Study On The Burden Of Proof Of The Carrier Under The International Contract Of Carriage Of Goods By Sea

Maritime litigation is a part of the civil litigation,which share the same characteristics and almost the same provisions and principles.But in maritime cases,claims for cargo damage in carriage of goods by sea have taken a major part.Due to the long limitation and transnational characteristics in maritime cases,it is hard for the parties to prove and identify the troth of the cases.So dealing with maritime cases,the allocation of the burden of proof is very important.All the scholars and legislators throughout the world are focusing on the topic both in statute law and in procedural law.In December 11,2008,the United Nations Commission on International Trade Law just passed the United Nations Convention on the Contracts for International Carriage of Goods Wholly or Partly by Sea.Its article 17 directly use the wording as "carrier proves" to provide the liabilities of the carrier,therefore,it is obviously that the burden of prove is very important in the claims about damages caused during the international carriage of goods.This paper specially probes on the burden of proof of the carrier,in order to do some benefits to our legislations and practices.This paper includes four chapters.The first chapter introduces the basic intents of the burden of proof,including the concept,character of it,and then it also introduces the different theories about dividing of the burden of proof.In chapter two,it mainly explains the basic theory on the burden of proof of the carrier in the carriage of goods by sea.Firstly,it cites the case to illustrate the cause of the burden of proof,and then shows some special characters of it.Secondly,it instructs the provisions about carrier's burden of proof from Hague Rules,Hague -Visby Rules,Hamburg Rules,the USA and England rules.The third chapter is the important part in this paper,At the beginning,this chapter analyses the carrier's concrete liability on the burden of proof from general reasons,such as seaworthiness.The following analyses the liability of the carrier's burden from exclusions, such as act of god,fire. The last chapter indicates the current situation and tendency of the theory on the carrier's burden of proof in the carriage of goods by sea,then it illustrates some suggestions on how to review Chinese maritime legislation.