Basis of Carrier’s Liability and Burden of Proof Under the International Convention on the Carriage of Goods by Sea (1978) (The Hamburg Rules)

The objective of statutory regulations in international maritime conventions is to create a fair balance between carrier’s and cargo interest by defining the carrier’s liability regime. At the core of the carrier’s liability regime is the basis of carrier’s liability and the allocation of burden (onus) of proof. Article 4 of the Hamburg Rules provides the carrier liability for the loss or of damage to the goods as well as the delay in delivery. The Hamburg Rules make fundamen- tal changes to the basic rules on allocation of risks between cargo owners and carriers provided by the Brussels Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924 (also known as the Hague Rules), the Hague rules amended with the 1968 Visby Protocol and the SDR protocol of 1979 (the Hague-Visby Rules). For instance, it has abolished the traditional exoneration for nautical fault and fault in the management of ship and chan- ged the way exemption of fire is invoked. Yet, the system of the presumed fault has remained the single basis of carrier’s liability under its Article 5. It has abo- lished the catalogue of exonerations under Article IV (2) of the Hague-Visby Rules. By so doing, it changed the system of carrier’s liability from "incomplete fault liability system” to "complete fault liability system”. The article analyses the basis of liability of a sea carrier and the burden of proof as modified under the Hamburg Rules.

Keywords: carrier’s liability, burden of proof, carriage of goods by sea, the Hamburg Rules, maritime conventions, maritime law.