| Maritime law as a special law of Civil Law, general principles of civil law, such as allotment of burden of proof, exemption of burden of proof, reversal of burden of proof, presumption of burden of proof and the standard of burden of proof, apply in the maritime law as those do in the civil law. On the other hand, the basis of liability, the rule of allocation of liability, the exemption circumstances and the special characteristics of shipping operation together with other substantial aspects in maritime law are different from Civil Law, which leads to the existence of distinguishing principles in marine cargo claims. Having this in mind, researching methodologies and ideas of this paper are based on the analysis of general principles of burden of proof in Civil Law. Meanwhile, taking into account the specialties of shipping law, this paper compared the rules of burden of proof among Hague Rules, Hague-Visby Rules, Hamburg Rules, Draft of United States Carriage of Goods by Sea Act 1999 (COGSA), China Maritime Code and China Contract Act 2000.This paper has four parts in total.In the first part, the paper focuses on the double conceptions of burden of proof, namely the behavioral liability and the consequential liability, the nature of burden of proof and the significance of this research. By introducing the two famous cases, the writer attempts to clarify the reflection of these principles and the relationships among them. The writer, therefore, is of the view that the nature of the burden of proof is its consequential liability rather than its behavioral liability. The latter is only the 'reflection' of the former.In the second part, this paper considers the legal philosophy behind the allotment of burden of proof. It is submitted that the task of burden of proof is to meet the following legal philosophies, namely purposes of substantial law, the atmost closeness to the fact in a judgment, justice of procedures and efficiency of procedures. Upon the above views, this paper compares academic thoughts on allotment of burden of proof between the civil law system and the common law system, thus reaching the view that the principal of 'classification of legal element ' supplemented by other substantialstandards on the burden of proof shall be adopted. This principle shall be the main ground for the court to decide merits of the case within its discretion, especially in the circumstance where there is no sufficiently substantial rules on burden of proof in the statute. The burden of proof in marine cargo claim shall adopt the same principle accordingly.In the third and forth parts, this paper stresses the detailed application of the above rules in the marine cargo claim. In the cargo claim proceeding, the burden of proof is through out all the process of proceeding. According to the cargo claim practice, the claimant or the carrier shall adduce the evidence to prove the following substantial aspects:1. Loss or shortage occurred during the bailment of the carrier;2. Cause of the loss or shortage;3. Seaworthiness or not;4. Reason for exemption;5. Burden of proof on taking care the cargo;6. The single limitation entitlement; and others.The structure and framework of this paper set out in the order of burden of proof in marine cargo claim, focusing on the substantial points laid down above which need to be proved. The detailed discussion and analysis keep in line with the questions of 'Who bear the burden of proof? When does the burden of proof occur? What is the content of burden of proof?'.In the third part, the writer firstly is in an attempt to analyze rules of burden of proof in the importantly international conventions, namely Hague Rules, Hague-Visby Rules and Hamburg Rules. By paying a close scrutiny on judicial precedents in different countries, the different approaches on the burden of proof in these conventions have been further stressed. Under the international criticisms towards these approaches, the United States has drafted its Carriage of Goods by... |
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