Carrier’s Liability Issues Of International Carriage Of Goods By Sea

This dissertation undertakes a comparative study of the issues pertaining to the carrier’s liability regime between Chinese Law (mainly for Chinese Maritime Code1992, hereunder referred as’CMC’), English Law and four International Conventions, namely the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (hereunder referred as the Hague Rules1924), the Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, signed at Brussels on25th August,1924(hereunder referred as the Hague-Visby Rules1968). the United Nations Convention on the Carriage of Goods by Sea (hereunder referred as the Hamburg Rules1978) and United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereunder referred as the Rotterdam Rules2008). The study provides the academic recommendations and it concludes with a discussion of prospects for the revision of CMC. As an increasing power in the field of the international navigation and trade, China shall fully understand the relevant laws and regulations in the developed countries and serve a more active role promoting of the international conventions. Further, China shall keep a close watch on the trend in the international maritime law with a view to put forward the legislative draft on the hot issues on the balance between the interests of the carrier and the cargo owner, and it constitutes a prerequisite for a rational and perfect carrier’s liability regime in CMC in the near future. In the board terms, the major international conventions governing the carriage of goods by sea distinguish themselves from various aspects, and the issues including the principles of liability, the scope of liability and limitation of liability are under scrutiny by this research, in particular, the Rotterdam Rules2008offer some interesting changes on the open issues. The differences arising from the issues lead to. at the certain degree, legal confusions and conflicts which undermine the legal foreseeability and certainty.By way of introduction, this dissertation consists of five chapters. The introduction explains the academic background, the research scope and the value of the study, as well as a brief outline of the writer’s creative opinions. The chapter I starts from the study of the legal contents of carrier’s liability regime, including the carrier, actual carrier, freight forwarder, and NVOCC. Further it tries to give some conclusive views as to how to identify the carrier during the international carriage of goods by sea. As it is pointed out, the relevant provisions in four international conventions, combined with an analysis of Chinese Contract Law and CMC, submission of the actual carrier to provisions of carrier’s liability is in nature an extension of the legal effect to the third party. With respect to the legal confusions existed in CMC, the writer proposes some improvements the definition of the carrier, meanwhile, the signature, the title of bill of lading, ship name and the carrier identity clause are tools to recognize the carrier. Also, the writer researches the compulsory duties as sea worthiness, keeping care for cargoes, no deviation and insure of bill of lading. Additionally, the provisions with respect to the maritime performing party are similar to those of the actual carrier under the Hamburg Rules1978.Chapter Ⅱ focus on the carrier’s basis liability including the carrier’s strict liability, the fault liability and liability without fault. Under the comparative study, this chapter aims to provide support of the CMC draft and offer some theoretical and practical problems in the carrier’s liability regime. In the maritime judicial practice, most cases involve the disputes concerning whether the carrier shall respond to the liability and the scope of liability. Accordingly, the carrier’s liability regime under the national law will carry a heavy impact on the developments of international navigation and trade. Against the international conventions, firstly, as to carrier’s basis of liability, unlike the Hamburg Rules1978, in a way close to the Hague Rules1924and the Hague-Visby Rules1968, the Rotterdam Rules2008stipulates specific obligations of the carrier, i.e. care for goods, and exercise of due diligence to make and keep the ship seaworthy. Most notably, by comparition with Art.3(2) of the Hague Rules1924, the timing of the exercise of due diligence is not limited to the time "before and at the beginning of the voyage", but is extended to the time during the voyage by sea. This dramatic change is considered in line with the deletion of the exception of fault in the management of ship contained under the Art.4(2)(a) of the Hague Rules1924. In addition, the time of delivery is agreed upon between the carrier and the shipper, Art.21of the Rotterdam Rules2008obliges the carrier to delivery the goods within the agreed time, namely "Delay in delivery occurs when the goods are not delivered at the place of destination provided for in the contract of carriage with time agreed."Chapter Ⅲ makes a substantial research on the limitation of the carrier’s liability, the period of responsibility of carrier, exceptions of the carrier’s liability. The level of limitation of the carrier’s liability is to set the highest among all the other three international conventions. The Hague Rules1924contains in Art.4(2) the fault exceptions, namely the fault of the master, mariner, pilot, and or the servants of the carrier in the navigation or in the management of the ship, known as the ’nautical fault’, or in the fire onboard. These fault exceptions make the carrier’s liability regime under the International Convention a so-called ’incomplete fault liability regime’ putting in another way, a regime of fault liability plus three fault exceptions. By further comparition, the Rotterdam Rules2008provides a so-called ’complete fault liability regime’, and it will significantly increase the carrier’s liability.Chapter Ⅳ introduces the issue of delivery of cargo in the final leg during the carriage of goods by sea, namely the legal liability for the carrier’s delay in delivery, conducting an analysis of the source and rationality of the default in delivery, the defects in the relevant provisions in CMC. In this chapter, emphasises are for some oversights in the legislation and the problems of "reasonable time", and an effective method to define "reasonable time". The writer suggests these results will be highlighted in a strict control of the carrier in navigation, and the element "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" shall be taken into account in the process of legislation reform.Chapter Ⅴ explains the scope of application of the four International Conventions and CMC from the points of geographical scope, maritime transport, various types of applicable contracts for the carriage and the performing party. The unification of the maritime law is the long-run trend and in conformity with the development of the international navigation. Taking the example of the Rotterdam Rules2008, the carrier’s liability regime is generally regarded more in favor of the cargo interest. The writer is of the view that the CMC provisions concerning the carrier’s liability shall be revisited with clearer purpose catering to the practical need. Some proposals are put forth to be considered from the reform perspective. In doing so, this will undoubtedly make CMC more useful, advanced and rational.