论海上货损索赔中举证责任的合理分配

On the Reasonable Allocation of the Burden of Proof in Maritime Cargo Claims

摘要: 海上货损索赔中的举证责任分配，直接影响船货双方如何分担风险。货方凭清洁提单证明装船时货物表面状况良好、卸货时发现损坏后，举证责任是否向承运人转移，实践中形成过错推定与“谁主张、谁举证”两种做法。前者强调应由更接近证据的承运人承担后续证明负担；后者则要求货方完成严格的初步证明，甚至须排除货损发生于责任期间之外的可能。2025年修订的《海商法》细化了免责举证和共同原因举证，但仍未写清货方完成初步证明后的转移节点。本文认为，货方初步证明应止于“交好返坏”的表见成立；举证便利原则也有适用边界，可通过书证提出命令、专家辅助人等机制平衡双方。结合修法过程中的立法说明，相关模糊性宜由司法解释填补。

Abstract: The allocation of the burden of proof in claims for cargo damage during carriage by sea directly affects how risks are apportioned between cargo interests and the carrier. Where the cargo interests rely on a clean bill of lading to establish that the goods were in apparent good order and condition at the time of shipment, and damage is discovered upon discharge, the question of whether the burden of proof should shift to the carrier has given rise to two approaches in practice: the presumption of fault and the principle of “he who asserts must prove”. The former emphasizes that the carrier, being in a better position to access and preserve the relevant evidence, should bear the ensuing evidentiary burden; the latter requires the cargo interests to satisfy a stringent threshold of prima facie proof, in some cases even requiring them to exclude the possibility that the damage occurred outside the carrier’s period of responsibility. The 2025 revision of the Maritime Code refined exemption and concurrent-cause proof, but still did not spell out the shift of burden. This article argues that a prima facie case should stop at “delivered sound, returned damaged”; convenience of proof has limits, and document production plus expert assistants can balance the parties. Based on the legislative explanations during the amendment process, remaining gaps are better filled by judicial interpretation.