaintiff in his testimony said that having spoken with Thomas, he immediately went to the Manager of Port, Mr. John Wilson, and reported the matter. He also made a report to the Commissioner of Police. He took one of the tapes and showed it to the police.

10 According to the plaintiff, the three boxes of tapes belonged to Adolpho Ferrer Luchessi, his agent in Puerto Rico. Thomas Osborne said in evidence that Adolpho Ferrer Luchessi gave him three boxes containing tapes. He, Thomas Osborne, was to sell the tapes for Luchessi and he, Thomas, would obtain a commission for so doing. Thomas Osborne said he marked St. Kitts, and nothing else, on the boxes. He took them on board. Sailed from Puerto Rico to St. Kitts and Nevis and then to Plymouth, Montserrat. He said that when he dropped anchor at Plymouth, the three cartons were on board.

11 Thomas Osborne said further that Desmond Taylor, the foreman at the Port, spoke to him, as a result he went into the Government warehouse. Desmond Taylor showed him three cartons. Thomas Osborne said he then spoke to Alston Thomas who was checking in cargo. According to Thomas Osborne, he told Thomas that he would like to get the three packages to take back on board. Thomas told him that he was busy and could not attend to that matter then.

12 Joseph Osborne testified that he left the matter there until the 2nd January 1987 when the boat was ready to sail again. He went back to Alston Thomas and requested the packages. According to Joseph Osborne, Thomas told him that the warehouse was (jammed up” and that he should leave them until he returned from Puerto Rico. He sailed to and returned from Puerto Rico and went to Thomas. He again asked Thomas for the packages. He said he will have to look for them. Thomas walked around and then told him he did not see them. According to Osborne he then spoke to Mrs. Richards the Supervisor of the port in Thomas' presence. He told Mrs. Richards that there were three packages in the warehouse and Thomas could not produce them to him.

13 The plaintiff testified that he received a claim from Luchessi for the a value of the goods that were lost. He said he gave claim to the then Manager of the Port, John Wilson. According to the plaintiff, he told John Wilson that he should not “worry about them because many times claims are presented and after nothing is heard about them. But if the money was to be paid he, John Wilson, will have to pay it because the goods were lost while in his custody.

14 The plaintiff's evidence is that sometime afterwards, he realised that Luchessi had collected some money on his, the plaintiff's behalf. He asked Luchessi to send the money to him. Luchessi told him that he was holding on to the money because, he, the plaintiff did not settle with for the missing cargo.

15 The plaintiff said he then spoke to Greenaway, who was the new manager of the Port, at that time. He told Greenaway that he has a claim outstanding and that he, Greenaway, should pay the claim.

16 According to the plaintiff, Greenaway requested that he, the plaintiff, send him a copy of the claim because he was unable to find the claim. He, the plaintiff, sent him a copy of the claim along with a covering letter on the 18th April, 1988.

17 The covering letter is in the following terms:

“The Manager

Montserrat Port Authority

Plymouth

Dear Manager,

Enclosed please find copy of the original claim as requested by you.

I wish to advise you that my agent Mr. Ferrer is holding upwards of six thousand dollars ($6,000) against payment of this bill from my account with him, and I am therefore asking that you settle the matter as soon as possible. I cannot see any reason for holding up payment the facts about the goods are all too well known.

Yours sincerely,

J.A. Osborne.”

18 The claim made against the Port Authority was for the sum of $4, 235 U.S. which according to the plaintiff, represented the value of the goods that were lost. The plaintiff said that he was subsequently advised by the Chairman of the Board of the Port Authority that the Board had agreed to settle the claim in Eastern Caribbean Currency and that he, the plaintiff, would settle with Luchessi. He agreed to this arrangement.

19 The plaintiff was paid the equivalent of US$4,235 in Eastern Caribbean Currency. He received the sum of about $11,506 E.C. The plaintiff said that he informed Luchessi that he had received settlement of the claim. Ferrer Luchessi subsequently sent the plaintiff a Statement of Account showing that he, Luchessi, had deducted from his account the sum of US$4,235 in settlement of the claim.

20 There were the incidents which surrounded the writing of articles which the plaintiff complains of. The defendants wrote and published a series of articles, weekly, surrounding the payment of the $11,506 to the plaintiff. Most of the articles were written by the Editor, David Edgecombe. The first article appeared in the Reporter Newspaper on Friday 10th June, 1988. The last article appeared on 8th July, 1988. The plaintiff obtained in interim injunction on 18th July, 1988 restraining the defendants from further publication of like articles in the newspaper. The first article...