Burden Of Proof In A Number Of Issues In Maritime Litigation

Toward civil disputes, while the suit will be taken as the last alternative to deal with the disputes, all the parties concerned can prove assertions to be real by surrendering fit, valid and self-beneficial evidence. The main purpose is to protect their rights for asking "public relief to the most extent. During the litigation, the procedural rule concerning surrendering evidence to prove their claims, i.e. the system of burden of proof, as an important litigation system, has been accepted in most states. However, the phenomenon of "attaching more importance substantive law than procedural law" existing in Chinese juridical practice, which makes it necessary to survey and emphasize the procedural rule. In view of this, this paper puts all intention to the system of burden of proof, consisting of the procedural rule on litigation. Researching methodologies and ideas in this paper are based on the analysis of general principals of burden of proof in Civil Law. Meanwhile, taking the specialties of maritime law into account, this paper researches and analyzes some important facts on maritime litigation.This paper has four chapters in total.In Chapter One, the paper focuses on the double conceptions of burden of proof, i.e. the behavioral liability and the consequential liability, the nature of burden of proof and the significant of this research. The author of this paper considers 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. Upon the above views, this paper compares academic thoughts on allotment of burden of proof.In Chapter Two, the paper discusses the rules and the manners of allotment of burden of proof in maritime litigation. As maritime law is as a special law of the Civil Law, the general principles of civil law, such as allotment of burden of proof, exemption of burden of proof, reversal of burden of proof and presumption of burden of proof, apply in the maritime law as those do in the civil law. On the otherhand, the basis of liability, the exemption circumstance and the special characteristics of shipping operation together with other substantial aspects in maritime law are different from the Civil Law, which may lead to the existence of distinguishing principles in maritime litigation.In Chapter Three, this paper stresses the application of the above rules in the maritime cargo claim. In the cargo claim proceeding, the burden of proof goes 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)Reason for exemption; (3)Seaworthiness or not; (4)Deviation,- (5)Burden of proof on taking care the cargo. The detailed discussion and analysis focus on the substantial points laid down above which need to be proved.In Chapter Four, the application of burden proof in maritime insurance has further been discussed in details. Based on analyzing the general principles in Maritime Insurance Action, this chapter mainly studies some problems in trail practice. It puts forward some useful advice to settle or avoid the disputes combined with the peculiarities in the field of maritime insurance.Due to our nation's inherited continent legal system in tradition, in legislation there is always a tendency of attaching importance to substantive law and practice and making light of procedure law and theory. For reasons of being short of reaching into the principle of burden of proof in maritime litigation, the judgment activities always have blindness, even though there has been great development in this area in years. Considering the circumstance above mentioned, this article is only an effort of a maritime law learner to bring the specialists and scholars paying attention to the problems.Zhuangyan (International Law) Directed by: Professor Wang Gen Xing...