Article by Chester D. Hooper and Jeanne-Marie D. Van Hemmen
Historically, in negligence actions involving a tow against its tug, the burden of proof has rested with the tow. Recently, however, a trend has developed to shift the burden of proof onto the tug to explain the causes of the damage to the tow. This Article examines the history of burdens of proof in negligence actions by the tow against the tug. It explains an exception to the general rule which placed the burden of showing negligence on the tug. When the tow had been grounded, the burden of proof shifted to the tug to explain its actions. After demonstrating that some recent decisions can support shifting the burden in nongrounding cases, the Article suggests that this expansion should be limited to those cases in which the information needed to rebut the inference of the tug's negligence is with the tug.
About the Author
Chester D. Hooper. Member, Haight, Gardner, Poor & Havens. President, The Maritime Law Association of the United States. B.A. 1963, Hobart College; J.D. 1970, Albany Law School of Union University.
Jeanne-Marie D. Van Hemmen. The Law Offices of Jeanne-Marie D. Van Hemmen. B.S. 1986, United States Merchant Marine Academy at Kings Point; J.D. 1990, Tulane Law School.
Citation
70 Tul. L. Rev. 531 (1995)