Judges Explain Responsibilities of oil leakage Part 2
S J Tubrazy
He could also show that the quantities were short shipped at the port of loading. For this purpose the master of the ship can rely on the mate’s receipt and if he is bound to sign for the amounts in excess of the amount actually loaded, for instance because of certain binding term of charter party, then he could lodge a note of protest at the port of leading before sailing and if time does not permit him to do so, he could lodge such note of protest immediately upon arrival at the first port that the vessel touches. Such note of protest may be accepted in evidence to show that the quantities actually loaded on board were not the same as shown in the Bill of Lading.
Now coming to the first situation i.e. the arrived quantity is either the same or in excess of the quantity mentioned in the Bill of Lading. If their discharge of the consignment from the ship and after issuance of Dry Tank Certificate shortage is discovered when the measurements are taken in the shore tanks into which cargo is discharged, then the burden will be on the consignee to show that either the arrived quantities were incorrect or that the cargo was lost due to the fault or negligence of the carrier between the ships manifold and the shore tanks.
This could occur if there was an oil spillage exactly at the point of exit of the cargo from the ship’s manifold or if the carrier had for some reason or the other expressly accepted the responsibility for the oil even after it had left ship’s manifold. If the consignee is able to show arrived quantities to be incorrect the burden will shift to the carriers to prove affirmatively that not only the information fed for calculation such as trim, list of the ship etc. was correct but also to show that the voyage was uneventful, that is to say, that there were no leakages or spills during the voyage. This could be shown amongst other things by bringing on record‑the ship’s log book abstracts relating to the period of vessel’s passage between port of loading and port of discharge. It is trite law that in a claim for short delivery the burden of proof shifts to and from between the consignee and the carrier, though it is undeniable that legal burden lies on the claimants. He who alleges must prove.