Bills of Lading 4 - Cargo Shortage Claims Claims Guides What is the evidence against the owners? When shortage claims arise at the discharge port, whether or not the carrier is liable is a question of evidence. a) What is the evidential weight of the bill of lading figures towards third party receivers: conclusive evidence or prima facie evidence? Under the Hague Visby Rules, Article III Rule 4, the figures on the bill of lading will be conclusive evidence between the carrier and the third party. (See also the Hamburg Rules, Article 16(3)(b)). b) Can the owners protect themselves with disclaimers such as: “weight, measure, quantity, quality, condition, contents and value unknown?” English law recognises the disclaimer “weight, measure, quantity, quality, condition, contents and value unknown”. This is because of the proviso that the carrier does not have to state the quantity and weight if he has reasonable grounds to believe that these are inaccurate and/or has no means of checking whether the facts are correct (Art III Rule 3). As a result the statement of the bill of lading will mean that the weight, quantity and measure has no evidential value and are not warranties made by the carrier. This means that there is no prima facie or conclusive evidence against the carrier. New Chinese Antimony v Ocean Steamship [1917] 2 KB 664. “weight, measure, quantity, quality, condition, contents and value unknown”: Weighing the evidence Once it is established that the figures are not binding on the carrier, an English court will just weigh evidence from both parties as in a normal dispute. A useful guide to see how an English court would consider a shortage case is illustrated in the MONTANA LLR 402 [1990]. In this case, the judge looked at the evidence as to how accurate the tally would have been: no tally man on every hold, sometimes a tally man had to count slings from two holds, some of the discharge occurred at night time, the stevedores were paid per tonnage discharged and not time, there was an incentive to discharge quickly (making counting unreliable), and the claimants admitted that one extra bag could go in a sling (a one in 16 occasion would account for a shortage of 1108 bags), each bag could have been filled with slightly more than 50 kgs. The judge was also surprised at the accuracy and rounding of the figures on the bill of lading, namely, 550,000 bags. Claimants did not have to prove where the undelivered cargo went but still needed to provide a possible explanation of the rationale for the bill of lading figures. The carrier is under an obligation to deliver the full cargo which was loaded. Invariably cargo shortage claims arise from time to time. How are these claims treated under English law? “Figures” is a term used throughout this document to describe the “number packages or pieces, or the quantity, or weight”, of the goods carried. c) Does the owner’s disclaimer have limits? The carrier cannot rely on the disclaimer when he has reasonable means of checking the weight, measure, quantity, quality and/or condition. For example, “50 coils” can easily be counted and disclaimers as to the quantity will not be enforceable. If the cargo is 550,000 bags of rice (as per “the Montana”) then the qualification will operate. d) Can the disclaimer on the bill of lading be overridden by conclusive evidence clauses in the charterparty? Some charterparties incorporated into the bill of lading contain “conclusive evidence” clauses such as “Owne