해상운송물의 고유한 하자 및 숨은 하자에 따른 입증책임

A carrier is not liable at common law for loss or damage which results exclusively from some inherent quality or latent defect of the cargo carried. Every marine cargo case for lost or damaged goods starts with the so-called ‘prima facie case.’ Even though a clean bill of lading had been issued, the carrier would not be estopped from pleading the exception providing that the loss had resulted from the inherent unfitness of the cargo to withstand the ordinary incidents of the voyage and had in no way been aggravated by the conduct of the carrier. No peril is an ‘act of God’, ‘restraint of princes’, or ‘danger of the sea’ if its occurrence could have been avoided by the exercise of reasonable care. However, in ‘Inherent Vice and Latent Defect’, the degree of care expected of the carrier will, of course, vary depending on the extent of his knowledge of the characteristics of the particular cargo. Hague-Visby Rules imposes some specific obligations about how the carrier must perform its contract, for example, and detail some of the legal consequences of the carrier's failure to perform, but it does not explicitly declare the carrier's most basic obligation simply to perform the core contract. There then followed the relationship between inherent vice exemption liability and carrier's implied undertakings not to do undutifully and not to make a ship unseaworthy. Onus of proof between the carrier and the cargo owner is finally considered. However, the Rotterdam Rules' treatment of carrier's obligations begins by making explicit what the Hague-Visby Rules leaves implicit. Pursuant to article 17(5) of the Rotterdam Rules the shipper can prove that the damage, loss or delay was probably caused or contributed by the unseaworthiness of the ship. It employs what has often been described as a ‘reversed burden of proof’, meaning that carrier (typically the defendant) must disprove its fault in order to escape liability (once the claimant has established a prima facie case). This differs from the allocation commonly employed in many jurisdictions to determine fault-based liability under which the plaintiff must prove the defendant's fault as part of its affirmative case in order to recover.