damaged there is at least an inference that the damage was caused in transit when in
the possession of the carrier, with the evidentiary burden on the carrier to explain the
cause of the damage.
57 The precise evidentiary position differs as between shipper
and carrier, consignee/receiver and carrier.
As between shipper and carrier the words “shipped in apparent good order and
condition” are prima facie evidence as to the condition of the goods when received
by the carrier either for shipment or at the time of shipment.
58 Thereafter the burden
of proof is on the carrier to rebut the prima facie evidence and adduce evidence that
the goods when received or shipped were damaged or otherwise defective.
59
The position is different as between carrier and consignee/receiver. This position
arises when the consignee/receiver is a different entity from the shipper, for example
the buyer of the goods in transit who may also have acquired contractual rights under
the contract of carriage.
60
At common law the phrase “apparent good order and condition” amounts to a
representation of fact. If the consignee/transferee of the document acting in good
faith does so rely on the statement an estoppel is established. The effect of the
estoppel is to deny the carrier the right to adduce evidence to counter the representation suggested by the words and which thereupon are treated as conclusive
evidence.
61 This continues to be the case even if the goods were actually damaged
when received by the carrier and of which the carrier was aware.
Under the international conventions the position is the same, save that the words
“proof to the contrary shall not be permissible” are substituted for “estoppel”. The
protection is again subject to the condition that the consignee/receiver has acted in
good faith.
62
Of course, in the event that the transport document is claused its evidentiary
significance is nullified. It is neither prima facie nor conclusive evidence.
7 Wider Potential Legal Liabilities
Beyond contractual liabilities and evidentiary consequences, there are many liabilities that may arise in connection with statements made in a bill of lading relating to
the condition of goods shipped or to be shipped.
It has already been observed that the carrier may be imposed upon to issue a clean
bill of lading notwithstanding that the goods are visibly damaged or otherwise
57 Volcafe Ltd and Others v Compania Sud Americana de Vapors S (Trading as CSAV) [2018]
UKSC 61.
58 Hague and Hague-Visby Rules art 3.4; Hamburg Rules art 16.3(a); Rotterdam Rules art 41(a).
59 Supra n. 57
60 In the context of English law under the Carriage of Goods by Sea Act 1992.
61 Cia Nav Vasconcada v Churchill & Sim [1906] 1 KB 237.
62 Hague-Visy Rules art III.4; Hamburg Rules art 16.3(a) and (b); Rotterdam Rules art 41(b) and (c).
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D. R. Thomas
the possession of the carrier, with the evidentiary burden on the carrier to explain the
cause of the damage.
57 The precise evidentiary position differs as between shipper
and carrier, consignee/receiver and carrier.
As between shipper and carrier the words “shipped in apparent good order and
condition” are prima facie evidence as to the condition of the goods when received
by the carrier either for shipment or at the time of shipment.
58 Thereafter the burden
of proof is on the carrier to rebut the prima facie evidence and adduce evidence that
the goods when received or shipped were damaged or otherwise defective.
59
The position is different as between carrier and consignee/receiver. This position
arises when the consignee/receiver is a different entity from the shipper, for example
the buyer of the goods in transit who may also have acquired contractual rights under
the contract of carriage.
60
At common law the phrase “apparent good order and condition” amounts to a
representation of fact. If the consignee/transferee of the document acting in good
faith does so rely on the statement an estoppel is established. The effect of the
estoppel is to deny the carrier the right to adduce evidence to counter the representation suggested by the words and which thereupon are treated as conclusive
evidence.
61 This continues to be the case even if the goods were actually damaged
when received by the carrier and of which the carrier was aware.
Under the international conventions the position is the same, save that the words
“proof to the contrary shall not be permissible” are substituted for “estoppel”. The
protection is again subject to the condition that the consignee/receiver has acted in
good faith.
62
Of course, in the event that the transport document is claused its evidentiary
significance is nullified. It is neither prima facie nor conclusive evidence.
7 Wider Potential Legal Liabilities
Beyond contractual liabilities and evidentiary consequences, there are many liabilities that may arise in connection with statements made in a bill of lading relating to
the condition of goods shipped or to be shipped.
It has already been observed that the carrier may be imposed upon to issue a clean
bill of lading notwithstanding that the goods are visibly damaged or otherwise
57 Volcafe Ltd and Others v Compania Sud Americana de Vapors S (Trading as CSAV) [2018]
UKSC 61.
58 Hague and Hague-Visby Rules art 3.4; Hamburg Rules art 16.3(a); Rotterdam Rules art 41(a).
59 Supra n. 57
60 In the context of English law under the Carriage of Goods by Sea Act 1992.
61 Cia Nav Vasconcada v Churchill & Sim [1906] 1 KB 237.
62 Hague-Visy Rules art III.4; Hamburg Rules art 16.3(a) and (b); Rotterdam Rules art 41(b) and (c).
654
D. R. Thomas