28 NOVEMBER 1980

Rajah J

In this case the plaintiffs aver that under a Bill of Lading dated May 26, 1977 issued by or on behalf of the defendants, there were shipped on board the defendants' vessel, "Axel Maersk", at Hongkong 249 cantons of clock radios and transistor radios in good order and condition, for carriage for reward to Penang and delivery there in like good order and condition.

The plaintiffs further aver that, in breach of their duty as carriers and/or in breach of the contract contained in, or evidenced by, the said Bill of Lading, the defendants failed to deliver the said cargo in good order and condition, but delivered 169 of the said cartons damaged by sea water and/or fresh water and they have thereby suffered loss and damage to the extent of M$57,137.05.

The defendants, for their part, say that on the facts of the case, they are neither in breach of their duty as carriers nor in breach of the contract as alleged by the plaintiffs.

The defendants point to the notation CY/CY on the face of the Bill of Lading and say such a notation precludes the bill from being prima facie evidence of the goods having been received on board in good order and condition.

Further, the defendants contend that the said container was upon its discharge in Penang from the "Maersk Mondo", delivered into the custody of the Penang Port Commission on or about June 13, 1977 and kept in their open container yard. The plaintiffs took delivery of the container from the container yard on or about June 24, 1977 without any protest or comment by them on the good order and condition of the container (AB26). The defendants go on to say that if damage had been sustained by the container or its contents, the same was sustained after discharge of the said container at Penang and the defendants cannot be held liable for the same.

At the trial the parties agreed the following facts:—

1. The defendants delivered an empty container to shippers who loaded the container and sealed it and delivered the container, to the defendants in Hongkong for which defendants issued the Bill of Lading.

2. The container was delivered to defendants/agents in Hongkong; the date on which the container was delivered to the defendants and the date on which the container was loaded on the vessel are not known. Bill of Lading is dated May 26, 1977.

3. The container was carried on the defendant's vessel "Axel Maersk" from Hongkong to Singapore and unloaded in Singapore on May 30, 1977.

4. The container was stored at the Port of Singapore Authority's Marsilling yard in Singapore until May 11, 1977 when it was loaded on the defendant's vessel "Maersk Mondo".

5. The "Maersk Mondo" discharged the container in Penang into the Penang Port Commission's Butterworth Wharf on June 13, 1977.

6. The container was collected by the plaintiffs' agents, Kontena Nasional on June 24, 1977 and delivered to the plaintiffs' premises.

At the trial the Stowage Plan and Manifest of the "Axel Maersk" (the vessel that carried the container from Hongkong to Singapore) and the class certificate of the container were not available. The chemist concerned in the Survey Report on the damage to the goods did not give evidence.

On the Bill of Lading I accepted the evidence of Mohamed bin Hamzah, the Operations Engineer of the Maersk Line. He said,

"I am familiar with this form of bill of lading. On the face of it the shipper has shipped a container the cargo of which appears to be as stated therein. This is a CY/CY bill of lading (Container Yard/Container Yard). It is an FCL/FCL (Full Container Load). A CY/CY equates to an FCL/FCL. In this situation the container would belong to or be leased by the carriers. Maersk Line only undertakes to send an empty container to the shipper when the shipper himself will stuff the container without any representative from Maersk Line being present. We will also give one of the Maersk seals to the shipper. On completion of stuffing the shipper will seal up the contai