The case concerned damage to fish due to previously dormant bacteria being activated by rise in temperature on the voyage. The issue was whether a cargo of fish was capable of withstanding carriage in unrefrigerated spaces, that being the service stipulated in that case.
Held: Lord Reid said: ‘Article IV, rule 2(m), provides that the carrier shall not be responsible for damage arising from ‘inherent defect, quality, or vice of the goods’. A number of authorities were cited and perhaps the most concise statement is that of Gorell Barnes J in The ‘Barcore’ [1896] P 294: ‘This cargo was not damaged by reason of the shipowner committing a breach of contract, or omitting to do something which he ought to have done, but it was deteriorated in condition by its own want of power to bear the ordinary transit in a ship.’ By ‘the ordinary transit’ I would understand the kind of transit which the contract requires the carrier to afford. I agree with the Lord President when he says: ‘rule 2(m) is in my opinion intended to give effect to the well-settled rule in our law that if an article is unfitted owing to some inherent defect or vice for the voyage which is provided for in the contract, then the carrier may escape liability when damage results from the activation of that inherent vice during the voyage.’ It follows that whether there is inherent defect or vice must depend on the kind of transit required by the contract. If this contract had required refrigeration there would have been no inherent vice. But as it did not, there was inherent vice because the goods could not stand the treatment which the contract authorised or required.’
Lord Reid said: ‘the appellants argued that the case now made by the respondents contradicts their pleadings and that they cannot be allowed to succeed on a ground not covered by their pleadings. I think that at some stage both parties have completely departed from their pleadings . . The notes of evidence were not reproduced because in their reclaiming motion the respondents were content to rely on the Lord Ordinary’s findings of fact, and the appellants acquiesced in this. So we do not know at what stage or in what manner evidence to support the new contentions of the parties was introduced. But there is no indication that either party objected timeously to its introduction, and I find nothing to suggest that the appellant suffered prejudice by reason of the fact that the case was allowed to take the course it did. In my judgment it is much too late to raise an objection of this kind.’
Lord Guest said: ‘The respondents aver that the inherent vice was in the salt, but the First Division have held upon the Lord Ordinary’s findings the inherent vice to be in the fish. It is, however, in my view far too late in the day for the appellants to rely upon such a technicality. After the evidence had been led there was really no dispute as to the facts. Which party first brought out the critical fact that the bacteria were in the fish is, in the absence of the notes of evidence, not clear. If a party wishes to challenge the relevancy of evidence as not being in accordance with the record, then the objection should be taken at the time. The evidence in this case was apparently led without objection, and the First Division were, in my opinion, well entitled to reach the conclusion which they did…’
Lord Guest, Lord Reid, Lord Pearce
1966 SC (HL) 19
Scotland
Cited by:
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa SC 5-Dec-2018
The claimant appellants, arranged shipment of bagged Colombian green coffee beans, stowed in 20 unventilated 20-foot containers from Panama to Rotterdam, Hamburg or Bremerhaven for on carriage to Bremen. The bill of lading for each consignment . .
Lists of cited by and citing cases may be incomplete.
Transport
Updated: 01 December 2021; Ref: scu.670142