Court of Appeal, Singapore

Wee Chong Jin CJ, FA Chua J, AP Rajah J

4 September 1979

KEYWORDS

Bill of Lading – Cargo Claim – Containerised Cargo, stuffed and sealed by Shipper and unpacked by Carrier upon discharge – Short goods – US Carriage of Goods by Sea Act 1936 – Notations of ‘House to Pier Container’, ‘Shipper’s Load, Stowage and Count’ and ‘Received the container said to contain goods in apparent good order and condition …’ – Effect of s. 3(40, Bill as prima facie evidence of statements therein – Are the notations a non-responsibility clause invalid under s. 3(8)?

FACTS AND DECISION

A container was shipped from New York to Singapore. The contents of the containers apparently included 580 cartons of soaps shipped by the shipper to the consignee (indorsee of the bill). The container was stuffed and sealed by shipper’s agent and delivered to the carrier for carriage. The carrier issued a bill of lading stating the number of packages to be 580, description of package and goods to be cartons of toilet soap. The bill was subject to US Carriage of Goods by Sea Act 1936, which has largely adopted Hague Rules (USA is not a signatory to the Hague or Hague-Visby Rules). The notations in the bill included:

a) ‘House to Pier Container’;

b) ‘Shipper’s load, stowage and count’;

c) ‘the goods or the containers … other packages said to contain goods herein mentioned were received in apparent good order and condition, except as otherwise indicated herein to be transported to the port of discharge named.’;

d) ‘Received the container … said to contain goods herein mentioned in apparent good order and condition …’

Upon discharge at Singapore, the shipowner’s agent unpacked the container and stacked the soap cartons in the designated area of the port’s godown. When the goods were delivered to the consignee, there were only 375 cartons, short of 205 cartons. Unpacking and stacking were done by contractors of the carrier, without presence of any representative of the carrier, consignee or port authority. There was no explanation for the shortage.

The consignee sued the carrier. The consignee argued that the bill was prima facie evidence of shipment of 580 cartons, relying on s. 3(4) of the Act, which is materially identical to Art. III(4) of the Hague Rules. The carrier argued that the bill was only evidence of receipt of the container and not the contents inside the container which the carrier had no opportunity of checking.

It was established by evidence that ‘House to Pier Container’ meant that the packaging was done in the supplier’s warehouse or factory and the container will be towed to the pier intact”. ‘Shipper’s load, stowage and count’ meant that the shippers stuff the container, stow them and count them without any  representative from the carrier and seals the container and ships it on board.

Accordingly, the court held that the bill did not raise any presumption as to the cargo inside the container shipped and that the burden of proving it rested with the consignee, which it failed to discharge.

The consignee further argued that any notation to the effect that the acknowledgement was limited to receipt of a container rather than the contents of the container was contrary to s. 3(8) of the Act, which is materially identical to Art. III(8) of the Hague Rules.

The court rejected this argument, holding such notations are not a non-responsibility clause and hence do not contravene the s. 3(8). Accordingly, the court disallowed the claim.

OBSERVATION

The principle reinforced by this case is that as long as the carrier had no means of checking the contents of the cargo and the fact is clear on the bill, by whatever notation or statement, the Art. III(4) presumption does not arise.

The finding that the notations are not a non-responsibility clause is in line with established authorities such as The Esmeralda 1 [1988] 1 Lloyd’s Rep 206 (Supreme Court, NSW).

Sec. 3(4) of the US Carriage of Goods by Sea Act 1936 reads as follows:

Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs (3)(a), (b), and (c), of this section …

Sec. 3(8) of the Act reads as follows:

Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this Act, shall be null and void and of no effect. …

Overview by ARUN KASI