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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1980) 1 CLR 521
1980 November 15
[A. LOIZOU, J.]
AEON 21 SHIPPING & TRADING CO. LTD.,
Plaintiffs,
v.
J. & HAYAT MINERAL WATER CO. LTD.,
Defendants.
(Admiralty Action No. 305/79).
Admiralty—Shipping—Carriage of goods by sea—Freight—Bill of lading—Whether amount of cargo stated therein conclusive evidence against the shipper—Shipper not estopped from claiming freight on the additional cargo shipped over and above the one represented and paid by the defendants.
The defendants applied to the agent of the plaintiff company for the carriage of 5,000 cartons of mineral water from Limassol to Damman. The cartons were to be placed on palets the total number of which was 167. According to the dimensions given such cargo would be 160 cubic meters, excluding the size of the pallets. On September 6, 1979 there was issued a bill of lading stating therein under the heading "Shipper's description of packages and contents" the cargo as being "167 pallets stated to contain 5,000 cartons etc". When the ship arrived and the cargo was sent for loading to Limassol, the agent of the plaintiff company on measuring it found that the cubic measurement of the pallets was 222.64 cubic meters instead of 160 cubic meters as declared by the defendants that it would be.
In an action by the plaintiffs for the freight in respect of the additional cubic meters of cargo:
Held, that a bill of lading is only prima facie evidence of the quantity shipped; that although the amount of cargo stated in the bill of lading to have been shipped is not conclusive evidence, as against the ship-owner, of the amount actually shipped, it is strong prima facie evidence of that amount, unless the contrary is provided by apt words in the bill of lading; that, moreover, the shipowner is not estopped from denying that the weight or the dimensions of the cargo stated in the bill of lading to have been shipped is not correct; that the freight under the contract was to be calculated on the basis of the measurements of the pallets per cubic meter and there is no reference to the measurements of this cargo in the shipper's description of packages and contents contained in the bill of lading; that this clearly shows that the amount of freight was to be determined by measuring the goods in order to calculate the payment and that could only be done when same were brought for shipment; that the bill of lading given for the purpose of facilitating the defendants with their obligations under the letter of credit opened for their benefit in respect of this shipment, cannot be taken as being conclusive evidence of its contents on the matter and there was nothing to estop the shipowners from claiming the difference in the freight as claimed in the present case; that, therefore, the plaintiffs are entitled to freight on the additional cubic meters of cargo; and accordingly judgment will be given as per their claim.
Judgment for plaintiffs as per claim.
Admiralty action for the equivalent in Cyprus currency of U.S. $ 5,762 being balance of freight in respect of 167 pallets of hayat mineral water shipped by the defendants on plaintiffs' vessel "ATHANASSIOS S" for carriage from Limassol to Damman.
L. Papaphilippou, for the plaintiffs.
Chr. Mitsides, for the defendants.
Cur. adv. vult.
A. LOIZOU J. read the following judgment. In this case the claim of the plaintiff company, who are the owners or operators of the ship "ATHANASSIOS S" is:
(a) The equivalent in Cyprus currency of U.S.$5,762- being balance of freight in respect of 167 pallets of Hayat Mineral Water shipped by the defendants on plaintiff's vessel "ATHANASSIOS S" for carriage from Limassol to Damman.
(b) Alternatively or additionally the same amount as above as damages for misrepresentations by the defendants concerning the measurements of the said cargo and/or for breach of implied or express agreement or otherwise.
(c) Legal interest.
(d) Costs.
The defendants applied by telex dated 6.9.1979 to the agent of the plaintiff Company in Cyprus for the carriage of 5,000 cartons of Hayat Mineral Water from Limassol to Damman. Each carton would contain 12 plastic bottles of 1.5 litres each and there would be 30 cartons per pallet, the total number of pallets being 167, the dimensions of the containers being 37 X 27 X 32 cm. and each container weighing 18 kilogrammes. It is agreed by both sides that on the basis of the dimensions given, this cargo equaled to 160 cubic meters, excluding the size of the pallets. The pallets are double-decker wooden planks with a space of 5 cm. in-between them so that the prongs of the fork lifts would go into that space and facilitate their lifting and transportation. The freight quoted by the plaintiff Company, through their agents, for the carriage of the said cargo was US$ 65.-per cubic meter, plus 20% fuel surcharges, Liner's terms.
On the 6th September, 1979, on a strength of a Bill of Lading application sent to the agents of the plaintiff Company, Bill of Lading No. 1 (exhibit 7) was issued stating therein under the heading "Shipper's Description of Packages and Contents", the cargo as being "167 pallets stated to contain 5,000 cartons etc.". This Bill of Lading was issued upon an Indemnity and Guarantee (exhibit 8) being given to the plaintiff Company in consideration of their releasing to the defendants or to their order the said clean Bill of Lading No. 1 of m. v. "ATHANAS- SIOS S" Limassol—Damman, dated 28.9.1979 prior to vessel's arrival. They thereby undertook and agreed to indemnify the plaintiff Company fully against all consequences and/or liabilities of any kind whatsoever directly or indirectly arising from or relating to the said delivery and immediately on demand against all payments made by them in respect of such consequences and/or liabilities etc. When the ship arrived and the cargo was sent for loading to Limassol, the agent of the plaintiff Company on measuring it found that the cubic measurements of the pallets came to much more than the one declared by the defendants that it would be. Upon that the agent of the plaintiff Company sent a telex (exhibit 4) to the defendants pointing out that the dimensions stated in their telex of the 6th September, 1979 (exhibit 2) did not agree with their figures taken rightly at the time of shipment, making a total of 222.24 cubic meters and resulting into a difference of 62.24 cubic meters and invited them to attend and recheck the measurements jointly at the earliest possible opportunity and failing to comply with such request that they would proceed with their own figures demanding payment of freight on the additional quantity. The defendants denied any liability and did not attend for the purpose of rechecking the dimensions of the cargo. Upon that the agent of the plaintiff Company invited a surveyor of the Lloyd's agents in Limassol who attended on the quay during the loading of the said cargo and checked the cubic measurements of the pallets. According to his testimony, the details of which are to be found in his report (exhibit 1), he carried out a random survey of 21 pallets as they arrived alongside for loading on to the vessel and found them to be of such dimensions that on an average the total cubic measurement of the consignment amounted to 233.873 cubic meters. It was explained that although the pallet load of the pallets appeared to be the same, wooden pallets of different sizes had been used, hence the variation of the cubic measurements as found. The main reason for the difference in the cubic measurements of the consignment was the fact that the defendants excluded the dimensions of each pallet from the overall dimension of the cargo which was obviously wrong as the cargo would be loaded on the pallets and not stowed by itself in the hold and therefore the dimension of the pallets should have been included in the measurements.
Under term 11(e)—"The Carrier is entitled in case of incorrect declaration of contents, weights, measurements or value of the goods to claim double the amount of freight which would have been due if such declaration had been correctly given. For the purposes of ascertaining the actual facts, the Carrier reserves the right to obtain from the Merchant the original invoice and to have the contents inspected and the weight, measurement or value verified".
The plaintiff Company by a letter dated the 2nd November, 1979 (exhibit 6), sent through their lawyer, asked the defendants to pay for the difference in the freight due and payable because of the difference in the measurements of the cargo which was discovered in the circumstances hereinabove set out, as the freight recorded as prepaid on the Bill of Lading was collected on the strength of the representation of the defendants to be found in their application (exhibit 2) for the issue of such Bill of Lading.
In consequence of the above difference, the plaintiff Company are entitled to freight on the additional 73.873 cubic meters of cargo which was shipped over and above the 160 cubic meters represented and paid by the defendants. Such freight calculated at the rate of US$65- equals US$4,801,745, plus 20% fuel surcharge, comes to US$ 960,349, the total being US $ 5,762.- which is the amount claimed by the present proceedings or its equivalent in Cyprus currency.
It is the case for the defendants that the plaintiff Company quoted an offer which the defendants accepted and thereupon the plaintiff Company undertook the carriage of the said goods by a contract evidenced and/or contained in the Bill Lading (exhibit 7). They denied the allegation of the plaintiff Company that they, relying on the dimensions given by the defendants, issued the Bill of Lading and received prepayment of the freight and that in the alternative the defendants allege that the plaintiff Company had admitted the quantities as correct by issuing the Bill of Lading in question.
It is relevant to the issues raised to say that a Bill of Lading is only prima facie evidence of the quantity shipped, but although the amount of cargo stated in the Bill of Lading to have been shipped is not conclusive evidence, as against the shipowner, of the amount actually shipped, it is strong prima facie evidence of that amount, unless the contrary is provided by apt words in the Bill of Lading (see Carver, Carriage by Sea, 12 Ed., para. 75 p. 64). Furthermore, the shipowner is not estopped from denying that the weight or the dimensions of the cargo stated in the Bill of lading to have been shipped is not correct (see Carver (supra) para. 74).
Also reference may be made to what is stated in Carver (supra), Vol. 2, para. 1166, at p. 986, under the heading: "Bill of Lading quantity not conclusive unless so agreed"—
"Unless the freight is expressly to be paid upon the quantities stated in the bill of lading, those quantities are not conclusive. They have generally been put in by the shipper, and, if so, may be used against him as admissions. If they were accepted as correct by the master, they are also evidence against him and against the shipowner. But either party is generally at liberty to show that there has been a mistake in the statement. If, however, the freight is expressly to be paid upon the quantity as stated in the bill of lading, it is not open to either party, in the absence of fraud, to vary the amount by showing that the statement was not correct".
In the present case the freight under the contract was to be calculated on the basis of the measurements of the pallets per cubic meter and there is no reference to the measurements of this cargo in the Shipper's description of packages and contents contained in exhibit 7. This clearly shows that the amount of freight was to be determined by measuring the goods in order to calculate the payment and that could only be done when same were brought for shipment.
The Bill of Lading (exhibit 7) given for the purpose of facilitating the defendants with their obligations under the Letter of Credit opened for their benefit in respect of this shipment, cannot be taken as being conclusive evidence of its contents on the matter and there was nothing to estop the shipowners from claiming the difference in the freight as claimed in the present case.
For all the above reasons the plaintiff Company succeeds in its claim and judgment is given as per paragraph (a) of the endorsement, with legal interest and costs.
Judgment and order for costs
as above.