Federal Court, Malaysia

Suffian LP, Lee Hun Hoe CJ (Borneo), Wan Suleiman FJ

6 June 1975

KEYWORDS

Goods lost by Port Godown – Challenge as to contents of boxes lost – Evidential value of Bill of Lading to prove contents of boxes lost in case between Consignee and Port

FACTS AND DECISION

A question as to the evidential value of the bill of lading in a dispute between the consignee and warehouse operator came before Federal Court (apex court).

In this case, two boxes alleged to contain pharmaceutical products were discharged at the Penang port (in Malaysia) and stored in the port’s godown. Subsequently, the two boxes went missing and the port authority was not able to deliver them to the consignee. The consignee sued the port authority for the value of the goods. It was the case of the consignee that the boxes contained the goods as described in the bill of lading. The port authority challenged this. The court held that the bill of lading was a prima facie evidence. Accordingly, the court decided that, since the port authority was not able to disprove it, the port authority was liable for the loss.

OBSERVATION

The court neither considered s. 32 of the Malaysian Evidence Act 1950 nor Art. III(4) of the Hague Rules (applicable in Malaysia by virtue of Carriage of Goods by Sea Act – s. 2) in deciding the case. It is opined that the bill of lading was not in fact prima facie evidence of the contents of the boxes. But rather, it was hearsay evidence, of which admissibility should have been considered under s. 32(1)(b) of the Malaysian Evidence Act 1950 as well as under s. 114 of the Act (read together with illustration (f) thereto).

The s. 32(1)(b) reads as follows:

32. (1) Statements, written or verbal, of relevant facts made by a person … whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases:

(a) …

(b) when the statement was made by any such person in the ordinary course of business …  or of a document used in commerce, written or signed by him.

The s. 114 and the illustration (f) read as follows:

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

Illustration

…

(f) that the common course of business has been followed in particular cases

Overview by ARUN KASI