Onus probandi in Art III.1 sea cargo claims: Did The Volcafe alter the structure?

Gibbs-Kneller, David (2021) Onus probandi in Art III.1 sea cargo claims: Did The Volcafe alter the structure? Journal of International Maritime Law, 26 (6). pp. 409-427. ISSN 1478-8586

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Abstract

When cargo is lost or damaged under a carriage of goods by sea contract, the cargo-interest has a sustainable cause of action against the carrier for non-delivery under the Hague/Hague-Visby Rules. The carrier’s liability is fault based. The carrier may defend the action by proving it was caused by an excepted event under Art IV.2. However, the cargo-interest may respond by proving the cause of non-delivery was a breach of the carrier’s obligation to take care in providing a seaworthy ship. It is implied in fact that the cargo-interest must prove this because Art IV.1 expressly requires the carrier to disprove fault under Art III.1 where the cause of non-delivery was unseaworthiness. This article argues that The Volcafe alters this burden of proof structure. It is based on two irreconcilable premises of causation and implied terms in fact. Disproof of negligence is an exigency of causation, so it is not necessary to imply a term that requires the cargo-interest to prove the cause of non-delivery was unseaworthiness. Where the burden of proof rests under Art III.1 should be reconciled according to first principles in the law of bailments, which requires the carrier to disprove fault and, therefore, causation exclusively.

Item Type: Article
Uncontrolled Keywords: maritime,shipping,burden of proof,bailment
Faculty \ School: Faculty of Social Sciences > School of Law
Depositing User: LivePure Connector
Date Deposited: 02 Feb 2021 00:58
Last Modified: 10 May 2021 00:10
URI: https://ueaeprints.uea.ac.uk/id/eprint/79118
DOI:

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