FAN MILK LTD. v. STATE SHIPPING CORPORATION

JUDGMENT OF HAYFRON-BENJAMIN J.

On 10 February 1971 I gave a ruling which is reported in [1971] 1 G.L.R. 238 on the preliminary points raised in this case, the facts of which are not in serious dispute. By a bill of lading dated 28 October 1968 which was made subject to the Carriage of Goods by Sea Act, 1924 (14 & 15 Geo. 5, c. 22), and the Hague Rules scheduled thereto, the defendants acknowledged the shipment on board their vessel the Otchi River in apparent good order and condition, of the plaintiffs' 400 cartons of butter oil for carriage to and delivery at Tema in the like good order and condition, for an agreed freight. These facts are completely admitted by the defendants in their statement of defence. The consequences of this admission are twofold namely:

(a) The carrier cannot be protected beyond the limits provided by the Carriage of Goods by Sea Act, 1924 (14 & 15 Geo. 5, c. 22), and the Hague Rules scheduled thereto. Protection clauses in a bill of lading which are wider than those allowed by the Act are void. It is only where there is no bill of lading that a carrier can further limit his common law liability. In this case the carriers indeed did not seek to further limit their liability.

(b) The other consequence of the admission is that having given a clean bill of lading, the carriers are presumed to have received the goods in good order and condition, and the burden is on [p.4] them to establish the contrary. In this case the defendants also specifically admit that the goods were delivered in good condition. The general statement in the bill of lading that the goods have been shipped in good order and condition amounts (if it is unqualified) to an admission by the ship owner that so far as he and his agents had the opportunity of judging, the goods were so shipped. See The Freedom (1871) L.R. 3 P.C. 594 and The Peter der Grosse (1875) 1 P.D. 414, C.A.

There is no dispute that the goods were delivered at Tema in a damaged condition. The Lloyd's surveys made this abundantly clear. The defendants have however sought to escape liability on the grounds that the damage was caused by the plaintiffs' failure to pack the said butter oil in a manner consistent with the carriage of butter oil from a cool to a hot climate and also the plaintiffs' failure to request special storage arrangements consistent with the manner of package. It is true that a carrier is not usually liable for losses which result from the defective manner in which the go