(2019) 33 A&NZ Mar LJ 29
THE PERENNIAL QUESTION — THE BURDEN OF PROOF IN CARGO CLAIMS
UNDER THE HAGUE RULES: Volcafe Ltd v Cia Sud Americana de Vapores
SA  AC 358
Lord Sumption JSC’s judgment in Volcafe Ltd v Cia Sud Americana de Vapores SA began by observing that it
was ‘strange that a species of litigation which has generated reported decisions over four centuries should not yet
have returned a definitive answer’ to the question of the burden of proof in cargo claims.1 His Lordship proffered
that this was likely due to the fact that the burden of proof is ‘very rarely’ determinative per se in cases before the
courts: ‘[t]he trial judge is usually able to find some persuasive evidence, however exiguous, to break the
impasse’.2 In the present case, however, there was no such evidence, and his Lordship turned to the law of bailment
to surmount the impasse. Indeed, so far as English law is concerned, the judgment that followed is said to h ave
‘restored bailment to a central position in [the] carriage of goods by sea’.3 While Volcafe does not settle the law
in Australia, the judgment does provide a ‘persuasive authority in the rich vein of authorities to mine in the search
for the right answer’.4
The six claimants were the owners and holders of bills of lading of a cargo of Colombian green coffee beans
shipped on nine separate consignments from Buenaventura, Colomb ia, to Bremen, Germany, from 14 January
2012 to 6 April 2012 on vessels owned by the defendant carrier.5 The coff ee was bagged in 70kg hessian bags
and stowed in 20 dry, unventilated 20-foot containers, with 275 bags to each container.6 Each consignment was
covered by a bill of lading on LCL/FCL (less than full container load/full container load) terms, which rendered
the carrier contractually responsible for preparing the containers for the voyage and filling or ‘stuffing’ the bags
into each.7 The bills of lading were subject to English law and, by a clause paramount in Condition 2,8 incorporated
the Hague Rules9 into the contract of carriage.10
When the containers were unpacked in Bremen, 18 containers were found to contain bags that had been damaged
by water .11 The number of damaged bags in each container varied, but the damage was relatively minor as a
proportion of the total shipment and in financial terms.12 It was agreed between the parties that the total loss caused
by the water damag e was US$62,500, which was only 2.6% of the overall value of the consignments.13 At trial,
the deputy judge found that the bags had been wet as a consequence of moisture in warm air rising from the bags
and, on contact with the cool roof of the container, condensing and falling onto the bags on top of the stow and
running down the sides of the container.14
In the Supreme Court, Lord Sumption JSC summarised the background facts that were essentially common ground
* BBusMan, LLB (Hons) (University of Queensland), Student Editor of the Australian and New Zealand Maritime Law Journa l, and Research
Clerk, MinterEllison. All views expressed in this work are my own, as are all errors.
1 Volcafe Ltd v Cia Sud Americana de Vapores SA  AC 358, 368  (‘Volcafe’).
3 Paul Todd, ‘The Hague Rules and the Burden of Proof’  Lloyd’s Maritime and Commercial Law Quarterly 183, 183.
4 Justice Angus Stewart, ‘The Fluctuating Incidence of the Burden of Proof under the Hague-Visby Rules: The Implications of Volcafe v CSAV
 AC 358 for the Position in Australia’ (Richard Cooper Memorial Lecture, Federal Court of Australia, Brisbane, 24 October 2019) 18–
5 Volcafe (n 1) 368  (Lord Sumption JSC).
6 Volcafe Ltd v Cia Sud Americana de Vapores SA  QB 915, 923  (Flaux J) (‘Volcafe’).
7 Volcafe (n 1) 368  (Lord Sumption JSC). See also Volcafe Ltd v Cia Sud Americana de Vapores SA  1 Lloyd’s Rep 639, 641 
(David Donaldson QC) (‘Volcafe’).
8 Volcafe (n 7) 642  (David Donaldson QC).
9 Interna tional Convention for the Unification o f Certain Rules of Law Relating to Bills of Lading, and Protocol of Signatur e, opened for
signature 25 August 1924, 120 LNTS 187 (entered into force 2 June 1931) (‘Hague Rules’).
10 Volcafe (n 1) 368  (Lord Sumption JSC).
11 Ibid 369  (Lord Sumption JSC).
12 Volcafe (n 6) 923  (Flaux J).
14 Volcafe (n 7) 646–8 – (David Donaldson QC).
15 Volcafe (n 1) 368–9 .