EXPORTADORA VALLE DE COLINA SA V AP MOLLER-MAERSK A/S

[2010] EWHC 3224 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Flaux, 9 December 2010

Multimodal transport - Cargoes of grapes - Reefer carriage - Power offs during multimodal reefer carriage - Cause of damage to goods - Whether carrier's liability excluded by bill of lading - Burden of proof for damage

Shipments of grapes had been damaged en route from Chile to various ports in Northern Europe. The shippers (collectively referred to as Santa Elena) claimed for the loss. The stage of the voyage at which the damage occurred was unknown, so that clause 6 "Carrier's responsibility - multimodal transport" of Maersk's standard bill of lading applied. Maersk, the defendant, argued that any loss or damage to the grapes was caused by one or more of the matters which amount to exclusions under clause 6.1 of the contract of carriage, specifically (iii) insufficient or defective packing; (iv) bad stowage and (v) inherent vice. The burden of proof was that under the similar text of article 18(2) of the Convention on the Contract for the International Carriage of Goods by Road (CMR) and accordingly the carrier needed only prove that it was plausible that the damage arose from one of the excluded causes of loss, not that on a balance of probabilities it did so.