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On The Carrier's Liability Regime Of International Carriage Of Goods By Sea

Posted on:2006-11-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z J LiFull Text:PDF
GTID:1116360152985205Subject:International Law
Abstract/Summary:PDF Full Text Request
The carrier's liability regime directly regulates the allocation of the risks between the carrier and cargo owner. In maritime judicial practice, most cases involve the disputes concerning whether the carrier shall respond the liability and the scope of the liability. Thus, the carrier's liability regime set in a country has a close impact on developments of international navigation industry and international trsde. In this sense, the carrier's liability regime is the core and bedrock in the legal system of whole carriage of goods by sea The current major international conventions governing the carriage of goods by sea are Hague Rules, Hague-Visby Rules and Hamburg Rules, which have great difference in principles of liability, liability scope and liability limitation simply because they are the results of the different stages of the international navigation and different countries'interests. These differences lead to legal confusion and conflicts which undermine the legal foreseeability and stability. As a result, it is disadvantage to international navigation and trade. Furthermore, these agreements are not compatible with the development of international navigation industry and requirements of navigational techniques. Entrusted by the UNCITRAL, CMI drafts the new "International Carriage of Goods by Sea", which has absorbed some reasonable provisions in the above three international conventions and typical nations legislations. The draft set detailed and uniform provisions on the carrier liability basis, period of liability and limitation on the liability. Just as three agreements, the draft is the result of the compromise of different interests, many provisions of which are controversial. As a power in the international navigation and trade area, China shall fully understand the relevant provisions in developed countries before she can play an active role in the promulgation of the international convention. Meanwhile, China shall keep a close watch on the new trend in the international civil and commercial law with a view to put forward legislative draft on the hot issues on a basis of proper balance of the interests of the carrier and cargo owner, which also constitutes a prerequisite for a rational and perfect carrier liability regime in China Maritime Code. Regarding the heatedly discussed issues, this essay uses different legal interpretative methods to analyze the meanings of relevant provisions, to criticize and comb different opinions in different periods, to conclude and induce different judicial verdicts. On this basis, the author put forwards his own views on the meanings of relevant provisions, and descriptions and comments of the real operations of the laws. Then, combined with requirements of the international navigation industry and navigational techniques, and the renovation and changes, taking reference to the carrier's liability legislations of developed countries, the author put forward his opinions on revision of the carrier's liability, which is instrumental for the Chinese Maritime Code circle to propose its views in the course of the enaction of the draft, thus to maintain Chinese interests and to be reference for the revision of the carrier's liability regime in Chinese Maritime Code. This essay consists of six chapters and altogether 260,000 letters (not including footnotes). The first chapter introduces the background, research scope; research value of the essay, meanwhile gives a brief outline of the creative opinions of the essay. Under the present background of active promulgation of laws of international level and energetic China Maritime Code revision movement, it is dispensable to have a close study of the carrier's liability---most important and core issue. The author then have a review over the legal source of the carrier's liability system, the historic evolution of the carrier's liability, give an analysis of the process of transitions from the carrier's strictliability to the liability of incomplete fault, then to the liability of complete fault. Regarding the most controversial point in the strict liability—negligence in navigation, the author believes it is a matter of risk allocation and interest balance between the carrier and the cargo owner. And in the long run, the carrier'immunity from negligence in navigation shall be eliminated. This chapter gives a preliminary analysis on relevant international agreements, legislations in China and other nations, pointing out China Maritime Code is formed by drawing on other legislations with her own characteristics. The provisions concerning the risk allocation in Chinese Maritime Code need harmonization and improvement compared with uniform trend in international maritime transport law. The author proposes the perfection in the later revision of the Chinese Maritime Code. The second chapter first gives a definition of the subject, discussing how to distinguish the carrier from the actual carrier. The author points out, based on the extensive study on relevant provisions in many international conventions pursuing the trend of judicial experience in other nations, combined with a careful analysis of Chinese Contract Law and Maritime Code, submission of the actual carrier to provisions of carrier's liability is in nature an extension of the legal effect to the third party, which is an trend of modern contract law. With respect to the legal confusion existed in the Chinese Maritime Code, the author proposes to improve the definition of the carrier in Chinese Maritime Code by introducing provisions of maritime law in Britain, meanwhile figures out that the signature, the title of B/L, ship name and the carrier identity clause are tools to recognize the carrier. The author gives a detailed analysis of such compulsory duties as sea worthiness, keeping care for cargoes, no deviation and insure of B/L. The author believes the carrier's duties to fulfill the sea worthiness will be continuous during the voyage since the elimination of exemption from navigation negligence. With the fast development of modern science and technology, the sea worthiness has been severe in relevant legislations, so shall China Maritime Code do; duty of caring for cargo shall cover the whole period from the loading to discharging; duty of caring cargo is mandatory and can not be dismissed due to the participation of the shipper. Regarding of no deviation duty, theauthor advocates that if breach by the carrier reaches a certain degree, the shipper, charterer or the holder of the B/L may declare the dismiss of the contract, therefore, it is necessary to introduce the fundamental breach regime in Maritime Law. As to issue of B/L duty, the superficial situation of the cargo shall be written in the B/L. Concerning "weight unknown"and "provided by the shipper", the weight in the B/L is the final proof, therefore "weight unknown"clause is void to the consignee or holder of B/L. The provision of the carrier'liability period is of practical significance in the maritime procedural law. The author believes the carrier liability period in Hague Rules and Hamburg Rules refers only to the delivery obligation period in the carriage of goods by sea, namely the period of transport and caring for cargoes, the factual function of which is to limit the compulsory application period of the special responsibility regime. Regarding carrier'liability for the cargo damages to the cargo owner, the author supports the view that, apart from the real value calculated according to the article 55 in China Maritime Code, other reasonable and direct losses, such as loan interest, inspection fee, tax loss shall be censored. The damages scope shall not be unlimited and violate the principle of foreseeability. The third chapter studies several practical issues regarding the carrier liability in international carriage of goods by sea. The author points out transport documents, degree of participation in the transport and fixed fee standards are useful means to distinguish the NVOCC and the forwarder. The B/L issued by the NVOCC is the guarantee of liability owned to the shipper, while the B/L issued by the actual carrier represents the full functions of an ordinary B/L after he accepts the cargoes. Carriage contracts shall be, in principle, deemed binding signed by the forwarder without NVOCC's the qualification of he NVOCC. The author points out that the definition of the public carrier and the NVOCC shall be cleared and the definitions shall be confined to the public transport so as to improve legislations. An effective regulatory system shall be set up and laws and regulations shall be promulgated regarding the NVOCC, in particular B/L and quotation registration. Next, the essay probes into the legal liability for the carrier's delay in delivery, gives an analysis of the source and rationality of the default in delivery, points out the defects in the relevant provisionsin the Chinese Maritime Code, suggests that these defects will be highlighted with the firmer control of the carrier in navigation, proposes "the situation in which cargoes have not been delivered at the designated port of discharge within the expressly agreed on or reasonable time constitutes delay in delivery"as a definition taken to perfect China Maritime Code. B/L is a certificate of the property rights, which is an sub-definition of the certificate of right, and constitutes a basis for the delivery. Delivering cargoes without original B/L is an overlapping state of tort and breach of contracts; therefore the liability shall be distinguished in accordance with the objective the plaintiff sues. Under the situation of delivering without original B/L but guaranty letter, such delivery in good faith is effective. Of course, the carrier can defend against liable subjects or negotiations. The fourth part focuses on the definition of the legal liability of anti-dated or advanced B/L, pointing out that it is also an overlapping state of tort and breach of contracts, the scope of liability shall cover the monetary damages, corresponding interest lost, punished interest loss, etc. The fourth chapter focuses on the multi-modal transport operator (MTO) liability. International multi-model transport action consists of many parties, the legal relationship of which is quite complicated, because the subject, the content and the multi-modal transport documents have their specialties. The liability form, principle of liability and the limitation differ from those in single form transport. It is of key importance to adjust these relations so as to define the legal status of the MTO in order to balance the rights, obligations and liabilities. According to the present pertinent rules and legislations, there are two main forms of the MTO's liabilities: network liability system, uniform liability, and the amended network liability system and modified uniform liability system. The author approves of the view that principle of the MTO's liability shall be based on the strict liability, meanwhile the MTO shall be endowed with privilege enable him free from the negligence in navigation and fire. In addition, under the premium of strict liability, exemption causes could be provided in accordance with the transport law and the characteristic of the transport, however the operate shall be burdened with the proof of these exemption causes. The author gives a comparative analysis of the rules embodied in the different countries, majorinternational conventions and those in Chinese Maritime Code. The author believes that limitation on the carrier's liability shall be set up under different transport forms, suggesting that Contract Law and Maritime Code shall both adopt the provisions on the limitations on MTO's liability involving transport by sea or by other ways. The fifth chapter concentrates on the ways of disputes resolution concerned with the carrier's liability international sea transport carrier. Forum suit and arbitration are effective due to the lack of uniform substantial law on maritime transport. Regarding the resolution clause for B/L dispute, there is no explicit provision in Chinese legislation; measures taken by the courts and opinions held by scholars in academic circle are far from unified. The author advocates the negative theory based on the analysis of the fixed clause, the alleviation of the carrier's liability, convenience for suit and principle of equivalence. The author also gives a detailed analysis on the jurisdictional clause, the legal effect of the arbitration clause cooperated into B/L. The author support such idea that the provisions governing the legal effect of arbitration clause in B/L shall be in favor of maintenance of the national (regional) interest. It is clear that the carriage contract, which contains the arbitration clause, is not a result of negotiation between the shipper and the carrier, therefore does not bind the assigner, nor shall the transfer of the clause bind the consignee. The second issue concerns the "applicable law". It is frequent phenomena for carriage contract containing "applicable law clause", which mostly appears on the back of B/L. On the basis of the analysis of the legal basis of the applicable law clause, this chapter further discusses the application of such clause to the third party, believing that , in principle, Chinese courts shall not review the applicable law clauses on the back of B/L as the law selecting clause binding the holder of the B/L. Regarding the applicable law, the author studies carefully on the finding of the foreign law from the international private law. The sixth chapter prospects the uniform of the carrier's liability of international carriage of goods by sea. In this area, there are three major international conventions: which are adopted by the parties taking their political, economic interests. There discrepancy brings about many legal conflicts, which causes such series of questionsas the instability in legal application, unfair competition in sea transportation, and commercial cost increase, which have negative effect on the development of the international trade and international sea transport. The uniform of the carriage of goods by sea is instrumental for the fair competition, reduction of the navigation risks and the expansion of the international economy. The unification is the long-run trend and in conformity with the development international navigation. CMI has devoted itself to the uniform of the law of carriage of goods by sea, the author points out the provisions concerning the carrier'liability shall be revised with clear purpose and cater to the practical needs, making the Chinese Maritime Code more stable, advanced and rational.
Keywords/Search Tags:International
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