로테러담 규칙하에서의 거증책임

The burden of proof under the Rotterdam Rules

Practitioners involving in the law of carriage of goods by sea are used to working with a regime based on the Hague Rules(1924) as later amended by the Hague Visby Rules(1968). Most nations have ratified this Rules and have adopted national legislation based on that regime. The legal structure of the Hague Rules is the conceptualization of the interplay as a ping-pong game created by a maritime cargo case which defines the burden of proof and the respective steps in the allocation of liability and exemption. Hamburg Rules attempts to restructure the Basic principles of the preexisting laws and jurisprudence on the liability of the carrier for maritime cargo claims. The Hamburg Rules contain clear and concise provisions on both burden of proof and allocation of liability where loss is due to a combination of causes. Rotterdam Rules article 17 expressly stipulates how the burden of proof is allocated as between cargo interests and carrier, following the rather complicated ping-pong type approach of Hague Rules, rather than the simple approach taken in the Hamburg Rules. This paper analyses Rotterdam Rules article 17 comparing with the Hague Rules and Hamburg Rules