This paper provides an analysis of the way in which burden of proof and allocation of liability are dealt with in the “Draft Instrument on Transport Law” 1 and juxtaposes this with the position under the Hague, Hague-Visby and Hamburg Rules. The analysis shows that the provisions of the Draft Instrument as currently proposed are problematic. Their application could lead to results which differ markedly from those under either of the existing international regimes and their interaction leaves significant scope for interpretation, which could lead to much litigation.

In any cargo claim, the claimant needs to establish that it has sustained a loss. In cases of loss, damage or short delivery of the cargo, this means that the cargo claimant needs to prove that the goods upon arrival (if any) were not in the same condition or quantity as upon receipt or shipment.2 Once a loss has been established, the question arises under which circumstances the carrier is liable for the loss. Generally speaking, the answer is, of course, that the carrier will only be liable for a loss which has resulted from a breach of the carrier’s obligations and is not covered by an exception to liability. However, in practice, the situation is more complex. There may be several causes, which have conspired to bring about loss or damage during transit and the facts surrounding a loss or damage may not be readily available to one or to any of the parties involved in a dispute. Against this background, liability may, in practice, often depend on who bears the legal burden of proof with regard to a particular issue. That party “bears the risk of non-

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