선박보험상 부보위험과 면책위험의 입증책임에 관한 연구 = A Study on the Burden of Proof of Perils Insured Against and Excepted Perils in Hull Insurance

다국어 초록 (Multilingual Abstract)

Where the loss or damage to a vessel has occurred in relation to hull insurance, the assured plaintiff, having pleaded a loss or damage by fire, barratry, and/or perils of the sea as the cause of loss, often are faced with the defense that there was no reason for the underwriter defendant to answer because that plaintiff had failed to discharge its persuasive burden and that, additionally or in the alternative, the loss was caused by the willful misconduct of the owners. In hull insurance cases, like any other civil action, the burden of proof of a claim lies with the plaintiff, which must prove to the satisfaction of the trial judge that the loss of damage was caused by a peril insured against. The above maxim, however, may require a modification when defendant avails himself of the positive defense contained in section 55(2)(a) of the Marine Insurance Ac 1906, whereby the burden of proving a willful misconduct will be upon defendant. Nevertheless, this modification is much debated. In this regard, this article examines he nature of the burden of proof in hull insurance under English law and also proposes a general principle of interpretation regarding the burden of proof in hull insurance cases.