Hague-Visby Rules – Dangerous Cargo – Insufficiency of Proof

August 2000

(Sea Venture Volume 19)

On 7 September 1991 there was an explosion on board the mv ''Recife'' followed by a fire in a container which had been stowed on deck in the top tier of the containers. The container was said to contain calcium hypochlorite in tablet form intended for use as a water purifier. Dry calcium hypochlorite with a content of more than 39% available chlorine is listed in the International Marine Dangerous Goods Code within ''Class 5.1 – Oxidising substances''. This had been brought to the notice of the carrier prior to the commencement of the voyage.

As a result of the explosion and ensuing fire, several of the containers were damaged as was the vessel. The question which arose for consideration was whether the shipper of the goods was liable in contract to the carrier and certain other parties.

It was common cause that the contract evidenced by the bill of lading was governed by the Hague-Visby Rules and that Roman Dutch law was to apply.

The plaintiffs sought to establish their claim on the basis of Article IV Rule 6 of the Hague-Visby Rules.

It was also common cause that the contents of the container constituted ''goods of an inflammable, explosive or dangerous nature'' within the meaning of Rule 6 and that this was known to the carrier when the container was loaded. The plaintiffs' case however was that the calcium hypochlorite was defective or in a contaminated state, or had been improperly stowed in the container, and that this had caused the explosion. As such, it was alleged that the carrier, master or agent of the carrier had not consented to the shipment of the goods ''with knowledge of their nature and character'' as required by Rule 6.

The plaintiffs sought to prove by way of a process of elimination that the cause of the fire on board the mv ''Recife'' was the defective or contaminated state of the calcium hypochlorite.

The Court at first instance accepted this theory on the basis that the other theory which had been advanced was even more improbable.

Referring to the House of Lords judgement in The ''Popi M''¹ the South African Court of Appeal held that the Court at first instance should not have felt compelled to choose between two theories, both of which were improbable, but should have borne in mind another option, where the cause of damage remains in doubt the claimants have failed to discharge the burden of proof. The Court concluded that:

''… Once one is driven to look for remote possibilities and assume that something unknown and out of the ordinary must have happened, one in truth simply does not have the answer. In such cases the result must inevitably be determined by the incidence of the burden of proof…''

The plaintiffs had failed to discharge the burden of proving that the cause of the explosion was the defective or contaminated state of the calcium hypochlorite or that it had been improperly stowed in the container. As such, they had failed to establish "that the shipment of the goods was without the consent of the carrier, master or agent'' within the meaning of Article IV Rule 6 of the Hague-Visby Rules.

Control Chemicals vs Safbank Line Limited and others(unreported judgement, South African Court of Appeal, Case No. 584/97, 28 March 2000).

With thanks to Jenny McIntosh of Garlicke & Bousfield Inc., Durban, for preparing this article.

¹[1985] 2 Lloyd's Rep 1