Hauge Visby Deliberate Damage to Cargo

Hauge Visby Article IV Rule 2(q) – Any Other Cause

This would generally cover matters such as theft of cargo or deliberate damage to cargo. However, the owner, in order to rely upon the clauses need to demonstrate that the theft or damage to the cargo occurred without an actual fault of privity and they also need to identify the person or persons responsible. In Leesh River Tea v British India Steam Navigation 1967.  CA Sellers LJ stated ‘The shipowners established that the theft was without their actual fault or privity and they have to establish also that it was without the fault or neglect of their agents or servants’. R F Brown & Co Limited v T & J Harrison 1927.  held that ‘and’ has to be substituted for ‘or’ … ‘if a complete stranger had entered the hold and observed and removed the plate, sub-clause (q) would, I think, apply if the shipowner could prove that it was a stranger who removed the cover and reasonable care had been taken to prevent strangers getting onboard the ship and due diligence generally had been exercised. In the present case the act of the thief ought, I think, to be regarded as the act of a stranger.’  Note: The burden of proof of an excepted peril under Article IV Rule 2 falls on the carrier – by virtue of the common law principle that he seeks to rely upon an exception in his contract must bring himself within it – the ‘Antigony’ 1991 2R9 CA page 212 per Staughton LJ.