On Right Of Suit Of Cargo Claimant In Respect Of Carriage Of Goods By Sea

In the cases of claiming for compensation of loss or damage to goods carried by sea, or the cases of claiming for compensation for delivery of goods without production of original bill of lading, whether the claimant has the right of suit was always a focus issue between the two sides of the lawsuit. There has no any explicit provision in CMC regard to this issue, which has lead our country's courts to often gave different judgements or decisions on similar or even the same cases. The controversies among theoreticians about this issue are still very violent and even becoming more intense during last 10 years with the discussion of the draft of Rotterdam Rules. Based on the careful analysis of the legal nature of the parties concerning the carriage of goods, the author of this dissertation gave his own point of view about this issue and other relative questions.This dissertation consists of 5 Chapter the preface.Chapter 1 introduced the procedure of conclusion of contract of carriage of goods by sea under different trade terms, and the issuing of transport document. A very common phenomenon in carriage of goods by sea was pointed out in this Chapter, that is the parties of the transport document are usually not the parties of the original contract of carriage.In Chapter 2 all of the theories interpreting the relationship of the parties involved in the carriage of goods by sea were examined. Based on which the author pointed out that there exist two incorrect model or method of research in nowadays'research on this issue, that is (1) the independence of the legal relationship of the parties of transport document was ignored, and (2) the effect of the type of transport document to the legal nature of the relationship of all the partied involved were also ignored. Some conclusions then drawed in this Chapter, including that the independent legal relationship of the "document ship" and the "document carrier" shall be admitted and can be defined as a contract of carriage, the legal status of the holder of netotiable transport document and straight B/L and the legal relationship of such holder and carrier can be interpreted by the theory of securities, the legal relationship of the parties when the transport document is sea waybill or there is no any transport document can be interpreted by the theory of the Contract for Third Party's Benefit. In Chapter 3 the meaning of the term "right of suit" used in this dissertation was explained firstly. Then the author discussed which party or parties can have the right of suit to bring an action ex contractus against the carrier under different transport document, and concluded that when a negotiable transport document or a straight B/L issued the holder of the transport document should be vested in him such right of suit, and when the sea waybill issued or no any transport document issued the consignee shoul be vested in him such right of suit, but only with few exceptions.In Chapter 4 the right of suit to bring an action in tort against carrier, actual carrier or other parties was discussed. The author drawed the conclusions that as for the damage arising from delivery with out original B/L such right of suit in tort shoul be vested in the holder of the original B/L, but as for other kind of loss or damage to the goods such right of suit in tort should be given to all those who suffered actual loss or damage.In Chapter 5 the right of suit of the cargo insurer to bring an action against carrier or other person based his subrogation right was discussed, and summarized some criteria of determining whether he has such right of suit.