clr/1980/1980_1_521.pdf

(1980)that, moreover, the shipowner is not estopped from denying that the weight or the dimensions of the cargo stated in the bill of lading to havebeenshipped isnot correct; that the freight under the contract was to be calculated on the basis of the measurements of the pallets per cubic meter and there is no 5 reference to the measurements of this cargo in the shipper's description of packages and contents contained in the bill of lading; that this clearly shows that the amount of freight was to be determined by measuring the goods in order to calculate the payment and that could only be done when same were 10 broughtfor shipment; thatthe billofladinggivenfor thepurpose of facilitating the defendants with their obligations under the letter ofcreditopenedfor their benefit in respect ofthisshipment, cannot be taken as being conclusive evidence of its contents on the matter and there was nothing to estop the shipowners 15 from claiming the difference in the freight as claimed in the present case; that, therefore, the plaintiffs are entitled to freight on the additional cubic meters of cargo; and accordingly judgment will be given as per their claim. Judgmentfor plaintiffs as per 20 claim. Admiralty Action. Admiralty action for the equivalent in Cyprus currency of U.S.$5,762 being balance of freight in respect of 167pallets of hayat mineral water shipped by the defendants on plaintiffs' 25 vessel "ATHANASSIOS S" for carriage from Limassol to Damman. L. Papaphilippou, for the plaintiffs. Chr. Mitsides, for the defendants. Cur. adv. vult. 20 A. Loizou J. read the following judgment. In this case the claim of the plaintiff company, who are the owners or operators of the ship "ATHANASSIOS S" is: (

1. a)The equivalent in Cyprus currency of U.S.$5,762.being balance of freight in tespect of 167 pallets of 55 Hayat Mineral Water shipped by the defendants on plaintiff's vessel "ATHANASSIOS S" for carriage from Limassol to Damman. (
2. b)Alternatively or additionally the same amount as 522 1 C.L.R. Aeon Shipping v. J. &Hayat - A. Loizou J. above as damages for misiepresentations by the defendants concerning the measurements of the said cargo and/or for breach of implied or express agreement or othetwise. 5 (
3. c)Legal interest. (
4. d)Costs. The defendants applied by telex dated 6.9.1979 to the agent of the plaintiff Company in Cyprus for the carriage of 5,000 cartons of Hayat Mineral Water from Limassol to Damman. 10 Each carton would contain 12plastic bottles of 1.5 litres each and there would be 30 cartons per pallet, the total number of pallets being 167, the dimensions of the containers being 37X27X32cm. and each container weighing 18kilogrammes. It is agreed by both sides that on thebasis of the dimensions 15 given, this cargo equaled to 160 cubic meters, excluding the size of the pallets. The pallets are double-decker wooden plankswitha spaceof5cm.in-betweenthem sothat theprongs of the fork lifts would go into that space and facilitate their lifting and transportation. The freight quoted by the plaintiff 20 Company, through their agents, for the carriage of the said cargowasUS$65.-per cubicmeter, plus20% fuel surcharges, Liner's terms. 25 30 35 40 Onthe 6th September, 1979,on a strength of a Billof Lading application sent to the agents of the plaintiff Company, Bill of Lading No. 1 (exhibit7) was issued stating therein under the heading "Shipper's Description of Packages and Contents", the cargo as being "167 pallets stated to contain 5,000 cartons etc.". This Bill of Lading was issued upon an Indemnity and Guarantee (exhibit 8)beinggiven to the plaintiff Company in consideration of their releasing to the defendants or to their order the said clean Billof LadingNo. 1 of m.v."ATHANASSIOS S" Limassol—Damman, dated 28.9.1979 prior to vessel's arrival. They thereby undertook and agreed to indemnify the plaintiff Company fully against all consequences and/or liabilities of any kind whatsoever directly or indirectly arising from oi relatingto thesaid deliveryandimmediately ondemand against all payments made by them in respect of such consequences and/or liabilities etc. When the ship arrived and the cargowassent for loadingtoLimassol, theagent ofthe plaintiff Company on measuring it found that the cubic measurements 523 A. Loizou J. Aeon Shipping τ. J. &Hayat

(1980)of the pallets came to much more than the one declared by the defendants that it would be. Upon that the agent of the plain­ tiff Company sent a telex (exhibit 4) to the defendants pointing out that thedimensions stated in theirtelex of the6th September, 1979 (exhibit 2) did not agree with their figures taken rightly 5 at the time of shipment, making a total of 222.24 cubic meters and resulting into a difference of 62.24 cubic meters and invited them to attend and recheck the measurements jointly at the earliest possible opportunity and failing to comply with such request that they would proceed with their own figures demand- 10 ing payment of freight on the additional quantity. The defend­ ants denied any liability and did not attend for the purpose of rechecking the dimensions of the cargo. Upon that the agent of the plaintiff Company invited a surveyor of the Lloyd's agents in Limassol who attended on the quay during the loading 15 of the said cargo and checked the cubic measurements of the pallets. According to his testimony, the details of which are to be found in his report (exhibit 1), he carried out a random survey of 21 pallets as they arrived alongside for loading on to the vessel and found them to be of such dimensions that on 20 an average the total cubic measurement of the consignment amounted to 233.873 cubic meters. It was explained that although the pallet load of the pallets appeared to be the same, wooden pallets of different sizes had been used, hence the varia­ tion of the cubic measurements as found. The main reason 25 for the difference in the cubic measurements of the consignment was the fact that the defendants excluded the dimensions of each pallet from the overall dimension of the cargo which was obviously wrong as the cargo would be loaded on the pallets and not stowed by itself in the hold and therefore the 30 dimension of the pallets should have been included in the measu­ rements. Under term 11(e)—"The Carrier is entitled in case of incorrect declaration of contents, weights, measurements or value of the goods to claim double the amount of freight which would 35 have been due if such declaration had been correctly given. For the purposes of ascertaining the actual facts, the Carrier reserves the right to obtain from the Merchant the original invoice and to have the contents inspected and the weight, measurement or value verified". 40 The plaintiff Company by a letter dated the 2nd November, 524 1 CX.R. Aeon Shipping v. J. &Hayat A. Loizou J. 1979(exhibit 6),sent through their lawyer, askedthe defendants to pay for the difference in the freight due and payable because of the difference in the measurements of the cargo which was discovered in the circumstances hereinabove set out, as the 5 freight recoidcd as prepaid on the Bill of Lading was collected on the strength of the representation of the defendants to be found in their application (exhibit2) for the issue of such Bill of Lading. In consequence of theabovedifference, theplaintiff Company are entitled to freight on the additional 73.873 cubic meters of cargo which was shipped over and above the 160 cubic meters represented and paid by the defendants. Such freight calculated at the rate of US$65.- equals US$4,801,745, plus 20% fuel surcharge, comes to US$960,349, the total 15 beingUS$5,762.-whichistheamount claimed bythe present proceedings or its equivalent in Cyprus currency. It is the case for the defendants that the plaintiff Company quoted an offer which the defendants accepted and thereupon the plaintiff Company undertook the carriage of the said goods 20 by a contract evidenced and/or contained in the Bill Lading (exhibit 7). Theydeniedtheallegation oftheplaintiff Company that they, relying on the dimensions given by the defendants, issued the Billof Lading and received prepayment of the freight andthatinthealternativethedefendants allegethat theplaintiff 25 Company had admitted the quantities as correct by issuing the Bill of Lading in question. It is relevant to the issues raised to say that a Bill of Lading isonlyprimafacieevidenceofthequantity shipped,butalthough the amount of cargo stated in the Bill of Lading to have been 30 shipped is not conclusive evidence, as against the shipowner, oftheamount actually shipped, it isstrong primafacieevidence of that amount, unless the contrary is provided by apt words in theBillofLading(seeCarver, CarriagebySea,12Ed.,para.75 p. 64). Furthermore, the shipowner isnot estopped from deny35 ing that the weight or the dimensions of the cargo stated in theBillofladingto havebeen shippedisnot correct (see Carver (supra)para. 74). Also reference may be made to what is stated inCarver (supra), Vol. 2, para. 1166,at p.986,under the heading: "Bill 40 of Lading quantity not conclusive unless so agreed"— 525 A. Loizou J. Aeon Shipping v. J. & Hayat

(1980)"Unless the freight is expiessly to be paid upon the quantities stated in the bill of lading, those quantities are not conclusive. They have generally been put in by the shipper, and, if so, may be used against him as admissions. If they were accepted as correct by the master, they are also 5 evidence against him and against the shipowner. But either party is generally at liberty to show that there has been a mistake in the statement. If, however, the freight is expressly to be paid upon the quantity as stated in the bill of lading, it is not open to either party, in the absence 10 of fraud, to vary the amount by showing that the statement was not correct". In the present case the freight under the contract was to be calculated on the basis of the measurements of the pallets per cubic meter and there is no reference to the measurements 15 of this cargo in the Shipper's description of packages and contents contained in exhibit 7. This clearly shows that the amount of freight was to be determined by measuring the goods in order to calculate the payment and that could only be done when same were brought for shipment. 20 The Bill of Lading (exhibit 7)given for the purpose of facilitating the defendants with their obligations under the Letter of Credit opened for their benefit in respect of this shipment, cannot be taken as being conclusive evidence of its contents on the matter and there was nothing to estop the shipowners 25 from claiming the difference in the freight as claimed in the present case. For all the above reasons the plaintiff Company succeeds in its claim and judgment is given as per paiagraph (a) of the endorsement, with legal interest and costs. 30 Judgment and order for costs as above. 526