After haven established its own locus standi as claimant and having identified the carrier as a proper defendant, the claimant, whether the shipper or the buyer of the goods, now needs to prove its loss.
In effect, this means that it is up to the claimant to establish that the carrier has failed to deliver what the shipper shipped. This involves a comparison between two photographs or snapshots of the goods: the goods as they were shipped and the goods as they were discharged.
Notice of Loss at Discharge
If the cargo interest fails to give such notice, in effect presenting a snapshot of damaged goods on discharge, the carrier is prima facie assumed to have delivered the cargo as described in the bill of lading. Such an assumption would not necessarily destroy the cargo claim, but it does seriously wrong- foot the claimant who would now have to upset the presumption by proving one of two negatives:
- Either that the goods were not delivered in the condition or quantity described in the bill of lading, or
- That the goods were not damaged ashore after discharge.
Where the Shipper Claims: A Prima Facie Presumption
It is, however, the difference between that photograph, taken at discharge, and the photograph taken on loading in the bill of lading which provides real substance to the cargo claim because it is that difference, that discrepancy, which constitutes the claim ant’s evidence of loss. It is clear that the carrier must, on the shipper’s demand, provide the shipper with a snapshot after receiving the goods into its charge, showing among other things, the quantity of the goods as furnished in writing by the shipper (whether by way of the number of packages or pieces or by weight, as appropriate), the apparent order and condition of the goods, and the leading marks necessary for the identification of the goods as furnished in writing by the shipper. It will be noticed that the shipper plays an important role in the taking of this photograph. Thus, the quantity of the goods and the leading marks originate with the shipper: this is hardly surprising, as the shipper is at least as likely as the carrier to have this information.
Once the bill of lading is issued and signed by the carrier, however, the photograph becomes the carrier’s: by signing the bill, by autographing the snapshot, the carrier states that the goods identified by the indicated loading marks have been loaded (hence “bill of ‘loading”) in the quantity and apparent condition stated in the bill. That statement raises a prima facie presumption against the carrier that the goods were so loaded, a presumption which the carrier can, if the cargo claim is brought by the shipper, rebut through evidence contradicting the statements on the bill as to loading marks, quantity and apparent condition.
Given that the information as to loading marks and quantity originates with the shipper and given that both the shipper and the carrier are both physically present at the loading port, it makes sense for the presumption raised against the carrier in a claim by the shipper to be relatively weak, i.e. rebuttable by contrary evidence intended to show that the carrier loaded goods in the quantity and apparent condition in which they were discharged, not the quantity and apparent condition stated on the bill of lading.
Third Party Claims: Conclusive Evidence
A third party to whom the bill of lading has been transferred, however, needs stronger protection. The buyer of goods to whom the bill of lading has been endorsed and transferred, was not the party with whom information about the goods originated; neither was the buyer at the shipment port, nor does the buyer have easy access to evidence as to what was shipped at that port.
Clausing Bills
Bills of lading typically state in pre- printed wording that the goods have been shipped in apparent good order and condition. The statement says nothing, of course, about the commercial value or specifications of the goods it is limited to the apparent condition of the goods. This is all that a carrier can reasonably be held to, the carrier not being a trader in the particular goods or commodities being shipped.
“Weight and Quantity Unknown” Clauses
If there are problems with bills clausing the statement as to the apparent order and condition of goods shipped, there are many more problems with statements on bills regarding the quantity of goods shipped. Bills are not always claused: they are only claused when carriers observe obvious problems with the goods on shipment.
The shipper’s figures as to quantities are, however, always qualified as a matter of course by carriers, in pre- printed wording varying in ingenuity: “weight and quantity unknown”, “shipper’s figures, for information only”, “said to contain”, “said to be”, “STC”, “STB”, etc. Two issues arise: first, what is the effect of such qualifications; second, is the carrier entitled so to qualify the figures given to it by the shipper?
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