COURT OF APPEAL, Singapore

Wee Chong Jin CJ, FA Chua J, AV Winslow J

28 May 1974

KEYWORDS

Bill of Lading – Cargo Claim – Burden on Cargo Claimant to prove damage during transit – Cargo Claimant relying on Expert Report, without offering Expert as Witness – Singapore Evidence Act s. 32(1)(b) – Estoppels in favour of indorsee of bill against carrier by statement in bill of lading only in respect of external condition, not internal condition

FACTS AND DECISION

Many packages of clothing material was shipped from Karachi (in Pakistan) to Singapore on board two ships, namely the Lars and the Jens, owned by the same shipowner under a few clean bills of lading.

Upon delivery, the consignee (indorsee of the bills) complained that the goods had been damaged. For the goods carried by the Lars, the complaint was that the goods were damaged by sea water while in transit. For the goods carried by the Jens, the complaint was that the goods were damaged by rain water while on lighterage.

To prove the damage, its nature and extent, the only evidence essentially adduced by the consignee were some reports of experts, none of whom was called to give evidence. The court held that whilst the carriers would be estopped from challenging order and condition of goods when shipped, the burden was still on the consignee to prove that they arrived damaged and the extend of the damage. The court pointed out that the estoppel is in respect of external condition of the goods and not the internal condition. The reports, in the absence of the expert giving evidence before the court, was inadmissible, being hearsay evidence. In so holding, the court first pointed out that it did not fall within the Evidence Act s. 32(1)(b) exception, i.e. the attendance of the witness cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable (See Observation [2]). Second, the s. 32(1)(b) was not intended to be available to expert witnesses (See Observation [3]). Accordingly, the claim was disallowed.

OBSERVATION

[1] Whether Hague or Hague-Visby Rules will apply during lighterage will depend on the terms of the bill. If the bill stated that the goods will so be discharged into lighters, then the Rules will likely not apply for the lighterage phase: see Captain v Far Eastern Shipping Co [1979] 1 Lloyd’s Rep 595.

However, if the bill did not state that the goods will be so discharged or that merely gave a liberty to the carrier to so discharge, then likely the lighterage phase will be subject to the Rules: see Mathew Foods Ltd v Overseas Containers Ltd [1984] 1 Lloyd’s Rep 317.

[2] Sec. 32(1)(b) of the Evidence Act, which is materially identically to the same section in the Malaysian Evidence Act 1950 and in the Indian Evidence Act 1872, providing an exception to the general rule against admissibility of hearsay evidence, 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 position in England and Wales is the different. Hearsay evidence is admissible by virtue of s. 1 of the Civil Evidence Act 1995, subject to procedural safeguards in ss. 2 and 3 of the Act and CPR Rule 33.1 – 33.6. However, the weight to be attributed is a matter for the court to determine, depending on the circumstances (s. 4 of the Act).

[3] Subsequent to this case, the Evidence Act was amended in 2012 by addition of s. 32B(1) that will allow s. 32(1) to be available also to expert witnesses. The s. 32B(1) reads as follows:

Subject to this section, section 32 applies to statements of opinion as they apply to statements of fact.

There is no equivalent amendment in Malaysia and India, hence the observation made on this point in this case is still relevant to Malaysia and India.

The position in England and Wales is again different. CPR Rule 35.5 provides that expert evidence is normally given in a written report, unless the court otherwise directs, and the court will not ordinarily direct an expert to attend a hearing in small claims tracks and fast tracks. However, provision is made for the report to be checked by mechanisms such as written questions to the expert (CPR Rule 35.6), court’s direction to a party to provide further information to the expert (CPR Rule 35. 9), single joint expert report (CRP Rules 35.7 and 35.8), discussion between experts and a subsequent report by them to the court (CPR Rule 35.12, 35 PD 9).

Overview by ARUN KASI