Burden of proof and bills of lading. The “burden of proof” is related to a rule in law concerning evidence of a fact. A fact is said to be proved when the arbitrator or judge is satisfied that the fact is true and correct. The evidence by which this result is caused is called the “proof”.
Generally, if one person makes a claim or allegation that some event has occurred, or that another person is at fault, the burden of proof lies on the claimant, that is to say, that person must introduce appropriate evidence to prove iris claim. When W at party “adduces” (introduces) sufficient evidence to raise a presumption that what he claims or alleges is true, the burden of proof is shifted to the opponent to adduce evidence to rebut (cancel) the presumption. The presumption is said to be a “rebuttable presumption” and the evidence is called “prima facie evidence”, that- is to say, at “first appearance” or “at first sight”. If the opponent cannot bring evidence to rebut the presumption, the evidence is said to be “conclusive evidence”.
These ideas of burden of proof, rebuttable presumptions and conclusive evidence are found in relation to bills of lading and the Hague-Visby Rules (or Hague Rules). For example, Art. III, r. 4 of the 1924 Hague Rules stated:
“Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described . . .”
The same Article in the 1968 Hague-Visby Rules states:
“Such a bill of lading shall be prima facie evidence of the receipt by the earner of the goods as therein described . . . However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.”
The carrier is prima facie liable for loss or damage to goods if the statements in the bill of lading do not prove otherwise. If the cargo is shipped in “good order and condition” but is delivered damaged to the extent and in a manner that is preventable and should not have been allowed to occur, the carrier has breached his obligations under Art. III, r. 2, that is to “ . . . properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried”.
In the 1924 Rules, the bill of lading raised a presumption (of quantity, marks and condition of the goods) that could be rebutted by better evidence adduced by the carrier (or shipowner) whereas, in the modern Rules, the same presumption is raised when the bill of lading is in the hands of the shipper but when it has been transferred to a consignee or endorsee the evidence on the bill of lading as to the quantity, marks and condition of the goods is conclusive. The carrier cannot adduce evidence, for example, that the goods were not in good order and condition despite the lack of an appropriate clause on the bill of lading.
If a cargo claim arises under a bill of lading, the litigation or arbitration process generally follows identifiable stages where each parry has the burden of proof of certain facts at each stage.
For example, in relation to the carrier’s obligations under the Hague-Visby Rules, Art. III, r. 1, if the goods are damaged after loading and during carriage, Art. IV, r. 1 of the Rules may protect the carrier from becoming liable for loss arising or resulting from unseaworthiness. The rule states:
“Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on. the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.”
The first sentence confirms that there is no absolute undertaking by the carrier to provide a seaworthy ship. “Absolute” means that there is little, if any, protection from liability. Unseaworthiness, by itself, is not the cause of the loss or damage. The sentence relieves the carrier from liability for damage caused by “unseaworthiness” unless the unseaworthiness is a breach of the obligation in Art. III, r. 1. Therefore, if a bill of lading holder claims damage, he will first have to adduce evidence of the damage or loss.
As soon as the claimant proves the loss or damage, the burden of proof shifts to the carrier who must adduce evidence that he had exercised due diligence to prevent the vessel from becoming unseaworthy or unfit to carry cargo. If the carrier can prove this fact, he has established the preliminary of a good “defence” to the cargo claimant’s action. The carrier may then continue to attempt to establish that the cause of loss or damage comes within the exceptions to liability listed in Art. IV, r. 2.
In the final analysis, if the exceptions do not apply, the carrier has failed to satisfy his burden of proof and he can become liable to the cargo claimer. He may be permitted to limit his liability (Art. IV, r. 5) and may also not be so permitted if he has breached the contract evidenced by the bill of lading.
In summary, the initial burden of proof is on the cargo claimant. When his loss has been proved to the satisfaction of the judge or arbitrator, the burden of proof shifts to the carrier who must prove the cause of the damage or loss and then that due diligence was exercised both before and at the beginning of the voyage to make the ship seaworthy, properly man, equip and supply the vessel and make it cargoworthy. Then the carrier must attempt to prove that the loss or damage arose or resulted from the exceptions to liability in Art. N, r. 2, or else attempt to limit the liability monetarily, or argue a limitation of action (a time-bar).