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.