Recent Authority Of Particular Relevance In The Fields Of International Trade And Transport: Dangerous Cargo

A recent decision of the Commercial Court has affirmed the distinction between the scope of liability for the shipment of dangerous cargo under the English common law and under the Hague and Hague-Visby Rules respectively. Further, as well as helpfully defining the parameters of liability in each such case, the decision also grappled with the issue of how the burden of proof upon a claimant is intended to operate where contractual loss and damage arises from simultaneous causative breaches of contract by more than one contractual counterparts.

In The Darya Radhe [2009] 2 Lloyd's Rep. 175, Tomlinson J. addressed the question of what constitutes a dangerous cargo for the purposes of both Article IV, rule 6 of the Hague and Hague-Visby Rules and the common law. The Judge also addressed the question of what, in circumstances where loss may be suffered by a claimant as a result of breaches of contract by several independent contractual counterparts, that claimant must establish in order to recover against one or more of those counterparts.

Key facts

The Vessel loaded a number of parcels of Soya Bean Meal Pellets (SBMP) in Brazil for carriage to Iran. The parcels were loaded across several different holds and shipment was acknowledged by the carrier (Bunge) by way of several different bills of lading (all on identical terms). The parcels were shipped by a variety of shippers.

Prior to the loading of the SBMP parcels, the Vessel had already loaded (into separate holds) a cargo of maize. That cargo was not shipped by any of the shippers of the SBMP parcels. By the time that loading of the SBMP parcels commenced, the loading of the maize was complete and the holds containing the maize were closed.

In the course of loading of the SBMP (but not the maize), a number of live rats were loaded with the cargo. This resulted in stoppages to loading and lead to delay. However, it was not possible on the evidence to identify a particular rat with a particular parcel of cargo. Accordingly, it was not possible to establish whether any particular rat had been loaded by any particular shipper. As it was, the number of SBMP parcels was greater than the number of rats recorded, albeit that the number of SBMP shippers was less than the number of rats.

Following the completion of loading of the SBMP parcels, the cargo was fumigated. The consequence of this was that any live rat that might have found its way into the cargo was killed and mummified, with the result...