Lloyd's Maritime and Commercial Law Quarterly
THE HAGUE RULES AND THE BURDEN OF PROOF
Paul Todd*
Volcafe v CSADV
Every student knows that carriage of goods by sea involves a bailment of the goods; but, until now, rarely has the bailment appeared to be of much significance. True it is that, if the contract goes, for example after an unjustified deviation, the carrier’s protection has often been assumed to be no better than that of a bailee for reward.1 A bailment relationship may also remain after the contractual regime has expired, for example after the goods have been discharged from the ship.2 For most purposes, however, the underlying relationship has been so heavily modified by carriage contract terms, that it can be ignored.
Now, in Volcafe Ltd v Compania Sud Americana De Vapores SA,3 the Supreme Court has restored bailment to a central position in carriage of goods by sea. Consequently, the carriage contract falls to be interpreted by reference to the bailment that would exist in its absence. Volcafe makes clear that even in the modern era, governed by the Hague and Hague-Visby Rules,4 bailment continues crucially to determine the burden of proof, in cargo claims.
Facts and issues
The dispute arose from the carriage of coffee beans in nine consignments, from Columbia (which is warm) to Northern Europe (which is not). Unventilated containers were used, as specified by the shippers of the cargo (apparently because cheaper than the ventilated containers, also offered by the carrier).5 Coffee is a hygroscopic cargo; and, as was accepted can happen when coffee beans are carried unventilated from hot to cold climates, condensation occurred inside the containers, there being water damage to the beans in all but two of the containers.6
For each consignment, the bill of lading incorporated the Hague Rules, and the issue was as to the carrier’s liability for the water damage.7
The cargo owners claimed that the carrier was liable under Art.III(2) of the Rules, for not lining the containers sufficiently with absorbent cardboard or paper. Article III(2) requires the carrier “… properly and carefully [to] load, handle, stow, carry, keep, care for, and discharge the goods carried”. It is, however, subject to the excepted perils set out in
* Professor of Commercial and Maritime Law, University of Southampton.
1. Eg, C Cashmore, “The legal nature of the doctrine of deviation” [1989] JBL 492, 494, and authorities cited therein; Cashmore's concern is actually to refute the “common carrier fallacy” (a common carrier being a particular type of bailee for reward: see further infra, fnn 11–12, and associated text).
2. Eg, Trafigura Beheer BV v Mediterranean Shipping Co SA (The MSC Amsterdam) [2007] EWCA Civ 794; [2007] 2 Lloyd's Rep 622, [24]. See also infra, fn.44.
3. [2018] UKSC 61; [2019] 1 Lloyd's Rep 21; [2018] 3 WLR 2087 (hereafter “Volcafe”); rvsg [2016] EWCA Civ 1103; [2017] 1 Lloyd's Rep 32; [2017] QB 915 (hereafter “Volcafe CA”); noted [2017] LMCLQ 169; varying [2015] EWHC 516 (Comm); [2015] 1 Lloyd's Rep 639 (hereafter “Volcafe QB”).
4. For the purposes of the discussion here, there is no difference between the two sets of provisions.
5. Volcafe CA, [70].
6. Volcafe, [3]. The evidence is described in greater detail in Volcafe CA, [12].
7. Volcafe, [4].
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