The "Thomaseverett"

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 05 August 1992
• Neutral Citation: [1992] SGHC 216
• Docket Number: Admiralty in Rem No 745 of 1982
• Date: 05 August 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Niru Pillay (Harry Elias & Partners)
• Citation: [1992] SGHC 216
• Defendant Counsel: Loh Boon Huat and Steven Ang (Godwin & Co)
• Court: High Court (Singapore)
• Subject Matter: Gold value,Shifting of burden,Proof of delivery of goods,Contracts of affreightment,Burden,Proof of contents,Admiralty and Shipping,Carrier,Limitation of liability,Conclusiveness,Constant Measure,Hague rules,Bills of lading

Cur Adv Vult

This is an action by the plaintiffs claiming for the loss of nine cases, each consisting of approximately 1,000 yards of 100% polyester dyed matt georgette (`the said fabric`), which were shipped on the defendants` vessel `Thomaseverett` at Busan, Korea, for delivery at Singapore. The plaintiffs` claim is on the basis that they were the owners of the said goods and/or were the holders or indorsees of the relevant bill of lading. They bought the goods from the shippers, who were and are textile manufacturers in Korea. Payment to the shippers was effected by way of a letter of credit. It is not disputed that the plaintiffs are entitled to make the claim. This is in fact a subrogation action as the insurers had paid the plaintiffs for the loss.

On or about 15 December 1981, 25 wooden cases containing in total 25,000 yards of the said fabric were shipped on board the said vessel at Busan. This is evidenced by the bill of lading No B-3-S dated 15 December 1981 issued by or on behalf of the defendants. The said goods were to be discharged at the port in Singapore.

The plaintiffs alleged that, in breach of their duty as carrier, and/or as bailees for reward and/or in breach of the contract as evidenced by the bill of lading, the defendants had short-delivered nine of the 25 wooden cases. The plaintiffs also alleged a breach by the defendants of their duty under the Hague Rules, which were incorporated as part of the terms of carriage by the bill of lading. Under the Hague Rules, the carrier shall `properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.`

The evidence adduced shows that the vessel Thomaseverett arrived in Singapore on 8 January 1982. It was berthed adjacent to PSA godown No 6/7. Cargoes from the vessel were discharged from 4.45pm that very day and the discharge was completed at about 11pm on 9 January 1982. Cargoes discharged on to the wharf were conveyed in pallets to godown No 6/7.

With the bill of lading the plaintiffs obtained a delivery order from the defen` agents in Singapore. Sometime on or before 15 January 1982 the plaintiffs instructed their usual forwarders, Hup Huat Brothers, to attend at the PSA godown and take delivery of the said 25 cases. However, on that day only 15 cases were found and taken out of PSA. The same forwarders returned on 18 January 1982 to try to take delivery of the remainder, but managed to find only one more case in the godown. Thus this action.

The defendants raised the following defences:

(i) That they had on 9 January 1982 discharged all the 25 wooden cases into the PSA godown and thus there was no breach of duty on their part. The defendants aver that they were under no duty to deliver the goods direct to the consignees (in fact the plaintiffs are not contending that it was the responsibility of the defendants to deliver the cases directly to them) and relied on cl 1 of the bill of lading which provides, inter alia, that `... the carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or misdelivery or loss or damage to the goods occurring while goods are not in the actual custody of the carrier.` The defendants say that the loss of the nine cases, while they were in the possession of the PSA, is not a matter for which they are liable.

(ii) That the burden is on the plaintiffs to show that the nine missing cases contained approximately 9,000 yards of the said fabric and that the plaintiffs have failed to prove that.

(iii) That in the event that the court should find that the defendants are liable for the loss, the defendants are entitled to the benefit of the limitation of liability prescribed under cl 18 of the bill of lading, namely, 100,000 Japanese Yen per case.

It is common ground between the parties that the Hague Rules applied to the carriage of the said 25 cases. For the purposes of the present action the relevant provision are the following:

Article III

(2) Subject to the provisions of Article 4, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

(3) After receiving the goods into his charge the carrier or the master or agent of the carrier shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things -

(a) ) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts ...

(b) ) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper.

(c) ) The apparent order and condition of the goods.

Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.

(4) Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraph 3(a), (b) and (c).

(5) The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper.

Article IV

(1) Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy ... Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.

(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from [followed by a list of events]

Case for the plaintiffs

The plaintiffs` case rests on the following: (i) that the bill of lading shows that 25 cases containing 25,000 yards of the said fabric were shipped on board the vessel; (ii) that they had collected only 16 cases from the PSA godown; and (iii) that there was in existence at the PSA godown a very strict security system and it was most unlikely that the nine cases could have been taken out by unauthorized persons.

In accordance with para 4 of art III of the Hague Rules, bill of lading No B-3-S shall be prima facie evidence that 25 cases, containing 25,000 yards of the said fabric, were shipped on board Thomaseverett. In so far as the number of cases collected by the plaintiffs from the PSA is concerned, I hold on the evidence that the plaintiffs` forwarders had only collected 16 cases from the PSA godown. I accept the evidence of PW9, Pek Hock Kee, an employee of the forwarders who went to collect the cases from PSA. There is no reason for me not to accept his evidence. PW9 is a truthful witness.

To show the security system in operation at the PSA godowns, a number of the staff of PSA were called to testify. What their evidence amounts to is that there was and still is in force at the PSA godowns a strict and elaborate security system to ensure that only goods properly authorized are taken out of the PSA premises. I shall now refer briefly to some of the evidence which touches on the operational procedures at the PSA godowns and their security aspect.

Mr Selvaraj (PW2), the traffic superintendent at PSA who was in charge of godown No 6/7 at the relevant time, told the court that when cargoes were discharged from a vessel onto the wharf, they were sorted out by stevedores and placed on pallets for conveyance to the godown, where each set of goods should be placed were already pre-planned. Tally clerks were employed by the carriers` agents to tally cargoes as they were being discharged onto the wharf. The tally clerks had no authority over the stevedores and the former had no authority to stop discharge operations. PSA did not do any tally of the goods discharged because of the large volume. It could not be properly done without impeding the progress of the discharge.

PW2 said that the PSA wharf is a controlled area. The public is not at liberty to move in and out of it. All vehicles moving out are subject to close scrutiny. He said that a consignee must produce a delivery order to collect goods from the godown. The traffic assistant of the godown would match the delivery order against the manifest, a copy of which would have been handed earlier to the PSA by the carrier`s agents before the discharge of cargoes from the vessel. Then the consignee would be handed a delivery list (a control document) and he would then go to collect the cargoes from the godown. Having done so he would complete the delivery list (the relevant delivery lists for the 16 cases collected are shown at PB18 and 19) and return it to the traffic assistant, who would check it against the manifest and approve it. The delivery list is in three copies. One copy would be kept by the traffic assistant and two copies would be given to the consignee. The consignee would then proceed to the exit gate where the PSA police would check the cargoes on the vehicle against the delivery list. The police at the gate would endorse the delivery list and retain one copy.

PW2 said that normally about one week after the cargoes were discharged from a vessel, PSA would do a check of the cargoes which still remained in the godown. By then, most of the cargoes would have been delivered to the consignees. Following the check, an advice of goods would be issued to the carrier`s agents informing them of any shortlanded or overlanded cargoes....