THE Supreme Court yesterday dismissed an appeal by a company which exported calves to Italy and had failed in a High Court action against Aer Turas Teo. The exporter was previously unsuccessful in getting payment of £360,000 from Italy for certain consignments.
The appeal was taken by S. Smyth & Co Ltd, which is registered in Northern Ireland.
Between 1976 and 1978 it exported calves on flights operated by Aer Turas between Dublin and Malpensa Airport, Milan.
Mr Justice Blayney, giving the Supreme Court judgment, said that on arrival at Malpensa, a bag containing the documents was given to an official of SEA, an Italian organisation which provided ground services.
No problem was encountered until February/June 1978. Forty consignments of calves were carried to Malpensa by Aer Turas during that period for Smyth & Co, but the exporter received no payment.
It was subsequently discovered that this was due to a fraud which the High Court judge held had been perpetrated in Italy, and that no one employed by Aer Turas had been involved. This finding was not challenged by Smyth & Co.
The nature of the fraud was that between the time the bag containing the documentation was given to an official of SEA on arrival, and presentation of the relevant documents to customs, an invoice purporting to be from an English firm was substituted for Smyth & Co's invoice.
The consignees initially claimed that their failure to pay Smyth & Co was due to difficulties with Italian exchange control regulations, but ultimately they relied on the substituted invoices and claimed the calves had been supplied by the English company and not Smyth & Co.
Smyth & Co recovered judgment in Ireland for £361,607 against the consignee, but to date it had not been possible to recover anything on foot of that judgment.
Smyth & Co then instituted proceeding against Aer Turas, claiming damages for negligence and breach of duty in the handling of necessary customs arrangements at Malpensa. The High Court dismissed the claim.
The judge said he was satisfied that the extent of Aer Turas's liability regarding documentation was its safe delivery to SEA's representative, and that its obligation had been duly performed. He said it was more likely that the switch of documents was made after the relevant documents were handed over by SEA to the consignees or their representative.
Yesterday Mr Justice Blayney said he was satisfied that in using SEA's services, Aer Turas was in no way in breach of the duty of care which it owed Smyth & Co. It had not been established that there was any negligence on the part of Aer Turas.
Mr Justice Blayney held also that SEA was not negligent and there was nothing in the notice of appeal contesting that finding.
Aer Turas included a counterclaim for £121,246 in respect of monies due for the calves' transport. Judgment was obtained on a counterclaim for that sum plus £30,002 interest.
Mr Justice Blayney said he would confirm the judgment on the counterclaim.