A container carried from Balboa, Panama, to Iquique, Chile, arrived at its destination with 169 packages missing. The bill of lading provided for the Hamburg Rules as the applicable law. Based on the expression ‘clean on board’ contained in the bill of lading, the claimant argued that the missing cargo was lost during the period of the carrier’s responsibility. However, the same bill of lading also contained the expressions ‘said to contain 192 packages’, ‘shipper’s load and count’ and, furthermore, an annotation stating that ‘the carrier is unable to verify the weight, content and condition of the cargo, because the same was packed, containerized and sealed at the place of origin by the shipper or its representatives’. The Maritime Court exonerated the defendant from liability under the argument that the claimant could not prove its prima facie case, as there was no evidence of the exact amount of packages stowed in the container. The plaintiff appealed the decision.

Held: The Supreme Court of Justice, acting as Court of Maritime Appeals, affirmed the decision stating that, according to art 16.1 of the Hamburg Rules, the carrier is entitled to make reservations in the bill of lading asserting special reasons for its inability to check if the information provided by the shipper represents the exact condition of the cargo that is actually taken over. Therefore, the presumption of liability against the carrier becomes void and the burden of proof shifts to the shipper who must demonstrate that the goods were dispatched in the state and condition it declared in the bill of lading. That is particularly so, considering that the container was carried under the full container load (FCL) modality, which means that it is delivered to the carrier after being stowed, locked and sealed by the shipper and without the carrier’s participation in such operation.