Study On The Carrier’s Legal Status、Rights And Obligations In Multimodal Transport

A multimodal transport, based on a single-modal transport, is an independant transport mode which optimize and combine different transport modes by utilizing modern science and technology.Nowadays, the multimodal transportation has become a major one of many transportation modes, playing a crucial role in social and economic life. While it brings us tremendous convenience and efficiency, multimodal transport also results in a few problems difficult to be solved, to define carriers and to distinguish their rights from obligations is one of them. In judicial practice, there mainly exist problems of identifying and analyzing their status among the carrier and the agent, the non-vessel carrier and the freight agent, the contract carrier and the carrier, the contract carrier and multimodal transport operators.In principle, the freight agent is only to be a agent. but the container transport, rising in the 20th century 60’s,makes its legal status tremendously change. It becomes a "Chameleon" in the transportation market, which not only appears as the agent of the shipper or the consignee but also participates in transportation as non-vessel carrier, multimodal transport operator or other subjects. The main reason difficult to identify the freight agent is differences of agency theories between the common law system and the civil law system and lack of international conventions of uniform application. Despite the international and national laws sum up the main criteria and methods to identify freight agents, such as the standard of transport document, the standard of actually participating in the transport, the standard of way to obtain income and the standard of transaction process, but in international trade law, there is no branch in which the distinction between legal theory and commercial reality is as big as the agent. To identify the freight agent and the carrier is a new subject.In recent years, cases, which occurred between the freight agent and NVOCC, such as disputes related to delivery of goods without document, marine freight or agency fee, have a tendency to increase year by year, to judge and determine their legal status become the premise and key to deal with this sort of cases. In practice, we should synthetically determine as follows:First, to identify the nature of the contract according to the content of the contract, then, to identify the parties according to the nature of the contract; Second, in the light of records on the bill of lading or other transport documents; Third, based on specific business conducts and operational ways; Fourth, based on ways to obtain income; Fifth, according to transaction customs and transaction history.Theoretically viewing, It shuould be easy to distinguish the contract carrier from the carrier,for the contract carriers do not actually participate in transportation process,only playing a promotive, organizational, and coordinative role; However, the carrier must be responsible for the entire transport route whether he personally conveys or not. But because both often overlap concurrently in business and fail to use precise legal terminology, these result in difficulties to distinguish them. So, we should comprehensively make a judgement from contents of contract, specific behaviors to implement and the whole transaction process and so on.(eg:conveyance implemented by the contract carrier himself, issuing transport documents, collection carriage or consulting specific freight on a certain transport behavior,etc)In multimodal transport, multimodal transport operator is the organizer, leading cadre, playing a core and dominant role; The contract carrier is primarily responsible for choosing the most suitable carrier, and determines the most economical, safest and most expeditious route, time and methods of shipping, also undertake such factual behaviors as preparation of necessary documentary evidence and papers, acceptance、storage, package, delivery of items.For the discrimination from the two, it should draw attention to the followings:First of all,their different nature in multimodal transport have been as above;Secondly, their purposes in the multimodal transport are not the same:the contract carrier acts to the interest of the others, so, he do not have to impair the client’s interests whatever sort of behavior he commited; However,the multimodal transport operator,as a commercial subject, carries about all actions to pursue its own maximum interest and minimum risk.Thirdly, both of them take distinctively different risk for damage or loss of goods:in principle, the contract carrier does not assume responsibility for damage or loss unless he is at fault in the choice of carrier etc; The multimodal transport operator not only makes overall plans and all-round arrangements to carry out the multimodal transport but also has possibity to actually participate in the conveyance, and must be responsible for the whole process of transport. Finally, the relations between either and the segment carriers are also very different:as for the relationship between the contract carrier and the carrier, the contract carrier acts as a party. For the multimodal transport operator, although he must be responsible for all over the route, in the outside, every segment carriers are his performing assistants, both should bear joint and several liability for damage or loss of goods if the two do have liability.As for the provisions of rights and obligations of the actual carrier, there exist mainly two legislative modes:First,directly prescriptive, and second, contrasted.Our country adopts contrasted mode,That is,to determine its rights and obligations in contrast with the contracting carrier.But the contracting carrier has three sources of rights and obligations,because the actual carrier is not a party of the transportation contract, its rights and obligations can only be prescribed by law directly, but the rights directly related to the safe transport of goods, such as disposal of dangerous goods, liens, etc. should be given to the actual carrier. The main right of the multimodal transport operator is to receive freight. As for the contract carrier,he has right to claim reward, right to claim reasonable cost reimbursement, right to intervene,fictitious right to intervene and special lien etc.Bearing responsibility is the contribution of all legal relations, the carrier’s responsibility is the basis and core of the entire goods transport law. For the actual carrier, the responsibility that he bears is the minimum responsibility provided by law,the joint responsibility he and the contracting carrier commonly bear is not a real joint responsibility.In the procedure to investigate and fix liability,I think that the proof burden that proves both to be responsible for compensations should be assigned to the actual carrier,otherwise, the joint responsibility provided by law will become in effect a dead letter. Whether international conventions or national laws simultaneously provides that the multimodal transport operator is responsible for the entire transport, what is the foundation on which his responsibility is based? It can be classified into as follows according to responsibility subjects and the structure of contents of responsibility:in bulk,net liability system, amended net liability system, integrated net liability system and minimum net liability system.This paper analyzes the advantages and disadvantages of the different basis of liability, and gives comments on the relevant provisions of our country. There are mainly two doctrines of liability fixation for the contract carrier in Civil law system countries:presumption of fault liability and strict liability. I think we should learn from the provisions of the "German Commercial Code", the contract carrier should bear strict liability for the loss or damage of goods while the goods is under his care. Because under this circumstance, the contract carrier should bear "the maximum duty of care" and the standard of "the most ideal" contract carrier should be introduced at this moment. the doctrine of fault liability should be adopted while the goods is not under his protectoin and care. The judgement standard for exemption justification is duty of care of general businessman.Any law has loopholes,which has been commonly recognized by present cases and theories. F.K.V.Savigny, founder of German historical school of law, pointed out that the law had become gradually outmoded since its enactment and publication.chinese provisions on the multimodal transport and the legal status of the carrier are also subjected to this shackles. Although both "Maritime law" and "Contract Law" have specially made provisions on multimodal transport, there are contradictions between some provisions; Even for the same application principle,their practical application effect are probably quite different. For example,even the foundation on which compensation of the multimodal transport operator is based under "Maritime law" and "Contract Law" are both amended net liability system, the practical effect of respective application is quite different.In multimodal transport,the subjects who fulfill or organize conveyance are all called "multimodal transport operator", however,the roles of subjects who perform the duties are in practice different, there are freight agent, NVOCC,actual carrier,etc.especially, the formulation of "NVOCC" concept has created great confusion in existing legal system of transportation of china,making the originally blurred boundary of legal responsibility between the freight agent and the cargo cwner more confused.In order to better develop chinese multimodal transport, Firstly,domestic multimodal transport should be unified, but because of particularities of marine transport, its special rules should still be followed.At the same time,the legal status and rights and obligations of the carrier should be definitly provided. It is necessary to expand subjects of transportation responsibility, to extend the period of the carrier’s responsibility, to clearify division of powers and responsibilities of the carrier and the performing parties. Secondly, the "performing party" system is definitly provided in our country’s future transport law.Finally,to coordinate with the requirement of quickness of multimodal transport, it is necessary to develop two extremely vital supporting professions:container-collecting and distributing-station operation and contract conveyance. In order to coordinate with chinese transportation law, provisions on NVOCC should be abolished.