Discussion On The Establishment Of Liability Limitation System For Port Operators

Port, which is the essential hub of international transportation of goods by sea, has been fully developed as the transportation of goods by sea is extending from the ocean to the land. Accordingly, there's an increasing number of disputes in respect of the port operation. However, while reviewing the existing laws and regulations about port and transportation in our country, we can find a great blank in the provision regarding the liability system of port operators. Meanwhile, the determination of port operator's legal status was not unified in the judicial practice of our country. Therefore, it's still quite uncertain about whether port operator is entitled to limit it's liability under the existing legal system of our country.Although the Convention specifically made to regulate the liability of port operators had not become effective yet, when looking into the development of"Himalaya Clause"and the liability system in the international conventions on the carriage of goods by sea, we can clearly figure out that the international community is tending to grant the right of liability limitation to the port operators. In my view, to grant the right of liability limitation to the port operator is not only a trend, but also a great necessity.In this paper, I try to analyze the three modes adopted by the current conventions and typical legislations of certain counties to grant the right of liability limitation to the port operators. At the same time, I try to work out the proper mode for our country to establish the liability limitation system of port operator by giving consideration to the actual state of our legal system and the legal status of port operator. In my opinion, it's the most ideal way for us to grant the right of liability limitation to the port operator by special legislation, but it's not feasible in China in a short term. While discussing the liability limitation of port operator, the fundamental part lies in the proper determination of port operator's legal status. The concepts of"actual carrier"and"maritime performing party"are not comprehensive, only cover those port operators that are commissioned by the carries. Furthermore, according to laws and legal principles of our country, port operators are neither carrier's servant nor carrier's agent. Port operator should be identified as the independent contractor. We can refer to the relevant provisions in Taiwan Maritime Law, extending the statutory"Himalaya Clause"so as to entitle the port operator to the liability limitation right in a flexible way.Finally, in the last Chapter of this paper, I analyze the port operator's period of responsibility, the determination of the liability limits, the circumstance under which port operators will lose the right of liability, with an purpose to make certain proposal on the detailed issue regarding the establishment of port operator's liability limitation system.