This statement in this context applies only to the packaging and not to the
contents, and therefore will not be of significant commercial assistance to interested
parties such as buyers.
38 In the case of containerised goods the “apparent good order
and condition” qualification will relate to the container and not its contents. It will be
for buyers to look after their interests by adopting other means of inspecting the
contents. But if the packaging is damaged or otherwise defective the carrier is
obliged to clause the transport document, notwithstanding that he has no knowledge
of the condition of the contents. Of course, there may be circumstances where
damaged or defective packaging may be indicative that the contents may also have
been compromised, as where a container is severely damaged or fluid is seen to be
seeping out from the container.
2.4 Condition and Quality of Goods Distinguished
The statement made by the carrier relates to the “condition” of the goods. There is a
distinction to be made between the “condition” and “quality” of goods. In general
terms it may be said that “condition” relates to the state of the goods, which can be
discerned from an external viewing of the goods, whereas “quality” relates to the
commercial fitness and/or utility of goods. The latter is a significant element in
contracts for the sale of goods and in respect of which the carrier of the goods is not
expected to have any concern. Nonetheless, the distinction can be elusive and it is
possible for the defective condition of goods to impact upon their commercial
quality. But again the carrier need not be concerned with such niceties.
In The Athelviscount
39 a cargo of kerosene was pumped on board the chartered
vessel and described in the bills of lading as “Rumanian export type kerosene”, a
product which had a water white colour. The bills indicated that the cargo had been
“shipped in good order and condition” and the master’s signature was qualified by
the words “Weight, quantity and quality unknown to me”. It was subsequently
discovered on analysis that the kerosene was discoloured but the master could not
visibly discern any discolouration. In the context of a question whether the carrier
was estopped as against the receivers from alleging that the kerosene had been
contaminated when pumped on board, the court held that the defect was not one of
“condition” which related to the external and apparent condition of the kerosene, but
one of “quality” which was not usually apparent to an unskilled person. The master
had no authority to make any representation as to the quality of the kerosene pumped
on board.
38 The TNT Express [1992] 2 Lloyd’s Rep 636, Sup Ct (NSW).
39 Supra n. 37
The Legal Concept and Significance of Clean Shipping Transport Documents
649
contents, and therefore will not be of significant commercial assistance to interested
parties such as buyers.
38 In the case of containerised goods the “apparent good order
and condition” qualification will relate to the container and not its contents. It will be
for buyers to look after their interests by adopting other means of inspecting the
contents. But if the packaging is damaged or otherwise defective the carrier is
obliged to clause the transport document, notwithstanding that he has no knowledge
of the condition of the contents. Of course, there may be circumstances where
damaged or defective packaging may be indicative that the contents may also have
been compromised, as where a container is severely damaged or fluid is seen to be
seeping out from the container.
2.4 Condition and Quality of Goods Distinguished
The statement made by the carrier relates to the “condition” of the goods. There is a
distinction to be made between the “condition” and “quality” of goods. In general
terms it may be said that “condition” relates to the state of the goods, which can be
discerned from an external viewing of the goods, whereas “quality” relates to the
commercial fitness and/or utility of goods. The latter is a significant element in
contracts for the sale of goods and in respect of which the carrier of the goods is not
expected to have any concern. Nonetheless, the distinction can be elusive and it is
possible for the defective condition of goods to impact upon their commercial
quality. But again the carrier need not be concerned with such niceties.
In The Athelviscount
39 a cargo of kerosene was pumped on board the chartered
vessel and described in the bills of lading as “Rumanian export type kerosene”, a
product which had a water white colour. The bills indicated that the cargo had been
“shipped in good order and condition” and the master’s signature was qualified by
the words “Weight, quantity and quality unknown to me”. It was subsequently
discovered on analysis that the kerosene was discoloured but the master could not
visibly discern any discolouration. In the context of a question whether the carrier
was estopped as against the receivers from alleging that the kerosene had been
contaminated when pumped on board, the court held that the defect was not one of
“condition” which related to the external and apparent condition of the kerosene, but
one of “quality” which was not usually apparent to an unskilled person. The master
had no authority to make any representation as to the quality of the kerosene pumped
on board.
38 The TNT Express [1992] 2 Lloyd’s Rep 636, Sup Ct (NSW).
39 Supra n. 37
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649