The Hague Rules: Burden of proof Last updated 29-Feb-2016

The burden of proof lies as a rule upon the party who has in his pleading maintained an affirmative proposition; a negative is in general incapable of proof. He who makes an assertion must prove it true; otherwise the jury will deem it untrue. If no evidence at all be given, the opposite proposition, the negative of the issue, will be taken as established.
Catherwood v Chaubaud, (1823) 1 Barn. & Cress. 150.

Exceptions provided in Article IV rule 2 of the Hague Rules available to the owner on the basis of the same legal principle as any other exceptions and limitations of carrier’s liability containing either in bill of lading or in charterparty - ei incumbit probatio qui dicit non qui negat – he who makes an assertion must prove it true; otherwise the court will deem it untrue. In other words the carrier must provide evidence and explain in the court what happened with the goods and why he considers that the cause of loss or damage falls under exclusion or limitation provisions.

Historically, the carrier’s duties were equal to those of bailee for reward(see also Common Carriers), accordingly a bailor, can always put the burden of proof on the bailee. Thus in case of case of non-delivery or damage to the goods all the bailor or cargo owner needs to do is to establish receipt by the carrier of the goods in good order and condition and short or damaged delivery or non-deliver of the goods at the destination.

That puts on the bailee the burden of proving either loss without his fault (which would be a complete answer at common law) or, if the loss was due to his fault, that it was a fault from which he is excluded by the exempting clause.
J Spurling Ltd v Bradshaw [1956] 2 All ER 121 per Denning LJ at p.125

After that it is for the carrier to bring himself under exceptions provided in the Rules, namely, that damage or non-delivery resulted from the operation of one or more of the excepted perils.

… then he must show what happened to the goods. He must prove all the circumstances known to him in which the loss or damage occurred. If it appears that the goods were lost or damaged without any negligence on his part, then, of course, he is not liable. … But, if he leaves the cause of loss or damage undiscovered and unexplained, then I think he is liable: because it is then quite likely that the goods were stolen by one of his servants; or delivered by a servant to the wrong address; or damaged by reckless or wilful misconduct; all of which the offending servant will conceal and not make known to his employer.
Levison and another v Patent Steam Carpet Cleaning Co Ltd [1977] 3 All ER 498, per Lord Denning M.R. at p.505.

Therefore if the carrier cannot explain or provide evidence what happened with the goods he will be held liable because he failed to discharge burden of proof.

If there were several perils in operation at the time of loss or damage, and some of them not-excepted, as for example fire and unseaworthiness, the carrier must also prove that the loss or damage was not also caused by the operation of other non-excepted perils. Alternatively, the carrier must show how much damage was due to operation of non-excepted perils and how much due to operation of excepted perils.

In Milan Nigeria Ltd v Angeliki B Maritime Company [2011] EWHC 892 (Comm) Gloster J while considering the burden of proof issue under the Hague Rules, cited with approval reference from Scrutton on Charterparties(21st ed., p. 403) saying that it is not enough for the shipowner to show that the damage done was partly due to some cause for which he is excused if part of the damage is not so caused, but that the owner must show how such damage was apportioned between the causes for which he is excused and for which he is not. Since the shipowner can claim protection only in respect of excepted perils, his failure to ascertain an extent of damage caused by the cause for which he is excused will signify a failure of his claim.

Development of this rule was traced by Lord Esher MR to the old system of pleading which was abandoned in England in the nineteenth century:

… the pleading should follow the burden of proof, so as to show distinctly which part of the transaction lay upon each person to prove. There was a declaration, which showed what the plaintiff had to prove in the first instance. There was the plea, which was prepared to show what the defendant was prepared to prove in answer to that; there was the replication, which admitted the plea was sufficient answer to the plaintiff unless he could answer it. But the replication might answer the plea so as to reinforce the declaration, and show that, by reason of what was in the replication, the plea had become, although prima facie an answer, not a sufficient one, and that the declaration was restored. That was the system and the logical system of the old pleading, for the purpose of the conduct of the trial, to show how the evidence and the proof was to be regulated. The declaration stated the bill of lading, and relying on the first and substantive part of the bill of lading alleged non-delivery.

… Therefore the declaration was as I say. That showed what the plaintiff had to prove in the first instance, and the moment he did prove what was in his declaration, that was his case. Then came the defendant, and he had to answer that case. Then the plea is stated: "It is true that that is the contract, but the non-delivery was the result of a peril of the sea." He followed, therefore, the terms of the exception construed in their ordinary sense, that is, that the loss was a loss by perils of the sea.

… Then you have a long succession of cases, all setting out a replication, and that replication in the given case is: "Yes, it is true there was a loss by perils of the sea within the prima facie exception, but that was brought about by the negligence Then you have a long succession of cases, all setting out a replication, and that replication in the given case is: "Yes, it is true there was a loss by perils of the sea within the prima facie exception, but that was brought about by the negligence.

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