Agrowest SA claimed for damages to a cargo of fresh mangoes carried in two containers from El Callao, Peru, to Vancouver, Canada, in a full container load (FCL) modality. The containers were loaded onboard the ship on 18 February 2002, but arrived at the destination after 29 days, on 19 March 2002. When the containers were opened by the consignee it was found that the mangoes were over-ripened. The bill of lading contained an expression stating 'clean on board', 'shipper’s load stow, seal and count' and 'cargo stowed in a refrigerated container set at the shipper’s requested carrying temperature of 8 degree Celsius', and provided for the Hague Rules as the applicable law.

It was found that the temperature inside the container always fluctuated between 9.5 to 10 degrees Celsius and it never reached the requested temperature. Hence, the plaintiff alleged that the carrier failed in providing the temperature agreed upon and that the time of carriage was excessive. The Second Maritime Court held the carrier liable for providing a container that, although it was said it was capable to refrigerate the cargo at the requested temperature, in the reality, it never reached the adequate temperature. Hamburg Süd appealed the decision.

Held: The Supreme Court of Justice (SCJ), acting as Court of Maritime Appeals, reversed the decision. The SCJ acknowledged that a fluctuation in the temperature inside the container was proven, but the claimant failed in proving that it was the real cause of the damage. It considered that the lower court erred in shifting the burden of proof onto the carrier when it was the shipper who had to prove the good order and condition of the cargo before its loading. According to the SCJ, the expression ‘clean on board’ in an FCL/FCL carriage, where the shipper uploads, stows and seals the container without the possibility for the carrier to check the content of the merchandise, can only refer to the container’s external condition and not to the condition of the cargo within the container.

The SCJ stated that art 3.4 of the Hague Rules establishes that a clean bill of lading creates only a prima facie presumption of the reception of the cargo as it is described in the bill of lading. Therefore, it does not deprive the carrier of the right to argue the inherent vice defence or defects of the cargo before its loading. It is the responsibility of the shipper to prove the condition of the merchandise inside the container, as the statements ‘said to contain’ and ‘shipper’s load, stow, seal and count’ on a bill of lading release the carrier from liability in regard to the quantity and condition of such merchandise. Hence, as the claimant failed in providing evidence of the good condition of the cargo at the moment of its loading, it cannot be concluded that it was the defendant who caused those damages.