The Allocation of the Burden of Proof in Marine Fire Damage Cases
The Allocation of the Burden of Proof in Marine Fire Damage Cases When cargo is damaged or destroyed in a fire at sea, the owner of the cargo (the shipper) must overcome two statutory exemption provisions in order to recover damages from the owner of the ves- sel (the carrier). The Limitation of Shipowners' Liability Act' (the "Limitation Act") and the Carriage of Goods by Sea Act2 ("COGSA"), respectively, exempt carriers from liability for fire damage unless the fire was caused by the carrier's "design or neg- lect ' 3 or "actual fault or privity."4 Not only must there be a negli- gent cause for the fire, but the negligence must be connected to the carrier5 before the shipper can recover. Although it is generally ac- 1 46 U.S.C. §§ 181-188 (1976). 2 46 U.S.C. §§ 1300-1315 (1976). 3 Limitation of Shipowners' Liability Act § 1, 46 U.S.C. § 182 (1976) (Loss by fire): No owner of any vessel shall be liable to answer for or make good to any person any loss or damage, which may happen to any merchandise whatsoever, which shall be shipped, taken in, or put on board any such vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner. This exemption in the so-called "fire statute" extends only to the carrier. In maritime com- merce, however, carriers often lease their vessels through a "charter-party" arrangement. Most charter-parties are for a specified time or a particular voyage; the carrier retains re- sponsibility for selecting and supervising the crew and maintaining the vessel.
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