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 covered the entire carriage.
Such beans were commonly carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. In unventilated containers traveling from warmer to cooler climates, they were likely to emit moisture and to prevent moisture damage, it was common to line the containers with an absorbent material such as Kraft paper.
Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (‘less than full container load/full container load’) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them.
Condensation damage was found in 18 out of the 20 containers. The cargo claimed against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to ‘properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried’. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded ‘inherent vice’ on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carrier’s negligence.
The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial
practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners.
The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) ‘inherent vice’ exception?
Held: The appeal succeeded. The legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules.
Held: The appeal succeeded: ‘ the carrier had the legal burden of proving that he took due care to protect the goods from damage, including due care to protect the cargo from damage arising from inherent characteristics such as its hygroscopic character. I would reinstate the deputy judge’s conclusions about the practice of the trade in the lining of unventilated containers for the carriage of bagged coffee and the absence of evidence that the containers were dressed with more than one layer of lining paper. In the absence of evidence about the weight of the paper employed, it must follow that the carrier has failed to prove that the containers were properly dressed.’
Lord Reed, Deputy President, Lord Wilson, Lord Sumption, Lord Hodge, Lord Kitchin
[2018] UKSC 61, [2018] 3 WLR 2087, [2019] 1 All ER (Comm) 397, [2019] 1 Lloyd’s Rep 21, [2018] WLR(D) 779, [2019] AC 358, [2019] 2 All ER 81, [2018] UKSC 61
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England and Wales
Citing:
Cited – Coggs v Bernard ER 235 1738
A pawnee of any pawn or pledge hath a property in it ; for the thing deposited is a security to him, that he shall be repaid the money lent on it. Arid if things will riot be the worse, as jewels, and co he may use them ; but then it must be at his . .
At ComC – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A Csav) ComC 5-Mar-2015
Coffee beans damaged in transit – onus of proof of liability in negligence . .
Cited – Reeve v Palmer 25-Jun-1858
It is no answer for an attorney, when sued in detinue for a deed which has been intrusted to him by a client, to say simply that he has lost it.
Cockburn CJ said: ‘The jury have found that he lost it: and I am of opinion that that must be taken . .
Cited – Morison, Pollexfen and Blair v Walton 10-May-1909
. .
Cited – Dollar v Greenfield HL 19-May-1905
The plaintiff, a job master, for several years let carriages and Horses to the defendant by the year and let to the defendant a pair of horses, which were quiet in harness and satisfactory to the defendant’s coachman and stop the horses were kept in . .
Cited – Joseph Travers and Sons Ltd v Cooper CA 1915
Goods were loaded onto a barge from a ship for delivery at the barge owners wharf in the Thames under a contract, which exempted the barge owner from liability ‘for any damage to goods how’s the weather caused which can be covered by insurance.’ . .
Cited – Gosse Millard v Canadian Government Merchant Marine 1927
Wright J said of the Hague Rules: ‘These Rules, which now have statutory force, have radically changed the legal status of sea carriers under bills of lading. According to the previous law, shipowners were generally common carriers, or were liable . .
Cited – The ‘RUAPEHU’ CA 1927
The plaintiffs owners of a drydock thought to limit their liability under the Merchant Seamen’s (Liability of Ship Owners and others) Act 1900 section 2 in respect of damage caused by a fire which broke out on the defendant’s vessel going to the . .
Cited – British Road Services Ltd v Arthur V Crutchley and Co Ltd (No 1) CA 1968
There was a theft from a warehouse of a valuable lorry load of high value, namely, whisky. It was held on appeal that the defendants’ system of protection was not adequate in relation to the special risks involved and the value of the chattel . .
Cited – Volcafe Ltd and Others v Compania Sud Americana De Vapores Sa (T/A CSAV) CA 10-Nov-2016
Claim for damages to cargo of coffee beans – onus of proof of liability for negligence . .
Cited – Aktieselskabet de Danske Sukkerfabrikker v Bajamar Compania Naviera SA (The ‘TORENIA’) 1983
D’s vessel was chartered to carry a cargo of Cuban sugar in bulk. She loaded some 10000 tonnes at Guayabal. Two bills of lading were issued to the shippers. On April 4th 1979 the vessel set sail for Denmark. On April 13th she encountered heavy . .
Cited – F C Bradley and Sons Ltd v Federal Steam Navigation Co Ltd 1927
. .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Great China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The ‘BUNGA SEROJA’) 22-Oct-1998
High Court of Australia – Shipping – Sea carriage of goods – Bill of lading – Hague Rules – Damage to cargo – Cargo properly stowed – Vessel seaworthy and fit in all respects for voyage – Bad weather conditions foreseeable – Perils of the sea – MV . .
Cited – Silver v Ocean Steamship Co Ltd CA 1930
The Hague Rules had made no difference to the incidence of the burden of proof in cases of bailment for carriage. . .
Cited – Paterson Steamships Limited v Canadian Co-Operative Wheat Producers, Limited PC 26-Jul-1934
(Quebec) . .
Cited – GH Renton and Co Ltd v Palmyra Trading Corporation of Panama HL 1957
An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in . .
Cited – Pyrene Co Ltd v Scindia Navigation Co Ltd QBD 1954
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to . .
Cited – J Spurling Ltd v Bradshaw CA 26-Mar-1956
Denning LJ said: ‘ . . A bailor, by pleading and presenting his case properly, can always put on the bailee the burden of proof. In the case of non-delivery, for instance, all he need plead is the contract and a failure to deliver on demand. That . .
Cited – Notara v Henderson QBD 16-Feb-1872
A cargo of beans was delivered damaged by seawater. The beans had been wetted when the vessel was involved in a collision. She put into Liverpool for repairs, and it was proved that it would have been reasonable for the master temporarily to . .
Cited – Thomas Wilson Sons and Co v Owners of Cargo per the ‘Xantho’ HL 14-Jul-1887
A cause of damage otherwise satisfying the established definition may be a peril of the sea even though caused by a shipowner’s negligence. Lord Herschell said: ‘If that which immediately caused the loss was a peril of the sea, it matters not how it . .
Cited – Albacora SRL v Westcott and Laurence Line Ltd HL 1966
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 . .
Not good law – The Glendarroch CA 9-Feb-1894
The plaintiffs brought an action against the defendants for non-delivery of goods shipped under a bill of lading containing the usual exceptions, but not excepting negligence. The goods had been damaged by sea water through the stranding of the . .
Cited – Nugent v Smith CA 29-May-1876
A mare carried in the hold of the ship, died as a result of a combination of more than usually bad weather and the fright of the animal herself which caused her to struggle and injure herself.
The defendant, a common carrier by sea from London . .
Lists of cited by and citing cases may be incomplete.
Transport, Evidence, Negligence
Updated: 01 December 2021; Ref: scu.630953