Coopers Payen Ltd & Anor v Southampton Container Terminal

A bailee must prove that it took reasonable care of goods, or that any failure to take such care did not cause the damage. The bailee need not identify the actual cause, although the cause may be important evidence on whether reasonable care was exercised.

A single joint expert’s opinion must be evaluated with all the evidence. Where an honest eyewitness estimate conflicts with convincing expert evidence and leaves the accident without a viable explanation, the court may have to prefer the expert. An appellate court may re-evaluate a finding where its reliability, rather than the witness’s credibility, is in issue.

A 600-ton press, sold on C&F Southampton terms, toppled from a mafi flat trailer while being towed by the respondent terminal operator during a U-turn at Southampton. The operator was the press’s bailee or sub-bailee.

Her Honour Judge Faber in the Central London County Court dismissed the claim. She accepted evidence that the trailer was travelling at walking speed and held that the operator had discharged its burden of showing reasonable care.

The claimants appealed, contending that the trailer must have travelled too fast or turned too tightly. A separate issue concerning limitation under the Hague or Hague-Visby Rules was reserved pending the House of Lords’ decision in The Rafaela S [2003] EWCA Civ 556.

1. Appeal allowed unanimously. Clarke LJ held, with whom Lightman J and Schiemann LJ agreed, that the press toppled because the tug was travelling too fast and/or made too tight a turn. The respondent had therefore not established that the damage was unconnected with its negligence as bailee.
2. A bailee need not prove the actual cause of loss. It must instead prove that it exercised reasonable care, or that any failure did not contribute to the loss. The cause nevertheless remained highly relevant: if the trailer had travelled safely at less than 5 kph, some other realistic cause had to explain the toppling.
3. The judge had rejected the other suggested causes. The supposed progressive loosening of the washers and bolts was not supported by the evidence as a realistic cause. Once that theory was removed, the clear expert explanation—that excessive speed and/or an unduly tight turn caused the toppling—had to prevail.
4. The Court accepted that a single joint expert’s evidence is not automatically conclusive. A trial judge must evaluate it with all the evidence, including credible direct evidence. Here, however, Mr Strange’s honest estimate of walking speed was unreliable when assessed in context. It conflicted with the expert evidence and left the accident wholly unexplained.
5. The Court could reach that conclusion without impermissibly overturning a credibility finding. The material issue was the reliability of the eyewitness estimate in the light of all the evidence. Judgment was entered for the claimants on liability. The limitation issue and the remaining costs issues were reserved as ordered.

• Court of Appeal (Civil Division). In [2003] EWCA Civ 1223, the court allowed the appeal and entered judgment for the claimants on liability. The limitation and remaining costs issues were reserved.
• Central London County Court. Her Honour Judge Faber dismissed the claim on 7 August 2002, holding that the bailee had discharged its burden. Permission to appeal was initially refused, but was later granted by Carnwath LJ.