《wilson_7e_oct2016》.pdf

Chapter 6 Insert p. 192 Hague/Visby Rules An interesting point concerning the allocation of the burden of proof when a shipowner seeks to rely on the exceptions listed in Article IV rule 2 of the Hague Rules arose in the case of Milan Nigeria Ltd. v Angeliki B Maritime Co. [2011] EWHC 892 (Comm.) A cargo of bagged rice had been shipped at Bangkok for carriage to two ports in Nigeria on bills of lading incorporating the Hague Rules. The cargo owners claimed that, on discharge, the cargo was found to have suffered caking/wetting damage amounting to approximately US$400,000. The arbitration panel found as a question of fact that the damage had resulted from a variety of causes only some of which fell within the Hague Rules exceptions. The point at issue was on which party lay the burden of proof of establishing the extent of the loss which actually fell within the exceptions. The arbitration panel took the view that, in the circumstances, the onus was on the cargo owners to prove that all the damage claimed resulted from breaches by the shipowners of their duty of care under Article III rule 2 but fell outside the Hague Rules exceptions. As they had failed fully to discharge this burden, the award of damages should be at the reduced figure of US$150,000. On appeal, Mrs Gloster J took the opposite view in holding that the basic burden of proof rule was not displaced by the fact that not all the causes of loss fell within the Hague Rules exceptions. Where goods were shipped on a clean bill of lading the shipowner was prima facie liable for any resulting damage to the goods unless it could bring itself within the Hague Rules exceptions. Despite the fact that in this case some of the damage was attributable to other causes, the onus remained with the shipowners to establish the extent of the loss which fell within the exceptions. In reaching this conclusi