1. SALEEM AKHTAR, J.---This is one of those cases in which the claim amount is insignificant but the principle and question of law involved is of great importance.
2. 2.The appellant is an Insurance Company which had issued policy of insurance in respect of goods imported by the consignee who has not been made a party as the claim was subrogated in its favour. M/s. Ishaq M. Sadro and Company imported 213 bales of second-hand clothing which were stuffed in two containers and carried on board vessel s.s. PRESIDENT TYLER under bill of lading issued by respondent No.l, the owner of the vessel of which respondent No.2 is the local agent at Karachi. The goods were transhipped on board s.s_ `PRESIDENT ROSEVELT' which arrived at Karachi on 8-10-1981 and discharged Karachi-bound containers including the containers in suit. At the time of taking delivery the clearing agent of the consignee noticed that two bales had short-landed and Karachi Port Trust issued a short-landing certificate, dated 6-8-1982 but also manifested goods of the same description under nil marks. The consignee made a claim for Rs.3,956, but as the respondents denied it, the appellant who had insured the carriage after obtaining letter of subrogation from the consignee riled suit against the respondents in the Court of Small Causes, Karachi. The respondents denied the claim pleading that the two containers as shown in the bill of lading were discharged at Karachi Port. They were inspected by the Surveyor M/s. G.B. Potts & Company Limited and the seals on the containers were found intact which were opened in their presence. It was further pleaded that in addition to the public notice published in `Dawn' the consignee's clearing agent viz. Sultan Enterprises were duly advised prior to arrival of the vessel to inspect the seal of the containers at the time of discharge from the vessel and to be present at the time of destuffing of the containers. It was stated that the shipper had stuffed the goods in the containers in its own premises and had sealed them. The particulars in the bill of lading were inserted as declared by the shipper. The respondents denied that they were aware of the nature, number, value, quantity or quality of 'the goods. It was further submitted that the carriers having discharged the sealed containers in the same order and condition in which they were received at the port of shipment were not liable for the shortage of two bales which in fact were outturned under nil marks. The learned trial Court decreed the suit. The respondents then filed a revision petition against the said judgment and decree in the High Court which was allowed by the learned Single Judge by the impugned judgment, dated 7-12-1989 and the judgment of the learned Judge of the Small Causes Court was set aside. Leave to appeal was granted to the appellant to consider the question whether under the bill of lading issued by the carrier it was required to deliver two containers or 213 bales of second-hand clothing. Although the leave granting order refers to the contention regarding per package limitation of liability of the carrier under law this question is not at all relevant nor was it at any stage raised, pleaded or considered.
3. 3.At the outset it may be clarified that in the present case the question of per package limitation of liability of the carrier is not at all involved. The main question is whether a carrier which carries the cargo in containers under bill of lading giving number of container loaded and also the particulars of cargo stuffed in it with qualifying remarks like CY/CFS and STC is bound to deliver only the number of container as shown in the bill of lading or the cargo as described in the bill of lading contained in the container.
4. 4.Reverting to the facts and circumstances of the case and the question involved it is necessary first to examine the bill of lading which evidences the terms and conditions on which the parties had agreed carriage of goods. The relevant particulars in the bill of lading were mentioned as follows:-- Marks & relevant container No.No, of packages Description of packages Gross weight Measurement Geem Gaba Lahore PakistanTwo CONTAINERS PARTIALLY STC(CY/CFS 213 BALES SECOND- HAND CLOTHING (EXCLUDING TRAVELLING DUES) AS PER SUPPLIER'S PRO FORMA INVOICE DATED 13-7-1981. L/C NO.10053/0126.
5. LADEN ON BOARD/FREIGHT PREPAID.26895 LES 12199 KGS1076 30.469 MS As is obvious abbreviated remakrs such as STC and CY/CFS have been mentioned in the bill of lading which require explanation before considering contentions of the parties. According to the Marine Encyclopaedia -Dictionary by Eric Sullivan, Second Edition, the following terms mean: "S.T.C. Said to contain CY/CY Container yard/container yard.
6. Container is delivered from one yard to another.
7. CF.S. Container Freight Station SL&C Shippers load and count.
8. 5.Where CY/CFS--is mentioned it means that the goods were stuffed in the container. By the shipper in his yard and that the container is to be delivered at container's freight station. There is no dispute on the fact that the containers belonged to respondent No.l and they were supplied to the shipper who had taken them to its Yard and stuffed the goods in it without any association, participation or supervision of the carrier. After stuffing the goods they were sealed by the shipper and such sealed containers were delivered to respondent No.l for carriage which issued the bill of lading without examining or checking the cargo stuffed in the containers.
9. 6.The learned Judge of the Small Causes Court came to the conclusion that containers supplied by the carrier were no better `than the one where the goods are stowed in one of the holds of the ship itself and held that the bill of lading was prima facie evidence of the goods mentioned in it and the respondents were liable to deliver the same goods viz. 213 bales in the same order and condition as mentioned in the bill of lading. The suit was accordingly decreed. However, the learned Single Judge in revision application did not agree with the treatment that CY/CFS `entries in the bill of lading do not mean that actually the bales or cartons were stuffed inside the containers'. The observations in (1979) MU 220, (1981) 2 MU 315 and (1981) 1 LLR 206, were followed where according to the impugned judgment it was held that by mentioning the number of cartons/packages in the bill of lading (with CY/CFS) the carriers did not admit the correctness of the statement,. It was further observed:---- "I have also adverted to above that the bills of lading (Exhs. 8, 8 and 9 respectively) are also no admission of the carriers about the number of bales/cartons having been stuffed in the containers.
10. They only indicate the bales/cartons were stuffed in the containers. These do not mean that cartons/bales were stuffed in the containers."
11. Finally it was concluded: "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."
12. 7.Mr. Muhammad Ali Sayeed, the learned Advocate Supreme Court for the appellant and Mr. A.A.
13. Shariff, the learned Advocate Supreme Court for the respondents have ably argued the case and put forth their viewpoints and referred several authorities particularly the American decisions in support of their arguments. It is an admitted position that the case is governed by the United States Carriage of Goods by Sea Act, 1936 (COGSA), which with minor modification is identical to The Hague Rules which were enacted as Carriage of Goods by Sea Act, 1924, in England and Carriage of Goods by Sea Act, 1925, in the Indian Sub-Continent and is now applicable to Pakistan.
14. In Britain 1924 Act has been repealed and replaced by Carriage of Goods by Sea. Act, 1971, which incorporates the provisions of Hague/Visby Rules. With this background we have only to restrict ourselves to the provisions of the US Act but assistance and guidance can be sought from the judgments from other jurisdictions having similar law.
15. 8.Mr. Muhammad Ali Sayeed, the learned Advocate Supreme Court contended that the respondents were legally bound to deliver 213 bales of second-hand clothing to the consignee. Mr. AA. Shariff, however, contended that the shipper had received two sealed containers which were delivered to the consignee in the same order and condition in which they were received, therefore, the respondents have discharged their liability as they were not bound to deliver 213 bales.
16. According to the learned counsel for the respondents each container should be treated as a package and the carriers were responsible to deliver two packages only as the particulars of the contents of the containers were mentioned in the bill of lading on the declaration made by the shipper which in the circumstances of the case could not be verified and was not binding. It is on the basis of this contention that the entire argument drifted to a channel where the parties from the High Court up to this appeal wrestled whether container can be called a package. The carriage through containers has become an accepted, viable and more convenient mode of transportation of goods by Sea, for the last more than two decades. Since then this package problem with reference to limitation of liability of carriers as provided by The Hague Rules enactment has attracted the attention of the' Courts and shipping world. The Courts are engaged in resolving this knotty question by interpreting the provisions of law and in USA till late conflict of decision has surfaced in the judgments of District Courts and Courts of Appeal of various States. The dust now seems to settle down but the final verdict from the apex Court is yet to come. On the other forum the shipping world and maritime nations showed their anxiety and concern with the fluid state in determining per package liability of the carriers caused due to `Container revolution' as it was felt that The Hague Rules could not meet this problem adequately and determinatively. This led to a diplomatic conference at Brussels in 1967 to consider various maritime conventions including amendments in The Hague Rules. Finally the Diplomatic Conference on Maritime Law held at Brussels in February 1968 adopted limitation of liability equivalent to $ 66,200 per package or unit or 90 cent per pound whichever is higher. It also passed the following provision to solve the container problem:--- "Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purposes of this paragraph as far as these packages or units are concerned. Except as aforesaid, such article of transport shall be considered the package or unit."
17. The Brussels Protocol, 1968, known as Visby Rules amended Brussels Convention 1923 (Hague Rules) and has attempted to provide a determinative solution of container problem and perhaps relieving the Courts of embarrassing situations which were required to offer a solution by interpretation for a revolutionary situation which was new and perhaps not contemplated when Hague Rules were framed. However, the difficulty still persists as the Visby Rules are yet to find legislative enactment by several countries. Britain has already incorporated it in its Carriage of Goods by Sea Act, 1971. US and Pakistan have not. The following provisions of US Carriage of Goods by Sea Act, 1936, have been referred and require interpretation:--- "Section.
3. Responsibilities and liabilities of carrier and shiv (1)
18. (2)
19. (3)Contents of bill .--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: (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.
20. (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.
21. (c)The apparent order and condition of the goods: Provided, that no carirer, 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.
22. (4)Bill as prima facie evidence .--Such a bill of lading shall be prima facie 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 chapter sha"' be construed as repealing or limiting the application of any part of sections 81 to 124 of Title 49.
(5) ..................................................
(6) ..................................................
(7) ..................................................
23. (5)Limitation of liability for negligence -- Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault or failure in the duties and obligations provided in this section, lessening such liability otherwise than as provided in this Chapter, shall be null and void and of no effect. A benefit of insurance in favour of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability. 46 US Code Appendix 1303.
24. (5)Section 4. Rights and immunities of carrier and ship.- (1)
25. (2)
(3) ..................................................
(4) ..................................................
26. (5)Amount of liability: valuation of cargo --Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $ 500 per package, lawful money of the United States, or in case of goods, not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
27. (6)By agreement between the carrier, master or agent of the carrier and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, that such maximum shall not be less than the figure abovenamed. In no event shall the carrier be liable for more than the amount of damage actually sustained.
28. (7)Neither the carrier nor the ship shall be responsible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading.
29. (6)---------.
30. (8)The issue involved in the case attracts section 3 of COGSA while reference to section 4(5) and the judgments cited at the bar seem to be relevant for understanding the meaning of the word `package'. The question of per package limitation of liability of carriers does not arise as even if each bale is treated as a package the amount claimed by the appellant is much less than the maximum limit fixed by law. First we will examine the judgments of US Courts on question what is a package.
9. In Standard Electra SA. v. Hamburg, Sudamerikanischc (1967) 2 LLR 193, the entirc shipment consisted of nine pallets each containing six card-board cartons of 40 tuners. In the shipping documents number of package was given as `9' pallets'. Seven pallets were not delivered and the carrier admitted its liability. The only question to be decided was the liability of the carrier in terms of Carriage of Goods by Sea Act, 1936, which under section 4(5), 46 U.S.C. Section 1304(5) limits recovery to $500 per package. The question arose when a container is to be considered a `package' for the purposes of that limitation. Chief Justice Lumbard of the Court of Appeal (Second Circuit) speaking for the majority held that each pallet was a package for the following reasons:-- (1)The parties regarded and characterised each pallet as a package, which was proved from the shipping documents and claim letter of the shipper.
31. (2)The shipper and not carrier chose to make cartons into pallets. The number of insured cartons was not mentioned in shipping documents and, thus, no notice of the number of cartons was given to the carrier.
32. (3)Under section 4(5) of COGSA shipper could have obtained full coverage by declaring nature and value of goods, and (4)Since `package' fairly intended pallets in the case it is not relevant that section 4(5) might not have seen that application when enacted.
33. (9)Analyzing section 4(5) COGSA it was observed that its `purpose was to describe a unit that would be fairly uniform and predictable in size and one that would provide a common sense standard so that the parties could easily ascertain at the time of contract'.
10. The same Court later considered the same question in the Leather's Rest Inc. v. The MOR-MA- CLYNX and OTHERS (THE MORMA-CLYNX') (1971) 2 LLR 476 in which the shipper/seller's employee loaded 99 cartons of leather in the container supplied by the carriers and sealed in the presence of the truck driver of carrier's agent. In the bill of lading under column member and kind of packages the particulars were given as:_ "1 Container STC 99 bales of leather"
34. As at the time of delivery the container was found empty, the carriers were sued which pleaded that their liability was limited to $ 500 for the entire container. Referring to Standard Electra (supra), it was observed that the fact that there was nothing in this case to show that the parties had agreed to treat container as package (as in Standard Electra) was not a satisfactory distinction and it was observed: ---the purpose of section 4(5) COGSA was to. Set a reasonable figure below which the carrier should not be permitted to limit his liability and that `package' is thus more sensibly related to the unit in which the shipper packed the goods and described them than to a large metal object, functionally a part of the ship, in' which the carrier caused them to be `contained'
35. The s.s. Mormaclynx (The Leather's Best) propounded the view that the nature and use of containers makes them functional part of the ship but Article 4(5) of COGSA refers to shipper's own packaging which is an integral part of his shipment. Thus, the carrier owned or supplied containers should not be considered a package as it is against the spirit and language of this provision. And further where shipper's own packing units can be shipped in their original packing even if they are stowed in a container, the presumption would be that container is not a package and it is for the carrier to rebut it.
11. This .Judgment was followed in Shinko Bolki Co. Limited v. s.s. Pioneer Moon and United States Lines Inc. (1975) 1 LLR 199. The shipper had filed 24 tanks supplied by the carriers with liquid latex in the presence of their representative. In the bill of lading number of packages were shown as 24 and the particulars and description were given as `lift on lift off tanks synthetic latex said to weigh 359, 170" lbs: The freight was charged on the basis of this weight. The bill of lading provided that `package' included containers, van, trailers, pallatized units------------.. On arrival 11 tanks were found damaged and contents totally lost. In the suit filed by the plaintiff the carriers pleaded limitation of liability to $ 500 per tank. The District Judge accepted this plea but the Court of Appeals for the Second Circuit allowing the appeal observed:--- .
36. "Shipment in the 2,000-gallon tanks furnished by the ship is more closely analogous to shipment in its deep tanks than to transportation in the shipper's drums. The tanks were the carrier's property, used on voyage after voyage, not included in computing the freight charges, and apparently filed while under the supervision of a representative of the carrier. In practical effect they were a smaller and movable version of the deep tanks. They were `functionally part of the ship' every bit as much as the metal container holding 99 bales of leather on the Mormaclynx, sup. (1971) 2 Lloyd's Rep. At page 486; 451 G.. 2d at 851.
37. If, as we hold, the tanks furnished by the carrier were not packages, the quoted provision from the bill of lading could not make them so, 46 USC s. 1303(8); in any case, we believe the liquid latcx was within the exception for `goods shipped in bulk'.
38. Our decision is not inconsistent with Royal Typewriter Co. v. MIV Kulmerland, 483 F. 2d 645 (2 Cir.
39. 1973); (1973) 2 Lloyd's Rep. 428, on which the defendant relies. The bill of lading in that case read only `1 container said to contain Machinery', 483 F. 2d at pp. 646 and 430, and gave the carrier no notice of the number of cartons contained therein for which the shipper sought to collect $500 each. Here the weight was clearly stated. Moreover, the `functional economics test' there announced affords little help with respect to the bulk shipment of a liquid."
40. This question had come up for consideration earlier in Royal Typewriter Co. Division Litton Business System Inc. v. m.v. Kulmerland and Hamburg Amerika Line (The Kulmcrland) (1973) 2 LLR 428. The plaintiff's 350 adding machines in cartons were stowed by its agent in his container at West Berlin which was sealed by him and transported to Hamburg where it was loaded on defendant's m.v.
41. Kulmerland. The bill of lading read "one container said to contain machinery but the number of packages stowed in it were not mentioned. As at New York contents were found missing the carriers conceded their liability to compensate the plaintiff but pleaded that it was limited to $500 per container which was a package. This plea was upheld by the District Judge and affirmed by this judgment. The main consideration being that the container was intended by the shipper to be the basic cargo unit and the carrier was not notified as to the nature and value of goods transported. The following observation illustrates the view point with reference to other judgments on this issue.
42. "The statutory purpose here leads us to suggest what for want of a better term we will call the functional economics test. In this regard, the first question in any container case is whether the contents of the container could have feasibly been shipped overseas in the invididual packages or cartons in which they were packed by the shipper. Here it is plain that they could not feasibly have been shipped in those individual cartons; adding machines are a delicate product--their little cardboard cartons, stapled and proper taped, had never been shipped, as such, in the days before containers they were shipped in wooden crates or cases containing 12 to 24 each. The metal containers in which the cartons were shipped in lots of 350 per container are essentially to be likened to the wooden crates or cases of days past; the use of the metal container of convenience to shipper and carrier alike was selected by the shipper and used without carrier's objection. This Court, in a different factual context in Nichimen Co. v. m.v. Farland, 462 F.2d 319, 334 (2d Cir 1972) referred to Black's Law Dictionary 1262 (4th Edn. 1951) which defines a package as a `bundle put up for transporatation or commercial handling ....Thing in form suitable for transportation or handling'.
43. Until the adding machine cartons were packed in the container in question they were not suitable for oceans transportation or handling.
44. We suggest that underlying Leather's Best sup. Is the concept that the `bales' there could have been shipped individually rather than in the container ultimately held not to be a `package'. See note 9 sup. Here, however. The individual cartons containing one adding machine each were simply not packing units suitable for overseas shipment. We view Leather's Best as holding that, where the shipper's own packing units are functional, a presumption is created that a container is not a 'package' which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such. Thus, this case is clearly distinguishable from Leather's Best. When, as here, the shipper's own individual units are not functional or usable for overseas shipment the.
45. Burden shifts to the shipper to show why the container should not bc. Treated as the `package'. The shipper has not met that burden here. While in Standard Electra it is unclear whether or not the cartons could have been shipped as a practical matter in the absence of pallets, note 9 sup. We treat that case, in its own language as one in which the parties' apparent intent was given considerable weight, 375 2d at 946, the pallets there were characterised by the parties as package.
46. Absent shipment in a functional packing unit, the burden is on the shipper to show by other evidence that his units are themselves `package'. Only then does custom and usage in the trade, the parties' own characterization or treatment of the items being shipped in supporting documentation or otherwise, and any other factor bearing on the parties' intent become relevant, as in Standard Electra, or Leather's Best.
47. The `functional package unit' test we propound today is designed to provide in a case where the shipper has chosen the container a `commonsense test' under which all parties concerned can allocate responsibility for loss at the time of contract, purchase additional insurance if necessary, and thus `avoid the pains of litigation'."
48. The above passage has been reproduced to illustrate the divergence of view in two leading cases viz. The Leather's Best and the Kulmer Land (The Royal Typewriter). The divergence is basically with regard to the nature of packing used by the shipper.
12. Yet another case in the same line is Cameco v. s.s. American Legion (1975) 1 LLR 295. The judgments advocating the functional economics test were rejected by Matshushite Electric Corporation v. s.s. Aegies Spirit (1977) 1 LLR 93 and Yeramex International v. s.s. Tendo, 1977 Ah1C lnc).
49. The Aegis Spirit (1977) 1 LLR 93 decided by the District Court, Western District of Washington related to shipment of colour TV, stereophonic equipment and other electrical appliances. The vessel was time chartered to Tokai Shipping Co. (Tokai). The shippers had packed the goods in cartons and stuffed in the containers owned by Takai. The bill of lading described number of containers or packages as `2 containers'. Under the column `kind of package'; Dewriprion of goods' the following notations were made: "SHIPPER LOAD COUNT AND SEAL Said to contain (CT 301 (120 C/t) Colour TV."
50. Similar particulars in respect of other four containers were also given and at the end total number of 601 cartons were mentioned with 27,722 lbs. As gross weight and 3,619'-3" as measurement. The bill of lading provided that where the cargo has been packed in container by the merchant, for purposes of limitation of liability the number of such containers) shown on the face of bill of lading shall be considered as number of packages. The carrier by a separate letter of guarantee acknowledging shipment of electrical goods in containers agreed and undertook that its liability would be $500 per package contained in the containers. It was observed that the functional economics test envisaged b-the Royal Typewriter and Cameco is `an unsatisfactory guide' either under the policy and provision of COGSA or realities of maritime industry. The nature of shipper's packaging cannot be basis to create presumption that container is not a package. The Law recognises `goods shipped in packages and goods not shipped in packages.' It also rejected on the ground that intent of parties as revealed by available evidence cannot be a touchstone as it cannot override the provisions of COGSA and `it is not the parties characterization of the shipment but the Court's interpretation of the statute.' In this judgment the `functional economics test' propounded by the Leather's Best was not followed and other judgments following it as stated above were severely criticised and rejected in the following words:---, "Accordingly, and for the foregoing reasons, I reject the `functional. Economics' test as contrary to the statute commercially impracticable and unwise."
51. After referring to the observation in Leather's Best reproduced in the earlier part of this judgment it was observed: "Certainly, if the individual crates or cartons prepared by the shipper and containing his goods can rightly be considered `package' standing by themselves, they do not suddenly lose that character upon being stowed in a carrier's container. I would liken these containers tov detachable stowage compartments of the ship. They simply serve to divide the ship's overall cargo stowage space into smaller, more serviceable loci. Shipper's packages are quite literally `stowed' in the containers utilizing stevedoring practices and materials analogous to those employed in traditional on board stowage. The logic of this view is made plainer yet upon noting, as previously discussed in Sumitomo, that Tokai's bills of lading cover every piece of cargo packaged by Matsushita/Japan but in no way affect title to the containers, which remains in Tokai. This fact underscores the fundamental distinction between the shipper-packaged goods and the carrier owned containers.
52. The Ninth Circuit in Hartford reasoned that `package' must be given its plain, ordinary meaning. I now hold that the individual cartons stowed within the Tokai containers constitute the COGSA packages to which the $500 limitation applies, and that this reflects the plain; ordinary meaning of this term."
53. In this context we would refer to some of the judgments cited by Mr. AA. Sharif where a container was held to be a package. In Eastern Kodak Co. v. s.s. Transmarine, Trans American Steamship Corporation and American Union Transport Inc. Pittson Stevedoring Corporation, 1975 AMC 123, and The Brooklyn Maru (1975) 2 LLR 512 following the `functional economics test' the cases placed inside the container were not found to be suitable for overseas shipment in their original packing and, therefore, container was held to be a package. A container was considered to be a package where only one shipper had stowed the goods in the container without participation or supervision of the carrier and declared it to be as one container with remarks SLC. Refer Rosenbrunch v. American Export Isbrandtsen Lines Inc. (1974) 1 LLR 119. In Santinel Enterprises Inc. v. m.v. Smo Matavulj Her Engine etc. And Barber Blue Sea & S.P. Shipping Co. Limited, 1990 AMC 177 US District Court, (Southern District Court, New York) the goods were stuffed in the container by the shipper describing total number of containers as `one (1) container only' and the bill of lading provided that shipper stuffed and sealed container shall constitute a package. In spite of the fact that the bill of lading elsewhere indicated the number of articles packed in the container, the container was held to be a package.
13. William Tetlay in Marine Cargo Claims, 3rd Edition, at page 642 commented that `functional economics test' envisaged by Leather's Best s.s. POINEER MOON, Royal Typewriter (V. Kulmer Land) and Cameco (s.s. American Legion) has been rejected in the following cases:-- (I)Matsushite Electric Corporation v. s.s. Aegis S Pirit, (1977) 1 LLR 93 (W.D. Wash. 1976).
54. (2)Yaramex International v. s.s. Tendo 1977 AMC 1807 (E.D. Va 1977) (Jaleem AKntar, J)
55. (3)Mitsui & Co. v. American Export Lines 1981 AMC 331 (2 Cir 1981).
56. (4)Smythgrehound v. M/Veyrtgenes, 1982 AMC 320 ( 2 Cir 1981).
57. (5)All State Ins. Co. v. Inversaners Naviera Imparca, 1982 AMC 945 (5 Cir 1981).
58. (6)Vagas Compania Venezolana, 1984 AMC 1600 (11 Cir 1983).
59. (7)Binladen BSB Landscaping v. M/s. Nedlloyds Roterdam, 1985 AMC 2113 (2nd Cir 1985).
60. (8)Hayes-Legal Assocs v. M/s. Oriental Knight, 1986 AMC 1724 (11 Cir, 1985.
61. (9)Inter Ocean (Free Zone) v. Manaure Lines 615 F. Supp. 710 (SD Fla 1985).
62. From the observations and principles envisaged in the aforestated judgments of the US Courts, William Tetley in Marine Cargo Claim (supra) concluded as follows:-- "American Courts advanced a number of theories, particularly the functional package test (also known as the functional economics test) which has fortunately been rejected even by the Second Circuit which originally proposed it. Now US Courts generally accept the packages to be each package inside the container if the number of packages is listed on the face of the bill of lading. On the other hand, if under the column entitled number of packages on the face of the bill of lading, it reads one container, then the package is the container,-In the US the Court may also look at the customary freight units."
63. Carver in Carriage of Goods by Sea Act, Volume I, 13th Edition, referring to the `functional packing unit test' as `Eastern View' and the other theory as the `specific view' observed at page 395: "In truth, there seems to be something to be said for the hazy and not partiqularly instructive pacific approach, in plain English bad of inadequate packing is still packing and the result a package. But the Eastern view is to be preferred, perhaps, on the ground of simple applicability and certainty; typical attributes of good common law principle, although linguistically difficult to justify; a baggage is baggage whether good, bad or falling apart."
64. However, Article IV,. Para. 5(c) of Hague/Visby Rules reproduced in the earlier part of the judgment seems to answer the knotty issue. Referring to it as adopted by the English Carriage of Goods by Sea Act, 1971, Carver observed: "Thus, the nations of the world have given judgment, and that judgment rejects the New York formula, by necessary implication, and adopts that of the pacific seaboard. It makes the pacific haze workable by the addition of the words in note 10, requiring the number of packages so consolidated to appear on the face of bill of lading."
65. 13-A. As the word `package' has not been defined in the Statute its plain dictionary meaning should first be ascertained. The meaning according to various Dictionaries is as follows:-- The Marine Encyclopedic Dictionary Supra "Package--A general shipping term for cases, crates, bundles, bales, bags, kegs, dress, barrels etc. Chamber's 20th Century Dictionary.
66. "Package--the act, manner or privilege of packing; a bundle, packet or parcel, a case or other receptacle for packing goods in.
67. The Oxford English Dictionary.
68. "Package--a bundle of things packed up, whether in a box or other receptacle, or merely compactly tied up; esp. Such a bundle of small or moderate size, as an item of luggage, a packet parcel. A case, casing, box or other receptacle in which goods arc packed.
69. Black's Law Dictionary.
70. "Package--a bundle put up for transportation or commercial handling; a thing in form to become as such an article of merchandise or delivery from hand to hand; a thing in form suitable for transportation or handling, or sale from hand to hand.
71. Ballentine's Law Dictionary.
72. "Package--a bundle or parcel made up of several smaller parcels, combined or bound together in one bale, box, crate etc. A bundle or bale made up for transportation. Sometimes holding only a single article. Something wrapped, boxed or crated, rather than merely covered. `Two things' (1) a receptacle of whatever form or character and (2) the contents thereof., . '
73. Stroud's Judicial Dictionary.
74. "Package--it must indicate something packed and in bill of lading cannot include cars put on board a shin without any box, crates or coverings (1938) 1 KB 459.
75. From the aforesaid dictionary meanings and judgments a package may mean any object, article, thing, item, piece, bale, bundle, commodity or good, in any size, shape, weight, or for, wrapped, clothed, covered, cased or packed not necessarily ertclosed entirely, tied or contained so as to have distinct and separate entity or unit for purposes of loading, stocking, piling, stuffing, stowing or keeping in a container or hold irrespective of sufficiency of packing. This meaning does not solve the issue involved viz. Whether each container was a package or each bale stuffed in it should be treated as a package. As a container, encased huge machinery, bale, bundle, carton and all such other items enumerated above can be called package, its applicability and determination depends upon the facts and circumstances of each case. It cannot be ignored that the word "package" occurs in a statute which regulates, the carriage of goods by sea providing rights, liabilities, immunities, limitations and duties of a carrier, shipper and consignee. It has, therefore, to be understood in this background and not in complete isolation. A carrier is to deliver what it has undertaken to carry. The determination of this liability is related to all such provisions which apply from the first step the parties take for transportation of cargo and continues till delivery.
76. 14.Under section 3 of Carriage of Goods by Sea Act, 1936 (COGSA) which is equivalent to Article III of Carriage of Goods by Sea Act, 1925, the carrier before the beginning of the voyage has to exercise due diligence to make the ship seaworthy, properly man and equip and make the hold and all other parts of the ship in which goods are carried, fit and safe for reception carriage and preservation of the goods. The carrier is also required to carefully load, handle, .Store, carry, keep, care for and discharge the goods carried. Subsection (3) relates to the issuance of bill of lading.
77. After the goods are received by the carrier its master or agent, on demand of the shipper, shall issue a bill of lading to him. This subsection prescribes the form and the manner in which the bill of lading is to be issued. It should mention the marks and numbers which are provided by the shipper and should be clearly shown upon the goods or cases or covering in which goods are contained. It must also state the number of packages or pieces or the quantity or weight as the case may be as furnished in writing by the shipper. Therefore, these particulars are based upon the declaration of the shipper. The carrier has also to state the apparent order and condition of the goods. This casts a duty upon the carrier to examine and observe the apparent condition of the goods and then state its remarks in the bill of lading. However, it is not mandatory on the carrier to state the marks, number, quantity or weight which he on reasonable grounds suspects that they do not accurately represent the goods actually received for carriage or where reasonable means of checking are not available. Therefore, a carrier is not bound to state the particulars mentioned in subsection 3(a),
(b) and (c) if he suspects their accuracy on reasonable grounds. The law provides the manner in which a bill of lading should be issued and also gives the liberty to the carrier to refuse to enter particulars declared by the shipper which it suspects to be incorrect. The effect of issuing a bill of lading in the prescribed manner is also given in subsection (4), according to which such bill of lading is to be treated a prima facie evidence of receipt of the goods by the carrier. mentioned in the bill of lading in accordance with paragraphs 3(a), (b) and (c) of section 3. Thus, if the carrier issues bill of lading in the prescribed manner then in case of non-delivery, short delivery or damage to cargo the bill of lading will be a prima facie evidence of the particulars mentioned in it as required and if the carrier wants to be relieved of such prima facie evidence it must produce evidence in rebuttal. Carrier's failure to rebut the prima facie evidence will make such particulars in the bill of lading binding on it. The learned counsel for the respondents has laid great emphasis that as the bill of lading was issued with remarks CY/CFS and STC (said to contain) the particulars mentioned therein are not binding. Where there is a notation of CY/CFS on a bill of lading it means that the carrier has supplied its container to the shipper at his yard who has after stuffing and sealing it delivered at the carrier's container freight station for carriage which shall be discharged at carrier's container freight station at the port of destination. So far the notation STC is concerned, this shows that entry in the bill of lading has been made on the declaration of the shipper and further that carrier has not verified or checked it. These notations cannot relieve the carrier from the duties and liabilities cast upon it by virtue of section 3, subsection 3(c). Mere statement that marks, numbers, description and particulars of the goods were made on the declaration of the shipper does not discharge the burden placed upon the carrier. If the carrier wants to be exonerated from such liability created by issuing the bill of lading in the prescribed manner it must establish and rebut by producing satisfactory evidence to the effect that the particulars entered in such bill of lading were not correct. If it had reasonable ground to suspect the accuracy of the particulars declared by the shipper it was not bound to enter them in the bill of lading as provided by the proviso to subsection (3). The fact that the carrier has entered in the bill of lading the declaration made by the shipper shows that prima facie it accepted it to be correct. Therefore, initially the burden is upon the carrier to show that the marks, numbers, weight or contents as mentioned in the bill of lading are not correct. The carriers issue bill of lading with remarks like' STC, SLC probably due to commercial convenience and competition between the carriers and also to attract more customers and to Provide facilities to the shippers. Therefore, where the carriers take liberties with the Statute or insert clauses which exonerate them from the statutory duty, responsibility or liability the same cannot dislodge the prima facie nature of the bill of lading. Such remarks may however, make the carriers' job of rebuttal easier.
78. 15.The learned counsel for the respondent has referred to the Judgment of the Privy Council in Canada and Dominion Sugar Company Limited v. Canadian National Steamship Limited, (1946) 80 LLR 13. In this case the bill of lading was issued before loading was completed stating that the goods had been `received in apparent good order and condition' qualified by the marginal notation that it had been .'signed under guarantee to produce ship's clean receipt'. The ship's receipt was issued with notation `many bags stained, torn and resewen.' As the goods were delivered in damaged condition the plaintiff's endorsee made a claim. It was held that in view of notation the carriers were not estopped from adducing evidence that the goods were damaged before shipment. The reason advanced was that the notation conveyed that `if the ships' receipt was not clean the statement in the bill of lading as to apparent order and condition could not be taken to be unqualified.' While dealing with objection raised on construction of Article III of Rules Scheduled to Carriage of Goods by Sea Ordinance, and relying on Vita Food Product Inc. (1939) AC 277, it was observed that: there was no evidence that the bill of lading was issued on shipper's demand as required by Rule 3.
79. And further that there is indeed no law which prevents goods being carried at sea without any bill of lading (Vita Food Product sup at p.294) or makes any particular form of bill of lading obligatory.
80. It seems clear that the bill of lading here was what the parties intended and was in no sense unlawful and void."
81. Again referring to Rule 4, para. 3 of the Rules Scheduled to the Carriage of Goods by Sea Ordinance (same as Article III, Rule 4 of The Hague Rules) which makes bill of lading prima facie evidence it was observed:- "The Rule, however, can have no practical application in this case. The bill of lading, as their Lordships have found, does not describe the goods as being received in apparent good order and condition, and there 'is no reason under the Rules or otherwise for refusing effect to the bill of lading according to its construction. In any case their Lordships like the majority Judges of the Supreme Court, do not see any reason to dissent from the view expressed by Scrutton, LJ, in Silver's case, sup.
82. At page 425, that: Rule 4 of Article 3 has not the effect of allowing the shipowner to prove that goods which he has stated to be in apparent good order and condition on shipment were not really in apparent good order and condition as against people who accepted the bill of lading on the faith of the statement contained in it."
83. It is, thus, clear that in view of Vita Food Products bill of lading was held not to have been issued under the provisions of Carrier of Goods by Sea Ordinance of New Guinea and it was treated to be an agreement between the parties. It, therefore, follows that to sucb circumstances the principle of estoppel was applied. While commenting upon this judgment it would be relevant to mention that the Privy Council did not treat the bills of lading subject to Hague Rules and they were enforceable according to their own term as they were not illegal according to New Found land Law or by any other relevant law. According to Carver a different view may be possible. Tetley has termed Vita Food Products Inc, as a `quite discredited decision today, which disregarded the mandatory nature of The Hague Rules'. He has relied on the following judgments: (1)The Morviken (1933) 1 Lloyd's Report 1.
84. (2)Dominion Glass Co. v. The Anglo-Indian (1944) SCR 409; 1944 AMC 1407.
85. (3)Ocean s.s Ci. v. Queensland State Wheat Board, (1941) 1 KB 402, (1940) 68 Lloyd's Law Report 136.
16. The Attorney-General Ceylon v. Scindia Steam Navigation Co. 1962 AC 60 = (1961) 2 LLR 173 and Rederiaktiebolagest Custer Erikson v. Dr. Fawzi Ahmed Abou Ismail (The Herroe and Ashoe), (1986) 2 LLR 281, have followed the Chinese Antimony and Canada & Dominion Sugar Company. The same view has been expressed by the Supreme Court of New South Wales, Commercial Division, Australia in Ace Imports Pty. Ltd. v. Compania De Navega Coollyds, Brasileiro (The Esmeralda I), (1988) 1 LL LIZ 206.
86. 16-A. In Attorney-General, Ceylon, three bills of lading were issued giving the number of packages with a marginal note `particulars declared by shipper'. Each bill of lading gave number of bags, leading marks, weight and, description of content as `full boiled rice 1953 crop'. The bill of lading contained printed clause `the weight, contents and value when shipped unknown'. The Privy Council held that the bills of lading were not prima facie evidence of the weight shipped out only of the number of the bags shipped. It was observed that `this was the result of the incorporation in the bills of lading of the provision, that `weight, contents and , value when shipped unknown' which was a disclaimer of knowledge about weight, contents and value. Reliance was placed on New Chinese Antimony Co. Limited. The Herroe and Ashoke (1986) 2 LI LR 281 also followed the same view. With respect we may observe that in Attorney-General, Ceylon and other similar judgments- due note of the effect of the provisions of Carriage of Goods by Sea Act (Hague Rules enactments) has not been taken which provide in detail manner for preparing and issuing a bill of lading with option to the carrier not to mention such particulars which it suspects to be incorrect and finally makes such bill of lading prima facie evidence of the prescribed particulars mentioned in it. These cases have relied upon New Chinese Antimony, (1917) 2 KB 664 which was decided before the enforcement of Hague Rules enactment. It was decided on the basis of common law. In this case the qualifying words viz. `weight, measurement, contents and value (except for purposes of estimating freight) unknown' were printed in the body of the bill and were treated as term of contract.
17. Carvar in his book `Carriage of Goods by Sea' and Scruttom on. `Charter Parties' while commenting on the English Law do not seem to have expressed adverse view on the judgment of the Privy Council. However, Tetley does not favour the view expressed in Attorney-General, Ceylon and has referred to Spanish American Skin v. M/s. Ferngulf, 1957 AMC 611 (2nd Cir 1957) in which the bill of lading acknowledged receipt of 60 packages stating `shipper's weight Nett 6.7.2.8" with a rubber stamp reading `Steamer not responsible for weight, quantity or condition of contents'. The Court held that the bill of lading was prima facie evidence of number and weight. Referring to COGSA provision particularly section 3(3)(c) the Court observed:-- "The carrier must utilize that method, rather than the quite general reservation attempted here. The purpose of the Act to promote uniformity and negotiability of the ocean bills of lading includes a.
87. Purpose to eliminate the practice of rubber stamp exceptions, limiting carrier liability."
88. According to Tetley this view has been taken in France, Belgium and Greece and he has referred to judgments of those countries at page 289. He finally commented: "The decision in Spanish American Skin v. M/s. Ferngulf seems preferable to the finding in A: G. Of Ceylon. This is because The Hague and Hague/Visby Rules are relatively clear. The carrier is not obliged to, state a 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, (last para. Of Art. 3(3)).
89. By Article 3(8), the obligation of Article 3(3) cannot be lessened. In any event, the Courts will weigh all the evidence and require both parties to provide all the proof available to them, because the claused bill of lading at best creates a presumption but cannot create an estoppel, even in the hands of third parties for value."
90. The view of the learned author seems to be in accord with the spirit and language of COGSA and Hague/Visby Rules. Any remarks, covenant or agreement which is in conflict with section 1(3)(a)(b)
(c) lessening, reducing or disminishing carrier's liability or duty imposed by these provisions will be void. Mr. Shariff has preferred to The National Electric Radio Refrigeration. Company (Pakistan)
91. Limited v. M/s. Sachilia Laurs, Naples (Italy) and 3 others, PLD 1977 Karachi 264 and relied on the observation that `by issuing a clean bill of lading there can be no presumption as to the contents which were not apparent on inspection: It may be clarified that in the referred case as the Carriage of Goods by Sea Act was not applicable it was decided on the basis of the Contract Act and, therefore, reliance was placed on New Chinese Antimony. This judgment is not an authority in respect of bill of lading to which Carriage of Goods by Sea Act or Hague Rules are applicable. Once applicability of this Act is excluded the prima facie character of bill of lading asprovided by Article 111, Rule 4 is lost. Here we may refer to Yar Muhammad Janoo & Co. v. Maldivian National Corporation (Ceylon) Limited,. PLD 1969 Kar. 495; Deutche Danpschiti Faharts - Gesellscheft v.
92. Central Insurance Company Limited, PLD 1975 Kar. 819 and Crescent Sugar Mills & Distillery Limited v. M/s. American Export Isbrandtsen PLD 1983 Kar. 29, where it was held that under Carriage of Goods by Sea Act, 1925 the particulars mentioned in the bill of lading in compliance with Article 111, Rule 3(a), (b) and (c) are prima facie evidence against the carrier which is rebuttable. In Yar Muhammad Janoo it was also observed that as against an endorsee of a bill of lading, the carrier should not be allowed to repudiate the statements shown in the bill of lading issued by it. These judgments lay down the correct law under the Carriage of Goods by Sea Act.
18. During arguments reference has been made to the Bills of Lading Act, 1856. The Bills of Lading Act vests in the consignee or endorsee all rights of suit and subjects to the same liabilities in respect of goods shipped under it as he is a party to the contract contained in the bill of lading.
93. Section 3 provides that such bill of lading shall be conclusive evidence of shipment made under it as against the master or other person signing the same, whether the goods or any part thereof may not have been shipped. But such right is not available to the holder of the bill of lading who had actually noticed at the time of receiving the same that the goods had not been, in fact, loaded on board. The master or other person signing the bill of lading ray be exonerated from the liability by showing that misrepresentation was caused without any default on his part and wholly by the fraud of the shipper or the holder or some other person under whom holder claims. The principle of estoppel as enunicated in the Bills of Lading Act, 1856, and similar enactments in USA has been stated by Tetley as follows:-- "The United Kingdom Bills of Lading Act, 1855, at section 3, like the Canadian Bills of Lading Act, at section 2, provides a rule of estoppel in respect of the quantity of the goods shipped on board. The estoppel is against the master or other person signing the bill of lading and is in favour of the consignee or endorsee for valuable consideration. The Pomerene Bills of Lading Act, 1916, at section 22 provides a similar estoppel, but (i) it is against the carrier; (ii) is not merely for quantity, but for the description in the bill of lading (i.c. Marks, quantity and condition) and (iii) the date of shipment and (iv) is in favour. Of the owner of the goods under a straight bill (way bill) or the holder of an order bill for value in good faith. The Pomerence Act in this and many other provisions is a very superior statute."
94. Referring to section 3 of the Bills of Lading Act, Carver in paragraph 107 states as follows:-- "This section prevents the person who has actually signed a bill of lading, or the person in whose name and with whose authority it has been signed, from disputing the accuracy of its statement of the kind and quantity of the goods shipped, in any proceeding between a consignee or indorsee for value and himself; unless he can bring himself within the proviso. 1t does not bind the shipowner when the bill of lading has been signed by his agents in their own names;"
95. While referring to Article 3, `paragraph 3 of The Hague Rules he writes in paragraph 518 that: "This rule is modified, in the case of bulk cargoes, by section 5 of the Act. This rule only states that the bill of lading shall be prima facie evidence. The bill of lading, may, nevertheless, be conclusive as to the order and condition of goods shipped. Decisions on bills of lading to which the Act does not apply to the effect that the statement in them as to apparent good order and condition estops the shipowner (as against a person taking the bill of lading for value) from proving that, the goods were not in such order and condition when shipped are not rendered inapplicable by this rule.
96. Nor can this rule affect the master's liability under section 3 of the Bills of Lading Act, 1885."
97. In USA the Pomerene Bills of Lading Act, 1916, is applicable but according to section 3, subsection
(4) of COGSA, the COGSA is not construed as repealing the application of any part of sections 81 to 124 of Title 49 namely sections 1 to 44 constituting Pomerene Act, 1916, section 22 of which is similar to section 3 of the Bills of Lading Act. According to the rule of construction COGSA and Pomerene Act should be read harmoniously with each other and; therefore, the bill of lading issued in the prescribed manner, notwithstanding qualifying clauses discussed above will be a prima facie evidence. The declaration that such a bill of lading is a prima facie evidence confers on the carrier right of rebuttal. Likewise, under the Bills of Lading Act by virtue of the proviso to the section, the owner is entitled to exonerate himself from liability in the given circumstances.
19. The learned Single Judge has relied on two judgments of the Singapore Court to come to the conclusion that the container as described in the bill of lading should be treated as one package.
98. The first case is The American Astronotes, (1979) 2 MU 220 which has been referred in the earlier part of the judgment. The container was packed with 580 cartons of toilet soap and sealed by the shipper in his yard. The bill 'of lading stated the mark, number of packages as 580, the description of packages and goods as `Carton Toilet Soap' with notation House to Pier Container No. USLU 2127077, Seal No. `(not given)'. The bill of lading also contained a statement that `the goods or the container's vans ... ... ... ... ... ... ... ... ....Or other packages said to contain goods herein mentioned were .Received in good order and condition except as otherwise indicated herein to be transported '
99. Another notation on the face of bill of lading was `Shipper's load, stowage and count.' At the port of discharge only 375 cartons were delivered. The owner/endorsee of the bill of lading sued and obtained a decree. The carrier appealed. It was held that: "The notations used were in respect of a container packed, sealed and loaded on the vessel by the shipper or his agent and not in connection with cargo which could have been seen and checked."
100. It was further observed: "Such phrase 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 US Carriage of Goods by Sea Act, 1936, which corresponds with Article III, Paragraph 8 of the Schedule to the Carriage of Goods by Sea Act:'
101. The next case is Axil Maersk (1981) 2 MU 315, where bill of lading was issued in respect of one container stuffed with 249 cartons of clock radio and transistor radios with notation CY/CY. For damage to goods by sea water and/or fresh water the plaintiff made a claim and it was held that: "Normally, a plaintiff would rely on the bill of lading as prima facie evidence that the goods were received by the defendant 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."
102. This judgment follows the principle of Attorney-General, Ceylon.
20. The first case does not seem to follow the New Chinese and Attorney General of Ceylon and has carved out a via media by holding that the notations were not in conflict with Article 3, Rule 8. If the qualifying remarks in this case are treated to form part of a contract then in effect it relieves the carrier from responsibilities, duties and obligations provided by section 3, COGSA (Article 111, Hague Rules) and comes in conflict with section 3(8). Such an interpretation will strain the clear language of section 3(8) and ignores other provisions of this section. It is rather anomalous that at one hand the particulars cleared by the shipper are entered in the bill of lading which a carrier has the option not to enter if it reasonably suspects it to be incorrect, thus, giving it a colour of correctness and on the other hand makes notations to show its complete ignorance and doubt about its correctness and accuracy. The law has given choice to the carrier to enter the particulars declared by the.
103. Shipper or not to enter them and further protects-the carrier by making shipper liable for compensation for misrepresentation. Taking into consideration the commercial nature of the bill of lading which is a negotiable document it is necessary that where COGSA or Hague Rules as enacted, apply, they must be followed. Therefore, if the number of packages and nature of the goods are mentioned in the bill of lading then the words `said to contain' or `particulars furnished by the shipper', CY/CY and similar notations will not permit the carrier to dispute the prima facie character of the bill of lading issued in the prescribed manner. In such a case if the pariculars and number of packages contained in the container are mentioned in the bill of lading the carrier is prima facie liable to discharge a container containing the goods mentioned in the bill of lading subject to rebuttal. And each package in the container shall be treated as a package. Where a carrier has entered in a bill of lading the number of container only without giving particulars of the goods stowed in if the carrier will be liable to discharge one container irrespective of the goods stuffed in it. The container shall be treated as one package. In cases where the goods have been stuffed by the shipper and the carrier is not associated with the stuffing and is not aware of the contents but accepts the declaration of the shipper as to. Particulars and number of goods to be correct and mentions it in the bill of lading, the liability of the carrier would be not to deliver one container only but the goods contained in it as described in the bill of lading. This interpretation is in consonance with the letter and spirit of COGSA and Hague Rules. On this issue Courts have faced difficulty in interpeting Hague Rules, however, in view of its amendment by Hague/Visby Rules it seems clear that it has now been clarified and declared in positive terms. Therefore, this interpretation finds support from the opinion and resolution of the international commercial and shipping communities as well.
104. 21.A bill of lading with notations like CY/CY, CFS or SLC is a prima facie evidence as provided by law but its rebuttal by the carrier becomes easier and the burden becomes much lighter than in other cases. Such or similar notations on the bill of lading have gained currency and their meaning is well understood in shipping, commercial and banking circles to mean that the carrier was not associated with the stuffing of the container which was exclusively done by the shipper. In the face of such bill of lading the carrier need not prove these facts unless rebutted. It has only to establish that such sealed container was properly and carefully loaded, handled, stowed, carried, kept, cared for and discharged. The burden will then shift to the shipper to prove that the number of packages or goods as shown in the bill of lading were stuffed in it. Without such proof the claim for loss or damage cannot succeed. Where the bill of lading is in respect of a container without describing the goods contained in it, the words `apparent order and condition' will refer to the apparent condition of the container.
22. In the present case admittedly the bill of lading was marked with notations CY/CY, STC, which prima facie established that the containers were stuffed exclusively by the shipper. The respondents have proved by cogent evidence that the containers were discharged at Karachi with seals intact. They have further, by evidence in rebuttal, proved that they have discharged their duties as carriers properly. The appellant has not produced any evidence in rebuttal to prove the number and condition of bales stuffed in the containers. Therefore, for somewhat different reasons the appeal is dismissed.
105. Considering the nature of controversy involved, the parties shall bear 10 their own costs.