On The Concept And Liability Of Actual Carrier In Carriage Of Goods By Sea

The Chinese Maritime Code (CMC hereafter) models upon the Hamburg Rules to the effect that the concept of actual carrier is introduced so that the right, obligation and liability of the person performing the actual carriage of goods can be resolved and the cargo interests are granted an additional remedial means for loss of or damage to cargo. However, the relevant provisions of CMC in this respect exist deficiency and loophole. In this connection, the difficulties will arise in correctly understanding the relevant provisions as well as properly identifying the actual carrier and ascertaining the legal liability thereof.In this thesis, the origin of the legal regime of actual carrier is examined, and the legislative reason and intention of this regime are probed. And then, relevant provisions in respect of the concept and liability of actual carrier are expounded and interpreted.In the opinion of this author, where the relevant provisions of CMC are applied, the law should be interpreted and supplemented in the light of the real legislative intention. The tenns such as "entrust" and "performance of carriage of goods" shall be interpreted in broad sense with a view to enlarging the scope of actual carrier. The term of "liability" in Section 2, Chapter 4 of CMC should be respectively interpreted as obligation, right, exemption and liability by reference to its positions in different legal provisions so that the actual carrier shall undertake obligation and liability of the carrier as well as can enjoy right and exemption of the carrier. The deficiency resulting from thelack of provision of the scopes of several and joint liability between actual carrier and carrier should be resolved considering the purposive interpretation in narrow sense. That is to say, the actual carrier who has no relation with the section where cargo damages occur should be excluded from the liable persons, and the joint and several liability should only be borne by the actual carrier actually performing the section where the cargo damages occur and the carrier.