Volcafe v CSAV [2018] UKSC 61 - what changes are needed?


This landmark case concerns the burden of proof under rule 2 of Articles III and IV of the Hague/Hague-Visby Rules.

Footnoting these above a sketch of the facts and the lower courts’ judgments, we first precis the final decision, with brief discussion and commentary. It is submitted that, though providing welcome clarity on an issue that has seen decades of wrangling, in terms of claimshandling the significance of this ruling will soon wane.


The Supreme Court held that:

  1. carriage of goods by sea is paid bailment, on terms, and nothing in the above Rules alters the common law burden of proof; so
  2. where goods shipped in apparent good order and condition show loss or damage on outturn, the carrier is liable under Article III rule 2 unless he can prove that, more likely than not, what happened was not due to breach of his obligation to take suitable care of the cargo; also
  3. to rely on an Article IV rule 2 exception, as well as proving that it applies, the carrier must also show that there was no fault on his part that caused the damage.

Under the (Article IV rule 2 (m)) “inherent vice” exception relied on here, a carrier must now show that either (a) he took reasonable care of the cargo but the damage still occurred or (b) whatever reasonable protective steps might have been taken would have failed, because of the inherent nature of the cargo.


Two fundamentals remain. These are that (a) cargo interests must show that (i) on loading the goods were sound and (ii) on discharge they were lost or damaged (b) the actual evidence in any particular case will be the same, as to nature, extent, credibility, relevance and weight, a point that dovetails with Lord Sumption’s early remarks that “the courts very rarely decide issues of fact on the burden of proof. The trial judge is usually able to find some persuasive evidence … to break the impasse.” Only the rules on deployment of evidence, and the probable result of failure, have changed.

It is now clear that in claims based on alleged failure to carefully load, handle, stow, carry etc, the carrier must show that suitable care was used, and (if raising an Article IV rule 2 exception) that the loss or damage happened even though he took all required steps. In essence, having proved loss of or damage to sound cargo, those interests will force the carrier to offer, and now also prove, a valid answer.

This has prompted spotlight on (a) possible changes of emphasis in the way that many such claims are pleaded, argued and settled (b) the means by which vessel interests can capture, retain and retrieve evidence and (c) resulting increased carrier liability, as some predict.


It is very likely that cargo interests will present Article III rule 2 claims differently, and that carrier defences will become more specific, positive and detailed. This will encourage focus and in some instances should - but not necessarily will - promote quicker disposal. Examining a case under a lens now seeming to favour cargo will not prevent carriers from tendering evidence that they consider an adequate counter. Again, there will be no change to the material that carriers have - the issue is the quality of their response to the new call to produce it.

And that is why obtaining, securing and marshalling evidence of who did what and when will now be vital. Carriers need to review their procedures and ensure as far as possible that all steps taken within their scope of duty are up to scratch, and that systematic records are retained for use if needed. That is the task set by this decision.

If that can be achieved it is not likely that, mid and long term, carrier liability will increase. There may be a temporary uplift on reappraisal of ongoing cases which might now be decided (and so will far more likely be settled) differently, but once carriers and their advisers recalibrate, so evidence itself becomes a key notion and a core commodity, claims are likely to be fought and concluded much as now.


This decision might lead to some cases settling quicker, and perhaps on less favourable terms for vessel interests, and should lead to carriers reassessing systems for handling cargo and, crucially, evidencing that.

As often, though, much depends on human input, and change needs time to set. The Supreme Court rightly said that the burden of proof is rarely the key to judicial decision, and likewise it is seldom uppermost in the minds of those - on the deck, in the hold, at the quayside and further ashore - who will probably now see their responsibilities widened. Carriers and their advisers must therefore regularly check, test and if necessary review any updated procedures, so new rules become regular habits.

If you need specific advice or would like generally to discuss any point or topic in this note please contact Helen Schlemminger (h.schlemminger@mtaher.com) or Tim Stephenson (t.stephenson@mtaher.com).


Article III rule 2:

“Subject to the provisions of article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.”

Article IV rule 2:

“Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from:
(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship;
(b) Fire, unless caused by the actual fault or privity of the carrier;
(c) Perils, dangers and accidents of the sea or other navigable waters;
(d) Act of God;
(e) Act of war;
(f) Act of public enemies;
(g) Arrest or restraint of princes, rulers or people, or seizure under legal process;
(h) Quarantine restrictions;
(i) Act or omission of the shipper or owner of the goods, his agent or representative;
(j) Strikes or lockouts or stoppage or restraint of labour from whatever cause, whether partial or general;
(k) Riots and civil commotions;
(l) Saving or attempting to save life or property at sea;
(m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods;
(n) Insufficiency of packing;
(o) Insufficiency or inadequacy of marks;
(p) Latent defects not discoverable by due diligence;
(q) Any other cause arising without the actual fault or privity of the carrier, or without the actual fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”

CSAV had transported various consignments of bagged coffee beans from Colombia to Northern Germany from January to April 2012. The bills of lading recorded receipt of the cargo in good condition, but on arrival that in 18 out of 20 unventilated containers had suffered wet damage due to condensation.

Coffee beans notoriously absorb and emit moisture, especially during a transit like this, and the bags had been protected by Kraft paper but the precise thickness used could not be shown.

The trial judge had decided in favour of the cargo owners, who had argued that there is a presumption that damage (to proven sound cargo) is caused by the fault of the carrier, who has the burden of showing that he has not breached any of the Article III rule 2 duties. However, the Court of Appeal overturned that, ruling that under Article III rule 2 and also Article IV rule 2 the burden of proof was on the cargo owner.

Category: News

The main marine impact of COVID 19

It may seem a lot further back, but just over 7 weeks ago on 31 December the first reports of what is now called COVID19...

Read More

Maryam Taher awarded the Freedom of the City of London

On 21 January Maryam Taher received the Freedom of the City of London at a formal ceremony at the Chamberlain’s Court. T...

Read More

2020 vision - Current core sanctions issues are a good guide to what next year will bring

Sanctions regimes continue to target countries who would otherwise be main players in the hydrocarbon and other commodit...

Read More

Volcafe v CSAV [2018] UKSC 61 - what changes are needed?

Introduction This landmark case concerns the burden of proof under rule 2 of Articles III and IV of ...

Read More

90 or 180, wind-down and legacy: Iran, 8 May and the JCPOA

Introduction   On 8 May 2018 President Trump announced US withdrawal from the JCPOA and phased reintroduction of ...

Read More

War - Whether, Where and What?

This article looks at one particular charterparty and also sale contract provision in a volatile and changing world. Eve...

Read More

Sanctions following the Salisbury incident?

We write to outline this firm's relevant expertise on matters that may now arise. There has been much media specu...

Read More

Fiona Trust v Privalov - Cross-undertakings in the context of Freezing Orders - the sting in the tail?

If a Claimant with a good arguable case shows that the Defendant will probably move his assets beyond reach, the courts ...

Read More

The Legal 500 2017 - M Taher & Co Solicitors ranked among the leading UK shipping law firms

We are delighted to have maintained, for the third consecutive year, our ranking as one of the UK’s leading shippin...

Read More

The Missiles, manoeuvres and measures – a miscellany of new sanctions

Alongside brief commentary on recent developments, this article reviews some important but increasingly forgotten backgr...

Read More

The “NEW FLAMENCO” - Causation and credit

Defendants often argue that their breach of contract created no loss, or that injury resulted at least partly from somet...

Read More

Important OFAC Iran FAQs update providing additional clarity as to what would happen in the event of a sanctions snapback under the JCPOA (M.4 and M.5)

Amidst increasing political tension and uncertainty as to the future of the landmark nuclear deal, OFAC issued on 15 Dec...

Read More

Latest Significant Court of Appeal Ruling

The Court of Appeal dismissed Grand China Logistics Holding (Group) Co Ltd appeal and upheld that the obligation to pay ...

Read More

The new Iranian Petroleum Contracts (IPCs)

Following Implementation Day, Iran has progressively increased its oils production from 814,000 barrels per day (bpd) to...

Read More

Legal 500, 2016-17 Edition

We are delighted to announce that M Taher & Co has again been recognised as one of the UK’s leading shipping firms i...

Read More

M Taher & Co participated in the 1st International Networking Congress held in Saint Petersburg and Moscow, Russia on 27th-29th June 2016

Our senior partner, Maryam Taher, attended a series of events, organised by the European Centre of Legal Cooperation (...

Read More

The EU prolongs the Economic Sanctions against Russia for an additional 6 months

On 1st July 2016, the EU Council prolonged the Economic Sanctions on Russia until 31st January 2017. The measures were i...

Read More

M Taher & Co attended Posidonia 2016

We were delighted to attend the “Posidonia 2016 International Shipping Exhibition” in Athens, Greece earlier this month....

Read More

Moscow City Bar Council in cooperation with the World Trade Organisation – Geneva 21st - 22nd March 2016 – Presentation on the "EU Sanctions in relation to Russia"

Maryam Taher was invited by the First Vice President of Moscow City Bar, Dr. Gerni Reznik, to give a presentation, on Tu...

Read More

Case T3/2014/2545 Sarkandi & Ors – v – Secretary of State for Foreign and Commonwealth

T3/2014/2545 Before Lord Justice Richards, Lord Justice Sullivan and Lord Justice McFarlane, The Queen on the applicatio...

Read More

Ocean Capital Administration and Others Re-listing

Further to our recent update about the EU Council's intention to re-list our clients, they have now done so. Please se...

Read More

EU set to re-impose sanctions on more Iranian shipping companies

Following the judgment of 22 January 2015 in Ocean Capital Administration GmbH and Others v Council of the European Un...

Read More

EU Council re-lists Gholam Hossein Golparvar for alleged connection with IRISL

Following the judgment of 12 December 2013 in Nabipour and Others v Council of the European Union (Case T-58/12) in whic...

Read More

JCPOA Dispute Resolution Mechanism – Good move or gamble?

The ‘E3’ – the European participants in the Joint Comprehensive Plan of Action (‘JCPOA’) – have triggered the plan’s Dis...

Read More

What if there is no voyage?

Voyage charterparties often involve claims for demurrage, detention, deviation and other additional transit or port expe...

Read More

First Maritime Conference on Business Opportunities in Iran-Post Sanctions. Piraeus, Greece.

M Taher & Co Solicitors recently hosted the First Maritime Conference on Business Opportunities in Iran-Post Sanctio...

Read More

Nabipour and Others v Council of the European Union (Case T-58/12)

This case concerned an application for annulment in part of certain Council Decisions and Regulations in relation to Ira...

Read More

Good Luck Shipping LLC v Council of the European Union (Case T-57/12)

This case concerned an application for annulment in part of certain Council Decisions and Regulations in relation to Ira...

Read More

Islamic Republic of Iran Shipping Lines (IRISL) and Others v Council of the European Union (Case T-489/10)

This case concerned an application for annulment in part of certain Council Decisions and Regulations in relation to Ira...

Read More

Publication of Updated Iranian Transactions and Sanctions Regulations

OFAC is amending the Iranian Transactions and Sanctions Regulations, 31 C.F.R. part 560 (ITSR) to expand the scope ...

Read More

Trade Receivables Securitisation – How to undertake a Survey or Audit

Understanding the key processes and adhering to best practice is essential for the smooth and successful completion of a...

Read More

M Taher & Co Solicitors’ 10 Year Anniversary Reception

M Taher & Co marked the success of the last 10 years with a champagne reception at the Fishmongers’ Hall on Tuesday ...

Read More

Courts’ semantic wrangling comes to an eventful end - Lloyd’s List

A commonly used phrase in insurance policies provokes a yawning gap in interpretation. TAKE this simple aggregation word...

Read More

The Khian Sea waste disposal incident

On August 31, 1986, the cargo ship Khian Sea, registered in Liberia, was loaded with more than 14,000 tons of non-toxic ...

Read More

A long journey

A container ship travels the equivalent of three-quarters of the way to the moon and back in one year during its regular...

Read More

Where the term Charter-party comes from?

For hundreds of years, written contracts covering the leasing of a ship have been known as “charter parties.” The term “...

Read More

The Team

We are an international law firm based in the Lloyds Building, the world's leading centre for insurance, in the heart of the financial district in the City of London.

Read More