Hilary Farms Ltd & Others v M/V “Mahtra” & Others ( S.C. 43/200) [2007] NGSC 139 (14 June 2007)

Hilary Farms Ltd & Others v M/V “Mahtra” & Others ( S.C. 43/200) [2007] NGSC 139 (14 June 2007)

In The Supreme Court of Nigeria

On Friday, the 15th day of June 2007

 

 

Before Their Lordships

 

Sylvester Umaru Onu

......

Justice, Supreme Court

Dahiru Musdapher

......

Justice, Supreme Court

Sunday Akinola Akintan

......

Justice, Supreme Court

Mahmud Mohammed

......

Justice, Supreme Court

Ikechi Francis Ogbuagu

......

Justice, Supreme Court

 

 

 

S.C. 43/200

 

Between

 

Hilary Farms Ltd

Chrishill Obi & Brothers Ltd

Cobrex Industries Ltd

.......

Appellants

 

 

And

M/V “Mahtra”

(Sister Vessel to M/V “Kadrina”)

Estonia Shipping Company

Alraine Nigeria Ltd

.......

Respondents

 

 

 

 

Judgement of the Court

Delivered by

Sylvester Umaru Onu, J.S.C.

 

 

The facts of this case are not complicated nor are they disputed. The three Plaintiffs/Appellants companies (which were owned and managed by the same persons) ordered from Moscow in 1993 a consignment of electric water heaters and electric irons. The said consignment was loaded into five containers and the containers which were in turn placed on board the 2nd Defendant's vessel M/V "Kadrina" in the port of Tallin for carriage to Lagos, Nigeria. The 2nd Defendants issued a number of bills of lading dated the 22nd March, 1993 covering the aforesaid consignment and the vessel sailed for Lagos.

 

On the 12th April, 1993 the vessel arrived Lagos and on the 10th May, 1993 (a month later), the aforesaid containers were discharged from the aforesaid vessel at Tin Can Island Container Terminal. Be it noted that as a substantial quantity of goods imported into Nigeria now come in containers, where a container is loaded on a vessel and transported from a foreign country to Nigeria, there is only one means of guaranteeing that the contents of the containers are not tampered with or pilfered in the course of the transit from the shipper to the consigner in Nigeria. That is the purpose of the metal seal on the container.

 

The off loading from the vessel on 10th May, 1993 was witnessed by the Nigerian Ports Authority (NPAfor short) officials and byrepresentatives of the 3rd Defendants, Alraine(Nigeria) Limited(whoat all material times the agents of the 2nd Defendant ship owners in Nigeria) as well as by the Plaintiffs clearing agent.

 

The Nigerian Ports Authority tally clerk, it is stressed, tallied the containers being off loaded and issued Landing Tally Sheets, whilst the Alraine representative issued Container Intercharge Receipt/Damage Reports. The Appellants' chairman and managing director PW3 (Hilary Obi) testified that he received information from his clearing agent that three out of five containers consigned to his company had been discharged on 10th May, 1993 aforesaid with their seals intact whilst the seals on the remaining two containers had been tampered with.

 

He then asserted that based on the information that the two containers bore "wire seals", he called for a joint examination of the two containers. This examination was conducted on the 3rd June, 1993 in the presence of customs & excise officials, representatives of the Defendants, the Police, representatives of N.P.A and two surveyors appointed by himself and by the 3rd Defendants. At the inspection, the two containers were opened for the first time and found to be completely empty. Following this discovery, the Plaintiff’s Solicitors wrote to the 3rd Defendant lodging a formal claim for the loss of the contents of the two said containers, namely 1011 boxes of the aforesaid electric water heaters and irons. In their reply, Alraine did not challenge the allegation, but said they would refer the claim to their principal, the 2nd Defendant.

 

Emanating from the above facts, the present action arose herewith was commenced by the Plaintiff/Appellants claiming that the two relevant containers had been tampered with prior to off-loading from the 2nd Defendant's vessel and that the ship owners as well as their agents (Alraine) were liable to the Plaintiff/Appellants for the loss of the contents of the two containers. The evidence relied upon (which will be expatiated or elaborated upon at length in due course) was that the seals on the two containers bearing the inscriptions "Frezekova s.t.c" and Elektrozaved s.t.c" had been removed and replaced with twisted wire at some stage during the voyage from Tallin. The Appellant's case was that this cast the onus on the Defendants to explainthe circumstances of the loss.

 

Auta, J. of the trial court, the Federal High Court, dismissed the Plaintiff/Appellant's case. On appeal to the Court of Appeal, the appeal was on the 2nd December, 1999 dismissed. It is against the said judgment of the Court of Appeal that this appeal, has been brought to this court.

 

In dismissing the Appellant's case, the Court of Appeal (hereinafter referred to as the court below) held concurring with the findings made by Auta, J. as follows:

 

1.         That the Plaintiffs had not given "strong proof” that the relevant containers had been interfered with.

 

2.         That the containers had been discharged, with seals, albeit "wire seals."

 

3.         That there was no evidence of physical damage to the containers. .        :

 

4.         That the inscriptions "Frezekova" and "Elektrozaved" specified in the bills of lading as being on the relevant seals on the container had disappeared due to "oxidation."

 

5.         That according to DW4 he knew that when the container was off-loaded from the vessel, it was full because "of the sound it made."

 

6.         That the Plaintiff did not state how he knew that the containers had been tampered with.

 

Against the above findings, the Appellants filed five grounds of appeal out of which two issues were formulated as arising for determination; to wit:

 

1.         Whether there was evidence that the relevant containers were off-loaded from the vessel with their original seals.

 

2.         What inferences a court is entitled to draw when the seal specified in a bill of lading is not seen on a container at the time of its off-losing from a carrying level.

 

The Respondents on the other hand, respectfully submitted that the following two issues for determination arise from the Appellants' grounds of appeal, namely:

 

1.         From the facts and evidence before the Federal High Court and the Court of Appeal, did the Respondents discharge the Appellants' containers into the custody of the Nigerian Ports PLC with their contents and original seals intact? This is a question of fact.

 

2.         Did the Respondents discharge their duty under the contract of carriage and bailment evidenced by the relevant Bills of Lading?

 

Having taken a careful look at the two sets of issues, I have come to the irresistible conclusion that the consideration of Respondent's' two issues will suffice to dispose of the issues.

 

Arguments on Issue 1

 

It is the Respondents' respectful submission that a careful study of the evidence tendered during the trial of the case would lead to the ultimate conclusion that the two relevant containers numbers mmmu3606825 and mmmuI357739 were discharged by the Respondents into the custody of the Nigerian Ports PLC with their contents and seals intact.

 

The evidence may be stated thus:

 

a)         The evidence of PW4, Mr. Otitobi Olasukemi at page 31 of the Records:

 

"It containers (sic) came with wire seals. I did not open the container but from the sound I know that it was full. The containers as per my Report were not tampered with. If there is any damage on the container the Captain will not sign it. But this one the report was signed by the Captain.

 

b)         The evidence of DWl, Mr. Dennis Aribuzo, a Tally Clerk with the Ministry of Labour, with 25 years experience at pages 35 of the Record in examination in chief, states as follows:

 

“When a ship is discharging a container both Nigerian Ports Authority and other insurance companies will be present. Where the container is landed from the Horn to the N.P.A compared (sic) (meaning compound) we will take the prefixs and the number of the container, both the Tally Clerks will go round the container to see whether it has seals. If it has a seal we will take the number of the container, if it has no seal we will make a remark to that effect. I was present when the container arrived in the ship. The ship contains other containers. The containers arrived with a seal. It was a wire seal. All the containers I tallied came with wire seals. If the container arrived with a seal we will draw the attention of the supervisors of the ship to it. The supervisor will call the Captain of the ship with the N.P.A and insurance clerks and both the Tally Clerks will go round the container to see whether it has seals. The Supervisor will call the Captain of the ship with the Nigerian Ports Authority and Nigerian Ports Authority will order that the container be taken back to the ship for checking. The seals were not tampered with when there is no:seal on the container we will indicate so on the tally sheet under Remark column. There is no remark made on exhibit "J". If there was (sic) no numbers on the seal I countersigned the Tally with the N.P.A and we exchanged signature is on exh "C", I was present when exh! “C”, was prepared. There is a seal affixed on the twisted wire. We normally know whether a container is full from the sound it makes when it landed.”

 

Be it noted that the Appellants as Plaintiffs did not call or lead any evidence that contradicted or controverted the evidence of DW1, neither were they able to discredit the witness and his testimony during cross-examination.

 

c)         The evidence of DW2, Mr. Jerome Nkonranta, tally clerk with the Dock Labour Board.Tin Can Island with 15 years experience at pages 36-37 of the Record stated as follows:

 

"........ They were all in order, they have seals on them. There is no problem on them. There was no remark made on exhibit 'K'. We only make remarks when the container has no seal container is broken. If it is broken the Nigerian Ports Authority and the ship supervisor will also be called upon and the chief of the ship will inspect it and make remarks ......... I cannot remember the type of seals that came with the containers but I know they have seals ......”

 

From the above evidence given by the Tally Clerks who witnessed the discharge of the containers from the Respondent's vessel into the custody of the Nigerian Ports Authority establishes beyond reasonable doubt that the 5 containers belonging to the Appellants inclusive of containers Number mmmu3606825 and mmmu1357739 were discharged into the custody of the Nigerian Port Authority with their contents intact.

 

By virtue of clause 10 of the relevant, Bills of Lading (exhibit E. pages 77-82 of the Record) the onus was on the Appellants to prove that the loss of the contents of the above containers occurred prior to   when   both    containers   crossed   the second Respondent's  ship's  rail  into  the  custody  of the Nigerian Ports Authority.

 

The Appellants in attempting to discharge the onus called 5 witnesses.  The Learned Justices of the Court of Appeal analysed the effect of the evidence of these witnesses in their judgment at page 167 -169 of the Record as follows:

 

"The evidence of PW1-3 was unhelpful to the Plaintiffs' case as none of them had been present when the containers were discharged from the ship.

The evidence of PW4 was destructive of Plaintiffs' case ...... The Plantiff himself testified as, PW5 .......... If the Plaintiff himself was not in the vessel how could he say categorically that the containers were tampered with on 10/5/93. Remarkably, he did not say who tampered with the containers on 10/5/93”

 

At page 168 of the Record of Appeal the court below had this to say:

 

"On the evidence available, it is difficult to see how the lower court could have given judgment in favour of the Plaintiffs  ......."

 

It is for this reason amongst others that I agree that the Appellants did not discharge the burden of proof to establish that the containers were tampered with and the goods were lost whilstin the custody of the Respondents. Thus, no onus shifted to the Respondents as contained on page 110 of the Appellants' Brief of Argument to contend that the containers did not arrive in Nigeria with their original seals bearing the "Elektrozaved" and “Frezekova" but only arrived with "twisted wire seals" or "wire seals".

 

It was rather submitted that in view of the evidence earlier elicited, the relevant containers were discharged with their contents intact. The Appellants' arguments that the wordings on the seals i.e "Elektrozaved" and Frezekova"' were not present is immaterial and irrelevant as the three (3) other containers belonged to the Appellants which had their contents full (see PW5's testimony) did not record those same words on their Tally notes (exhibits C & L).

 

I agree with the Respondents submission thatall the 5 containers containing the Appellants' goods arrived in Nigeria with their original seals intact and that the assertion was plausible may be deduced from the testimony of the Plaintiffs Chairman and Managing Director, i.e PW5 – Mr. Hilary Obi - who stated as follows:

I had five containers on the vessel the other three were found with the original seals and the goods inside were intact ………”  

 

The three (3) containers referred to above are container numbers:

 

(i)                Mmmul32598-4 discharged on the 7th May 1993.

 

(ii)               Mmmul426193 discharged on the 7th May 1993 and

 

(iii)              Mmmu08300 discharged on the 10th May 1993.

 

A perusal exhibit  ‘C' at page 72 of the Record i.e Nigerian Ports Authority Tally sheet shows clearly that the seal numbers registered against containers No Mmmul325984 and 1426193 were "wire". What emerges from the perusal of the above extract of exhibit C at page 72 of the Record shows clearly that the seal numbers registered against container number mmmu0038300 was "twisted wire seal”.

 

Furthermore, a perusal of exhibit “L” at page 97 of the Record also shows clearly that the seal numbers registered against containers numbers mmmul325984 and 1426193 were "wire''. Be it noted that the Chairman and Managing Director of the Appellants' company conceded and indeed admitted that the original seals that came with the 3 containers were twisted wire arid wire seals.

 

It is important to note that it was this same twisted wire seals which the Appellants stated as being the original seals that were registered against containers numbers mmu3606825 and mmmul357739 at the time of discharge from the ship to the custody of the Nigerian Ports Authority. (Please see p. 72 of the Record).

 

Thus, the argument of the Appellant that the seals on container No 3606825 and 1357739 were not their original seals from the Port of Talin, not sustainable. From the interplay of words used by the Appellants in their brief, it would appear they would like the court to believe that ordinary wire was used as a form of seal to secure the doors of the relevant container rather than real lead seals, a proposition that is wrong. Reference was made in the Respondents' to the Concise Oxford Dictionary of Current English which defines a seal at page 1023 inter alia as a:

 

"Stamped piece of lead holding ends of wire used as fastening"

 

Exhibit 'N’ (at page 108 of the Record) clearly establishes that all containers destined to Lagos were sealed with similar sound lead seals. Contrary to the Appellants arguments that only twisted wire were found on the Appellants containers, it is submitted that seals were defined by the Oxford Dictionary and described in exhibit "N" were found on containers numbers mmmu3606825 and mmul357739. The evidence of DWl Mr. Dennis Aribuzo at page 35 of the Record is conclusive in this regard. According to this witness:

 

"I was present when exhibit C was prepared. There is a Seal Affixed on the twisted Wire."

 

According to the Master of M.V. “Kadrina” in Exhibit "N" (vide Page 108 of the Record) those seals oxidated due to long period of carriage in damp/humid conditions. It is submitted that upon the tendering and acceptance of exhibit “N” evidence at the trial of the suit, the onus shifted to the Appellants to lead evidence to show that the wordings on seals of that nature do not oxidize. Furthermore, the onus was also on the Appellants who had three (3) of the “twisted wires” or “wire seals”, having taken possession of the three (3) containers which had their contents and seals intact, to tender those seals in evidence to show that they were ordinary wires and not lead seals welded on both sides to twisted wire for the purpose of fastening them around the locks on the container doors.

 

The Appellants failed to discharge this onus. In further support of the fact that the Respondents discharged the Appellants containers numbers (particularly containers numbers mmmu3606825 and mmmu1357739) into the custody of the Nigeria Ports Authority with their contents and seals intact. In stating this, the under listed highlights need be made.

 

a.         It is not in issue that the words “Frezekova” and “Elekrozaved” were not legible on the seals affixed to the Appellants’ 3 containers that had their contents intact. If those words had been legible on those seals, then the presumption would have arisen, that the illegibility of those words on the seals in respect of container numbers mmmu3606825 and mmmu1357739 meant that their original seal may have been removed leading to the theft of their contents. Consequently since the above words were not legible on the seal in respect of 8 Appellants containers which had their contents intact this presumption does not arise.

 

b.         As clearly transpired, container nos. mmmu3606825 and mmmu1357739 were discharged into the custody of the Nigerian Ports Authority on the 10/5/93 (see exhibit ‘C’ at page 72 of the Record). When these containers were discharged, no seal numbers were registered against them. Only twisted wire seal was written. The Containers were in the custody of the Nigerian Ports Authority for 24days before the 3rd of June, 1993 when a joint survey was conducted for the purpose of custom examination. It was at this stage that seal number 1946588 was found on container number mmmu3606825 while seal number 1946551 was found on container number mmmu1357739 were the above seal numbers inscribed on the seals affixed to both containers prior to their discharge from the Respondents vessel, the M.V. “Kadrina”, the tally clerks who prepared exhibits ‘C’ and ‘J’ (Pages 72 and 95 of the Record) would have registered those numbers in the column of their Tally sheets marked “SEAL NOS” and ‘Marks’ and Numbers respectively at the time of discharge of the container. This view is supported by the evidence of DW1 at page 35 of the Record where he testified as follows:

 

“There was no numbers on the seal.”

 

It is thus clear that those seals were affixed to both containers after discharge from the 2nd Respondents’ vessel and while those containers were in the custody of the Nigerian Ports Authority. It raises the presumption that the theft of the contents of both containers occurred while they were in the custody of the Nigerian Ports Authority and the persons liable affixed the new seals to the containers to create the semblance of normality. See with emphasis the following extracts from the evidence pf PW1 at page 29 and PW2 at page 29-30 of the Record thus:

 

1.         “The cargo was stored in an open space. Anybody can have access to them. The containers have steel seals

 

2.         “The two containers were presented to us at the stacking area through Tin Can. It was open storage facility people were freely passing that area. It is accessible”.

 

Furthermore, the seals that were found on both containers 24days after their discharge from the 2nd Respondent’s vessel were steel seals and not lead seals as stated by the Captain of M.V. “Kadrina” in exh. “N”.

 

From the forgoing, it is clear that the two relevant containers were stored by the Nigerian Ports Authority in an open storage facility area where people ha access to them. From the evidence of DW1 and DW2, the Nigerian Ports Authority would not have accepted the relevant containers into their custody if the seals were broken and their contents empty. Be it noted also that there was no evidence before the lower courts as well as in this court to show that the “twisted wire” or “wire seals” were broken. They were all intact when the Appellants’ five containers were discharged into the custody of the Nigerian Ports Authority.

 

It is also note worthy that the Nigerian Ports Authority did not issue a T.Form 33 – Notice of cargo landed discrepant/damaged in respect of the two containers. Thus the letter written by the Nigerian Ports Authority on the 10th August, 1993 (exhibit “H” page 94 of the record) to Messrs Patrick Okoh & Co. (the plaintiff’s Solicitors) was written three (3) months after the Respondents discharged the Appellants’ containers in N.P.A custody. It is important to note that the containers had been in the Nigerian Ports Authority’s custody for 24 days prior to the 3rd of June 1993 when the contents of the relevant containers were found missing. Furthermore, the content of the letter (exhibit H) i.e. “That the containers in question landed without seal” is not correct.

 

In the case of Agbeje v. Ajibola (2002) 2 NWLR (PT 750) 127 at pages 132, 134 and 135 Ratios 5 and 10, this court held as follows:

 

Ratio 5:

“In considering an appeal before it what an appellate court ought to decide is whether the decision of the trial court was right and not whether its reasons were and a misdirection not occasioning injustice is immaterial.”

 

Ratio 10:

“A trial court having had the opportunity of hearing witnesses at the trial and watching their demeanour in the witness box is entitled to select witnesses to believe on facts established. An appellate court should not ordinarily interfere with such findings of fact except in certain circumstances, such circumstances include:

 

(a)       Where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial; or

 

(b)       Where the trial court has drawn wrong conclusions from accessed credible evidence; or

 

(c)        Where the trial court has taken an erroneous view of the evidence adduced before it; or

 

(d)       Where the trial courts findings are perverse in the sense that they are unsupported by evidence or do not flow from evidence accepted by it.

 

The Respondents further submitted that in this case, none of the above circumstances manifested itself in any of the findings of the Federal High Court and so, it is Respondents’ submission that this issue be resolved in their favour. I so order.

 

Arguments on Issue 2

 

The Respondents’ contention under issue 2 is that the contract for the carriage of the Appellants goods and the Terms of Bailment existing there under were evidence by the relevant Bill of Lading (exhibit E at page 77 – 82 of the record). For this proposition of the law, the Respondents relied on the case of Elder Dempster &Co. Ltd.  v. Patterson Zochonis & Co. Ltd (1924) 18 (L.I.L) Rep.320; (1924) A.C 522 at 333 Col. 1 LIL) at page 564 (where Lord Summer held inter alias thus:

 

“…. in the circumstances of this case, the obligations to be informed from the reception of the cargo for carriage to the United Kingdom amount to a Bailment upon terms, which include the exemptions and limitations of liability stipulated in the known and contemplated form of Bill of lading.”

 

Also in the case of K. H. Enterprise (1994) 1 Lloyd’s Rep. Page 593 particularly at page 594 ratio 4, the Privy Council followed the decision of the House of Lords in the above case where it held thus:

 

“This was a case where the goods were shipped under Bills of Lading which documents operated as receipts for the goods and which contained or evidenced the terms of the contract of carriage such terms included provision relating to the ship owners obligation in respect of the goods while in their care, and so regulated their responsibility for the goods as balliees …”

 

The above position of laws was also conceded by the Appellants at page 11 of their Brief. The terms of the contract are contained in the conditions printed on the back of the relevant Bills of Lading Clause 10 of the conditions provides as follows:

 

Extent of Responsibility:

 

“In no event shall the carrier be liable for damage to and/or loss of goods prior to loading or after discharge, not even if such damage or loss is due to the negligence of his servant and  even though the goods are in the custody of the carrier, his agents or servant as warehouse men or howsoever. in no event shall the carrier’s liability commence before the goods have been loaded over the ship’s rail and shall cease at the latest when the goods have passed the ship’s rail upon discharge. The merchant shall be required to prove that the goods were damaged within this period of responsibility.”

 

The Respondents having in Issue 1 above adduced evidence that they successfully delivered the containers carrying the Appellants’ goods into the custody of the Nigerian Ports Authority with the contents and seals of the containers intact, they had discharged their duty to the Appellants by direct evidence and not by circumstantial evidence. The Bailee of the goods, in whose custody of the goods were at time of loss of the containers was the Nigerian Ports Authority (the statutory warehouse body) who was not sued by the Appellants in this suit.

 

On the legal relevance of seals adumbrated in this appeal when they relied on the case of Hagemeyer Nigeria Ltd v. Container Terminal Co. Ltd and Alraine Nig Ltd (1985) vol.2 NSCC 367, the Appellants’ contention that the present case is on all fours with the one in hand is a misconception of the facts from the present one as follows:

 

1.         Hagemeyer Nigeria Limited case was a contract of bailment which was a contract of carriage of goods by sea evidenced by a Bill of Laden.

 

2.         The issue in Hagemeyer Nigeria Limited concerned the removal of seals from containers as opposed to the present case where the seals were intact vide the uncontroverted oral and documentary evidence adduced.

 

3.         The issue in the present case concerned the absence of the letterings on the seals, not the removal of the seals. The Appellants also cited and rallied on the case of Mofas shipping Line (Nig) Ltd v. National Maritime Authority (2000) 9 NWLR (PT.672) page 391 and argued that there was joint and several liability between the Defendants.

 

Rather, I accept the Respondents’ submission that the Appellants woefully failed to discharge the burden of proof that it was the Respondents who caused the loss of their (Appellants’) cargo whilst in the Respondents custody.

 

Even if the 3rd Respondents’ Principal were liable, the use of the word “may” in section 16(3) of Admiralty Jurisdiction Act, 1991 suggests that a principal’s liability does not automatically attach to an agent. Rather, I agree with the Respondents that the Appellant had to lead evidence to show reason why the agent should be held liable irrespective of the liability of its principals. In the case in hand the Appellants did not lead any such evidence. For this reason I agree with the Respondents that the 3rd Respondent is not liable either jointly or severally to the Appellants.

 

The appeal having been resolved against the Appellants on the two issues argued against the Respondents this appeal fails.

 

Accordingly, I dismiss this appeal and award N10,000 cost against the Appellants.

 

 

Judgment delivered by

Dahiru Musdapheu, J.S.C.

 

I have read before now the judgment my Lord Onu, JSC just delivered with which 1 entirely agree. Bythe provisions of the Bill of Lading in the instant case, the liability of the carrier for loss or damage to the goods shall cease immediately the containers are discharged from the ship. It is common ground that all the containers were offloaded from the ship and were entrusted in the usual manner to the Nigerian Ports Authority. The respondents had thus discharged their obligations under the contract of carriage. It is the bailee of the goods in whose custody of the goods were at the time of the loss or damage, that is liable. In any event, it is the duty of the appellants to establish that the loss or damage to their goods was caused by the negligence of the respondents. This they woefully failed to do. I accordingly resolve all the issues posed against the appellants and I dismiss the appeal I award N10,000 cost against the appellants.

 

 

Judgment delivered by

Sunday Akinola Akintan. J.S.C

 

The dispute that led to the filing of this case at the Federal High Court, Lagos by the present appellants, as plaintiffs, against the present respondents, as defendants, was over the loss of the contents of the appellants' goods in two of the five containers shipped to them through the Tin-can Island port, Lagos, The five containers were shipped from the Russian port ofTallin. According to the pleadings and the undisputed evidence led at the trial, the ship carrying the 5 Containers arrived the Lagos port on 12th April, 1993. The 5 Containers were discharged from the ship on 10th May, 1993 and were stacked at the Port Authority ware-house. The plaintiffs' allegation was that when the containe

▲ To the top