This was an appeal from the decision in The American Astronaut [1979] SGHC 1 (CMI913) where the trial Judge held that the carrier was liable under a bill of lading that enumerated the number of cartons in a container but also contained the expressions 'House to Pier Container' and 'Shipper's load, stowage and count'. The trial judge held that this amounted to a non-responsibility clause that contravened art 3.8 of the Hague Rules (s 3(8) of the United States Carriage of Goods by Sea Act 1936 (COGSA)). The carrier appealed to the Court of Appeal.

Held: Appeal allowed.

The Court agreed with the trial Judge that 'the claim of the plaintiffs depended entirely on whether or not on a true construction of the bill of lading the plaintiffs had established that 580 cartons of toilet soap were shipped at New York in the defendants' ship the American Astronaut for delivery to the consignees in Singapore. The onus of proving that fact undoubtedly rested upon the plaintiffs'.

On the tenor of the evidence before the Court, it was a third party, other than the seller or the carrier of the 580 cartons, who, having arranged for a container, loaded it not only with cartons of Camay soap belonging to the seller/shipper but also with other cargo belonging to other consignees, then sealed the container and thereafter loaded it on board the American Astronaut. In these circumstances the master or his agent would have had no opportunity of examining or finding out anything about the contents of the container. Hence the notations by the carrier as they appear on the said bill of lading.

The bill of lading on a full reading of it states: 'Received the container … (namely Container No USLU-412707) said to contain goods herein mentioned (namely 580 Cartons of Toilet Soap) in apparent good order and condition …'. The carriage of goods by sea in a container is a feature in the carriage of goods by sea that has come into use during the last 20 years or so. And because of the nature of a container and the kind of use to which it is put in the carriage of goods by sea it would not always be possible for the carrier to set out in a bill of lading the particulars the carrier is obliged, on demand by the shipper, to give under the COGSA without in some way qualifying it, if found necessary. The legislation in regard to the carriage of goods by sea was formulated and passed before container traffic became an accepted mode of carriage of goods by sea. The two qualifying notations used on the bill of lading are now well understood, recognised and acted upon by the banking, shipping and trading communities throughout the commercial and shipping world. The notations are used in connection with container transport and do not relate to goods which the master or his authorised agent could reasonably see and check before the bill of lading is signed either by him or his authorised agent.

The bill of lading in the present case does not bind the carrier to any representation as to the condition or description of the contents so as to constitute an estoppel in favour of the respondent. This being so the respondent has not discharged the onus of proving that 580 cartons of Camay soap were shipped at New York in the appellants’ ship, the American Astronaut, and accordingly its claim must fail.