Center Optical (Hong Kong) Ltd (the plaintiff), a Hong Kong exporter, claimed against Jardine Transport Services (China) Ltd (the defendant), a freight forwarder based in Shanghai, for USD 30,110,270 and interest, representing the value of optical goods transported to the US by the defendant and released after discharge without production of the original bills of lading. The plaintiff's case was straightforward. Recovery was sought against the defendant in contract arising from the defendant's acceptance of the plaintiff's instruction to ship the goods to Miami to the plaintiff's order, naming as notify party Miami Center Optical. This contract was evidenced, or partly evidenced, by the bills of lading issued for the seventh and eighth shipments. The plaintiff also sought to recover in conversion arising from the misdelivery of these goods.

The defendant asserted that the plaintiff was not the shipper, that it was not a party to the contract of carriage, and that the correct entity to bring suit on the contract of carriage was Wenzhou Center Optical.

In addition, the defendant relied upon the definition of 'port to port' shipment in cl 1 of the bills, cl 6(2) relating to 'port to port' shipment, and cl 14 relating to delivery, to contend that obligations under the bills of lading ceased on discharge or storage of the goods after such discharge.

The plaintiff argued that the obligation of a carrier was delivery of the goods only against production of an original bill of lading and that delivery absent such production constituted a serious breach of the contract of carriage. Anything less than an express exclusion of liability, therefore, should fail.

In terms of other contractual limitation provisions in the bills of lading, the issue of package limitation was also raised. The defendant argued that there was a special definition of packing limit provided by cl 6(4)(D), and that if the carrier did not stuff the container itself, the container was the packing unit for the USD 500 limit. The plaintiff said that the figure of USD 500 was in derogation of the Hague Rules. In any event, it was a non-issue because it was clearly established that the packages for calculating the limitation of liability were the cartons stated on the face of the bills of lading and not the containers: see The River Gurara [1998] 1 Lloyd's Rep 225 (CA) (CMI819), and that the limit under the Hague Rules is calculated by reference to gold value: see The Rosa S [1989] 1 QB 419 (CMI2232).

Held: Judgment for the plaintiff.

Wenzhou Center Optical was not the other party to the contract of carriage.

The defendant accepted that limitation under the Hague Rules would be greater than the value of the claim (under The Rosa S, the limit being approximately GBP 3,000 per package in current monetary terms), and the Court had little hesitation in following the approach in The River Gurara. So far as the stuffing of the containers was concerned, the Court found that it was not clear that the containers were not stuffed for and on behalf of the carrier. Putting to one side the validity of this attempt to contract out of the protection avoided by the Hague Rules, this is a matter which if invoked must be made good by hard evidence, as opposed to inference as to who stuffed the containers on behalf of whom. The defendant pointedly did not call any evidence which might assist in this matter, and the Court rejected the defendant's contention as to package limitation under the bills. In the circumstances of this case, the plaintiff's causes of action against the defendant were well-founded, both in contract and in tort.