In this case the plaintiff avers that under a bill of lading dated 26 May 1977 issued by or on behalf of the defendant, there were shipped on board the defendant's vessel, the Axel Maersk, at Hong Kong 249 cartons of clock radios and transistor radios in good order and condition, for carriage for reward to Penang and delivery there in like good order and condition. The plaintiff further avers that, in breach of its duty as carrier and/or in breach of the contract contained in, or evidenced by, the bill of lading, the defendant failed to deliver the cargo in good order and condition, but delivered 169 of the cartons damaged by sea water and/or fresh water and caused loss and damage to the extent of MYR 57,137.05. The defendant says that on the facts of the case, it is neither in breach of its duty as carrier nor in breach of contract as alleged by the plaintiff. The defendant points to the notation CY/CY on the face of the bill of lading and says that the notation precludes the bill from being prima facie evidence of the goods having been received on board in good order and condition.

Held: The plaintiff's claim is dismissed.

On the agreed facts and the evidence it is clear that:

(a) from the notation CY/CY the bill of lading covers the shipment of a container stuffed with goods by the shipper;
(b) the shipper, prior to stuffing the container, was satisfied that it was free of defects and suitable for use;
(c) there was nothing wrong with the condition of the stuffed container when it was loaded on to the Axel Maersk in Hong Kong;
(d) the carrier had not seen the contents of the container nor had any knowledge of their condition at the time of its loading on the Axel Maersk;
(e) the plaintiff cannot rely on the bill of lading as prima facie evidence that the goods were received on board the Axel Maersk in good order and condition; and
(f) there is no positive evidence by the plaintiff as to the good order and condition of the goods in the container when they were shipped on board the Axel Maersk.

Counsel for the defendant submits that the Court should follow the Court of Appeal decision in the case of The American Astronaut [1979-1980] SLR(R) 243 (CMI914), which relates to missing cartons stuffed in a container, on the basis that the rationale behind that decision should apply equally in this case, which is one of damage to cartons stuffed in a container. Counsel for the plaintiff argues that if the container had been carried on deck, the defendant would have been in breach of the contract of carriage and this would have disenabled the defendant from relying on the notation CY/CY. This issue could only arise if the shipper can show that the goods were in the first instance shipped in good order and condition, but such is not the case here.

Normally a plaintiff would rely on the bill of lading as prima facie evidence that the goods were received by the defendant in good order and condition. But in the instant case the plaintiff cannot call to its aid the bill of lading as it carries the notation CY/CY. And it has not called any evidence to prove that the cargo was in 'good order and condition' at the time of shipment. In the circumstances, the plaintiff has not proved that at the time of shipment the goods were in good order and condition. This in itself disposes of the plaintiff's claim.