On Basic Theoretical Problems Of Contract Liability For Damages Of Carrier In Carriage Of Goods By Sea

U nder the background of i nternationaI communjty's efforts to unifythe law of carriage ot goods and China's preparation of amending theChina Maritime Code, this paper, by referring tQ China's civil Iaw and~ contract Iaw theory and internationaI convention and foreign case lawand foreign authors' viewpoints, discusses the basic theoreticafprobIems of the liabiIity of the carrier in carriage Qf goods by sea inaccordance with China's Maritime Code. The problems touched in thepaper are as follows; the obligation of the carrier and the meaning ofcarrier's breach, the fau lt of the carrier, the losses for which the carrieris responsible; the causation between loss and breach.Chapter 1, the obligation of the carrier and the manifestation of hisbreach. I n generaI idea, seaworthy and care for goods and no deviationare carrier's basic obligations. From the common view that shipper candischarge his burden of proof by proving goods received in goodcondition and deIivered damaged, this author argues that the obI igationof the carrier is to deliver goods in condition received and in time byanaIyzi ng the reIationship between "goods received i n good conditionand dei ivered damaged )' and the "basic obIigations" ot the carrier. Thenthe manifestation and SQme specific probIems are touched in thisc h a pte r.Chapter 2, the fauIt of the carrier. The author fir5tIy anaIyze theslgnificance of fauit, and submit that fauIt must be discussed jndeciding the IiabiIity of carrier whether the Iiability of the carrier isstrict or not. Then the author argues that the ItabiIity of the carrier. under the China Maritime Code is strict by referring the general viewthat carrier can not rebut h is Iiability by simply d isprove fau lt. After thatthe authQr argues that the carrier'5 fault is embodied by omission intaking necessary measures required to discharge the carrier'sobIigation, and the meaSures include to exercise due di l igence to makethe ship seaworthy. The author also discuss how to prove fauIt of thecarrier by anaIyze the reIationship between fauIt and exemption cIauseand the basis for the carrier's responsibil ity for the Ioss caused by hisservant, agent and independent contractor.chapter 3, the Iosses tor which the carrier is responsi ble. The authorSubmit that carrier shouId responsible for the economic Ioss such asprofit in responding to the controversy existed now that whether thecarrier is responsibIe for vaIue of the goods onIy.Chapter 4, the causation between loss and breach. The ways andcriterions in judging cau5ation are various in present. The author arguesthat two step shouId be taken to judge the causation properly. The firststep is to anaIyze whether causation in fact is decided according to thebut for ruIe; the second step to anaIyze whether causation in Iaw isdecided according the foreseeabiIity ruIe. From those steps thecausation can be decided and the scope of the carrier's Iiability is fixed.Jiang Yifeng (lnternationaI Iaw)Directed by...