PRESUMPTIONS (PROOF & AN ANCILLARY)

PRESUMPTIONS (PROOF & AN ANCILLARY)

1. Civil Law

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  CCQ Art. 2846; French Civil Code Art. 1349-50 (null acts=fraud of the law, ownership, force attached to admission or oath…)
  

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  Legal presumptions (2847 CCQ – specially attached by law to certain facts, exempting the person in whose favor it exists from making any other proof)) are of two types: (a) juris et de jure - conclusive, absolute or irrebuttable, i.e. precluding contrary proof; (b) juris tantum – disputable, simple or rebuttable conclusions, i.e. may be contradicted by a level of proof fixed in the law or determined wholly by the trial judge.
  
  • 
    2848 CCQ – authority of res judicata is an absolute presumption when demand is based on same cause and between the same parties…
    
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  Presumptions of fact are left to the discretion of the courts CCQ Art. 2849 – The court shall take only serious, precise and concordant presumptions into consideration and are rebuttable.
  

2. Common Law

2. Presumptions in Maritime Law

- Examples of rebuttable presumptions of law:

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  The issue of a ‘clean’ bill of lading indicates reception by the carrier of the goods in apparent good order and condition – if the cargo has been containerised then at least with respect of the external condition Hague Rules Art.3(4). A ‘clean’ bill of lading implies that the cargo is stowed under deck.
  
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  Where goods are delivered for shipment in apparent good order and condition, and then shipped via a successive chain of carriers and arrive damaged, the last carrier has the burden of proving that it received them damaged, or that the damage occurred in its hands without negligence on its part.
  
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  A clean bull of lading implies that the cargo is stored under deck.
  
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  Vallescura Rule – where cargo is lost or damaged by two separate causes, one for which the carrier is exempted from liability and the other for which he is not, the carrier is rebuttably presumed to be liable for the entire loss or damage, unless he can establish what portion of the loss or damage was due to the cause for which he is exempted enacted in Hamburg Rules Art.5(7).
  
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  When a ship collides with a stationary object (allision), there is a presumption of fault.
  
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  Sinking in calm water creates a presumption that a ship is not seaworthy. If a ship disappears without explanation, and it has been proven to be seaworthy, the loss may be presumed to have occurred from a peril of the sea.
  
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  Presumption that a charterer may bind a ship to a maritime lien for necessaries.
  

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  Apparent good order and condition of the goods when the ‘clean’ bill of lading is transferred to a third party acting in good faith who relies on the clean bill to his detriment Visby Rules 1968 Art.3(4); Hamburg Rules 1978, art.16(3)(b), Multimodal Convention 1980, art. 10(b).
  
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  A certificate signed by a diplomatic representative of the Contracting State to which a State-owned ship or cargo belongs shall be conclusive evidence that the ship or cargo is exempted from legal process such as seizure, arrest or detention, if the said ship or cargo are exclusively employed in governmental and non-commercial service (The Immunity of State-Owned Ships Convention 1926).
  

1. Liability for Collisions

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  1910 Brussels Collision Convention – “all legal presumptions of fault in regard to liability for collision are abolished.” [See also Maritime Conventions Act, RSC, Maritime Conventions Act, UK).
  
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  all legal presumptions are abolished
  

1. United States and Presumptions in Maritime Law

   1. The Pennsylvania Rule, 1874

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  Established a presumption of causation to the effect that any violation of a collision regulation is presumed to have caused the collision. An almost irrebuttable presumption of causation.
  
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  Established in 1874 by the United States Supreme Court in The Pennsylvania Case, the rule interacted with the rule of divided damages by shifting the burden of proof as to causation to a vessel shown to be in violation of a statute intended to prevent collisions. In such a case the burden would rest upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Hence, a vessel that committed a minor infraction of a navigational rule often was forced to divide damages equally with a vessel far more culpable simple because it violated a statute, even though this was not the actual cause of the collision.
  
  • 
    The Pennsylvania was going far too fast and hit a British ship and cut it in two, killing many sailors – instead of sounding a fog horn, it rang a bell. The Pennsylvania said it rang a bell and this would not have mattered anyway. The court said that the other ship was at fault for ringing a bell – this was wrong since it was only for ships standing still but this one was drifting (partially at fault – see above for results)
    
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    JCPC (possible because one was the people and one was about the cargo) – said that sounding a bell or foghorn was not a fault but violating the regulations was because the former had no connection with the damages but the latter did.
    
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  While this rule has not been abandoned, the rule of divided damages was abolished in Reliable Transfer when it adopted proportionate fault. It is still very heavy presumption deemed anachronistic by Tetley, who feels that the Rule is incompatible with proportionate fault. Problem arises because US has not adopted 1910 Collision Convention which states: (1) all legal presumptions of fault abolished (6), and (2) responsibility is shared proportionately (4). There has been no ruling on legal presumptions, one way or the other.
  
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  Purposes of the Pennsylvania Rule: (i) designed to enforce obedience to the mandate of the safety statute violated; (ii) simplifies the adjudication of collision cases when applied in conjunction with a system of admiralty law in which there is an equal division of property damages when both vessels are at fault (this was true in the US before SC decision in Reliable Transfer).
  
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  Pennsylvania Rule – substantive law: In all collision cases involving either a US ship or a collision in US waters, we must remember that the Pennsylvania rule may have some bearing. The following case establishes that the Rule is not procedural but is rather a part of US substantive law and that it should not be applied to collisions in foreign waters, unless the interests of the forum outweigh those of the place of the accident. Since not procedural not of the forum; substantive law therefore should not be applied to collisions in foreign waters unless the interests of the forum outweigh those of the lex loci delicti.
  
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  In 1988, the burden imposed under the Pennsylvania Rule (watered down completely) is reviewed by the American courts in Trinidad Corp. v. Keiyoh Maru, 845 F. 2d 818 at p. 825, 1989 AMC 627 (9Cir. 1988): "[w]e believe that the burden imposed under the Pennsylvania Rule is discharged by a clear and convincing showing of no proximate cause, rather than the stricter test of beyond a reasonable doubt controlling previously in the Circuit under such cases as States SS Co. v. Permanente SS Corp., Ishizaki Kisen Co. v. US, Pacific Tow Boat Co. v. States Marine Corp.
  

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  Tetley feels so – Trinidad Corp. v. Keiyoh Maru 1989 AMC 627 – “we believe that the burden imposed under the Pennsylvania Rule is discharged by a clear and convincing showing of no proximate cause, rather than the stricter test of beyond a reasonable doubt.”
  

In 1975, proportional fault becomes a rule in the US with the decision of the Supreme Court in US v. Reliable Transfer Co. Inc.: where two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability should be allocated among the parties proportionately to the comparative degree of their fault. Liability should be allocated equally only when the parties are equally at fault or when it is not possible to measure the comparative degree of their fault.

As mentioned above, the common law classifications of rebuttable and irrebuttable presumptions have produced uncertainty. These distinctions have often been based on a few random examples. In the civil law, presumptions of law have been connected with the burden of proof and subject to the proper law, while presumptions of fact have been seen as part of evidence and are therefore procedural and governed by the lex fori. The latter distinction seems more realistic.

The claimant must prove fault except for res ipsa loquitor – however, this presumption is no longer used as a separate component in negligence actions under Canadian ComL – Fontaine v. BC and Bayside Towing.

2. ISK v. USA, 510 F. 2d 875, 1975 AMC 287 (9 Cir. 1975)

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  Since the collision occurred in Japanese water, lex loci applies, including the rule that all presumptions (judge-made and statutory) are outlawed, art. 6 of the 1910 Collision Convention, to which Japan is a party.
  
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  According to the 1969 Restatement Second: "in determining which party has the burden of proof, the lex loci will not apply if the primary purpose of the rule is to affect the decision of the issue rather than to regulate the conduct of the trial." In this case, the abolition of presumptions by the Collision Convention affected the decision of the issue and thus the existence or absence of the presumption was substantive.
  
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  Obviously, applying the Pennsylvania Rule in this particular case was not in the interest of the US.
  
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  The forum will apply its own local law in determining which party will have the burden of going forward with the evidence on a particular issue, unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect the decision of the issue rather than to regulate conduct of the trial. In that event, the rule of the state of the otherwise applicable law will be applied.
  
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  Penn Rule is substantive rule that shouldn’t be applied to collision in foreign waters unless there is an interest in it – procedure is only formalities of the forum which apply
  
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  Therefore, it follows the law of the place (lex loci delicti) of the act.
  
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  Problem with legal presumptions of fault – could be either statutory or a general principles of maritime law.
  

If Canadian and American ships collide in Canada, laws of Canada apply (including Collision Convention – no presumption, Collision Regulations, proportional fault). If the suit is launched in the US, use the ISK case to argue interest analysis and that Pennsylvania Rule does not apply. If both ships are American and they collide in Canadian waters, don't forget that one of the parties can invoke Pennsylvania Rule since they both bear American flags and substantive American law can be argued to apply regardless of place of collision.

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  Burden of proof: decides who must prove a single question; legal presumptions are an example of burden of proof and should follow the proper law of the legal relationship.
  
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  Order of proof: the order in which a number of facts must first be proven by claimant, followed by other facts proven by defendant and finally by counter-proof by claimant. Thus order of proof has its own proper law. Substantive proper law governed by the Hague Rules.
  
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  Formalities of the court: includes conduct of the trial, which is the manner in which a trial or legal proceedings are carried out (ie. what oath is administered, whether the court or opposing attorneys question witnesses, the form of writs, subpoenas, judgments and related documents...). Lex fori.
  

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