Inherent Vice: Who proves what and how?

Volcafe Ltd v Compania Sud Americana de Vapores SA (“CSAV”) [2016] EWCA Civ 1103.

It’s indeed a good day for carriers as the CA has now restored the balance between carriers’ and cargo owners’ interests by reversing the controversial first instance judgement in Volcafe Ltd  v CSAV [2015] EWHC 516 (Comm).

This case arose out of condensate damage to nine consignments of coffee, which were carried in unventilated containers from Buanaventura in Colombia to destinations in North Germany. The High Court (Mr David Donaldson) rendered a judgement in favour of the cargo owners on the basis that, although the cargo damage was attributed to inherent vice of the goods carried, the carrier had not disproved his negligence. The carrier had failed to establish that he had adopted a sound system as underpinned by a theoretical calculation or empirical study.

The CA (Lady Justice Gloster, Lady Justice King and Mr Justice Flaux, sitting in the Court of Appeal) allowed the carrier’s appeal in respect of his defences of inherent vice.

Flaux J, who delivered the leading judgement, ruled that that once the carrier had established the inherent vice exception, the burden of proof shifted to the cargo owners to show that there had been negligence on the part of the carrier. He further held that such an approach is consistent with the weight of the authorities, which have applied the principles enunciated in The Glendarroch, even where the contract of carriage is governed by the Hague Rules, as well as with the principle that “he who alleges must prove”. In addition, he found that the adopted approach is supported by the wording of the “catch all exception” which is the only excepted peril that expressly requires the carrier to disprove his negligence before relying on this exception.

In addition, Flaux J rejected trial judge’s analysis of ‘complete circularity’ between Hague Rules, art. III, r.2 and art. IV, r. 2(m) because this approach deprives the exception in paragraph (m) of its force and that it has been long recognised as an excepted peril. Furthermore, he rejected trial judge’s approach to a “sound system” and in particular his requirement for a scientific calculation or empirical study. He held that such an interpretation imposes a standard beyond what the law requires. He also reiterated the well-established position that one of the indicia of a sound system is that it is in accordance with general industry practice.

The CA decision in Volcafe is welcome not only because it strikes a fair balance between carriers’ and cargo owners’ competing interests but also because it promotes the uniform application of the Hague and in turn the Hague-Visby Rules. In particular, the CA decision brings English case law in line with authorities in the United States and New Zealand who have held that, in case of inherent vice or other excepted perils (excluding the q defence), it is the shipper who bears the burden of showing that the damage resulted from negligence or fault caused by the carrier (See for example, Quaker Oats Co. v. M/V TORVANGER, 734 F.2d 238, 1984 AMC 2943 (5th Cir. 1984), U.S. v. Ocean Bulk Ships, Inc. 248 F.3d 331 (5th Cir. 2001), Terman Foods, Inc.v. Omega Lines 707 F.2d 1225 (11^th Cir. 1983) and Shaw Savill & Albion Company Ltd v Powley & Co [1949] N.Z.L.R. 668).

As a final remark, one should not underestimate the impact of Volcafe on the approach to the burden of proof in all of the defences (except from the “catchall exception”) enumerated in Hague and Hague-Visby Rules, art. IV, r.2. Flaux J found the wording of the “catchall exception” as supporting the analysis that, in the case of all other exceptions, the carrier’s reliance on any excepted peril is not dependent upon the carrier disproving his negligence.