1. The questions of law which arise for consideration in these cases are common. I, therefore, propose to dispose of these three civil revision petitions by this common judgment.
2. CIVIL REVISION No, 65 OF 1984 The respondent filed a suit for recovery of Rs, 3,956. Messrs Ishaq M. Siddique & Co. Imported a consignment of 213 bales of second-hand clothing. The said consignment was entrusted by the shipper to the petitioner No,1 pursuant to the contract for carriage on board the petitioner's vessel S.S. "PRESIDENT ROOSEVELT". The petitioner No,1 issued a bill of lading. The consignment was insured with the respondent under Marine Policy. The said consignment was trans-shipped by the petitioners during the voyage. The vessel arrived at Karachi on 8-10-1981 and discharged Karachi bound containers including containers No, APLU-702516 and APLU-205208 covered under Bill of Lading No, 045225. When the consignee's clearing agent went to take delivery, it transpired that two bales were short-landed. The K.P.T. Also confirmed vide short-landing report dated 6-8-1982.
3. The consignee lodged their claim with the respondents and the petitioners. The respondents settled the claim and filed the suit for recovery of the above amount.
4. ' The petitioners resisted the suit. The petitioners pleaded that containers No, APLU-702616 and APLU-205208 containing 213 bales of second-hand clothings covered under Bill of Lading No, 045225 were landed and discharged at Karachi Port. The containers were inspected by the vessel's surveyors M/s. G.B. Potts & Co. Ltd. Karachi and the seals of the said containers were found intact. It was opened in their presence. At the time of destuffing of the cargo the consignee's clearing agent were also advised to inspect the destuffing process. This was done in addition to the press note which was published in the Daily Dawn. It is the further case of the petitioners that the particulars in the relevant bill of lading were inserted by the shipper after the loading of bales in the containers at their premises. Therefore, the petitioners were neither aware of the contents of the bales nor their number, value, quantity and quality. The petitioners pleaded that the carriers having discharged the loaded and sealed containers at Karachi, are not liable for the two bales which were outturned under nil marks. CIVIL REVISION No, 337 OF 1984 ' M/s. Abdul Tawab & Sons imported 250 cartons of Infant Milk Formula Brand SMA from Japan. 250 cartons of Infant Milk Formula were shipped per M.V. President Hoover/Eisenhower for carriage from the port of Kobe, Japan to Karachi as per terms and conditions contained in the Bill of Lading No, 322591 and the said vessel on her arrival at the port of Karachi short-landed 8 cartons out of 250 cartons. The suit was filed for recovery of Rs,2,769.10 against the petitioners by the respondent.
5. ' The petitioners resisted the suit. The petitioners pleaded that the container APLS 273765 was relied at Singapore with seal intact on S.S. "PRESIDENT EISENHOWER" which arrived at Karachi on 22-10-1981.
6. The container was loaded and sealed by the shippers at their premises and the carriers or their agents at no stage were associated with the loading, counting and/or inspection of the goods at the time of loading and consequently the petitioners were neither liable nor responsible for the alleged damage to the suit consignment. On arrival the containers were duly inspected by vessel's surveyors M/s. G.B. Potts & Corn. Ltd., Karachi and the seal of container No, APLS 273765 was found intact which was opened in their presence at the time of unstuffing the cargo, consequently the petitioners were neither liable nor responsible in law for the alleged shortage.
7. CIVIL REVISION No, 336 OF 1984 The respondents filed a suit for recovery of Rs, 2,617.55 against the petitioners. M/s. H.B. Yousuf & Co., imported a consignemnt of 40 b bides containing second-hand clothing from U.S.A. The consignment was entrust( d by the shipper at the port of Oakland California to the petitioner No,1 on board their vessel 'PRESIDENT MADISON/EISENHOWER and issued a bill of lading No, 042828. The vessel arrived at Karachi on 4-7-1981 and discharged the consignment in suit against Index No, 238.
8. When the consignees after completing all the formalities went for taking delivery, they were delivered 39 bales and there was short-landing of one bale from the manifested quantity. The Karachi Port Trust confirmed the short-landing vide their final outturn Report No, T/D 4388 dated 21- 9-1981. The consignee lodged the claim, with the respondent who settled the same and having been subrogated notified the claim to the petitioners which was not paid, hence filed the suit.
9. The petitioners resisted the suit. The petitioners pleaded that the carriers having received on board the vessel loaded and sealed container which was discharged at Karachi port with its seal intact, the petitioners were not liable for the alleged loss. The container No, APLU 209336 was duly inspected by the vessel's surveyors M/s. G.B. Potts & Co. Ltd., Karachi and the seal of the said container was found intact which was opened in their presence 'at the time of unstuffing the cargo.
10. Therefore, the petitioners are not liable for the shortgage.
11. The trial Court framed the following point for consideration:--"Whether the plaintiffs are entitled to the amount claimed in the suit?"
12. The parties led evidence in support of their versions. The learned Judge of Small Causes Court, on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue in favour of the respondents and decreed the suit with costs vide judgments dated 29-11-1983 and 30-4-1984.
13. The petitioners being aggrieved by the judgments dated 29-11-1983 and 30-4-1984 of the Judge of Small Causes Court, Karachi, have filed the above revision petitions on the grounds mentioned in the memo. Of revisions.
14. Mr. Nasimuddin Shaikh learned counsel for the petitioners contended that these were cases of direct loading and sealing of the containers at the shipper's premises and all that the carriers do is to load the containers on the vessels and bills of lading were issued with the endorsements said to contain.
15. The learned counsel for the respondents submitted that by reason of the operation of section 3 of the Bills of Lading Act, Cagsa and the specific mention of bales and cartons in the bills of lading, the petitioners are precluded from denying that they received on board at port of Los Angeles 213 bales of secondhand clothing, at port of Oakland 40 bales of second-hand clothing and at port of Kobe 250 cartons of Infant Milk Formula.
16. I have taken into consideration the arguments advanced by the learned counsel for all the parties and have also gone through the judgments. I have also gone through the R & P of the cases.
17. With a view to appreciate the respective contentions raised by the learned counsel for the parties, the relevant contents of the Bills of Lading issued by the petitioners are reproduced hereunder:-- R.A No, 65 of 1984 Marks & re-levant container No,No, of Pakgs. Description of packages & goods Gross weightMeasurement Geemgaba Lahore PakistanTwo Containers partially stc (Cy/Ces)
18. 213 bales second Hand Clothing (Excluding Travelling Dues) As per supplier's pro-forma invoice dated 13-7-1981 L/C No, 10053/ 0126 Laden on Board/Freight Prepaid.26,895 Lbs.
19. 12,199 Kgs.1096 30.469 ms R.S. No, 336 of1984 Yousuf Karachi Constainer No, APLU-209336 SN-2444880 SL&C19 7 8 6 40 Bales1 F Van STC Second hand Clothings: (other than Knitted Wear and those with any religious quotations/verses on them) as per indent number SCM/HEK/3/81 dated 6 April, 1981 of Messrs H.E. katchi & Sons, Karachi41,000 Lbs.
20. 18597 Kgs. D ms Improt Licence NoA594200- Regn.
21. No. 04/81/501/036/ 652 Letter of Credit No.104488/ R "freight prepaid" clean "shipped on board"
22. R.A. No. 337/84 No. 810910/000257-000280 "SHIPPER'S LOAD & COUNT"
23. 810910/000282-000507 "SAID TO CONTAIN" 3,625 KGS 1 Container (250 cartons) Infant milk formula As per p/o No, 001583 dated 31-8- 1981.8.944 M3 Container No, Import Licence No, A-699996 th Apls 273765 Seal No, apl kobe 530Say: One (1) container only on borad: Sept.
24. 24 1981 It is also advantageous to reproduce clause 7 which reads: "16. CARRIERS CONTAINERS"
25. With a view to appreciate the respective contentions of the parties, it is advantageous to reproduce section 3, subsections (3), (4) and (5) of the United States Carriage of Goods by Sea Act, 1936 (hereinafter referred to as `Cogsa' which reads as under:-- "(3) After receiving the goods into his charge the carrier or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things:-- LEADING MARKS
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage. QUANTITY OF GOODS (b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper. CONDITION OF GOODS--INACCURATE OR UNCHECKED INFORMATION
(c) The apparent order and condition of the goods: Provided, That no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking. B/L PRIMA FACIE EVIDENCE OF RECEIPT OF GOODS-- POMERENE ACT NOT LIMITED
(4) Such a bill of lading shall be prima fade evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs (3) (a), (b) and (c) of this section: Provided, that nothing in this Act shall be construed as repealing or limiting the application of any part of the Act, as amended, entitled "An Act relating to bills of lading in inter-state and foreign commerce", approved August 29, 1916 (U.S.C., Title 49, secs. 81-124), commonly known as the "Pomerene Bills of Lading Act".
SHIPPER GUARANTEES INFORAMTION FURNISHED
(5) The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity, and weight, as furnished by him; and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper."
26. Section 22 of the American Pomerene Act reads: that if a bill of lading has been issued by carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the receiving of goods and issuing bills of lading therefor for transportation in commerce among the several States and with foreign nations, the carrier shall be liable to (a) the owner of goods covered by a straight bill subject to existing right of stoppage in transitu, or (b) the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods, or upon the shipment being made upon the date therein shown, for damages caused by the non-receipt by the carrier of all or part of the goods upon or prior to the date therein shown, or their failure to correspond with the description thereof in the bill at the time of its issue."
27. The vessel "PRESIDENT ROSEVELT" arrived at Karachi on 8-10-1981 and discharged her Karachi bound containers including containers No, APLU702616 and APLU-205208 containing 213 bales of second- hand clothing covered by Bill of Lading No, 045225.
28. The vessel PRESIDENT MADISON/PRESIDENT EISENHOWER' arrived at Karachi on or about 4-7-1981 and discharged her Karachi bound containers including container No, APLU-209336 containing 40 bales of secondhand clothing covered by Bill of Lading No, 042828.
29. The vessel m.v. "PRESIDENT EISENHOWER" arrived at Karachi on 4-10-1981 and thereafter discharged the containers including container No, APLS-273765 containing 250 cartons of Infant Milk Formula Brand SMA weighing 2,722 Kgs net.
30. The case of the petitioners as set out in the written statement was that the particulars in the Bills of Lading were inserted by the shippers after loading the contents in the containers at their premises.
31. Therefore, the petitioners were not aware of the contents of the cartons/bales nor their number, value, quality and quantity. The petitioners' further case was that the containers were insepected by the vessel's surveyors M/s. G.B. Potts & Company Ltd., Karachi and the seals of the containers APLU-209336, APLU-702616, APLU-205208 and APLS-27365 were intact and they were opened in their presence.
32. There is no English or Pakistan decision in point; but there are at least more than four decisions on the Cogsa which have resemblances to the 1925 Pakistan Act. There is a decision of the Australian Supreme Court on the Australian Sea Carriage of Goods Act. There are also two decisions of Singapore Court.
33. It is pertinent to note that containers were developed during World War two in order to reduce pilferage of U.S. Army goods in Europe. They were used to some extent in the Gulf trade beginning in about 1956 and were pioneered by the Sea-land Organization in the Atlantic trade. By 1966 they became a very important factor in the North Atlantic trade. The petitioners are doing the business of carrier cargo in containers since the year 1973.
34. Containers are provided primarily for the convenience of the carrier, since they cut down handling time and can save as much as 90 per cent. Of the time required for unloading and reloading a vessel. Shippers dervie some advantage from the use of containers, in that expensive export packing can be reduced because there is less handling and reloading, and also in that they protect against damage if loaded properly and also against pilferage. In addition, a ten per cent.
35. Discount in freight charges is made in connection with house-to-house delivery of containers.
36. The shippers pay for the trnsportation of the container to the export pier or wharf and from the import pier or wharf but is not charged anything beyond the specific freight for the use of the container.
37. ' The notation or letters S.T.C. On the face of the Bill of Lading just stand for "Said To Contain". The notation or letters "CY" just stand for "Contents are I A loaded on the shippers premises".
38. The learned Judge, Small Causes Court, after referring to the provisions of Cogsa, section 22 of Pomerene Act and section 3 of the Bills of Lading Act, 1885, came to the conclusion that the bills of lading in these cases meet the requirements of section 3, subsection 3(a)(b) and (c) as stipulated in subsection 3(d). He further held that it should be deemed to be a prima facie evidence of the goods mentioned therein, the mark, number and weight and the carrier is bound to deliver the said goods as described therein to the bearers of the bills of lading.
39. He found that the letters S.L.C. Would mean no more than that the particulars mentioned therein were those that were declared by the shippers.
40. He came to the conclusion that the bills of lading not only mention the marks of the packages, their weight but also the number of packages and the description of the goods. The carrier was, therefore, under contracted obligation to deliver the quantity of 213 bales of second-hand clothing, 40 bales of second-hand clothing and 250 cartons of Infant Milk Formula of the description, weight and marks as mentioned in the Bills of Lading for valuable consideration.
41. He then referred to the following passage of Tetleys on Marine Cargo Claims (2nd Edition) on page 106:-- "(1) To issue a bill of lading containing doubtful statements, and then to qualify them by such phrases as 'shippers load and count', is contrary to Art. 3(3), last paragraph.
(2) Such phrases as 'shippers 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'."
42. He observed that there is no special law/rules governing shipments in containers and the provisions of Cogsa are applicable to the shipments in containers as in the case of shipment in other modes i.e, individual packages or bulk cargo.
43. He came to the conclusion that the petitioners failed to prove short shipment. He also came to the conclusion that there is no cogent evidence about authenticity of the seal on the containers.
44. It is common ground that the containers were supplied by the petitioners. 213 bales of second- hand clothings were stowed or stuffed in containers APLU-702616 and APLU-205208. 40 bales of second-hand clothings were stuffed in container No, APLU-209336 and 250 cartons of Infant Milk Formula were stuffed in container No, APLS-273765. These containers after stuffing and sealing at shipper's premises were delivered to the petitioners at the respective ports for transportation to Karachi. The petitioners issued Bills of Lading with the words "Shippers Load Count" and "said to contain" under the description of the containers and the number of bales and cartons. Each bill bears upon its face the letters CY/CFS which according to evidence "that the shippers Load count said to contain the said consignment, means that the exact number of packages is not known under the heading "Description of packages and goods" particulars furnished by the shippers.
45. Beneath this, there is a stamp of the carriers clean "shipped on board".
46. On the reverse of the Bill of Lading clause, paramount clause provides that this Bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, 1936, or similar Act in force in locality where issued.
47. Section 3 of the Bills of Lading Act, 1856 creates an estoppel against the master or other signatory, provides:-- "3. Every bill of lading in the hands of a consignee or endorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not in fact been laden on board: Provided that the master or other person so signing may exonerate himself, in respect of such misrepresentation, by showing that it was caused without any default on his part, and wholly by the fraud of the shipper or of the holder, or some person under whom the holder claims."
48. In the instant case, Clause 7 of the Bill of Lading (Exhibit No,P/8) in RA. No, 65 of 1984 provides as under:-- "7. Shipper's weight, load and count: shipper's warranties.--When containers, vans, trailers, portables tanks, skids, palletized units, and other cargo units are not packed or loaded by the Carrier, the Carrier does not represent to be accurate and is not bound by any description of the value, quantity, weight, condition, or existence of the contents thereof as furnished by or on behalf of Shipper or identified in this bill of lading by use of the phrase 'said to contain' or otherwise, and shall not be liable for any difference in value, quantity, weight or condition of the goods furnished by or on behalf of the shipper and that of the goods actually delivered. The carrier shall have no responsibility or liability whatever for the packing, loading, securing, shoring and/or stowage of contents of such cargo units, or for loss or damage caused thereby or resulting therefrom. The shipper warrants that it or its authorized representative has inspected such cargo units before loading and that they are physically suitable to properly contain their contents.
49. The shipper and consignee, with respect to cargo units not packed or loaded by carrier, represent and warrant: (a) that the goods are properly described, marked, secured, and packed in their respective cargo units; (b) that any cargo unit other than carrier-furnished units are physically suitable, sound, and structurally adequate properly to contain and support the goods during handling and on the voyage; and that such cargo units may be handled in the usual and customary manner without damage to themselves or to their contents, or to the vessel or its other cargo, or property, or persons; (c) that all particulars with regard to the cargo units and their contents, and the weight of each said cargo unit, are in all respects correct; and (d) that such units are in compliance with all applicable government regulations. Shipper and consignee, jointly and severally, agree to indemnify carrier and to hold it harmless in respect of any injury or death of any person, or any loss or damage to cargo or any other property or to the vessel or any other vessel, or any expense, including attorneys' fees, caused by breach of any of the foregoing representations or warranties."
50. The bills of lading are, however, prima facie evidence both under Article 111, Rule 4 and at common law.
51. In New Chinese Antimony Company Limited v. Ocean Steamship Company, Limited (1917) 2 K.B. 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 was upon the plaintiffs of proving that 937 tons had in fact been shipped.
52. In Ace Imports Pty. Ltd. v. Companhia De Navegacao Lloyd Brasileiro (1988) Vol. 1 Lloyd's Law Reports 206) Yeldham, J., of Australian Supreme Court of New South Wales Commercial Division observed that:-- "The advent of containerization has of course presented many problems in relation to conventional and traditional notions of estoppel and prima facie evidence created by statements in bills of lading which are relied upon by consignees and assignees thereof-- see "the Container Bills of Lading as a Receipt" by Yoram Shachar (Journal of Maritime Law and Commerce, Volume 10, No, 1, October, 1978, p. 39 ff.)."
53. In Canada and Dominion Sugar Company Ltd. v. Canadian National (West Indies) Steampships Ltd., (1946) 80 LI. L. Rep. 13), Lord Wright, speaking for the Judicial Committee of the Privy Council, dealing with a "Received for shipment" bill of lading which stated that cargo was "received in apparent good order and condition" and which contained on the margin a stamped endorsement "signed under guarantee to produce ship's clean receipt", the receipt stating "many bags stained, torn, resewn, said at p.16:-- "The third point, estoppel, depends primarily on whether the bill of lading contained an unqualified statement that the sugar was received by the ship 'in apparent good order and condition.'.... The crucial question is: what is: the true construction of the bill of lading in regard to the matters relevant to this case. The issue is here between the shipowners and the indorsees of the bill and has to be decided as between these parties on the basis of what appeared on the face of the bill when it was presented at Montreal to the respondents If the statement at the head of the bill, 'Received in apparent good order and condition,' had stood by itself, the bill would have been a 'clean' bill of lading, an expressior which means at least in a context like this that there was no clause or .Rotation modifying or qualifying the statement as to the condition of goods. But the bill did in fact on its face contain the qualifying words, 'Signed under guarantee to produce ship's clean receipt': that was a stamped clause clear and obvious on the face of the document and reasonably conveying to any businessman that if the ship's receipt was not clean the statement in the bill of lading as to apparent order and condition could not be taken to be unqualified. If the ship's receipt was not clean, the bill of lading would not be a clean bill of lading, with the result that the estoppel which could have been set up by the indorsee as against the shipowner if the bill of lading had been a clean bill of lading, and the necessary conditions of estoppel had been satisfied, could not be relied upon. That type of estoppel is of the greatest importance in this common class of commercial transactions: it has been upheld in a long series of authoritative decisions But if the statement is qualified, as in the opinion of their Lordships and the Judges of the Supreme Court it was, the estoppel fails."
54. Lord Wright further spoke: "A question now of estoppel must be decided on ordianry common law principles of construction and of what is reasonable, without fine distinctions or technicalities. On that basis the language of the bill of lading, read fairly and as a whole, is not, for reasons which their Lordships have already here given, such as to found an estoppel.
55. Their Lordships in so deciding are not in any way weakening the rule that a shipowner who issues a clean bill of lading is bound by the statement in it that the goods are shipped in good or in apparent good order and condition But the whole concept is more correctly viewed as a substantive rule of law. The purchaser or other transferee must have acted upon it to his detriment, as for instance he did in this case when he took up the documents and paid for them. It is also true that he cannot be said to rely on the statement if he knew that it was false: he must reasonably believe it to be true and therefore act upon it. Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified."
56. The question whether a container is a package for section 4(5) of Cogsa was considered by the United States District Court Eastern District of New York in the case of Leather's Best Inc. v. The "Mormallynx", Moon Mc. Cormade Lines INC., (1970) 1 Lloyd's Law Reports 527 = 1970 A.M.C. 444). It was determined that it was not. This decision was affirmed by the Court of Appeal for the second Circuit (1971) 2 Lloyd's Reports 476 = (1971) A.M.C.
57. 2383.
58. In Royal Typewriter Co., Division of Litton Business Systems, Inc. v. Kumberland, (1973) 2 Lloyd's Report 428 the container lost there belonged to the shipper's agent, who had loaded and sealed it before delivering it to the carrier. The bill of Wing given to the shipper recited only "container said to contain machinery". The container arrived in New York and was stored in an "out of doors" area in the terminal. Subsequently, it was found to have been broken into and all its contents (350 adding machines) were missing. The plaintiffs claimed damges from the defendants in respect of the loss, but the defendants contended that under section 1304(5) of the Act, they were entitled to limit their liability to $ 500 for the container constituted a "package" within the meaning of that subsection. It was held that the defendant was liable for the loss but was entitled to limit liability to $ 500 for it was the plaintiffs agent who had packed them in container and no separate statement had been made as to its contents.
59. In Rosen Bruch v. American Export Isbrandtsen Lines Inc. (1974) 1 Lloyd's Report 119, the facts were that the goods were stowed in container supplied by carrier. The agent loaded and sealed the container and delivered it to the defendant. It was held by District Judge Tyler that the defendant could limit its liability to U.S. $ 500, for it had nothing to do with the packing of the container.
60. In the "AEGIS SPIRIT" (1977) 1 LI.LR. 93 the facts were that the goods were packed in cartons and stowed in containers supplied by carrier. The containers were then shipped on the vessel at a Japanese port for delivery at Tacoma, Washington. The District Court for the Western District at Sea Hile (Becks D.J.) held that the term "package" was to be given its plain, ordinary meaning" and not some "specialized or technical meaning". Ile rejeted the "functional economics" list as contrary to the statute commercial impracticable and unwise. He followed Hartford (491 F. 2nd 960.
61. In American Astronaut Owners and others v. Kian Hin Hang (PTE) Ltd., (1979 M.L.J. 220) the facts were that 580 cartons of CAMAY SOAP were stuffed in a sealed container and were shipped on vessel "American Astronaut" from New York for Singapore. The vessel arrived in Singapore. 205 cartons were short-delivered to the consignees, the respondents. The consignees filed a suit for recovery of the vale,: of 205 cartons. At the trial Court the apellants contended that the expression "House to Pier container" and "shippers load stowage and count" qualified the said bill of lading and that with such a qualification all that the carrier represents in the said bill of lading is the receipt by him of a container and that the statement as to the number of packages in the said bill of lading is not binding on the carrier. It was further contended that the principle of estoppel did not apply. The trial Court entered the judgemnt for the respondents against the appellants in the sum of $16,912.50 with costs. The appellants went in appeal. The appellants relied on the following passage, more particularly the last two sentences thereof in Scrutton on Charter Parties and Bills of Lading (18th Edition) at page 379:-- "The use of containers as a method of carrying goods is becoming increasingly common, particularly in the filed of combined transportation. The container is essentially no more than a sophisticated form of package, and it is thought that where the goods have been stowed in the container by the shipper, the carrier would be entitled to rely on a defence of 'inherent vice' or "insufficiency of packing' if the goods were damaged becasue of some defect in the container or in the manner of stowage. Where however, the carrier has supplied the container to the shipper, the carrier has the liability of a hirer (subject to appropriate exceptions in the contract of carriage), and warrants that the container is as fit for the purpose for which it is hired as reasonable care and skill can make it. The warranty is not excluded by the fact that the shipper has been given an opportunity to examine the container. A container packed by the shipper is usually acknowledged as 'one container in apparent good order and condition said to contain (the contents) as declared by the shipper.' an acknowledgment in this form does not, it is thought, bind the carrier to any representation as to the condition or description of the contents so as to constitute an estoppel in favour of an indorsee of the bill of lading."
62. The appellate Court held as follows:-- "We are of the view that such phases as 'House to Pier Container and `Shipper's load stowage and count' when applied to containers are not a form of non-responsibility clauses and therefore not contrary to section 3(8) of the United States Carriage of Goods Act, 1936 which corresponds with Article 111, paragraph 8 of the Schedule to the Carriage of Goods by Sea Act (Chapter 184).
63. In view of what we have said we find ourselves in agreement with the learned authors of the above cited treatise. Our view of the law on this matter is further reinforced by a passage at page 107 of Tetley on Marine Cargo Claims (Second Edition) which reads as follows:-- "The phrase 'Shippers load stowage and count' used in reference to containers, however, is a proper form of qualification where the carrier cannot verify the contents of a container packed and sealed by the shipper."
64. The appellate Court held that the bill of lading does not bind the carrier to any representation as to the condition or description of the contents to constitute an estoppel in favour of carrier. In this view of the matter the appeal was allowed with costs.
65. In The "Axel Maersk'; Atlas Electronics (Mal.) Sdn. BHD. v. m.v. "Axel Maersk", Owners and others interested (1981) 2 M.L.J. 315 the plaintiffs stuffed 249 cartons of Clock radios and transistors in a container supplied by the carrier. The shipper sealed the container and delivered to the defendants. The container was carried on the defendant's vessel "Axel Maersk" from Hongkong to Singapore and unloaded in Singapore on 30-5-1977. The container was collected by the plaintiffs' agents, Kontena Nasemail on 24-6-1977 and delivered to the plaintiffs' premises. The plaintiffs filed the suit averring therein that the defendants delivered 169 of the said cartons damaged by the sea water and/or fresh water and they have thereby suffered loss and damage to the extent of MS 57,137.05. The notation CY/CY appears on the face of bill of lading. The defendants contended that the notation precludes the bill from being prima facie evidence of the goods having been received on board in good order and condition. It was held as follows:- "The plaintiffs to succeed must therefore prove, amongst others, (1) that the goods at time of shipment in Hongkong were in good order and condition and (2) that at Penang the goods were not in like good order and condition. Normally a plaintiff would rely on the Bill of Lading as prima facie evidence that the goods were received by the defendants in good order and condition. But in the instant case the plaintiffs cannot call to their aid the Bill of Lading as it carries the notation CY/CY. And they have not called any evidence to prove that the cargo was in 'good order and condition' at the time of shipment. It is not in dispute that the notation CY/CY on the Bill of Lading is properly part of the contract of carriage.
66. In the circumstances the plaintiffs have not proved that at the time of shipment the goods were in good order and condition. This in itself, I think, disposes of the plaintiffs' claim."
67. In these circumstances the claim of the plaintiffs was dismissed.
68. In Ace Imports Pty. Ltd. v. Companhia De Navegacao Lloyd Brasileiro (1988) 1 LI. L.R. 206, the plaintiffs purchased from Zivi a consignment of cutlery posters and leaflets. The defendants supplied empty container to Zivi in which 437 car-board boxes were stuffed. The Bills of Lading bore the words FCL/FCL on its face which meant that a shipper wanted to ship the whole container and this was an FCL/FCL container the shipper was given a seal to seal the container. On the face of the bill were the words "container 20' with 437 cardboard boxes containing cutlery leaflets and posters". The vessel arrived in Sydney on 19-3-1988 and the container was discharged. The container was delivered to the plaintiffs' premises at Hornsby where the defendants' seal was broken and a padlock forced. When it was opened, it was discovered that a number of boxes in the container had been broken into, some removed and there had been selected pilfering. One hundred and eighteen cartons were missing. The plaintiffs sued the defendants for their loss. Mr. Yeldham, J. Held that the defendants delivered to the plaintiffs the container with all the contents which they received from the shipper. He held that no pillage of the contents took place between delivery to the defendants and the latter's delivery to the plaintiffs.
69. ' In order to determine the actual shortage, it is necessary for the plaintiffs/respondents to prove the quantity of bales of second-hand clothing and Infant Milk Formula cartons stuffed in the containers at the place of loading. It will appear from the bills of lading that in these cases, the goods were stuffed in containers at the shipper's premises and thereafter handed over to the agents of the petitioners under (CY/CFS) condition which means "shippers load stowage and count". If follows that the goods were stuffed in the containers at the shipper's premises and this fact has been stated by D.W. No, 3 who is supervisor in local agents of the carriers. He has further stated that the exact number of packages is not known to the carriers. My attention has no doubt been drawn to the bills of lading which showed that the containers were said to contain 213 and 40 hales of second-hand clothing and 250 cartons of Infant Milk. But these entries in the bill of lading do not mean that actually the bales or cartons were stuffed inside the containers. The contention of Mr. Nasimudin Shaikh appearing on behalf of the petitioners is that when packing are stowed in a container which is then locked and sealed, as is the practice, the number of packages is not verifiable. Under Cogsa 46 U.S.C. Section 1303(3)(c), the bill of lading need not show a quantity which the carrier has had no reasonable means of checking. His contention is that the quality of packages/bales/cartons containd may be irrelevant. Freight rates, moreover, are based on the nature of the goods and weight or dimensions of the container, not the number of packages. The decisions reported in (1979) M.L.J. 220, (1981) 2 M.L.J. 315 and (1988)1 LI.L.R. 206 have referred to Carriage of Goods by Sea Act 1925 and the goods were stuffed in containers at the shipper's premises. These cases support the contention of the learned counsel for the petitioners. It was held that by mentioning the number of cartons/packages in the bills of lading, the carriers did not admit the correctness of the statements. It was further held in these cases that the carriers delivered to the consignees the goods which the carriers received from the shippers and no pillage of the contents took place between the delivery to the carriers and latter's delivery to the consignees.
70. With respect I entirely agree with these decisions, which clearly apply to the facts of the present cases.
71. The statement which is derived from Aetna Ins. Co. v. General Terminals (1969 A.M.C. 2449 and Schluyler Cunard SS. Co. (1967) A.M.C. 896 and is finally supported by Article 180 of Scrutton on Charter Parties and Bills of Lading (18th Edition 1974 on page 379) and the passage at page 106 of William Tetley on Marine Carto Claims (2nd Edition) (referred to in the earlier part of this judgment), I consider that the learned Judge, Small Causes Court made an error in assuming that these words do not make any difference to the correct construction of the bills of lading in relating to Clause 7.
72. I have also adverted to above that the bills of lading (Exts. 8, 8 and 9 respectively) are also no admission of the carriers about the number of bales/cartons having been stuffed in the containers.
73. They only indicate the bales/cartons were stuffed in the containers. These do not mean that cartons/bales were stuffed in the containers. So far as invoices are concerned, there are statements made by the shippers that 240 and 40 hales and 250 cartons were shipped to the consigees. The persons who wrote these invoices have not been examined in these cases nor is it known that the said 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 240 and 40 bales of second-hand clothing and 250 cartons of Infant Milk were actually stuffed in the containers. So, on the basis of these invoices it cannot be held that 240 and 40 hales of second- hand clothing and 250 cartons of Infant Milk were stuffed in the containers.
74. The plaintiffs/respondents have not examined any witness in these cases to prove that 240 and 40 bales of second-hand clothing and 250 cartons of Infant Milk were actually stuffed in the containers. Mr. Nasimuddin contended that when the goods were stuffed in the containers by the shippers and the containers were sealed and thereafter delivered to the petitioners and the short delivery is detected after the containers were de-sealed and de-stuffed, the respondents are not responsible for the short delivery as there was no admission on the part of the respondents that the containers contained 240 and 40 bales and 250 cartons in spite of the entry to the effect on the part of the respondents because the said bales/cartons were stuffed at the shipper's premises and not by the respondents or their agents.
75. The decisions reported in PLD 1969 Karachi 495 and PLD 1983 Karachi 29 were not containers cases but they related to ordinary cases. These cases are not applicable to the facts of these cases.
76. ' The bales of second-hand clothing and cartons of Infant Milk were stuffed and sealed at the shipper's premises. So long as the seals were intact, the petitioners were not in any way responsible for any shortage. The learned Judge, Small Causes Court evidently missed the significance of these facts and held that as the freight and bills of lading were made out in the same way as in these cases, viz. "said to contain 240 and 40 bales of second-hand clothing and 250 cartons of Infant Milk", there was an admission on the part of the carriers/petitioners that the containers did contain 240 and 40 bales of second-hand clothing and 250 cartons of Infant Milk, and if at the destination the containers were found to contain less number of bales and/or cartons, the carriers were not liable.
77. For the reasons mentioned above, disagreeing with the Judge, Small Causes Court, I hold that there is no legal evidence of the actual quantity of bales of second-hand clothing and cartons of Infant Milk stuffed in the containers. The documents relied upon by the trial Court in coming to the conclusion that bales/cartons were stuffed in containers are not such documents from which such a conclusion can be legally arrived at. Since there is a want of legal evidence on this point, I hold that the plaintiffs/respondents have failed to prove that there was short delivery of two and one bales of second-hand clothing and eight cartons of Infant Milk.
78. For the reasons mentioned above, the Civil Revisions are allow,d, the judgments and decrees passed by the Judge, Small Casues Court are he eby set aside. The plaintiffs' suits are dismissed, but in the circumstances of th cases, I direct the parties to bear their own costs throughout.