Bill of Lading Remarks

Any identification or quality marks appearing on the goods shipped will normally be recorded in the bill of lading. The shipowner will not, however, be estopped at common law from denying that goods were shipped under the marks as described in the bill unless such marks are essential to their identity or description. Thus in Parsons v New Zealand Shipping Co a consignment of frozen carcasses of lamb had been exported from New Zealand under a bill which stated that 608 carcasses had been shipped, each bearing the leading mark 622X. In fact, 507 carcasses bore this mark, but the remaining 101 carried the mark 522X. On arrival of the cargo at the port of discharge, the indorsees for value of the bill refused to accept delivery of these 101 carcasses, arguing that the shipowners were estopped from denying that all 608 carcasses shipped bore the 622X mark. The trial judge found that all the carcasses were of equal quality and value and that the sellers had merely attached the marks for their own bookkeeping purposes. In these circumstances a majority of the Court of Appeal held that, as the marks were not material to the identity of the goods, there was no estoppel. In the view of Collins LJ, ‘It is the identity of the goods shipped with those represented as shipped which is the pith of the matter; that is the subject of the misrepresentation referred to, and nothing which would not be material to such identity need be embraced in the estoppel. It is obvious that where marks have no market meaning, and indicate nothing whatever to a buyer as to the nature, quality, or quantity of the goods which he is buying, it is absolutely immaterial to him whether the goods bear one mark or another.’ Later in the judgment he adds that ‘a mistaken statement as to marks of this class merely makes identification more difficult; it does not affect the existence or identity of the goods’. On the other hand, leading marks may refer to the identity or description of the goods as, for example, to the type of liquid in a container or the type of fruit packed in a crate. In such circumstances the marks recorded in the bill follow the normal common law rule in providing prima facie evidence against the carrier and conclusive evidence when the bill is in the hands of a bona fide indorsee for value.
The same pattern in relation to leading marks is adopted by the Hague/Visby Rules and the presumptions raised by Art III rule 4 are only applicable to ‘leading marks necessary for identification of the goods’. The shipper can demand that such marks are acknowledged by the shipowner provided ‘they are stamped or otherwise shown clearly upon the goods . . . in such a manner as should ordinarily remain legible until the end of the voyage’. It must finally be noted that, unless they are essential to the identity of the goods, there is no obligation on the shipowner under the Rules to acknowledge in the bill any quality marks attached to the goods. Even if the master should voluntarily do so, it has long been established at common law that the shipowner is not estopped from subsequently proving that goods of a different quality were shipped. As against the shipowner, the master has no apparent authority to insert such marks since, in the majority of cases, he clearly does not possess the commercial knowledge or expertise necessary to conduct an adequate check on their accuracy. When such a situation arose in the case of Cox v Bruce, the Court of Appeal held that a shipowner was not estopped from establishing, as against an indorsee for value, that the quality marks on a consignment of jute had been incorrectly entered on the bill of lading by the master: ‘It was no part of the master’s duty to insert these quality marks at all . . . and, therefore, he had not authority to make such a representation and I do not think that any man of business was entitled to assume that he had such authority.’