| Summary: | 碩士 === 國立臺灣海洋大學 === 航運管理學系 === 101 === During the carriage of goods by sea, how the claimants and the carriers protect their own rights once loss of or damage to the goods has occurred, as well as delay in delivery is the key issue in the allocations of burden of proof. It easily causes disputes due to different interests and considerations, applying different international conventions from country to country. The major international conventions include the Hague Rules 1924, the Hague-Visby Rules 1968, the Hamburg Rules 1978, and the Multimodal Conventions of UN 1980. Additionally, because of the implementation and development of multimodal transportation, the existing international conventions are not fit for contemporary use. This article primarily analyzes the allocations of burden of proof, and compares the different rules among the international conventions in marine cargo claims; then discusses the related sections to those in the Rotterdam Rules 2009 in hopes of further understanding the new trends in international allocations of burden of proof. Finally, this paper concluded those discussions to address the amendment suggestion to the allocation of burden of proof in marine cargo claim under the Taiwanese Maritime Act. Results demonstrate as follows:
1. In the litigation, if the party who bears the burden of proof is not able to present evidence to support his allegation, he shall suffer from disadvantages of the judgment. Therefore, the allocation of the burden of proof is crucial to both parties. However, due to the different balance of interests between the development of the shipping industry and national concerns, the allocation of the burden of proof in marine cargo claims has not reached a common consensus, which would lead to the controversial judgment.
2. The allocation of the burden of proof in marine cargo claims is governed by The Rotterdam Rules. Article 17 serves as a basis of liability, and it has been established with the spirit of ping pong burden of proof situation. Therefore the essence of this provision is the burden of proof and the order of proof; it’s also made for the purpose of availability on jurisdiction and the interest of both parties.
3. Taiwanese Maritime Act refers to The Hague Visby Rules, hence it has incompletion and vagueness on the regulation of the burden of proof in marine cargo claims, In consideration of the rapid development to the shipping industry and The Rotterdam Rules may come in to effect. This paper addressed the suggestion to amend the allocation of the burden of proof in marine cargo claims under the Taiwanese Maritime Act at Table 5.3.
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