The plaintiff claimed EUR 585 from the defendant for damage to a machine transported by the defendant from the UK to Malta on behalf of the plaintiff. The defendant responded by arguing that the damage was a consequence of deficiencies attributable to the plaintiff itself. The defendant also contended that it was not liable for damages because of the exemptions stated in arts 4.2.i (act or omission of the shipper or owner of the goods, its agent or representative) and 4.2.n (insufficiency of packaging) of the Schedule to the Carriage of Goods by Sea Act (Ch 140 of the Laws of Malta).

Held: Judgment for the defendant. The plaintiff's claim is dismissed.

It is apparent from the evidence that the plaintiff purchased the machine in the UK. The plaintiff inquired of the defendant about the transport of this machine to Malta. After agreeing with the defendant on the transport and a price, the order was given for the machine to be brought to Malta. The plaintiff exhibited photographs of the machine as it was in the UK. When it arrived in Malta, it was unloaded from the container and placed in a warehouse. The next day, the employees of the plaintiff went to load the machine into their van and at some point during that process the damage was discovered by the plaintiff. The machine was moved from the container to the warehouse and from the warehouse to the plaintiff's van by a subcontractor of the defendant.

The defendant exhibited the bill of lading. A reading of this bill of lading does not show that any damage to the machine occurred when it was loaded into the container in the UK. On the delivery order are the words: 'BL claused unpacked and unprotected'. Even on the delivery order there was no comment on any faults found or visible when it arrived in Malta. Clint Falzon Scerri, an employee of the respondent company, said: 'I knew that the machine in question was second-hand but I do not know the condition in which this machine was purchased', and 'if a machine is damaged during the journey or while the container is being unloaded then I will make a remark [on the delivery order]'. There were no remarks. It also turns out that when the container was opened, there was nothing resting on the machine, 'or something indicating that the damage to this machine occurred during its journey from abroad to Malta'. Mr Scerri's latest statement made it clear to the Court that the damage complained of by the plaintiff was pre-existing when the machine was originally shipped from the UK.

The representative of the plaintiff told the representative of the defendant: 'Kindly note that this is a used machine put on a pallet, unpacked but with all breakable items removed'. And 'kindly inform the carrier that this is a precision machine and so it should be handled with care both for unloading from the UK truck as well as loading into the container. Loading at site will be at our supplier's task.' All of this demonstrates that it would have been much wiser if the plaintiff had packed this machine into a crate. The representative of the plaintiff stated during the hearing that he did not have to pack this machine. However, the Court remains of the opinion that the plaintiff is not justified in this claim. If the machine was damaged, it occurred before it was placed into the container in the UK. If the damage had been acknowledged while it was being loaded into the container or when it arrived in Malta, this fact would have been recorded in the documentation. Also, in view of the provisions of Ch 140 of the Laws of Malta, the plaintiff did not take the necessary measures to protect the machine in question. The action is therefore unsuccessful and cannot be upheld by the Court.