In this action the plaintiff claimed damages for the loss of cargo shipped from New York to Singapore in a container. The plaintiff claimed USD 16,912.50, being the cost of 205 cartons of toilet soap shipped from New York on the American Astronaut and later transhipped onto the American Mist, and which the defendant failed to deliver at Singapore. In the alternative, the plaintiff claimed damages for breach of contract for the short delivery. The defendant's defence was that the goods were packed in a sealed container; that the container was delivered in Singapore in the same good order and condition as when shipped; that it thereby fully and duly performed its duties under the bill of lading; and that it was not liable in law for any short delivery.

The evidence showed that the cargo was discharged at godown no 48 at the Port of Singapore Authority (PSA) wharf. The plaintiff's container was taken into the godown where it was opened on 5 December 1974 and the contents were unpacked and stacked. In the container was cargo belonging to other consignees. All the cargo found in the container was stacked in a designated area. On 6 December 1974 the plaintiff's delivery clerk went to the godown to take delivery of the 580 cartons of Camay soap consigned to his company. He tallied the cartons as they were put on his lorry. There were only 375 cartons in the godown. He took delivery of the 375 cartons and reported to his employer that the remaining 205 cartons were missing. There was correspondence between the plaintiffs and the PSA but to no avail. The 205 missing cartons could not be found in the godown.

On 5 December 1974 when the container was opened and its contents unpacked and stacked, Anglo-French Co Pte Ltd were the Singapore agents for United States Lines Inc, the owners of the American Astronaut and the American Mist. The container was opened and its contents were unpacked by a contractor employed by Anglo-French Co Pte Ltd. The contractor supplied tally clerks and labourers for that operation. It would appear that no representative of either the PSA or Anglo-French Co Pte Ltd or the consignee of the cargo was present when the container was opened. The evidence also showed that the PSA stored cartons in certain designated areas in the godown. All cargo from the same container is stacked in one lot whether the cargo is marked or unmarked. Subsequently when the consignees arrive with a delivery order they go to the allotted area advised by the ship's local agent and there they identify and collect their cargoes. The PSA does not witness the loading of the cargo on the consignee's lorry. But PSA officers and security guards do make spot checks on consignees' clerks taking delivery from PSA godowns. This does not prevent a consignee's employee from taking away other people's cargo although a final check is done at the 'out' gate by the PSA police.

There was no evidence to account for the shortage of the 205 cartons of Camay soap. There was no evidence before the Court that the seal of the container was intact at the time it was opened in Singapore or that it had arrived in Singapore 'in the same good order and condition as when shipped' as pleaded by the defendant. In fact there was no evidence at all that the container was ever sealed. The bill of lading does not state the seal number. The bill of lading clearly mentioned not only the number of cartons but also the weight of the goods. The defendant's real defence was that they were not liable because the bill of lading was qualified as it bore the expression 'House to Pier Container' and also 'Shipper's load, stowage and count'. It was contended on behalf of the defendant that in such a case all that the carrier represents is the receipt of a container and that the number of packages stated in the bill of lading is not binding on it.

The claim of the plaintiff depended entirely on whether or not on a true construction of the bill of lading the plaintiff had established that 580 cartons of toilet soap were shipped at New York on the defendant's ship the American Astronaut for delivery to the consignees at Singapore. The onus of proving that fact undoubtedly rested upon the plaintiff. It was pointed out by counsel for the defendant that the plaintiff had chosen to rely for proof solely upon producing the bill of lading and that it had not called any witness from New York on this issue. Counsel further submitted that the bill of lading did not yield prima facie evidence of the number of cartons that had been shipped from New York because of the conditions stamped on the bill of lading - 'shipper's load and count' and 'shipper's load, stowage and count'.

Held: The plaintiff's claim is allowed.

The bill of lading applied the terms provisions and conditions of the United States Carriage of Goods by Sea Act 1936 (COGSA), the US equivalent of the Hague Rules. In the present case, it will be seen from the bill of lading, that on the face of it, there are two contradictory statements. First, the number and the weight of the cartons of toilet soap are stated. Secondly, this statement is qualified by the notation 'shipper's load or count' and 'shipper's load, stowage and count'. If a carrier doubts a statement of the shipper, it should not inscribe on the bill of lading the statement it doubts. To issue a bill of lading containing statements of the number of cartons and their weight and then to qualify them by such phrases as 'shipper's load and count' is contrary to s 3(3) of COGSA. Such phrases as 'shipper's load and count' are a form of non-responsibility clause and are contrary to s 3(8) of COGSA because they relieve the carrier not only from liability under the Act generally but specifically from liability as 'provided in this Act'.

Counsel for the defendant argued that the phrase 'shipper's load, stowage and count' used in reference to containers, is a proper form of qualification where the carrier cannot verify the contents of a container packed and sealed by the shipper. The Court was unable to accept this submission. A carrier is under no obligation to 'state or show in the bill of lading any marks, number, quantity or weight ... which he has no reasonable means of checking'. See s 3(3)(c) of COGSA. This was the position taken by the United States Court of Appeals in Spanish American Skin Co v MS Ferngulf [1957] AMC 611. The bill of lading bore the notation 'Gross - Tare - Nett 6.8.2.8.', 'Shipper's Weight - Ship not responsible for weight, quality or condition of contents' and acknowledged receipt of 60 packages. Sixty packages were discharged, but there was found to be a substantial weight discrepancy. The US Court of Appeals held that the bill of lading was prima facie evidence of receipt by the carrier of both number and weight. The carrier was responsible for the loss.

Counsel for the defendants relied on the decisions in Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd [1947] AC 46 and in A-G of Ceylon v Scindia Steam Navigation Co [1962] AC 60. These two cases were decided on their own particular facts and are of no assistance to the defendant. They were not 'container' cases. Furthermore, in both these cases the question whether non-responsibility clauses, such as those used in this case, are contrary to s 3(8) of COGSA and therefore invalid was never raised.

On the facts of this case and the law applicable, the plaintiff was not disentitled by the conditions in the bill of lading from relying on the admission that cartons to the number stated in the bill of lading were packed in the container and the defendant was accordingly under an obligation to deliver the full number of cartons. On the evidence it failed to do so. There has been a short delivery of 205 cartons for which the defendant is liable.

[For the successful appeal to the Court of Appeal, see The American Astronaut [1979] SGCA 15 (CMI914).]