| Although there is a legal system on tort liability in ship collision in international conventions and maritime law in different countries,in terms of theoretical theory,on the one hand,problems of tort liability in ship collision still need to be further perfected,enriched and developed in the studies at home and abroad,such as conducting the systematical researches of the ship collision,forming a general theory on ship collision through abstracting,generalizing the legal issue of ship collision and improving the legal system in tort liability in ship collision.On the other hand,since ship collision tort belongs to one category of torts,the general theory and neo-theoretical researches can support ship collision tort theoretically,on the contrary,the study of ship collision tort based on theory of tort law can enrich and develop the theory of tort law.In terms of the legislation in the liability of ship collision,the improvement of the legal system about ship collision can obtain benefit from the theoretical researches as well.To be sure,by combing maritime law educational world to infringement of ship collision existing research results,the research of tort damages of ship collision was found that it has been relatively mature,the dissertation,therefore,will be no longer carries any discussion and investigation.Moreover,the point about tort liability imputation principle of ship collision have been more uniform in theory and the research of the component elements about liability of collision,especially fault and causality research have also been more deeply,hence the dissertation in the process of research involved the analysis and views on the issue will be discussed and mentioned briefly,in the Chapter of liability of ship collision.In light of the above consideration,the dissertation get through combing inductive theory of tort and infringement of ship collision,collision liability share related theory.Meanwhile,starting from the concept of ship collision,the dissertation explores questions of the infringement of ship collision,the basic theory of tort liability,tort liability of ship collision and a collision of proportion of responsibility division,in order to improve and enrich basic legal theory of ship collision infringement,as well as to provide principles and rules of allocation of liability of ship collision in maritime trial.Specifically speaking,the content of this dissertation includes three parts:introduction,five chapters of the main body and a conclusion.In introduction,the topic selection,main discussion,background,significance,current situation and research methods of this dissertation are illustrated.Chapter one discusses the concept and constitutive requirement of ship collision.To understand the concept of ship collision accurately,viewpoint was reviewed based on the existing definition of maritime law of ship collision in legislation and theory,correction was made on the analysis and understanding of the definition of ship collision provided by the Lisbon rules(draft).At the same time,from the perspective of subject matter regulated by law and the property of legal fact,analyzes the influence of the concept of a ship collision.Theoretically,the dissertation discusses the theoretical significance and feasibility of establishing ship collision as a specific concept of tort,regards ship collision act as a constitutive element of ship collision act and collision liability,and further analyzes the types of ship collision and the constitutive elements.Chapter two discusses the ship collision act.At the beginning,on the basis of summarizing and analyzing the definition of tort in the basic theory of tort law,the dissertation redefines the definition of tort act and summarizes the classification of tort act.Moreover,given the theory of the definition and classification of tort act in tort law and the form of tort act,the dissertation probes into the definition of tort in ship collision,the classification of tort in ship collision,and the form and particularity of tort in ship collision.At the end,the dissertation discusses and analyzes the relationship between the tort of ship collision and the tort of oil pollution from ships caused by collision,which has always been controversial in practice and theoretical circle,and clarifies the external relative independence and internal correlation between ship collision and oil pollution caused by collision.Chapter three discusses the fundamental theory of tort liability in ship collision.This chapter analyzes the concept of tort liability in the theory of tort law and discusses the dispute between the three and four elements in the theory of constitutive elements of general tort liability and the underlying reasons.The dissertation analyzes the deficiency of the word "fact of damage" in the constitutive elements of tort liability,and demonstrates the necessity and feasibility of replacing "fact of damage" with "fact of infringement" as the constitutive elements of tort liability.The dissertation summarizes one of the achievements of tort law theory--tort liability form theory,and puts forward the author's own views on the insufficiency of the theory.It is clear that the form of tort liability should not be limited to compensation.On the basis of the basic theories of tort liability,this chapter gives the concept of tort liability of ship collision and the particularity of tort liability of ship collision are summarized and analyzed,including the property loss by shares responsibility rather than the characteristics of the joint and several liability,liability subject and separation of the behavior subject and identity,the cross of liability subject and object,the complexity of object and the infringement object,diversity and the limitation of liability for compensation in the form of liability,liability limited legal guarantee,etc.At the same time,it briefly analyzes the phenomenon that the traditional tort law theory of ship collision attaches importance to damage compensation but ignores other tort liability modes,and clarifies that the tort liability mode of collision includes but should not be limited to damage liability.On the condition that ship collision is regarded as a specific legal concept and constitutes the torts act of ship collision and the torts liability of ship collision,the dissertation discusses the imputation principle of the torts liability of ship collision,the constitutive elements of the torts liability of ship collision,the fault and the theoretical problems of the fault constitution.Finally,according to the tort liability theory of tort law,the dissertation analyzes the tort liability of ship collision,and mainly demonstrates that the tort liability of ship collision belongs to the vicarious liability of person rather than the vicarious liability of object.The fourth chapter is the discussion of the apportionment of tort liability in ship collision.First,it discusses the latest achievements in the theory of tort law,tort liability apportionment theory,on the basic theory of tort liability apportionment,distributive justice,several important concepts and the research content has carried on the induction,focus on this basis,to share the problem of ship collision liability apportionment,including a theoretical analysis of the morphological and claims,and focus on the discussion and analysis of oil pollution tort liability for different condition is often involved in ship collision,different collision oil pollution tort liability legislation and points of view and to the influence of the tort liability of ship collision.Next to the discussion of ship collision tort liability apportionment principle,the correct theory and legislation of "fault" and "comparative negligence" words,to "the degree of fault scale"name,has been clear about the tort liability imputation principle of collision-fault principle and the principle of ship collision tort liability apportionment,differences and relationship between fault principle and fault degree of proportionality;The ethical and jurisprudential basis of the principle of proportion of degree of fault,the specific application of the principle of proportion of degree of fault,as well as the practices and factors to be considered in determining the proportion of degree of fault in different countries are demonstrated.Then,this chapter discusses the tort liability of ship collision conditions and range of the share,and focuses on the crew and the labor dispatching company to ought to be of tort liability of ship collision and the reality situation,proved under certain conditions the crew labor dispatching company to tort liability share of collision,the last of the crew to ship collision tort liability legislation and realize the sharing of auxiliary system are also proposed.The fifth chapter discusses the division of ship collision liability.The fourth chapter discusses the apportionment of tort liability.On the establishment of collision principle of tort liability apportionment for fault degree under the condition of proportionality,this chapter is to infringement determination of specific responsibility proportion of ship collision problem discussion,to analyze the theory of international conventions and domestic legislation,maritime law and maritime judicial practice of legislation on the problem of tort liability ratio of ship collision division,views and the judicial practice,proposes and discusses the quantitative theory about the degree of collision fault.This dissertation puts forward a method of quantifying the proportion of fault in ship collision,which quantifies preliminarily the degree of fault in ship collision according to the principle of proportion of liability in ship collision,and then quantifies finally the degree of fault in ship collision according to the rule of proportion of fault in ship collision.In maritime law academe after the theory of the existing research results and the analysis of the case,summarized the classification principles of ship collision liability ratio,design and put forward the operational rules of the proportion of collision liability division-staging a weighted average of the rules for comparing the degree of fault,and apply the rule to specific case,the empirical analysis,demonstrates the feasibility of the rules and operability. |
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