This is a claim under a contract for the carriage of goods by sea from Felixstowe to Port Kelang, which took the form of the relevant bill of lading issued by the defendant carrier. The plaintiff was the consignee. The goods were animal feed supplement in bags and cartons. They were shipped at Felixstowe on 28 December 1988 in a container belonging to the defendant. In the container, the bags and cartons were placed on pallets. The bale on each pallet was wrapped in polythene sheets. There were altogether 20 pallets. The container arrived at Port Kelang on 26 January 1989. At Port Kelang, a company called Kelang Container Terminal Sdn Bhd discharged the container from the vessel to its container yard. Clearance was completed by Harrisons & Crosfield, the plaintiff's agent. Harrisons & Crosfield engaged Kontena Nasional to haul the container to the plaintiff's premises. It was hauled on a trailer. It reached the plaintiff's premises on 3 February 1989. On unstuffing the container, it was found that its roof had suffered an inward dent with a hole in it which must have been caused by forceful contact with a blunt object from the outside. The hole was in the roof at or near the inner end of the trailer. There was fresh water on the polythene wrapping of some bales on pallets that were in the vicinity of the hole. There was no evidence that the goods themselves were damaged by the water but the plaintiff’s claim is that there was damage in that the exposure of the feedstuff to the presence and influence of water would in time have caused the feedstuff to cake or harden. The defendant says that the plaintiff has not proved damage.

Held: Claim dismissed.

The Court accepts the defendant's submission as to the various stages of burden of proof in the application of arts 2, 3.1, 3.2, 5.1 [sic] and 4.2.g [sic] of the Hague-Visby Rules, which submission was made in reliance on or with the guidance of Phillips Petroleum Co v Cabaneli Naviera SA (The Theodegmon) [1990] 1 LLR 52, 54. A plaintiff has first to discharge the burden of raising a prima facie case by showing that cargo which had been shipped in good order and condition was damaged on arrival, that is arrival at the port of discharge, which in this case was Port Kelang.

The bill of lading said that the container was in apparent good order and condition when received by the defendant at Felixstowe. So prima facie it did not then have a hole in the roof for water to enter and therefore the goods were then in good order and condition as far as damage by fresh water is concerned. It will not be possible to prove that the goods were damaged on arrival by water unless it be at least proved that on arrival at Port Kelang the container had a hole in its roof. The plaintiff has not proved that there was damage on arrival, but sought to rely on The Peter der Grosse [1876] 34 LT 749 to say that once it is shown that goods are shipped in good order and condition, and neither party can show where the damage occurred, the plaintiff is entitled to presume that the damage occurred during the sea voyage. But that case is not authority for such a proposition. It was not a case about the first stage of burden of proof, which was not where the problem was in that case, because there was proof that when the goods were discharged they were at once examined and were found to be stained and damaged.

This is not a case where the proved circumstances are such that the only conclusion to be drawn from a circumstance that was discovered after the goods had been discharged from the vessel that the circumstance existed before the discharge. Here the goods left the vessel on 26 January 1989 and, after being handled by Kelang Container Terminal and Kontena Nasional, arrived at the plaintiffs’ premises on February 1989, eight days later, when the hole was discovered. It cannot be inferred that the hole must have existed when or before the container was discharged at Port Kelang.

Since the plaintiff has failed to raise a prima facie case by discharging the burden of proving that the goods were damaged on arrival at Port Kelang, its claim is dismissed with costs.