presumption of fault

The Rotterdam Rules that has been ratified at 2009 is one of the most important rules with significant innovation in the regulations of international transport of goods by sea. The gradual development of the rules governing the basis of carrier’s liability since Multimodal Transport Convention 1980 to the UNCTAD/ICC Rules 1992 and then the Rotterdam Rules 2009 are discussed in this paper. While according to Multimodal Transport Convention 1980, presumed fault, was accepted as the basis of carrier`s liability, and the majority of scholars claim that the basis of liability in UNCTAD /ICC Rules 1992 is the same (presumed fault), in practice the burden of proof in both groups of the above-mentioned Rules is on carriers and they are practically subject to presumed liability. The Rotterdam Rules is based on the new structure in assigning the burden of proof to each party, and the basis of liability. While the other previous regulations governing the multimodal carriage of goods  comply with certain liability basis, in Rotterdam Rules, this liability is the combination of presumption of liability and presumption of fault, and tort law which alternatively change at each stage. Therefore, carriers in some cases have to prove lack of their fault, and in some cases, lack of their liability, and in some assumptions, the claimant has the responsibility about the burden of proof, and not the carrier.

Causation relationship، as one of the pillars of fulfillment of tort liability، is a matter that besides other pillars of lawsuit، should be proved by the claimant. But this general rule has exceptions in which the claimant is exempt from proving some pillars of lawsuit. One of the exceptions is presumption of causation. It means that in some cases، despite of the necessity of existence of causation relationship، the claimant does not need to prove it. None of the articles mention the presumption of causation expressly. What is discussed in this research is surveying the cases of presumption of causation in tort. With analysis of the tort-relevant topics، we understand that in tort، presumption of causation mainly exists in two cases: 1) Cases with presumed faults and 2) Cases in which proving the existence of causation in them is difficult because of some special circumstances; so we can apply presumption of causation in them.

One of the important issues which are discussed by the law today is the civil liability of Physicians، something which was silence in the civil code and civil liability code of n1339 (1960)، however the Islamic penal code has predicted some regulations for it. The civil liability of Physicians in the comparative law is principally based on the theory of fault. That is، a Physician is found to be responsible and liable to indemnify the loss inflicted on the patient when his (her) fault is established. This solution is compatible with the general rules of the civil liability while it is also justifiable with the expediency of the patient and the society. Nevertheless، the Islamic penal code of 1375 (1996) apparently accepts the no fault responsibility of the Physician pursuant to the words of a group of Imamiyeh Jurisprudents which seems to be subject of criticism although the aforementioned rule has been adjusted through accepting the clause of innocence (clause of non-liability). Indeed، acquisition of clause of innocence shall not totally exempt the Physician from liability because in this presumption too he shall be responsible and liable to indemnify the loss upon establishment of the fault. Fortunately، the new Islamic penal bill adopted in 1390 (2011)، which has not been put into force yet، has deviated from the former rule and accepted the basis of fault in the Physicians liability however the basis of liability in this law seems to be the presumed fault and not the established one. In other words، the law presumes the Physician to be liable unless his faultlessness is established. Acquisition of clearance from guarantee too، has been predicted in the new bill whose benefit is the replacement of the burden of proof.