| The law of carriage of goods by sea is the core of maritime law,and the legal regime of carrier’s liability is the core of the law of carriage of goods by sea.Maritime law has a practical character,and the practice includes both shipping practice and maritime trial practice.The practice of maritime trials is an important basis for understanding the law of carriage of goods by sea,as well as the basic material for improving the law of carriage of goods by sea.This dissertation takes China’s maritime adjudication practice as the basic perspective,comprehensively using value analysis,inductive deduction,level analysis,historical research,empirical analysis and other research methods to analyze the legal regime of carrier’s liability of carriage of goods by sea,including the identification of carrier,statutory obligations,period of responsibility,exemptions,and the time bar,as well as the coordination of the law of carriage of goods by sea and the consumer protection law.This dissertation consists of eight parts with the main contents of each part as follows:The Introduction briefly introduces the contents,methods and purpose of research,the current status of the research on this subject and the literature review in this regard.Chapter 1 "Identification of carriers in carriage of goods by sea" mainly introduces the causes of the problem of carrier identification,international legislations of carrier identification,and Chinese legislations and judicial practice of carrier identification.The problem of carrier identification is mainly due to three reasons:one is that the transportation of goods by sea involves a large number of subjects,the second is that the contents of the bill of lading are usually not standardized,and the third is that shipping agents are widely involved in the transportation relationship.Article 37 of the Rotterdam Rules stipulated the rules for the identification of the carrier,but it caused some controversy.Article 89 of Chinese Maritime Code(Revised Draft for Review)transplanted the carrier identification rules of the Rotterdam Rules,and the majority of feedbacks advocated deleting this provision.China’s maritime trial practice tends to identify the carrier based on the issuer and contents of the bills of lading.Chapter 2 "Statutory obligations of the carriers in the carriage of goods by sea" mainly introduces the judicial practice of carrier’s seaworthiness obligation,cargo management obligation,the obligation of not to make unreasonable deviation,and devlivering cargo without bill of lading.First,the determination of the carrier’s seaworthiness obligation requires an overall understanding of the concept of seaworthiness,distinguishing between different legal norms and contractual requirements,fully grasping the standards for determining seaworthiness and unseaworthiness,and accurately determining the legal consequences of unseaworthiness.Secondly,in the practice of maritime trials in China,there are few cases where the carrier’s cargo management obligation is the focus of disputes,and more involve the carrier’s specific obligations for specific types of cargo transportation such as bulk cargo and container cargo.Thirdly,it is even rarer that China’s maritime trial practice involves the obligation of not to make unreasonable deviation.Finally,disputes on the delivery of goods without bills of lading have always accounted for a relatively high proportion in China’s maritime trials in recent years.Chapter 3 "Period of carrier’s liability in the carriage of goods by sea"mainly introduces the judicial practice of carrier’s liability in the carriage of goods by sea.The period of carrier’s liability for the carriage of goods by sea refers to the period during which the carrier shall be liable for the goods.In principle,it is the entire period during which the carriers are in charge of the goods.The period of liability for non-containerized cargo and containerized cargo in Chinese Maritime Code refers to the provisions of the Hague-Visby Rules and the Hamburg Rules respectively.Chinese Maritime Code(Revised Draft for Review)reflects the trend of extending the carrier’s liability period,but it has not received majority recognition.Chapter 4 "Exemptions for carrier’s liability in the carriage of goods by sea" mainly introduces the legislative evolution,legislative trend and judicial practice of the carrier’s exemption.The legislative controversy over the carrier’s exemption is mainly focused on the exemption from fault such as nautical fault and fire fault.During the revision of Chinese Maritime Code,some opinions also advocated the abolition of such exemption.According to China’s maritime adjudication practice,the fire that is the carrier’s exemption does not have to occur on board the ship or during the voyage.Judicial seizure as the carrier’s exemption does not include judicial seizure caused by the carrier or the actual carrier.For goods packed and stockpiled by the shipper,the packaging should also include the stowage in the container or pallet.Chapter 5 "Limitation of actions for contracts of carriage of goods by sea"mainly introduces the legal regime and judicial practice of limitation of actions for contracts of carriage of goods by sea.The legal regime of limitation of actions for contracts of carriage of goods by sea in China is mainly composed of Chinese Maritime Code,China Civil Code and judicial interpretations,such as Reply of the Supreme People’s Court on How to Determine the Limitation of Action of the Claim for Compensation in the Coastal and Inland Water Cargo Transportation.Chapter 6 is "Carrier’s Liability under the intersection of Carriage of maritime transport law and consumer protection law".International moving service by sea has developed rapidly in China in recent years.A contract of international moving service by sea has both the nature of the contract of carriage of goods by sea and the consumer contract.The limitation of the carrier’s liability is applicable to the case of loss,damage or delay in delivery of goods,and the punitive damages rule of the consumer contract law is aimed at the fraud of operators.The legislative purpose of the former is to encourage the development of the shipping industry by protecting the carriers,while the latter is to protect the consumers as weak parties by punishing the actual tortfeasors and deterring potential tortfeasors.The judicial practice in China generally recognizes that such contracts by other modes of transportation have the nature of consumer contracts,but most tend to avoid the application of punitive damages in two ways:one is to recognize the clauses of transportation documents on the limitation of liability are valid,and the second is to strictly judge whether the carrier constitutes a fraud.The limitation of the carrier’s liability and punitive damages can be both applied to the contracts of international moving service by sea at the same time,but the legal value behind the legal rules still has conflicts that are difficult to reconcile.In the future,legislation and judicial practice need to pay attention to the coordination of maritime transport law and consumer protection law.The Conclusion briefly sums up the core ideas in this dissertation. |
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