Lloyd's Maritime and Commercial Law Quarterly
Allocating onus of proof in sea cargo claims: the contest of conflicting principles
Chinyere Ezeoke *
In sea cargo claims, the cases suggest three different criteria for the allocation of onus of proof where fault is alleged and the carrier relies upon a contractual exemption. These are identified in this article as the “bill of lading”, the bailment and the alteration of risk principles of proof. A discussion of the incidents under each principle demonstrates that their conflicting positions can lead to different outcomes for litigants. It is argued that the bailment-derived principles reflect the nature of sea carriage contracts and therefore should be adopted in cargo claims.
Introduction
An important aspect of sea cargo litigation is deciding where the burden of proof lies on the facts raised by the pleadings. The court must decide, not only whether a particular issue attracts a legal or evidential burden, but also which party bears it. The evidential burden involves going forward in argument in the course of trial. It embraces the tactical obligation to lead counter-evidence against a proponent’s adduction of evidence. On the other hand, the substantive law on a subject dictates the allocation of the legal burden. It is borne by the party who bears the risk of non-persuasion on any given proposition. In civil cases, it corresponds to the duty to prove an issue upon the preponderance of evidence.1
Where a cargo claimant alleges a breach of the contract of carriage, and the carrier asserts an excepted peril, the allocation of onus of proof on fault is subject to uncertainty. Should the carrier, as part of his defence, disprove fault, or is the claimant to assert and affirmatively prove the carrier’s fault? First, some cases adopt the general bailment approach, whereby the carrier, as bailee, bears the risk of non-persuasion to negative fault. In other cases, a second approach, which may be called the “bill of lading” principle, leaves the claimant with a legal burden to prove that the carrier is at fault. There is a third approach, the alteration of risk principle, which requires the carrier, in addition to disproving fault, to show that the loss or damage would have occurred notwithstanding his breach of duty. The cases fail to indicate which of these conflicting principle(s) is appropriate in a cargo claim. As long ago as 1887, the opportunity to clarify this came
* University of Buckingham.
1. See generally, Colin Tapper (ed.), Cross & Tapper on Evidence,
9th edn (London, 1999), 115–120. The terminology used to describe the two senses of burden of proof is not uniform. The factual, provisional and tactical burdens are variations of the evidential burden, whereas, the “risk of non-persuasion”, the ultimate, and the fixed burdens describe the legal burden.
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