“If necessary, I would hold that similarly the UPS terms were incorporated into the contract that they made with Datec on25 July 2002 , but it does not seem to me that UPS need resort to arguments of this kind: the contract of25 July 2002 for the carriage of the three packages was made under, and governed by, the umbrella contract, which provided for the UPS terms.”
“118. … I acknowledge that paragraph 3 of the UPS Terms refers to restrictions upon the service that UPS ‘offers’, and to a lawyer this terminology has connotations of the rules about contracts being concluded through an offer and acceptance, and of the need for them to correspond. However, the issue is about the meaning of the UPS terms in a commercial contract made between businessmen, and they are to be interpreted in that context. I consider that UPS’s submission places too much weight upon the reference to what UPS ‘offers’, and, more importantly, the UPS terms expressly state that paragraph 3 explains the consequences of the shipper presenting packages that do not meet UPS’s restrictions and conditions. The paragraph does not explain that there will be no contract of carriage if such a package is presented and accepted: on the contrary, sub-paragraph (c) provides that the effect of the shipper presenting a package that does not meet the restrictions is that UPS have the right to refuse to carry it or, if carriage is in progress, to suspend carriage. The implication is that unless and until UPS exercise their right, there is a contract that UPS will carry the package. … 119. I consider that this interpretation of the UPS terms is in accordance with commercial reality and the business expectations of the parties. After all, UPS’s argument would, I think, apply by parity of reasoning even if the consignor and UPS were both unaware that the consignment contained a package worth more than US$50,000 and understood that the consignment complied with the UPS terms. … 121. … The agreement between UPS and Datec made on25 July 2002 was for the carriage of the packages accepted by the UPS driver. Their value does not mean that UPS did not agree to carry those packages. …”
“Subject to the provisions of article 40 [which concerns agreements between carriers], any stipulation which would directly or indirectly derogate from the provisions of this Convention shall be null and void. The nullity of such a stipulation shall not involve the nullity of the other provisions of the contract.”
“124. I should add that the claimants submit, and I agree, that they have a further answer to this part of UPS’s case in article 41 of the CMR: any such stipulation in the contract of carriage would be null and void in that it derogates from the provisions of the CMR. … 125. If I am right that the CMR applies to the contract for carriage of the consignment (so far as is relevant: that is to say from Cologne to L&A’s premises), then UPS cannot protect themselves from liability by relying upon paragraph 3(e) of the UPS terms, nor can they rely upon paragraph 3(d) to argue that under it Datec, and not UPS, are to bear that loss. Those are stipulations that derogate from the provisions of the CMR, and so are null and void.”
“126. … The CMR regime does indeed allow carriers to define their obligations with regard to the extent of the service that they are to perform, in that, for example, they can stipulate that they are not obliged to load or to unload goods: the CMR does not settle who has responsibility for this. That is very different from saying that a carrier is free to define whether he is responsible for goods that he does accept for carriage under a contract to which the CMR applies. Here the scope for the parties to define or limit their duties, responsibilities and liability is governed by the CMR. For example, I have already referred to the articles of the CMR that contemplate that there should be a consignment note and that it might include a declaration of the value of the goods, so that the carrier can thereby protect himself from expenses, loss and damage if he accepts a package and the sender has given inaccurate particulars of its value. UPS did not avail themselves of this protection.”
“The phrase ‘shall properly and carefully load’ may mean that the carrier shall load and that he shall do it properly and carefully: or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the rules. Their object … is to define not the scope of the contract service but the terms on which that service is to be performed. … I see no reason why the rules should not leave the parties free to determine by their own contract the part which each has to play. On this view the whole contract of carriage is subject to the rules, but the extent to which loading and discharging are brought within the carrier’s obligations is left to the parties themselves to decide.”
“Had the parties, intending to have a contract of carriage that was to be subject to the CMR, used the system of documentation contemplated by the CMR, some of the disputes in this litigation might not have arisen.”
“The sender shall be responsible for all expenses, loss and damage sustained by the carrier by reason of the inaccuracy or inadequacy of: … (b) the particulars specified in article 6, paragraph 2; (c) any other particulars … given by him to enable the consignment note to be made out ….”
“1. The carrier shall not be entitled to avail himself of the provisions of this chapter [which include article 23] which exclude or limit his liability … if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seized of the case, is considered as equivalent to wilful misconduct. 2. The same provision shall apply if the wilful misconduct was committed by the agents or servants of the carrier or by any other persons of whose services he makes use for the performance of the carriage, when such agents, servants or other persons are acting within the scope of their employment. …”
“24. The consignment that is the subject of this claim comprised three packages, weighing 25kg, 25kg, and 17kg respectively. They were brown cardboard boxes, and they bore no Datec logo or other such indication that the goods were from Datec. The boxes had a transparent pouch on one side, and in the pouch of at least one of the boxes was a shipping document produced on UPS’s ‘Worldship’ computer system; and the other two had either a similar document or at least an address label and a UPS tracking label. …”
“28. The progress of the consignment to the hub is not controversial. It was carried by road to Luton airport, where it was recorded at 7.24pm on25 July 2002 . It was taken by air from Luton to Cologne, Germany, where it was recorded at 1.59 am and 2.08am on26 July 2002 . It was then transported by road from Cologne to Amsterdam, and was recorded at the hub at 7.30am on26 July 2002 . These times are known because UPS scanned the bar codes of the tracking labels and so recorded the progress of the packages on their computer system. …”
“14. The UPS warehouse is surrounded by a wire mesh fence of some 3 metres in height, through which there are two vehicular entrances and one pedestrian entrance. There is another warehouse building within the fenced area, but it was not being used in July 2002. Staff have ‘Proximity’ cards, which allow them access to the premises at permitted times. Vehicles delivering packages to the hub are reversed into off-loading gates at the side of the warehouse building, and Mr van Beusekom gave unchallenged evidence that it is virtually impossible to enter or leave the warehouse between the sides of the building and vehicles as they unload. Otherwise, all receiving, sorting and loading operations are done inside the building and behind closed doors. 15. On a typical morning in 2002 UPS would receive, sort and load some 5,000 packages at the hub. Vehicles arrived there from about 4.00am to 8.00am to deliver consignments, and workers called ‘pre-loaders’ unloaded them. (Packages were also handled in the evening between about 5.30pm and 10.00 or 11.00pm.) There would have been up to 15 members of staff handing packages in the warehouse at this time, and in addition there were, say, six administrative staff who worked flexible hours and might come in either before or after 8.00am. The pre-loaders place the packages on to conveyor belts that extend into the back of the trailers or vans. The belts carry packages from the off-loading bays into the building to the main conveyor belt, a distance of about 1.5 metres. The main conveyor belt then takes them to the delivery or despatch area of the building. As the packages are unloaded on to the main conveyor belt, the bar codes on their labels are scanned with hand-held scanners and the packages are recorded as being ‘out for delivery’. 16. There are two spurs off the main conveyor belts, and as packages come down the main belt, a sorter directs them manually to the appropriate spur. Loaders, who might also work as drivers, pull the packages for his or her area from the spur belts, and load them in delivery vehicles, which have been parked beside the spurs. UPS usually have some 40 to 50 vehicles waiting to take goods to various parts of the Netherlands and each is allocated a delivery area. 17. Generally packages are loaded directly into the back of delivery vehicles, and are stowed on racks and, as far as practicable, grouped according to their delivery address. However, for various reasons a package might be stacked on the warehouse floor before being loaded: for example, larger packages might be put there so that the loader can later place them in the vehicle where they could be conveniently handled; or the racks of the vehicle might be too full to take a package, which might then have to be delivered by another vehicle; or a package might have been mis-sorted and have to be redirected to another point on the loading spurs. 18. Mr van Beusekom’s evidence was that the speed and scale of the operation is such that staff in the hub have no time to ascertain what packages contain, and certainly are not in a position to assess their value. Indeed packages, at least if they are for delivery within the European Community, are not accompanied by documentation indicating their value. I accept Mr van Beusekom’s evidence about this. 19. Thus, delivery vehicles are loaded inside the warehouse. Packages are not scanned at this state of the operation, and drivers are not provided with a list of what had been loaded on their vehicles. The vehicles leave through doors on the side of the warehouse, which are automatically operated by a ‘Proximity’ card, and which lead into a yard, and from there they leave the hub through a gate in the perimeter fence. 20. The vans do not lock automatically when their doors were closed, only the door between the driver’s cabin and the body of the van having automatic locking. Drivers are instructed to lock the vehicles themselves when they make deliveries and also to secure the back doors with a padlock. 21. When UPS drivers deliver goods, they are supposed to obtain from the recipient a signature by way of a ‘Proof of Delivery’. Each driver has a ‘DIAD’ board, a portable machine that enables him to make a record of the packages that he is carrying and the addresses that he visits on a delivery round. The DIAD system is also used to obtain a recipient’s signature when a delivery is made. One signature should be obtained for each package, and so if a consignment comprises more than one package, several signatures are required. UPS should therefore have on the DIAD system a record of the number of packages delivered, and when they were delivered. 22. When he completes his round, the driver returns the DIAD recorder to a rack at UPS’s premises, and the information from it, including any signatures obtained by way of proof of delivery, is loaded into UPS’s mainframe computer system. If for any reason a driver does not deliver a package, he should bring it back to the hub. Upon return, it should be scanned and then placed in a locked cage area in the warehouse referred to as ‘overgoods’. Any packages that arrive at the hub and cannot be delivered because of inadequate labelling are also placed in ‘overgoods’. If after inquiries and investigation they can be neither delivered nor returned, these package are eventually sold at auction. 23. UPS have CCTV cameras at the hub covering both the inside of the building and the receiving and despatch yards outside. Inside the building there were in July 2002 nine cameras in operation, eight recording in colour and one recording in black and white. There was a further camera which was not recording at all because UPS’s system could not accommodate another operational camera, but it was thought to deter wrongdoing because only the manager and a few others knew that it was not working. Mr van Beusekom was cross-examined about the precise extent of the CCTV coverage in the building. It suffices to say that he accepted that it was not complete for two reasons: first, although the cameras covered most of the inside of the building, they missed some areas; and secondly, the view of a camera might be obstructed, in particular by delivery vehicles.”
“28. … The last scanning record of the consignment shows it ‘out for delivery’ at the hub at 7.31am on 26 July. However, Mr van Beusekom gave evidence that the Floor Supervisor, Mr Lofti Kharbouche, reported seeing the packages stacked behind a delivery vehicle and ‘checking’ them: one of his responsibilities was to check the details of packages stacked behind vehicles or under the belt because packages were put there when they were to be re-directed to other areas, and Mr Kharbouche wanted to make sure that the three packages had been sorted properly. Mr van Beusekom commented that it would have been ‘not unusual’ for packages as large as these to be stacked behind a delivery vehicle during loading. As I have explained, they might be put aside in order to stow them in an accessible part of the vehicle, or because there was no space on the racks, or in order for them to be loaded on to another vehicle. Mr van Beusekom also stated that Mr Kharbouche was not sure which vehicle was to carry these three packages. No doubt was cast upon the evidence about what Mr Kharbouche reported, and I accept it. 29. L&A premises were in UPS’s Schipol South East delivery area. On26 July 2002 UPS allocated Schipol South East to their driver Mr Mouloud Kadim. This was not Mr Kadim’s usual assignment; indeed, he did not always drive a delivery vehicle for UPS, and he did not have a fixed delivery area when he did so. When his vehicle was parked for loading one of the loading spurs in the hub, there were five or more other vehicles loading at the same time by that spur. … 30. Mr Kadim, as well as being a driver, assisted in loading packages on to vehicles on26 July 2002 . There is, however, no evidence that he sorted and loaded the packages for the particular route and vehicle that he was to drive, and such evidence as there is suggests that he did not do so: when Mr Kadim was interviewed by the Dutch police about the missing packages, he said that he had not loaded his own vehicle, not by his own decision because ‘the planning department’ decided who loaded vans. He said that his vehicle had been loaded by ‘Sebastian’ and ‘Rob’, presumably referring to two employees called Sebastian Roux and Rob Wiegant. When Mr van Buesekom had earlier interviewed those two workers, they had told him that they did not know whether or not they had loaded the vehicle that Mr Kadim drove. There is no direct evidence whether the three Datec packages were in fact loaded on to any vehicle and if so whether they were loaded on to the vehicle that Mr Kadim drove. As I shall explain, Mr Kadim told the police that he was not the only UPS driver to carry parcels for the Schipol South East area that day.”
“40. At the end of his round on26 July 2002 Mr Kadim returned to the hub at about 1.00pm (or possibly a little earlier: he told the police he finished work at around 12.15 or 12.30 pm) and handed in his DIAD board. It had apparently not yet been reported to UPS that Datec packages were not delivered, and Mr Kadim was asked nothing about them. Later that day UPS learned that the three parcels were missing. Initially, as it appears from Mr Worrall’s report, Mr Tailor was told that the three packages might have been loaded in error on to another delivery vehicle, but this was uncertain because some vehicles had not returned to the hub. The source of this information is unclear. However, UPS did, as appears from the documents, contact L&A. I infer from the evidence of Mr van Beusekom and from what Mr Kadim told the Dutch police that UPS later telephoned Mr Kadim at home to ask about the packages and that he responded that other drivers had carried parcels for delivery in the Schipol South East area, and suggested that enquiries be made of them. 41. On the following Monday,29 July 2002 , Mr Kadim did not come to work and did not contact UPS to explain his absence. As a result and in view of his work record, UPS dismissed him by letter sent that day. (He had been employed by UPS since1 March 2002 and had been away from work on a number of occasions.) 42. On30 July 2002 Mr van Beusekom learned of the loss of the three packages from, as he believes, Datec’s insurers, and he began an investigation. … Mr van Beusekom viewed the CCTV footage recorded at the hub on the morning of26 July 2002 . It showed nobody in the warehouse who should not have been there, and nothing else of significance. It showed the front of Mr Kadim’s van but there was no film showing the back of the van or the area behind it because the angle of the camera was obstructed by the vehicle itself. 43. Mr van Beusekom thought on the basis of the DIAD records that Mr Kadim had been the driver who had carried the Datec packages. He was not able to interview Mr Kadim, but he spoke to other employees, including loaders who had assisted in loading the delivery vehicles on26 July 2002 . Mr Kharbouche told him about seeing the packages and checking their delivery details. On1 August 2002 he reported to the police that the three packages were lost and that he suspected that Mr Kadim might have stolen them: in the words of the agreed translation put before me, he told the police, ‘I have good reason to suspect that [Mr Kadim] embezzled the parcels’. On6 August 2002 Mr van Beusekom learned of the loss of the Axxis package, and he reported that loss to the police. 44. In the course of his investigation Mr van Beusekom spoke to Mr Appelman about the missing Datec packages, but, as appears from Mr Appelman’s evidence, he did not suggest to L&A that the consignment had been delivered to them, and so L&A did not themselves investigate whether they might have received it, for example by viewing their CCTV security films. … 46. On30 September 2002 , Mr Kadim went to the Dutch police. He explained that he had been absent from work on and after29 July 2002 because late on Friday26 July 2002 his mother had telephoned from Morocco to tell him that his father was seriously ill, and therefore he had gone to Morocco on Sunday28 July 2002 . He said that he did not contact UPS because he thought that his employment with UPS was going to be terminated anyway. He did not return to the Netherlands until25 September 2002 , and then, on learning that the police were looking for him, he went to the police station. He was arrested and interviewed, and he denied involvement in the loss of the packages. The police released Mr Kadim without charge on1 October 2002 , concluded their investigation and apparently took no further action over the loss. 47. In his interview with the police, Mr Kadim said that on26 July 2004 he arrived at work at 4.00am and assisted in loading vehicles, and then he worked as a driver on a delivery round. As I have mentioned, he said that he had not loaded his own van, and he also said that he had not known before26 July 2002 which route he was to drive. He was not familiar with the route for the Schipol South East area, and three other drivers, whom he did not know by name, took packages to assist him with deliveries there. According to Mr Kadim, none of the ‘customers’, (meaning, I infer, consignees) complained to him that day that he had not delivered all their goods.”
“6.19 It was agreed that it was difficult to pinpoint the most likely cause of loss given the elapsed time and limited information. It was further agreed that the Court should decide the most likely cause of loss on the balance of probabilities. 6.20 It was further agreed that if the court decided that the loss was caused by theft then it would most probably be targeted theft by organised criminals.”
“Their views were of interest, but their evidence was of limited value: inevitably they had formed their views on the basis of the material put before them and their own investigations, whereas I must assess the evidence presented at trial. Although their information apparently largely coincided with the evidence, it was not entirely the same and in these circumstances I hesitate to place great weight upon their opinions.”
“49. … UPS’s procedures contemplate that they will obtain a proof of delivery: the Guide states (and at the relevant time stated), ‘Proof of delivery is a service designed to put your mind at ease’. Furthermore, as I have found, UPS did obtain a recipient’s signature for one package delivered to L&A on26 July 2002 , whereas it is common ground that UPS obtained no proof of delivery of the consignment that is the subject of this claim. This alone, in my judgment, establishes a strong prima facie case that the packages were not delivered, and on any view effectively places an evidential burden on UPS to produce evidence that the packages were delivered to L&A. 50. In saying this, I do not overlook the evidence of Mr van Beusekom about the UPS’s electronic scanning procedures: he described them as 90% effective, explaining that in about 10% of cases the procedure fails for one reason or another – for example, because bar codes are damaged and illegible, or because a scanner fails to read the code, or because of human error. (Mr Delafuente had apparently found them to be more reliable than Mr van Beusekom had.) However, this is not a case about a single package. It seems to me improbable that all three labels were damaged (despite being in pouches) or that all three codes were illegible. The DIAD scanner did read the bar code of one package that Mr Kadim delivered, and it is therefore the less likely that it failed to record other packages delivered at the same time. As for human error, L&A’s procedures were, as I shall explain, that their staff should provide a signature for each package that was delivered, and if Mr Kadim or another UPS driver did not ask them to acknowledge receipt, L&A would probably have reminded him. 51. I accept Mr Appelman’s evidence in his second witness statement about L&A’s operation in Schipol, and this too, it seems to me, makes it the less likely that the three packages were delivered to L&A and were later stolen or lost by them. L&A deal only with valuable computer parts, and their security arrangements are designed to protect such goods. Only L&A employees have access to their secure warehouse, an area of about 600 square metres, and they enter through a door controlled by a code lock. The exit door can be opened only from inside by a member of the warehouse staff. L&A have CCTV cameras covering the doors and the inside of the warehouse. When deliveries arrive from UPS or similar carriers, L&A’s procedure is for the warehouse staff to meet the driver outside the warehouse, to sign for each consignment, to take the airway bill, and then, in the case of deliveries for Incoparts, to check the goods. A Mr Michaels was responsible for receiving goods for Incoparts: he was an experienced employee and, I infer, would have been familiar with these procedures. Goods are either sent out by L&A to their customer on the day that they are received, or, if the goods are held by them, checked daily. Mr Appelman considered that in view of these procedures it is inconceivable that three or four high value packages would have been delivered without being noticed, and in any case, any “loose parcels” would soon have been noticed. 52. Of course, no procedures are completely infallible, and, despite L&A’s precautions, it would be unrealistic to think it impossible that the three packages were lost from their possession, either through criminal design or through accident. However, I accept Mr Appelman’s evidence that L&A had proper procedures for safeguarding valuable goods, and consider that they reduce the chances that the goods were lost or stolen from them. 53. Both expert witnesses expressed the opinion that because UPS sometimes fail to record proof of delivery the packages could have been mislaid or stolen by “the consignee or their employees” (presumably referring to L&A: in view of Mr Appelman’s evidence it is unrealistic to contemplate that the goods might have been received by Incoparts). However, Mr Holmes regarded this as a most unlikely possibility, and I agree with him. Wherever the legal burden of proof lies, I conclude that the three Datec packages were not delivered to L&A.”
“57. Both expert witnesses agreed the paucity of evidence is such that it is difficult to say how the three packages came to be lost. Mr Heinrich-Jones concluded that, while it was possible that they were stolen by, or with the assistance of, an employee of UPS, it is impossible to conclude that that is the most likely cause of the loss. Mr Holmes thought it most likely that the packages were stolen by Mr Kadim or another UPS employee but his opinion was properly guarded: indeed, in cross-examination he acknowledged that he could not say that this was ‘the probable cause of the loss’. 58. Mr van Beusekom gave evidence that from time to time packages do go missing otherwise, UPS believe, than through theft. In his witness statement he said that between 1998 and 2002 their Amsterdam operation had only 18 packages stolen, but 41 packages were lost for one reason or another in July 2002 alone. As I made clear during the trial and as Mr Priday readily accepted, I do not attach any importance to the precise figures that Mr van Beusekom gives, and I discouraged the parties from exploring them in detail. However, his evidence does confirm that experience shows that packages are sometimes lost inexplicably, as indeed would be expected when a large organisation like UPS is handling so many consignments. 59. The real question, it seems to me, is whether the claimants have shown that theft by a UPS employee is more likely than accidental loss. I accept if they were stolen, it is probable that an employee of UPS was responsible for the theft. It would have been difficult for an outsider to gain access to the hub without his presence being recorded by the CCTV cameras; there is no evidence of a forced entry into a UPS vehicle; and it seems to me improbable that a casual thief happened upon a delivery vehicle that Mr Kadim or another driver had accidentally left unlocked, and chanced to pick such valuable packages, choosing them rather than smaller packages that could more conveniently have been carried off. 60. Mr Reeve rightly emphasised that this is not a case of one package being lost. Three packages were, as I have found, lost from UPS’s possession, and I am prepared to assume for the purposes of determining this question that the Axxis package was also lost before delivery to L&A. I accept that it is less likely that three or four packages were lost accidentally than that one was, and that therefore this consideration lends support to the claimants’ case that they were stolen. 61. At least at one stage of these proceedings, it appeared to be the claimants’ primary case that Mr Kadim stole the packages. Four considerations, taken together, seem to me to cast real doubt upon this contention. First, Mr Kadim went voluntarily to the Dutch police and there is no reason to doubt his account that he went to them promptly upon returning to Holland and learning that they wished to speak to him. If Mr Kadim had stolen these valuable goods, he would not have known the strength of the evidence against him, and it would have shown real bravado in these circumstances for him to have gone to the police. This at least goes a long way to answer any suggestion that in July 2002 he went to ground to avoid answering the suspicions against him. 62. Secondly, it was not obvious from the labelling of, and documents with, the packages that they were particularly valuable. They were, of course, addressed to L&A, but this would have been significant only to someone who knew that L&A handled only valuable consignments. While it is possible that Mr Kadim knew this, there is no evidence that he did so, and no reason has been suggested for me to doubt Mr Kadim’s statement to the police that he was not familiar with the route that he was driving on26 July 2002 . 63. Next, Mr Kadim did make a delivery to L&A on26 July 2002 , and then returned to the hub to hand in his DIAD board. If he were intending to steal the packages, the more obvious course would have been to steal all their packages, rather than choose to deliver one package and risk L&A questioning him about other packages that they might have been expecting. 64. Fourthly, there is no convincing evidence that the missing packages were ever loaded on to Mr Kadim’s vehicle. Mr van Beusekom said that Mr Kharbouche might have seen the packages behind the vehicle because they had been set aside to be delivered by another vehicle that had been allocated another delivery route. Mr Kadim told the police that he did not carry the packages in his vehicle, and this is consistent with what, as I have found, he told UPS when they telephoned him at home on26 July 2002 ; and UPS did not then dismiss as improbable Mr Kadim’s explanation that the packages were being carried by other drivers, but passed it on to T&B. Mr Kadim therefore denied from the start that he had had the missing packages, before he could have known that his denial would be corroborated to some extent by Mr Kharbouche’s report of them being set apart for some reason from the other packages that were to be delivered in Schipol South East. I add that there is no evidence whether or not the Axxis package was loaded on Mr. Kadim’s vehicle. 65. Once it is recognised that there are grounds to think that the packages might well not have been loaded in Mr Kadim’s vehicle, but set aside with a view to being delivered by another driver, it seems to me that the claimants’ argument that the packages were stolen by an employee of UPS loses much of its force. Of course, it is possible that they might have been stolen from the hub and never loaded on a delivery vehicle, but, although Mr Holmes described the hub as “fertile ground for potential thieves among the employees”, it does not seem to me that it would have been at all easy to smuggle such large packages out of the hub building. Again, it is possible that another driver loaded the packages and stole them from his van, knowing that there would be no record that they were loaded on it, but there is no evidence indicating this. It would have been extraordinary risky for another driver to plan such a theft: to offer to carry the valuable parcels to assist Mr Kadim with a delivery in Schipol South East and then to steal them. If, on the other hand, another driver had the goods for delivery by chance and stole them opportunistically, he was remarkably lucky either to be able to infer their value from the L&A address or to happen upon such valuable goods. 66. Having considered how the goods might have disappeared as a result of theft to which an employee of UPS was party, it seems to me more likely that they were lost accidentally: that, for example, the packages were delivered to the wrong address by a driver other than Mr Kadim; or that they were put into the hub’s ‘overgoods’ either because they were returned by a driver who had failed to deliver them and they went astray, or because they were for some reason never loaded in any delivery vehicle. 67. In summary, I conclude that it would be too speculative to hold that the goods were taken by or with the assistance of an employee of UPS. There is no sufficient evidence to support that theory. In Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd. [1997] 2 Ll L R 369 at p.383 Brooke LJ emphasised that when applying the provisions of an international convention, the Court must not ‘adopt anything other than a properly rigorous approach to such evidence as is available before it makes findings of fact on which a determination of wilful misconduct is based’, and although Brooke LJ dissented from the majority of the Court on the facts of the case before them, there is, I think, no room to dispute that this is the proper approach to the evidence in such cases of this. 68. I therefore decide that the claimants have not discharged their burden of proving on the balance of probabilities (or preponderance of probability) that their loss results from theft to which an employee of UPS was party. I should add that I was properly reminded by counsel of the principle set out in such cases as In re H (minors)[1996] AC 563 , where Lord Nicholls observed that ‘Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation’ (at p.586F). However, Lord Nicholls explained that this simply means that the inherent probability or improbability of an event is itself to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Although in this case the allegation is one of theft from an employer, I do not regard this possibility as so improbable that there is a particularly heavy burden upon the claimants to prove their case. I have simply concluded that there is not proper evidence to support the claimants’ allegation, and I therefore reject their contention that article 29 of the CMR applies to their claim.”
“My Lords, the late Sir Arthur Conan Doyle in his book 'The Sign of Four', describes his hero, Mr Sherlock Holmes, as saying to the latter's friend, Dr Watson: 'how often have I said that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?' It is, no doubt, on the basis of this well-known but unjudicial dictum that Mr Justice Bingham decided to accept the shipowners' submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable. In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a Judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasize as being of great importance, namely, that the Judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No Judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a Judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a Judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the Judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred has therefore failed to discharge such burden. In my opinion, Mr Justice Bingham adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of poof which was on them.”
“… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with an evaluation of those facts.”
“My Lords, the late Sir Arthur Conan Doyle in his book ‘The Sign of Four’, describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”
“The answer is, we think, ultimately to be found in the reason why (as we have put it) the appeal process is not merely a re-run second time around of the first instance trial. It is because of the law's acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet on virgin territory. The first instance decision is taken to be correct until the contrary is shown. As Lord Davey put it in Montgomerie [[1904] AC 73 , 82-3] … "[i]n every case the appellant assumes the burden of shewing that the judgment appealed from is wrong" (our emphasis). The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.”