The Theory And Practice Of Limitation Of Liability For Maritime Claims

According to international maritime conventions and china maritime laws,regulations and combining with maritime judicial practice, this paper discusses and researches several theories and practices of limitation of liability for maritime claims. This paper considers that: Limitation of liability for maritime claims is a maritime legal system that has a long history, and it is different from compensation principle. 《International Convention Relating to Limitation of the Liability of Owners of Seagoing Ships, 1957》 and《Convention on Limitation of Liability for Maritime Claims, 1976》 present a uniform tendency, it includes: subject of limitation of liability,promoting the development of shipping business; raising amount of limitation of liability,limiting liability reasonably; special protection of loss of life or personal injury by sea, and benefiting creditor and the person liable in the ways of claims. Limitation of liability for maritime claims is a statutory right of the subject of limitation of liability; its legal feature is reflected in the special subject, the restrictive liability, the definite right and the compulsory responsibility. After about one hundred years operation of the international maritime circle, same opinion about the regulating scope of limitation of liability for maritime claims has reached, completing system has formed, the system includes: the subject of limitation of liability for maritime claims, the scope of limited claim and unlimited claim, the standard amount of claim and the conditions of forfeiting the limitation of liability, etc. Aiming at several theories and practices of limitation of liability for maritime claims, the paper sets forth following opinions: 1,Whether NVOCC has the right of limitation of liability for maritime claims. The law ascertains the subject of the limitation of liability bases on the risk and interest of vessels' management and operation. NVOCC do not own vessels, and they do not bear any liability to vessel, therefore they do not have benefit of vessel. Even though they bear the same liability as the subject of limitation of liability, they do not have the right of limitation of liability. 2,Character of limitation of liability for maritime claims. Limitation of liability for maritime claims is in the scope of civil right to defense, and it is a right to defense maritime claim; right to defense can only be used during the procedure that the creditor exercises his obligation claim; in the form of actions, limitation of liability for maritime claims is not an independent action because it has no subject-matter; the person entitled to limitation of liability for maritime claims cannot make counterclaim to allege or offset the claim of the creditor; the right of the person liable to allege limitation of liability for maritime claims is not restricted by the limitation of actions. 3,Burden of proof of limitation of liability for maritime claims. The burden of proof of limitation of liability for maritime claims refers to whether the creditor's right is a limited obligation and whether the person liable forfeits the limitation of liability. The person liable bears the consequential burden of proof to show whether the creditor's right is a limited obligation; the creditor bears the consequential burden of proof to show whether the person liable forfeits the limitation of liability; the creditor's alleging to register the claim basing on the court's publication is not construed self-authentication about the character of the claim and the person liable entitled to limitation of liability for maritime claims. 4,Relationship between limitation of liability for maritime claims and limitation fund for maritime claims. Whether the person liable forfeits limitation of liability for maritime claims is not the standard of examining constitution of limitation fund for maritime claims, the effect to creditor's right after constitution of limitation fund for maritime claim, the procedure to deal unlimited cre...