This common judgment dealt with three Civil Revision petitions.

Civil Revision No 65 of 1984

Ishaq M Siddique & Co imported a consignment of 213 bales of second-hand clothing. The consignment was carried on the petitioner's vessel, the SS President Roosevelt, under a bill of lading. On discharge in Karachi, it transpired that two bales were missing. The containers were inspected by the vessel's surveyors and the seals of the containers were found intact. They were opened in their presence. At the time of destuffing of the cargo, the consignee's clearing agent was also advised to inspect the destuffing process. The particulars in the relevant bill of lading were inserted by the shipper after the loading of bales in the containers at its premises. Therefore, the petitioner was neither aware of the contents of the bales, nor their number, value, quantity and quality. The petitioner pleaded that the carrier, having discharged the loaded and sealed containers at Karachi, was not liable for the two bales which were out-turned under nil marks.

Civil Revision No 337 of 1984

Abdul Tawab & Sons imported 250 cartons of infant milk formula from Japan. They were shipped on the SS President Hoover/Eisenhower from Kobe to Karachi under a bill of lading. The vessel short‑landed 8 out of 250 cartons at Karachi. The petitioner argued that the container was loaded and weighed by the shippers at their premises and the carrier and/or its agents were at no stage associated with the loading, counting and/or inspection of the goods at the time of loading. The container seal was intact on discharge. Consequently, the petitioner was not responsible in law for the alleged shortage.

Civil Revision No 336 of 1984

HB Yousuf & Co imported a consignment of 40 bales containing second‑hand clothing from California, USA. The consignment was carried on the petitioner's vessel, the SS President Madison/Eisenhower under a bill of lading. There was short‑landing of one bale from the manifested quantity. The petitioner pleaded that it received a loaded and sealed container which was discharged at Karachi port with its seal intact, and was not liable for the alleged loss.

The Small Causes Court, Karachi, decided in favour of the respondents. The petitioner, aggrieved by the judgments, filed the above revision petitions.

The petitioner contended that these were cases of direct loading and sealing of the containers at the shippers' premises, and all that the carrier did was to load the containers on the vessels, and the bills of lading were issued with the endorsement 'said to contain'. The respondents submitted that by reason of the operation of s 3 of the Bills of Lading Act, the US Carriage of Goods by Sea Act 1936 (COGSA), and the specific mention of bales and cartons in the bills of lading, the petitioners were precluded from denying that they received on board the relevant goods.

Held: The Civil Revisions are allowed, and the judgments and decrees passed by the Small Causes Court are set aside.

The notation or letters 'STC' on the face of the bill of lading stand for 'Said To Contain'. The notation or letters 'CY' stand for 'Contents are loaded on the shipper's premises'. The Judge below, after referring to the provisions of COGSA, s 22 of the Pomerene Act, and s 3 of the Bills of Lading Act 1885, came to the conclusion that the bills of lading in these cases met the information requirements of COGSA. He further held that they should be deemed to be prima facie evidence of the goods mentioned therein, the mark, number, and weight. The carrier was bound to deliver the goods as described therein to the bearers of the bills of lading. He found that the letters 'SLC' meant no more than that the particulars mentioned therein were those that were declared by the shippers. He came to the conclusion that the bills of lading not only mentioned the marks of the packages and their weight, but also the number of packages, and the description of the goods. The carrier was, therefore, under an obligation to deliver the quantity of goods of the description, weight and marks as mentioned in the bills of lading for valuable consideration. He then referred to the following passage from Tetley on Marine Cargo Claims (2nd ed) 106:

(1) To issue a bill of lading containing doubtful statements, and then to qualify them by such phrases as 'shipper's load and count', is contrary to Art. 3(3), last paragraph.
(2) Such phrases as 'shipper's load and count' are a form of non responsibility clause and are contrary to Art. 3(8) because they relieve the carrier not only from liability under the Rules generally but specifically from liability as ... provided in this Article.

The Judge observed that there were no special laws/rules governing shipments in containers, and that the provisions of COGSA were applicable to the shipments in containers as in the case of shipment in other modes, ie individual packages or bulk cargo. He came to the conclusion that the petitioner failed to prove short shipment. He also came to the conclusion that there was no cogent evidence about the authenticity of the seal on the containers.

In New Chinese Antimony Co Ltd v Ocean Steamship Co Ltd [1917] 2 KB 664, a bill of lading for antimony oxide ore stated that 937 tons had been shipped on board. In the margin was a typewritten clause 'A quantity said to be 937 tons', and in the body of the bill of lading was printed in ordinary type the clause 'weight, measurement, contents and value (except for the purpose of estimating freight) unknown'. It was held that the bill of lading was not even prima facie evidence of the quantity of ore shipped, and that in an action against the shipowners for short delivery, the onus of proving that 937 tons had in fact been shipped was upon the plaintiffs. Similar conclusions were reached in Canada & Dominion Sugar Co Ltd v Canadian National (West Indies) Steamships Ltd (1946) 80 Ll L Rep 13, Royal Typewriter Co, Division of Litton Business Systems Inc v Kumberland [1973] 2 Lloyd's Rep 428, Rosen Bruch v American Export Isbrandtsen Lines Ins [1974] 1 Lloyd's Rep 119, and American Astronaut Owners v Kian Hin Hang (Pte) Ltd [1979] MLJ 220 (CMI914). These decisions are correct, and clearly apply to the facts of the present cases.

So far as the invoices are concerned, there are statements made by the shippers that 240 and 40 bales and 250 cartons were shipped to the consignees. The persons who wrote these invoices have not been examined in these cases, nor is it known that these persons were actually present at the time of stuffing of the goods in the containers. As such, these documents too cannot be said to be a legal evidence to prove that the stated goods were actually stuffed in the containers. There is no legal evidence of the actual quantity of goods stuffed in the containers. The documents relied upon by the trial Court in coming to the conclusion that the goods were stuffed in containers are not documents from which such a conclusion can be legally arrived at. Since there is a want of legal evidence on this point, the respondents have failed to prove that there was short delivery.

[For the unsuccessful appeal to the Supreme Court of Pakistan, see Eastern Federal Union Insurance Co Ltd v American President Lines Ltd PLD 1992 Supreme Court 291 (CMI563).]