China's Maritime Cargo Damage Claims From The Burden Of Proof Problem

Allocation of burden of proof is a matter of litigation procedures, but it directly relates to the right and obligation of the parties in a particular case. Marine cargo damage accidents often occur in the sea and consequently it often proves difficult to investigate into the causes and collect evidence. Normally, it is more complicated to distinguish between the true and the false in litigations of marine cargo claims than in ordinary civil litigations. In admiralty practice, the judges usually make judgments based on the effects of allocation of burden of proofs. Therefore, proper allocation of burden of proof plays an important role in marine cargo claims. Because maritime litigation is a special kind of civil litigation, allocation of burden of proof in maritime litigation relates to the application of both civil procedure law and maritime procedure law. By applying the civil procedural theory and legislation relating to civil evidence, considering the particularity of marine law and maritime evidence, this thesis analyzes the effect of allocation of burden of proof in marine cargo claim cases in China, and presents the feasible solutionsto the issues in the current judicatory practice.This thesis includes three chapters.Chapter 1 analyzes the method of allocation of burden of proof in marine cargo claims according to the particularity of marine cargo claims, combined with the civil evidence theory. Such allocation of burden of proof shall be based on the intention of substantial legislation and the development of international maritime legislation, utilize the special rules applicable to allocation the burden of proof, take into account of the balance of interests between the ship-owners and cargo owners.Chapter 2 discusses and analyzes the legislative principles of maritime law in China and the development of international maritime legislation. The special rules for the allocation of burden of proof which can be applied in marine cargo claims are summarized.Chapter 3 studies the burden of proof in particular issues of ship's seaworthiness and nautical faults etc. in marine cargo claims in China by use of the above summarized allocation of burden of proof. Suggestions are presented towards improvement of allocation of burden of proof in marine cargo claims in China.