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The Application Of Laws In Maritime Legal Relationship

Posted on:2005-04-27Degree:MasterType:Thesis
Country:ChinaCandidate:Y GongFull Text:PDF
GTID:2156360122499393Subject:Law
Abstract/Summary:PDF Full Text Request
Provided conducting a historical research, one can deeply understand the subject, therefore, based on the origin and development described in Part 1 of the article, the author points out the developing trend of the application of maritime conflict law. Ocean shipping has international factors, nevertheless maritime law of different countries is domestic law, and therefore the conflict of laws is unavoidable. Aiming to solve the problem, many nations resort to concluding international treaties with other nations and amending its own domestic law, which are two approaches to the unification of maritime laws in different countries. The development process of maritime conflict law, which is from unification to diversification, and then from diversification to unification, is closely connected with the background of international private law unification. The concerned nations in the way of concluding bilateral and multilateral international treaties stipulate substantive law, therefore directly ascertain the right and obligation of the parties in the legal relationship involving foreign elements. It is a trend that unified substantive law is used to solve the problem of conflict of maritime laws, but the method inevitably has its own limitation, so that the development of maritime conflict laws should not be hampered, nevertheless the application of conflict rules to maritime law conflict still plays an important role, and the rules should not be replaced by unified substantive law.The Application of maritime conflict law is defined as choosing a law from different countries to adjust the relationship of the parties in maritime affairs with foreign elements. The legal relationship is mainly related to ships and carriage of goods, which is various and complicated, therefore the adjustment to the relationship has its own special characteristics. At first, the Part 2 briefly reviews the five characteristics of maritime conflict law, i.e. a large number of international conventions, importance of international custom, emphasis on "priority of international convention", prominence of law of the flag and backward in the traditional conflict rules.There are no laws applied not to a certain field, and the maritime conflict law is not an exception, which can be found almost in all law legal departments, therefore it is necessary to survey the application fields of maritime conflict law. With this regards, the second section of this part classifies the application into six types, which are three property rights, i.e. ownership, mortgage and maritime lien, contract of carriage, collision, salvage, and general average. In the maritime jurisdiction, a series of rules of maritime conflict law appear in both international conventions and domestic legislation, which are playing an important role in settling legal disputes. In Part 3, five conflict rules of maritime conflict law are reviewed in details, which are law of the flag, lex fori, party autonomy , "most closely connected" principle, lex loci delicti cmommossi, law of the adjustment base. Then, accordingly the article analyzes the six application types in the real practice.Last but not the least, the article proposes some suggestions to improve application of maritime conflict rules in our country, which absorb the advanced experience of the other countries, and are the current practice throughout international community. Nevertheless the development of the maritime conflict rules are lagged behind compared with the other conflict rules; therefore there is deficiency in legislation and real practice, which is evident in the application of "most closely connected" principle and law of the flag. Through reviewing current system, the author suggests that we apply "genuine link" to the exceptional clauses of law of the flag, and "contract element analysis" to "most closely connected" principle, so as to improve the current application of the maritime conflict law.
Keywords/Search Tags:Relationship
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