The basis of the carrier’s liability and the burden of proof in cargo claims arising under contracts for the carriage of goods by sea evidenced by bills of lading.
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The burden of proof in maritime law has proven to be an issue in some of the cases that pertain to cargo claims. It is therefore important to analyse and compare the basis of liability and the burden of proof in the various international maritime regimes, being the Hague/Hague-Visby rules, the Hamburg rules and the Rotterdam rules. The Hague/Hague-Visby rules were formed in order to aid in the operations of international maritime trade and to create a balance in the risks between the carrier and the cargo owner. The Hamburg rules were then drafted as its drafters were of the view that the Hague/Hague-Visby rules had failed to create a balance between the carrier and cargo owner’s interests. It was hoped that this regime would lead to uniformity within maritime trade, however, the regime has not been widely adopted. The Hamburg rules is said to have further frustrated the laws relating to maritime trade, however it did change the fault based system from proved fault to presumed fault. This change in the system of fault requires an analysis to determine whether or not it impacts the outcome of the cases. The latest regime that was drafted with the object of reaching uniformity and creating a modernised multimodal regime which no other regime has ever done, is the Rotterdam rules. The Hague/Hague-Visby rules are therefore regarded as outdated as they do not take the modern technologies into consideration. The proponents of the Rotterdam rules take the view that this regime will in fact reach its objective whilst the detractors believe that it will only fragment the laws of maritime trade further. The incidence of the burden of proof and the basis of the carrier's liability is an important question and given the impact on cargo claimants (who may be South African shippers or consignees) it is a consideration that may assist in determining whether it would be in the interests of South Africa to retain the Hague/Hague-Visby rules or consider ratifying either the Hamburg rules or the Rotterdam rules.