The plaintiffs in Suit 671 were the owners or the persons entitled to delivery of 9,500 cases of Argentinian red garlic as indorsees or holders of two bills of lading both dated 31 May 1983 covering the 9,500 cases shipped on board the vessel Santiago del Estero at Buenos Aires for carriage to and delivery at Singapore. Similarly the plaintiffs in Suit 672 were the owners or the persons entitled to delivery of 4,000 cases of Argentinian red garlic covered by a bill of lading dated 1st June 1983 and similarly shipped on the vessel at Buenos Aires for carriage to and delivery at Singapore. The defendant in both suits is the owner of the vessel. All three bills of lading incorporate the Hague Rules.

Both plaintiffs claim that the defendant is in breach of its duty as carrier and/or in breach of the contract evidenced by the bill of lading in that it delivered 9,132 and 3,900 cases of their respective consignments of garlic totally damaged and unfit for human consumption. The short deliveries of 368 and 100 cases respectively do not form the subject matter of their claims as those claims have been settled by the defendant. Alternatively they claim that the defendants was in breach of arts 3.1.a, 3.1.c and 3.2 of the Hague Rules.

The defendnt denies liability on the basis that the plaintiffs have not discharged the burden that rests on them to prove that the garlic was damaged at the time it was discharged from the vessel at Singapore into the PSA godowns. Secondly, if the garlic was damaged during the voyage, such damage arose from the inherent vice of the garlic which was exempted by art 4.2.m ('Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods'). Alternatively, the defendant relied on art 4.2.a to exempt liability.

Held: Judgment for the plaintiffs.

Two of the issues which arise from the pleadings can be disposed of at the very outset. The first is the plaintiffs' allegation that the defendants failed to make the vessel seaworthy and to make the holds, in particular 'tween deck 4, fit and safe for the reception, carriage and preservation of the garlic. This allegation has not been made out on the evidence. The plaintiffs' contention is that the garlic was damaged through lack of ventilation. In that connection the question of proper stowage arises. From the evidence of the photographs produced, the stowage of the cases of garlic, which were octagonal in shape, thus providing further air trunks or spaces for circulation of air, was proper and correct. The suppliers had themselves packed the garlic not only in octagonally shaped cases but the cases were so constructed with gaps all round to provide the garlic they contained with ventilation. The packing was proper.

The second issue is the defendant's contention that it has discharged the carrier's contractual obligation of delivering the cargo of garlic in the same good order and condition as when shipped. The defendant sought to do this negatively by submitting that the plaintiffs had failed to discharge the burden that was on them to prove that the garlic was discharged damaged. All that the plaintiffs have to do to establish a prima facie case is to show that the garlic was shipped in good order and condition and that it was discharged damaged. The plaintiffs have discharged that burden of proof.

The hatch covers to provide ventilation to 'tween deck 4 were opened only for 12 days on a voyage that took 51 days. Both plaintiffs' cargo of garlic in 'tween deck 4 was not properly and adequately ventilated, though the means were there, during the voyage from Buenos Aires to Singapore. The reasons given by the Chief Officer for not opening the hatch covers to afford ventilation to 'tween deck 4 were unacceptable. He said that up to Durban he was in the winter of the Southern hemisphere. The temperature was low and the humidity high. So there was no need to open the hatch covers. After Durban he said he had bad weather. A check with the log book shows that some bad weather was experienced on a total of 10 days. But this does not explain why mechanical ventilation was not provided.

Defendant's counsel submitted that if the cargo of garlic was not damaged due to poor ventilation then the damage must be due to the inherent vice of the cargo. Accepting that garlic has an inherent characteristic, call it vice if you like, that if it is kept in a confined space and is not ventilated properly, it will dehydrate, become light and be unfit for human consumption (the damage), the question to ask in this case is what was the proximate cause which caused the damage. Was it because it was not properly ventilated or was it because being properly ventilated its inherent characteristic caused it to deteriorate during the voyage? There is no doubt at all that the proximate cause was the lack of ventilation and not the inherent characteristic or vice of the garlic which caused the damage.

As to the defence based on art 4.2.a of the Hague Rules, defendant's counsel relied on The Devanha (1927) 27 LLR 281. This case has no application. Defendant's counsel has failed to distinguish error in the management of the ship from error in the care of the cargo. In The Devenha the blowers were unshipped to prevent the ingress of water in bad weather. Accordingly ventilation could not be provided. The unshipping of blowers is an act relating to the management of the ship and that had its effect on the cargo. The shipowners were exempted from liability. That is not the case here. The Chief Officer and the crew failed to use the mechanical ventilation system when the hatches could not be opened in bad weather and even when there was no bad weather for one reason or another, the hatches were not opened up for ventilation. This is care of the cargo. This defence also fails.