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The Cause of the Loss or Damage

(published in Etudes de Droit Maritime à l'aube du XXIe siècle - Mélanges offerts à Pierre Bonassies, Editions Moreux, Paris, 2001, at pp. 357-371)

William Tetley, Q.C. 1

INDEX

Preface

I.        Introduction

II.      Burden of Proof on the Carrier

III.     The Yellow Submarine

IV.     Two Causes of the Loss

V.       Degree of Certainty of Cause

VI.     France – Cause of the Loss

VII.    The Hamburg Rules, 1978

VIII.  Conclusion

The Cause of the Loss or Damage

William Tetley, Q.C. t

Preface

            The recorded maritime decisions of French courts are an enigma wrapped in a puzzle, even for civilians albeit from overseas.  For years, Pierre Bonassies has done much to solve the puzzle and unwrap the enigma, by preparing annual summaries of the maritime decisions of the courts from first instance through appeal to Cassation.

            Art. 5 of the Civil Code is a delicious anachronism of ancient authority that judges are forbidden to give general opinions when rendering justice.  In other words, there is to be no jurisprudence.  Nevertheless the decisions do have authority beyond the effect on the particular parties to each case and are very useful around the world.

            Each year Pierre Bonassies has meticulously analyzed the important cases, collated and published them in three or four very long articles in Droit Maritime Français.

            In effect, Pierrre Bonassies for years has been "la jurisprudence maritime française" and it is a special pleasure to salute him with an article in this tome in his honour.

I .                Introduction

Once a cargo claimant has proven its claim,[1] a carrier, if it is to avoid liability, must begin by proving the true cause of a loss or damage. For example, without initially demonstrating how the loss actually occurred, the carrier is unable to subsequently prove due diligence to make the vessel seaworthy in respect of the loss or damage. Similarly, if the cause of the loss or damage remains unknown, the carrier is unable to rely on one of the exculpatory exceptions.

II.                Burden of Proof on the Carrier

In common law, the carrier is treated as a "bailee" of the goods entrusted to him for carriage from one place to another.[2]  As a bailee, the carrier's burden of proof of causation is as summarized by Lord Denning in Levison v. Patent Steam Carpet Cleaning Co. Ltd.:[3]

"... I am clearly of opinion that, in a contract of bailment, when a bailee seeks to escape liability on the ground that he was not negligent or that he was excused by an exception or limitation clause, then he must show what happened to the goods.  He must prove all the circumstances known to him in which the loss or damage occurred.  If it appears that the goods were lost or damaged without any negligence on his part, then, of course, he is not liable.  If it appears that they were lost or damaged by a slight breach – not going to the root of the contract – he may be protected by the exemption or limitation clause.  But, if he leaves the cause of loss or damage undiscovered and unexplained – then I think he is liable;...."

A carrier therefore has the burden of proving the cause of loss or damage. The law, as applied to a carrier of goods by sea, it is submitted, is properly set out in Pendle & Rivett, Ltd. v. Ellerman Lines, Ltd.,[4] an English decision.  In Canada, Iacobucci C.J. accurately restated the burden in Kruger Inc. v. Baltic Shipping Co.: [5]

"The carrier can then shift the burden of proof back to the plaintiffs by establishing that the loss or damage is attributable to one of the excepted perils set out in Article IV of the Hague Rules."

The carrier will be unable to prove that the damage falls within an exculpatory exception of art. 4(2)(a) to (q) without prior proof of the actual cause. The contrary jurisprudence is either misleading or mistaken.[6]

The principle was presented in a roundabout way by Atkinson J., in Phillips & Co. v. Clan Line Steamers (Smithfield), Ltd.,[7] where he stated that it was not necessary to establish why and how the damage occurred but that some alternative explanation to negligence should be established. Otherwise, if unexplained, the onus was not discharged by the carrier.

The residual exception clause of the Hague/Visby Rules, the Q clause, also supports this view. It reads: "Any other cause…." That is, under this final general exception, the carrier must prove another cause that is not imputable to him in any way.[8] Art. 4(2)(q) emphatically implies that the exceptions set out in art. 4(2)(a) to (p) are understood to be various kinds of causes. Art. 4(2)(q) is thus a further argument for the proposition that the carrier must prove the cause of the loss under the Rules.

It is reasonable to place this burden upon a carrier because he undertook to carry the goods and he has, or ought to have, at his disposal almost all of the relevant information available.[9]   As the Second Circuit declared in Encyclopedia Britannica, Inc.  v. S.S. Hong Kong Producer:[10]

"It is almost impossible for the shipper to prove that the carrier was negligent or lacked due diligence because as a practical matter all evidence on those issues is in the carrier's hands."

To exculpate the carrier when the loss or damage is unknown would be to make it beneficial for him either not to discover the cause of the loss or damage or even deliberately to obscure or hide it.

Other jurisprudence also obliges the carrier to prove the cause of the loss. In The Bunga Seroja, Kirby J of the High Court of Australia held:[11]

"It is not sufficient for a carrier to show a hazard which qualifies generally for the description of a "peril of the sea". It remains for the carrier, claiming immunity on this ground to establish that the loss or damage arises or results from the claimed ground of immunity, in the sense that it was caused by it."

            These comments echo the holding of the United States Supreme Court in The Folmina,[12] a Harter Act decision cited with approval in 1989 by a U.S. federal district court:[13]

"[P]roof merely of damage to cargo by sea water does not necessarily tend to establish that such damage was caused by a peril or danger of the seas....

"Manifestly, however, the presence of the sea water must have resulted from some cause, and it would be mere conjecture to assume simply from the fact that damage was done by sea water that therefore it was occasioned by a peril of the sea.  As the burden of showing that the damage arose from one of the excepted causes was upon the carrier, and the evidence, although establishing the damage, left its efficient cause wholly unascertained, it follows that the doubt as to the cause of the entrance of the sea water must be resolved against the carrier."

In Albacora S.R.L. v. Westcott & Laurance Line, Ltd.,[14] Lord Pearson concluded:

"There is no express provision, and in my opinion there is no implied provision in the Hague Rules that the shipowner is debarred as a matter of law from relying on an exception unless he proves absence of negligence on his part. But he does have to prove that the damage was caused by an excepted peril or excepted cause, and in order to do that he may in a particular case have to give evidence excluding causation by his negligence."[15]

The Exchequer Court of Canada held in Cargill Grain Co. Ltd. v. N.M. Paterson & Sons,[16]

"…the fact that the goods were damaged raises a prima facie case of negligence which can only be met by showing what actually occurred."

            In this case, a ship carried grain on the Great Lakes to a port where it was stored aboard the ship under a special storage contract for 220 days after which it was discovered to be wet. Rough weather during the voyage was alleged but the Court insisted on strict proof of how and when the rough weather caused the wetting.

Similarly, ruling on COGSA, Tate Ct. J. held that:[17]

"To rebut the presumption of fault when relying upon its own reasonable care, the carrier must further prove that the damage was caused by something other than its own negligence.... Once the shipper establishes a prima facie case, under "the policy of the law" the carrier must ‘explain what took place or suffer the consequences….' ‘[T]he law casts upon [the carrier] the burden of the loss which he cannot explain or, explaining, bring within the exceptional case in which he is relieved from liability.'"

The Fifth Circuit held in Socony Mobil v. Tex. Coast. & Int'l.[18] that:

"Although defendants argue that the plaintiffs never demonstrated the causal connection between the defects of the vessel and the damage to the cargo, it was not its obligation to do so. Once it successfully demonstrated that the cargo was loaded in good condition, and discharged in damaged condition, the burden was on the defendants to show that the cause of the damage was one of the risks for which carriers are not liable. Its failure to do this supports the judgement for the plaintiffs."

            In American Home Insurance Co. v. American President Lines, Ltd.,[19] the carrier's failure to adduce any direct evidence to show what unseaworthy condition, what specific latent defect or what other cause not resulting from its own fault of privity or from the fault or neglect of its servants or agents caused the freeze damage to a cargo of grapes and cherries, prompted the Ninth Circuit to hold the carrier liable for the damage.

            Other American authority is to the same effect.[20]

Finally, Italian[21] and Spanish[22] courts have also imposed this burden of proof on carriers.

            To avail as a defence, however, the carrier's explanation of the cause of the loss or damage must be plausible.  As the Eleventh Circuit has phrased it, "While it is true that the burden is on the plaintiff to establish a prima facie case under COGSA, a defendant must offer more than blanket assertions about mysterious possible causes if it is to survive a motion for summary judgment."[23]  The Court also held: "Suggestions of bizarre occurrences... and conjectures unsupported by evidence need not detain us."[24]

   III.             The Yellow Submarine

A non-cargo case involving a vessel, the Popi M, which sank in calm weather without any proven or known cause, is useful in illustrating who must prove the cause of a loss in a related field – marine insurance.[25] The trial judge[26] noted that the vessel sank and that only two possible explanations were presented at bar: (i) a submerged submarine of unknown identity had collided with the ship (the assured's theory), or (ii) wear and tear (the underwriter's theory). The trial judge accepted the submarine theory (now familiarly known as the "Yellow Submarine") as did the Court of Appeal.[27]

The House of Lords reversed. Lord Brandon held that the trial judge:[28]

"adopted an erroneous approach to this case by regarding himself as compelled to chose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them." (Emphasis added.)

This marine insurance decision is apposite, because a similar decision was rendered in a cargo case – The Hellenic Dolphin,[29] which, however, contains an erroneous and dangerous dictum in respect to unexplained openings of seams of the ship causing wetting to cargo:[30]

"In my judgment, the incursion of seawater through an undetected defect in the ship's basic plating is a classic of damage by perils of the sea."

No proof was made, however, as to how the rivets in the ship's hull were sheared or when the shearing took place. Unfortunately, as well, this decision also contains two erroneous dicta on the burden of proving seaworthiness.[31]

In The Antigoni,[32] there were two defences advanced by the carrier in a case where bolts attached to counterweights in the ship's crankshaft were insufficiently tight: a) due diligence before the start of the voyage and b) latent defects not discoverable by due diligence.  The trial judge found that the shipowner had not discharged its onus of proving due diligence.  Upholding the decision, Stocker L.J. of the English Count of Appeal observed:

"The [trial] Judge was bound to have regard to all the evidence, and unless there were some realistic evidence to support the theory of latent defect, he is entitled to reject the defence of due diligence, whatever the strict burden of proof may be said to be with regard to latent defect in this context.  There was, it seems to me, no evidence at all in support of the theory put forward."

            In an American case[33] similar to The Popi M,[34] the unexplained sinking of a barge in calm water raised a presumption of unseaworthiness[35] that was not rebutted, resulting in the carrier's responsibility to cargo.

IV.              Two Causes of the Loss

The obligation imposed upon the carrier to prove the cause of the loss or damage is similar to the obligation placed on the carrier to distinguish between the damage resulting from two causes, one which is the responsibility of the carrier and one which is not. If the carrier is unable to make the distinction it is responsible for the whole loss.[36]

V.                 Degree of Certainty of Cause

To what degree of certainty must the cause of the loss be proven? "Cause of the loss" is a question of fact, and it would appear that an absolute certainty is not required. The following cases exemplify how the courts have ruled:

Kirby J., in The Bunga Seroja,[37] held that:

"The resolution of such questions [questions concerning causation] will be found in a reflection upon all of the proved facts and a consideration of the carrier's conduct measured against the touchstone of what it was reasonable to expect of such a carrier in such circumstances."

            In the Rosalia,[38] Hough J. remarked:

"It is the duty of the carrier under general maritime law (not to dwell on the Harter Act…)… affirmatively to show that the damage arose from an excepted peril; if the matter remains doubtful, the carrier is not excused… and this is true, whether the doubt exists as to the nature of the injurious occurrence or the sufficiency of the cause assigned."

            In Faguandes Sucena v. Miss Shipping Co.,[39] flour was damaged by salt water but no satisfactory explanation of its origin was offered to the court. The "affirmative burden" being on the carrier to prove that the damage was one for which it had no responsibility under its bill of lading or COSGA, the carrier was liable.

Ralston Purina Co. v. U.S.A.:[40]

"When the cause of damage by seawater to an ocean shipment [sacks of feed] is unexplained, the rule has always been that the damage must be presumed to have been caused by unseaworthiness of the vessel on account of failure of the carrier to exercise due diligence to make the vessel seaworthy."

            The Southern Sword:[41]

"…the logical inference of unseaworthiness which follows from the unexplained sinking of a vessel in weather she should be able to withstand suffices to discharge that burden unless and until the carrier shall affirmatively show exculpatory circumstances."

            In Dominion Tankers Ltd. v. Shell Petroleum Co. Ltd.,[42] gasoline was lost from a vessel and the carrier declared this was due to a stranding which damaged the hull. It was held that the carrier's explanation of the loss of cargo was a reasonable one and consistent with the occurrence of the stranding and the severe damage done to the ship. The Court added that "the onus on a person relying on an exception relieving him from liability did not go so far as to make him prove all the circumstances which could explain an obscure situation."

In Edouard Materne v. S.S. Leerdam,[43] it was held:

"It is well established that a carrier of goods by the sea is prima facie liable for damage to cargo received in good condition but which is outturned in a damaged condition at the end of the voyage, unless the carrier can affirmatively show that the immediate cause of the damage is an excepted cause for which the law does not hold him responsible."

In Eisenerz - G.m.b.H. v. Federal Commerce & Navigation Co. Ltd.[44] a ship went aground as the result of an evident error in navigation of the ship. It was held that the loss was due not to the grounding but to the negligent mixing of cargo when the cargo was discharged at an intermediary port in order to repair the vessel. The cause of the loss was held not to be the error in navigation but the negligent care of the cargo, for which the carrier was responsible.[45]

In the Popi M, (albeit a marine insurance decision) Lord Brandon stated that the shipowner had to prove "on balance of probabilities" what peril of the sea if any, had caused the loss.[46] He added that the shipowners, in adducing such proof, "were bound… to condescend to particularity in the matter".[47]

            In cases of multiple causes, courts look for the most probable of all the possible causes.  In The Subro Valour,[48] for example, the Court decided that the most probable of three possible causes of a shipboard fire was damage to the vessel's electrical wiring or insulation, for which the carrier was held liable on grounds of lack of due diligence before the commencement of the voyage.

            Where there are two or more definite, contributory (as opposed to merely possible) causes of the cargo loss or damage, the courts will attempt to identify the "dominant" cause.  In The Fiona,[49] for example, where a ship exploded just before discharging, it was held that of four contributory causes, the contamination of the ship's fuel oil by residues of a previous cargo of condensates was the dominant cause, resulting in the carrier's liability for having failed to exercise due diligence in securing the removal of the residues prior to the vessel's departure.

            On the other hand, in The Marine Voyager v. O'Connell Construction,[50] a chartering case, there was found to be only one proximate cause of the loss: the negligent misrepresentation by the shipper on the cargo manifest as to the weight of a heavy drill which, when lifted by the shipowner's derrick, broke away from the hook and fell into a cargo hold, inflicting serious damage to the ship.  The alleged defect in the hook itself was held too remote to be a contributory cause, thus relieving the shipowner of liability for contributory negligence.

VI.              France – Cause of the Loss

Under French domestic law, once the cargo owner has shown the extent of the loss that he has suffered,[51] a presumption arises against the carrier.[52]  This presumption is not merely one of fault, but rather one of liability.[53]  Consequently, the carrier enjoys no benefit of doubt, so that the carrier is liable even if no fault is proven.[54]  Art. 27 of Law No. 66-420 of June 18, 1966 states that "the carrier is liable… unless he proves…." The carrier can only escape liability by showing affirmatively what the cause of the loss was and that it falls within the exceptions set out in art. 27.[55]  The same principle applied under the former French Law of April 2, 1936.[56]  The proof by the carrier must be "positive, unequivocal and not the result of mere hypotheses."[57]

If a carrier offers no explanation of the cause of the loss or damage;[58] if he does not provide a sufficient explanation of the cause of the loss;[59] or if he merely points to a hypothetical, though possible, explanation;[60] then the carrier will not be allowed to rely on any exculpatory exceptions[61] and the cargo owner will be allowed to recover from him.[62]

If the loss or damage is caused jointly by a fault of a carrier and one of the exculpatory exceptions falling within the "sphere of diligence" of the shipper[63] (e.g. defect of packing, inherent vice of the goods, fault of the shipper or owner of the goods), then, normally, only partial responsibility is attributed to the carrier.[64]  On the other hand, where the carrier's fault is combined with another contributory cause of the loss or damage which falls outside the shipper's "sphere of diligence", such as peril of the sea or restraint of princes, French courts tend increasingly to find the carrier responsible for the whole of the loss or damage, provided that the carrier's fault was the proximate cause of the harm (i.e. that "but for" the carrier's fault, the loss or damage would not have occurred).[65]

VII.           The Hamburg Rules, 1978

It is assumed under the Hamburg Rules that the carrier must prove the cause of the loss because by art. 5(1) the carrier is only relieved for loss or damage to cargo if it shows it "took all measures that could be reasonably required to avoid the occurrence and its consequences." (Emphasis added). The carrier must prove the occurrence or how the loss was caused in order to prove that it took all reasonable measures.

VIII.           Conclusion

Once a cargo claimant has made its prima facie case, the burden of proof shifts to the carrier. To take advantage of exculpatory provisions available to carriers under either bills of lading or statutes, a carrier must first demonstrate the true cause of the damage or loss. This is only fair because he is in the best position to discover the cause. In practice, however, both the cargo claimant and the carrier are obliged to prove all the facts available to them as it is never wise to tempt fate.[66]

            Thus the basic rule of burden of proof in a cargo case is that each party is best off proving all the facts available to it.  The rule is, of course, true in any context before the courts.



1 Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University School of Law, and counsel to Langlois Kronström Desjardins of Montreal.  The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.

t Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University School of Law, and counsel to Langlois Gaudreau O'Connor of Montreal.  The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.

[1] See W. Tetley, Marine Cargo Claims, 3 Ed., Les Éditions Yvon Blais Inc., Montreal, 1988, Chaps. 8, 9, 10, 11, 12 & 13, for the six points the claimant must prove before the order of proof shifts to the carrier (hereinafter "Tetley, Marine Cargo Claims, 3 Ed., 1988").

[2] Coggs v. Bernard (1703) 2 Ld. Raym. 909 at pp. 912-913, 92 E.R. 107 at p. 109 (K.B.); N.E. Palmer, Bailment, 2 Ed., 1991 at pp. 3 and 123.

[3] [1977] 3 All E.R. 498 at p. 505, [1978] Q.B. 69 at p. 82 (C.A.).

[4] Pendle & Rivett, Ltd. v. Ellerman Lines, Ltd. (1927), 29 Ll. L. Rep. 133 at p. 136, the cargo disappeared inexplicably. "That being so, under Art. IV, Rule 2(q) the burden is on the defendants to show that these goods were lost and taken out of the case without any fault or privity on the part of the carrier or neglect by his servants or agents. Have they discharged the burden? If I accept all their evidence, in a sense they have. But in another sense they have not, because that which they seek to prove is wholly irreconcilable with the evidence given for the plaintiffs. There is in truth a mystery about the loss. If I accept the evidence given for the defendants the loss of the goods is quite inexplicable. In those circumstances one side or the other must win. I cannot give victory to both. I think the only logical result is that defeat must be on the side on which rests by this statute the burden of explaining that which would be otherwise inexplicable. Having regard to the wholly inexplicable conflict of evidence on both sides I think I must hold that the defendants have not discharged the burden which is upon them by Art. IV, Rule 2(q) of the Act."

Herald & Weekly Times, Ltd. v. N.Z. Shipping Co. Ltd. (1947), 80 Ll. L. Rep. 596 at pp. 606 and 607: water damaged cargo, and it was impossible to know whether the valves were left open as an act of negligence in navigation or in care of cargo. "Unless it can be shown to me with reasonable clearness what was the act or default, I think it is very difficult to say whether that act or default was done in the navigation or management of the ship....Equally it follows that the defendants have not shown that they bring themselves within Rule 2(q)."

In The Farrandoc (Paterson & Sons Ltd. v. Robin Hood Flour Mills, Ltd.), [1967] 1 Ex. C.R. 431, upheld 1968] 1 Ex. C.R. 175 at pp. 179-80, [1967] 2 Lloyd's Rep. 276 at p. 279, 1967 AMC 1451 at p. 1455, where Thurlow J. questioned whether the wetting of the cargo was due to the second engineer opening the wrong valve and thus whether "…the cause of the damage has been established. In that event, as I see it, the appellant would be liable on the basis of the breach of its obligation under Article III, Rule 2, which is to be inferred from the fact of the wheat having become wetted and its failure to prove that the cause of the loss was one for which it was not responsible under the rules."

North Star Cement, Ltd. v. Labelle (The Sonia-D), 1976 AMC 944 (Fed. C. Can.). Here the carrier was unable to prove that an improperly welded half-inch inspection hole was large enough to permit entry of the large amount of water that flooded a cargo hold during a relatively brief period. In effect, the cause was not proven.

Lady Drake (Canadian National Steamships v. Bayliss), 1935 AMC 427 at p. 434 (Sup. Ct. Québec). The trial Court pointed out that under the British Hague Rules of 1924, the cause must be proven by the carrier. "The breakage must have a cause and it is for the shipowner to show what that cause is. He has elected to say that it was due to a peril of the sea." Relied on was The City of Baroda  (1926), 25 Ll. L. Rep. 437. Lady Drake was upheld in appeal, 1936 AMC 998 (Que. Ct. of App.) and the Supreme Court of Canada [1937] S.C.R. 261, (1937) 1 D.L.R. 545, 1937 AMC 290, where Duff C.J. held: "it was incumbent upon the appellants to acquit themselves of the onus of showing that the weather encountered was the cause of the damage and that it was of such a nature that the danger of damage to the cargo arising from it could not have been foreseen or guarded against as one of the probable incidents of the voyage." (ibid., S.C.R. at p.263, D.L.R. at pp. 546-547, AMC at p. 292).

[5] (1989), 57 D.L.R. (4th) 498 at p. 502 (Fed. C.A.), relied upon in Canstrand Industries Ltd. v. Ship Lara S [1993] 2 F.C. 553 at p. 574, (1993) 60 F.T.R. 1 at p. 15 (Fed. C. Can.), upheld without discussion of the point, (1994) 176 N.R. 31 (Fed. C.A.).  See also Trent Rubber Services v. Polarctic (1987) 12 F.T.R. 140 at p. 161 (Fed. C. Can.); Francosteel Corp. v. Fednav Limited (1990) 37 F.T.R. 184 at p. 194 (Fed. C. Can.); Wirth Ltd. v. Belcan N.V. (1996) 112 F.T.R. 81 at p. 97 (Fed. C. Can.).

[6] The Vermont, 47 F. Supp. 877, 1942 AMC 1407 (E.D. N.Y. 1942). Here the cause of the contamination of a cargo of coconut oil was never established. The carrier just proved scrupulous cleaning and testing of tanks and care of the cargo. The Court (ibid., F. Supp. at p. 880, AMC at p. 1410) held that the rule in Arakan, 1926 AMC 191 at p. 194 (N.D. Cal. 1926), The Mursa (Newhall & Co. v. United States), 8 F.2d 422 at p. 423, 1925 AMC 1541 at p. 1544 (N.D. Cal 1925) and The Rosalia, 264 F. 285 at p. 288 (2 Cir. 1920) had been changed by COSGA and the carrier did not now have to prove the cause of the damage, but merely to prove freedom from negligence. As its sole authority the Court cited The City of Baroda  (1926), 25 Ll. L. Rep. 437. In this latter case, involving the theft of goods, the Court had noted two alternative methods whereby the theft could have taken place, and in either case the carrier or its servants could have been involved. Thus, the carrier was held responsible. The City of Baroda judgment does not support The Vermont decision, because in The Vermont, the carrier did not show any possible cause or any alternative cause(s). In fact, The City of Baroda is authority for the contrary view, because in it, the carrier showed two possible causes, neither of which was attributable to its lack of fault, negligence or responsibility.

[7] (1943) 76 Ll. L. Rep. 58 at p. 61: "It is not necessary for the defendants to establish exactly why and how the damage occurred, provided they can disprove negligence; but, of course, it is not easy to do that unless they can establish some reasonably possible alternative explanation. If the damage is entirely unexplained, it is difficult to see how the onus can be discharged."  See also Produits Alimentaires Grandma Ltée v. Zim Israel Navigation Co. (1987) 8 F.T.R. 191 at p. 197, 1987 AMC 1474 at p. 1479 (Fed. C. Can.), upheld (1988) 86 N.R. 39 (Fed. C.A.): "Mere speculation will not overcome the prima facie evidence of a clean bill of lading."  See also Canfor Ltd. v. The Federal Saguenay (1990) 32 F.T.R. 158 at p. 160 (Fed. C. Can).): "The defendant cannot overcome the burden of proof by merely postulating as to the cause of the damages."

[8] Quaker Oats v. M/V Torvanger, 734 F.2d 238 at p. 243, 1984 AMC 2943 at p. 2949 (5 Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC 2398 (1985). The Ocean Dynamic, [1982] 2 Lloyd's Rep. 88 at p. 90 and 93. Rodière, Traité Général, Affrètements et Transports, Tome 2, 1968, at para. 767. See also Fraikin and Boquêt, "Les dommages d'origine inconnue dans les transports sous connaissement" DMF 1978, 707 at p. 714.

[9] Vallescura, 293 U.S. 296 at 304, 1934 AMC 1573 at p. 1576 (1934), where Stone J stated: "The reason for the rule [that the burden of proof rests upon the carrier of goods by sea to bring himself within any exception relieving him from the liability which the law otherwise imposes on him] is apparent. He is a bailee entrusted with the shipper's goods, with respect to the care and safe delivery of which the law imposes upon him an extraordinary duty. Discharge of the duty is particularly within his control. All the facts and circumstances upon which he may rely to relieve him of that duty are peculiarly within his knowledge and usually unknown to the shipper." See also Mimi Lim. Procs., 604 F.2d 254 at p. 262, 1979 AMC 1680 at pp. 1689-90 (4 Cir. 1979).

[10] 1969 AMC 1741 at p. 1754, [1969] 2 Lloyd's Rep. 536 at p. 543 (2 Cir. 1969).

[11] Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corporation Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 46, [1999] 1 Lloyd's Rep. 512 at p. 539, 1999 AMC 427 at p. 489 (High C. of Aust. per Kirby J.). This judgment must be read with caution, however, because it is flawed in concluding that a peril of the sea may exculpate the carrier even if it is expected. The judgement thus distorts the delicate balance between due diligence, peril of the seas and care of the cargo contained in the Hague and the Hague/Visby Rules.  It is also unfortunate that other High Court justices in The Bunga Seroja appear to have taken the position that the carrier, in order to rebut cargo's prima facie case, need only prove its due diligence to make the ship seaworthy before and at the beginning of the voyage and lack of negligence on its part in caring for the cargo, without being obliged to prove the actual cause of the loss or damage.  See critical commentary on this part of the decision by Martin Davies, [1999] LMCLQ 408 at pp. 409-410.

[12] 212 US. 354 at pp. 362-363 (1909).

[13] C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at pp. 505-506, 1990 AMC 733 at pp. 745-746 (E.D. La. 1989), another Harter Act decision.

[14] [1966] 2 Lloyd's Rep. 53 at p. 64 (H.L.). See the interesting judgement by Hobhouse J. in The Torenia, [1983] 2 Lloyd's Rep. 210 at p. 219, where he noted that "conventional statements of the burden of proof which is on the carrier require proof of the cause…. I therefore conclude that it does not suffice for the carrier merely to prove under art. IV, r. 2 , that a cause of the loss was a peril of the sea. A fortiori, it does not suffice for him to prove that the causes were, in combination, a peril of the sea and a defect which is not shown to have been a latent defect not discoverable by due diligence…. Accordingly, I reject the defendant's [the carrier's] first submission as unsound in law, unless it be understood as following from the defendant's having proved that perils of the sea were the cause of the loss of the goods" (Hobhouse J.'s emphasis). See also The Theodegmon [1990] 1 Lloyd's Rep. 52 at p. 53: "It was common ground that the failure of the defendants to carry the plaintiffs' cargo to its destination, and the consequent loss and expense to the plaintiffs, constituted, prima facie, a breach of contract on the part of the defendants which cast upon them the burden of proving that the cause of the casualty was one in respect of which their liability was excluded under s. 4 [of U.S. COGSA 1936]."

[15] Some older U.K. decisions held that, in order to rebut cargo's prima facie case, the carrier must prove not only that the loss or damage was caused by an excepted peril, but also that as carrier it was not negligent.  See, for example, F.C. Bradley & Sons, Ltd. v. Federal Steam Navigation Company, Ltd. (1927) 27 Ll. L. Rep. 395 at p. 396 (H.L.).  More recent decisions and legal authors, however, such as Albacora, supra, The Flowergate [1967] 1 Lloyd's Rep. 1 at p. 8, and Scrutton on Charterparties and Bills of Lading, 20 Ed., 1996 at p. 446, note 28, take the position that proof by the carrier that an excepted peril caused the loss or damage suffices to shift the burden of proof of the carrier's negligence to cargo.  Nevertheless, certain exceptions under the Hague and Hague/Visby Rules, notably art. 4(2)(q) (any other cause without the actual fault or privity of the carrier and without any fault or neglect on the part of the carrier's servants or agents) in effect require the carrier to negative its own negligence, as a condition of proving the exception.  See W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 6: "The Burden and Order of Proof".

[16] [1966] Ex. C.R. 22 at p. 33, citing Wright J. in Gosse Millerd, Ltd. v. Canadian Merchant Marine, Ltd., [1927] 2 K.B. 432, (1927) 28 Ll. L. Rep. 88. Cargill Grain was upheld in appeal [1968] 1 Ex. C.R. 199, as was Gosse Millerd (1927) 29 Ll. L. Rep. 101 (C.A.), [1929] A.C. 223, (1928) 32 Ll. L. Rep. 91 (H.L.).

[17] The Quaker Oats Company v. M/V Torvanger, 734 F.2d 238 at p. 243, 1984 AMC 2943 at pp. 2949-50 (5 Cir. 1984), cert. denied 469 U.S. 1189, 1985 AMC 2398 (1985), citing Schnell & Co. v. S.S. Vallescura 293 U.S. 296 at pp. 303-4, 1934 AMC 1573 at p. 1576 (1934). Quaker Oats in turn was cited with approval in Associated Metals & Minerals Corp. v. M/V Arktis Sky, 978 F.2d 47 at p. 51, 1993 AMC 509 at p. 515 (2 Cir. 1992) and in Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration, 137 F.3d 94 at p. 98, 1998 AMC 1327 at p. 1330 (2 Cir. 1998).

[18] 559 F.2d 1008 at p. 1013, 1977 AMC 2598 at p. 2605 (5 Cir. 1977). See also Mimi Lim. Procs., 604 F.2d 254 at p. 262, 1979 AMC 1680 at p.1690 (4 Cir. 1979), Taisho Marine & Fire Ins. Co. v. M/V Sea-Land Endurance 815 F.2d 1270 at pp. 1274-1275, 1987 AMC 1730 at p. 1736 (9 Cir. 1987); Damodar Bulk Carriers v. People's Ins., 903 F.2d 675 at pp. 683 and 686, 1990 AMC 1544 at pp. 1556 and 1560 (9 Cir. 1990); Amer. Home Assur. v. A.P.L., 44 F.3d 774 at p. 780, 1995 AMC 1036 at p.1044 (9 Cir. 1994).

[19] 44 F.3d 774 at p. 780, 1995 AMC 1036 at pp. 1044-1046 (9 Cir. 1994).

[20] See, for example, Westway Coffee Corp. v. M.V. Netuno, 675 F.2d 30 at p. 32, 1982 AMC 1640 at p. 1641 (2d Cir.1982). "When the consignee proves its prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions set forth in [46 U.S.C. App. § 1304(2) ].", cited with approval in Bally Inc. v. M/V Zim America 22 F.3d 65 at p. 67, 1994 AMC 2762 at p. 2766 (2 Cir. 1994).  See also Philip Morris  v. American Shipping Co., Inc. 748 F.2d 563 at p. 566, 1986 AMC 276 at p. 280 (11 Cir. 1984) (carrier must prove that the loss or damage falls within one of the COGSA exceptions).  The same rule applies under the Harter Act.  See C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at p. 506, 1990 AMC 733 at p. 747 (E.D. La. 1989) ("Absent a causal connection between the Harter Act exception to liability and the damage alleged in the complaint, the exception, even if proven, does not shift the burden of proof back to the shipper.").

[21] Corte Suprema di Cassazione d'Italia, January 30, 1990, [1995] ETL 317.

[22] Tribunal Supremo de España, October 2, 1995, [1996] ETL 520.

[23] Transatlantic Marine Claims Agency, Inc.  v. M/V OOCL Inspiration 137 F.3d 94 at p. 102, 1998 AMC 1327 at 1335 (2 Cir. 1998).

[24] Ibid., F. 3d at p. 99, AMC at p. 1332.

[25] It is very dangerous to apply definitions of seaworthiness or burden of proof in marine insurance to carriage of goods under the Hague and the Hague/Visby Rules but on occasion the parallels are illuminating.

[26] The Popi M, [1983] 2 Lloyd's Rep. 235.

[27] [1984] 2 Lloyd's Rep. 555 (C.A.).

[28] [1985] 2 Lloyd's Rep. 1 at p. 6 (H.L). See also Compania Naviera Martiantu v. Royal Exchange Assurance (1922), 13 Ll. L. Rep. 298 at p. 304, [1923] 1 K.B. 650 at p. 657.

[29] [1978] 2 Lloyd's Rep. 336.

[30] Ibid., at p. 339.

[31] First, the Court erroneously concluded in respect to the burden of proof of due diligence: "The plaintiffs [cargo claimants] have failed to prove that the vessel was unseaworthy before the commencement of the voyage. Accordingly, their case in that respect fails." (Ibid., at p. 340). The second erroneous statement follows immediately after the observation at note 6 ibid.: "I therefore reject that part of Mr. Walker's argument and turn to consider whether the plaintiffs can displace the exception [of perils of the sea] by proving that the vessel was unseaworthy when she loaded [the cargo]…" (at p. 339).  Because the carrier's duty of due diligence to make the ship seaworthy before and at the commencement of the voyage under art. 3(1) of the Hague and Hague/Visby Rules is an "overriding obligation", as decided in Maxine Footwear Co., Ltd. v. Can. Government Merchant Marine [1959] A.C. 589 at pp. 602-603, [1959] 2 Lloyd's Rep. 105 at p. 113 (P.C.), it is my position that the cargo claimant has no onus to prove unseaworthiness at those times, but that it is rather for the carrier to prove that it exercised due diligence before the start of the voyage and that, in the proper order of proof, the carrier must discharge this onus before, rather than after, invoking the exceptions to liability established by art. 4(2)(a) to (q).  See W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 15: "Due Diligence to Make the Vessel Seaworthy".

[32] [1991] 1 Lloyd's Rep. 209 at p. 215 (C.A.).

[33] Consol. Grain v. Marcona Conveyor 716 F.2d 1077, 1985 AMC 117 (5 Cir. 1983).

[34] [1983] 2 Lloyd's Rep. 235.

[35] 716 F.2d 1077 at p. 1081, 1985 AMC 117 at p. 122 (5 Cir. 1983).  See also Derby Company v. A.L. Mechling Barge Lines, Inc. 258 F. Supp. 206 at p. 211 (E.D. La. 1966), aff'd 399 F.2d 304, 1968 AMC 1436 (5 Cir. 1968).

[36] Vallescura, 293 U.S. 296, 1934 AMC 1573 (1934); The Torenia [1983] 2 Lloyd's Rep. 210 at p. 218, where Hobhouse J. stated: "Where the facts disclose that the loss was caused by the concurrent causative effects of an excepted and a non-excepted peril, the carrier remains liable. He only escapes liability to the extent that he can prove that the loss or damage was caused by the excepted peril alone (e.g. Gosse Millerd Ltd. v. Canadian Government Merchant Marine Ltd. (1928), 32 Ll. L. Rep. 91 at p. 98, [1929] A.C. 223 at p. 241, per Viscount Sumner)."; Smith, Hogg & Co. Ltd. v. Black Sea & Baltic General Insurance Company Ltd. [1940] A.C. 997 at p. 1007, (1940) 67 Ll. L. Rep. 253 at pp. 259-260 (H.L. per Lord Wright); Heskell v. Continental Express Ltd. (1950), 83 Ll. L. Rep. 438 at p. 458 (per Devlin J.); Wayne Tank & Pump v. Employers' Liability, [1973] 2 Lloyd's Rep. 237 at pp. 240 (per Lord Denning), 241 (per Cairns L.J.) and 245 (per Roskill L.J.) (C.A.); The Tolmidis, [1983] 1 Lloyd's Rep. 530 at p. 540; C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt 719 F. Supp. 479 at p. 502, 1990 AMC 733 at p. 740 (E.D. La. 1989).  See W. Tetley, Marine Cargo Claims, 3 Ed., 1988, Chap. 12 "Loss or Damage to Cargo" and Chap. 13 "Measure of Damages". In France see Law No. 66-420 of June 18, 1966 at art. 27 last paragraph and arts. 1147 and 1148 of the Civil Code.

[37] Great China Metal Industries Co. Ltd. v. Malaysian International Shipping Corporation Berhad (The Bunga Seroja) (1998) 158 A.L.R. 1 at p. 47, [1999] 1 Lloyd's Rep. 512 at p. 540, 1999 AMC 427 at p. 489 (High Ct. of Aust.). See also supra note 11.

[38] 264 F. 285 at p. 288 (2 Cir. 1920).

[39] 108 F.Supp. 918, 1953 AMC 148 (E.D. La. 1952).

[40] 1952 AMC 1496 at pp. 1498-99 (E.D. La. 1952).

[41] 190 F.2d 394 at p. 397, 1951 AMC 1518 at p. 1521 (3 Cir. 1951).

[42] [1939] Ex. C.R. 192 at p. 203, 1939 AMC 541 at p. 551. Relied on was City of Baroda (1926), 25 Ll. L. Rep. 437 at p. 442.

[43] 143 F.Supp 367 at p. 369, 1956 AMC 1977 at p. 1980 (S.D. N.Y. 1956); see also The Saturnia (Chestnuts), 226 F.2d 147 at p. 149, 1955 AMC 1935 at p. 1937 (2 Cir. 1955).

[44] [1970] Ex. C.R. 192; upheld by the Supreme Court of Canada, [1974] S.C.R. 1225.

[45] See also Trent Rubber Services v. Polarctic (1987) 12 F.T.R. 140 at pp. 164-165 (Fed. C. Can.), where the damage to the containerized shipment was held not to have been caused by the crew's negligent failure to check the lashings of the containers at least once a day, but rather by the insufficient bracing and securing of the cargo within the containers concerned and one adjacent container, for which the plaintiff was responsible.

[46] [1985] 2 Lloyd's Rep. 1 at p. 5 (H.L.).

[47] Ibid.

[48] [1995] 1 Lloyd's Rep. 509 at pp. 516-517.

[49] [1993] 1 Lloyd's Rep. 257.

[50] (1988) 19 F.T.R. 233 at p. 239 (Fed. C. Can.).

[51] Decree No. 66-1078 of December 31, 1966 at art. 56 imposes this burden on the cargo claimant. See also Cour d'Appel de Bordeaux, January 19, 1972, DMF 1972, 349.

[52] Cour d'Appel de Paris, January 16, 1985, DMF 1986, 297; Cour de Cassation, October 27, 1998 (The Bo Johnson), DMF 1999, 608 at p. 611, note P. Pestel-Debord.

[53] Cour d'Appel d'Aix, July 4, 1986 (Ile-de-la-Réunion), DMF 1988, 471 and commentary by Pierre Bonassies, DMF 1989, no. 77 at p. 158. See also Rodière & du Pontavice, Droit maritime, 12 Ed., 1997, para. 364; Vialard, Droit maritime, 1997, para. 480; Rèmond-Gouilloud, Droit maritime, 2 Ed., 1993, para. 579.

[54] Rodière, Traité Général. Affrètements et Transports, t. 2, paras. 613 and 617.  See also Cour d'Appel de Paris, October 16, 1985, DMF 1986, 309; Cour de Cassation, May 23, 1989 (The Cap-Taillat), DMF 1992, 350.

[55] Cour d'Appel de Bordeaux, November 20, 1972, DMF 1973, 287; Cour d'Appel de Paris, January 16, 1985, DMF 1986, 297; Tribunal de commerce de Marseille, January 14, 1997 (The Zim Yokohama), Revue Scapel 1997, 27, commentary by P. Bonassies, DMF Hors série no. 2, 1998, no. 109.  See also Rodière, Traité, Affrèments & Transports, t. 2, paras. 613 and 617.

[56] See Georges Ripert, "La Responsabilité du Transporteur Maritime d'Après la Loi du 2 avril, 1936", DMF 1949, 6 at p. 7; Francis Sauvage, "La Conditions juridique des marchandies à terre, avant embarquement ou après déchargement", DMF 1949, 135 at p. 139.  See also Cour d'Appel de Rouen, February 16, 1950, DMF 1950, 539 at p. 540, where the Court held that when the cause of the loss cannot be determined with any certainty, the carrier is the guarantor of all losses.

[57] Cour d'Appel de Rennes, September 27, 1995 (The Eurotrident) DMF 1997, 49, commentary by P. Bonassies, DMF Hors série no. 2, 1998, no. 109.

[58] Cour d'Appel de Paris, October 18, 1976, DMF 1977, 526; Cour d'Appel de Douai, October 19, 1973, DMF 1974, 94; Cour d'Appel de Versailles, March 20, 1995 (The Soufflot), DMF 1995, 813, note R. Achard.  See also Cour d'appel de Paris, November 27, 1996, Bulletin des Transports 1997, 68 (cause of damage unknown), commentary by P. Bonassies, DMF Hors série no. 2, 1998, no. 109.

[59] Cour de Cassation, February 26, 1963, DMF 1963, 334 (Law of April 2, 1936); Cour d'Appel d'Aix, May 16, 1975, DMF 1976, 288; Cour d'Appel de Rouen, May 13, 1982, DMF 1983, 212 with note by R, Achard; Hof van Beroep te Brussel, October 1, 1970, [1971] ETL 371.  See also Cour de Cassation, June 22, 1993 (The Dart-Americana), DMF 1994, 368, commentary by P. Bonassies, DMF 1995, no. 66 at p. 188; Tribunal de commerce de Marseille, March 5, 1993, Bulletin des Transports 1993, 289, commentary by P. Bonassies, DMF 1994, no. 63 at p. 163.

[60] Cour de Cassation, December 4, 1962, DMF 1963, 145 (Law of April 2, 1936); Tribunal de commerce de Paris, October 24, 1975, DMF 1976, 550; Cour d'Appel d'Aix, July 4, 1986, DMF 1988, 471; Cour d'appel de Paris, October 21, 1994, DMF 1995, 622; Cour d'Appel d'Aix, February 17, 1994 (The Panaghis Vergottis), DMF 1995, 307; see commentary by Pierre Bonassies, DMF 1995, no. 66 at p. 189. See also Pierre Bonassies, DMF 1996, no. 64 at p. 248.

[61] In some older cases, when the loss would not be attributed to any known cause, inherent vice and insufficiency of packing have been invoked to exonerate the carrier: Cour d'Appel d'Aix, October 13, 1959, DMF 1960, 153. See also Cour d'Appel de Rouen, January 15, 1960 (The Sally Stove), DMF 1960, 404 and Cour d'Appel de Rouen, January 15, 1960 (The Ile Maurice), DMF 1960, 669 where the carrier was exonerated for damage to galvanized steel.

[62] See also Philippe Delebecque, "Affrètement et transport martimes'", DMF 1999, 261 at para. 11.

[63] This term and the theory of mixed causation associated with it are those of Alain Sériaux, as developed in his book La faute du transporteur, 2 Ed., Economica, 1998 at paras. 209 et seq.

[64] Cour de Cassation, March 5, 1996 (The Diego and The Aquitania), DMF 1996, 507, commentary by Pierre Bonassies, DMF Hors série no. 1, 1997, no. 71; Cour de Cassation, January 20, 1998 (The Red-Sea-Elbe), DMF 1998, 578, note P. Delebecque, commentary by P. Bonassies, DMF Hors série no. 3, 1999, no. 104; Cour de Cassation, November 26, 1996 (The World Navigator), DMF 1997, 798, note R. Achard.

[65] See, for example, Chambre Arbitrale Maritime de Paris, Sentence no. 971, October 24, 1997, DMF 1998, 706, commentary by P. Bonassies, DMF Hors série no. 2, 1998, no. 111; Cour de Cassation, July 7, 1998 (The Atlantic Island), DMF 1998, 826, note P. Bonassies and additional commentary, DMF Hors série no. 3, 1999, no. 104.  This theory could well be extended to othe mixed causation situations where one of the contributory causes is outside the shipper's "sphere of diligence", such as strikes, lockouts, and acts of public enemies.

[66] For instance, a shipper unable to prove its prima facie case in the conventional manner, i.e. by showing good delivery and damaged outturn, is nevertheless able to make a prima facie case by showing that the nature or characteristics of the damage suffered by its cargo establishes that the damage occurred while the cargo was in the custody of the carrier. Thus, in Transatlantic Marine Claims Agency, Inc. v. M/V OOCL Inspiration, 137 F.3d 94, 1998 AMC 1327 (2 Cir. 1998), the shipper although unable to provide acceptable evidence as to the condition of the goods at delivery – lack of a clean bill of lading - or outturn  - belated notice of damage - was nevertheless able to establish its prima facie case by showing that the nature of the damage – seawater wetting of a cargo of paper – indicated that the damage occurred while the cargo was in the hands of the carrier.