On Conflict Of Maritime Tort Law

In civil law,tort is defined as negligent acts which lead to the injure to person or property and no-fault acts which are asked to take on the compensation liability for damages by a special statutory provision. So we can see the tort as followed: the subject of tort liability includes natural person and juridical person. The imputation principle is the consolidation of subjective imputation principle and objective imputation principle. Furthermore,the subjective imputation principle is the general principle and the application of the objective imputation principle must be ruled clearly by law. The object of encroachment is person or property and the trespass is not only a behavior but also a result of the behavior. As to the violation of legal duty,it includes the trespass itself and the result of the trespass. In general,the maritime tort is regarded as a special kind of tort because of its similarity with tort in civil law. So according to the Chinese Maritime Law,the writer of this dissertation gives it a definition: the maritime tort is negligent acts which give rise to the injure to person or the damages to property and no-fault acts which must take on the compensation liability for a special statutory provision, which takes place on the sea or the territory conjured to sea. Moreover,on the basis of the territory, the torts on the sea are classified to two parts: torts on the High Seas and torts on the Territory Seas. Because of the differences of legal tradition,economical development situation and the policy of a country,there are numerous distinctions among the law of maritime tort ,which make the conflict of tort law be inevitable. So the conflict of maritime law is comprehensive and multiple. In the view of above ,the writer believe that it is embodied on five aspects. First of all, the general elements of tort. For example, to the ship collision, a ship is the subject of a maritime tort in one country, to the contrary, it will not be a suitable subject of the maritime tort in another country. and then, on the definition of the fault of a ship collision,"factual presumption of fault"principle is applied in some countries. It means that when there happens a both to blame collision, if the injured party can testify the fact of actual loss and damages and other relative facts, The court (or the judge) will presume that another party has a fault in the ship collision incident unless he can prove that the damage is not avoided or he has no fault or his fault is not the reason of the incident. At the same time, some countries adopt the "Statutory presumption of fault"principle .according to the principle, when a ship violate the voyage rules(including the international rules and national rules),the ship will be presumed a fault unless it can prove that violating the rules is necessary for that situation or the violation of the rules is not the reason of the ship collision. Secondly, the subject taking civil liability and the domain of the civil liability. For instance, to an oil pollution tort, the subjects include the owner of the ship,the insurer and the guarantee in some countries, while it consist of anybody who own the ship or manage the ship and bareboat charter the ship in other countries. So the domain of latter is much wider than the former. The domain of compensation is alike as well. Thirdly, the amount,principle and standard of the compensation. Generally, the amount of compensation is higher in developed countries than in developing countries. As to the principle of the compensation, some subjects of the maritime tort liability of the ship collision will compensate according to the scale of their fault. At the same time, the other subjects must take a half loss and damages, whatever they have a fault or not in the ship collision. In English countries the foresight is the standard of the compensation. In another word, the foreseeable damages must be compensated. However, in continental countries the standard is not accepted. Fourthly, the limitation of tortious compensation. This system is a characteristic of the maritime law, which is to help the development of the maritime transportation all over the world. above all, there exists a great many of differences on the style of limitation. Nowadays there are four styles asfollowed. It is the"system of abandonment","system of perform","system of amount"and "system of combination"which uses both of the"system of amount"and "system of ship-value".according to the "system of amount",the liability of ship -owner is limited in the ship value itself and the freight of the voyage. Because the ship-owner must take on a unlimited liability for the acts of his agent and employee, even though the ship-owner himself has not any fault. In "system of perform",the party injured can have the claim against the ship wrong doing to compensate the damages which are limited in the fixed property such as the ship and the freight and so on. To these property, the claimer can appeal the court for perform by force, but they can not appeal for performing the other property. The content of the "system of amount"is that the debt which the ship-owner must take on in a incident will be a consequence of multiplying the weight and the limited amount of every tone of the ship, the compensation liability of the ship-owner shall be in this domain. As for the "system of combination",it asks the ship-owner to take on such a liability that the compensation must be controlled under the value of the ship. If the ship is to be in a constructive total loss, the ship-owner will not take any liability for the damages. This is related to the "system of ship-value",because in "system of ship-value"the debt of the ship-owner for the incident of ship is limited in the domain of the ship value and freight when the voyage has been over. It does not calculate the times of the ship incident taken place, its limitation of compensation is always the value of the ship. The next, on the application of the limitation of the compensation. It is stricter in some countries than in other countries. The last, on the amount of the limitation of the compensation. Its differences are great in each country. Every country makes laws based on its own present situation. Fifthly, the statutory limitation period system. in international private law, the prescription is regarded as a procedure issue in English countries, it is governed by the lex fori in principle. On the contrary this is a substantive issue in continental countries.Furthermore, the statutory limitation period is various in different countries. It is two years in some territories as well as three years in other territories. Just for the extensive existence of the conflict of maritime tort law, the judges have to face the challenge of that to decide where and which law shall be used to solve the conflict of maritime tort law. In this dissertation the writer has analyzed several methods which are used to solve the issue of the choice of law. Through a careful analysis of these methods used to choose a law, The writer believe that every method is not perfect. each of them has its advantages and disadvantages. For example, on one side , the lex loci delicit is favorable to carrying out the definition of law and the identity of the court decision. On the other, it shows its inflexibility and the trendy of neglecting the justice of the court decision as well. It has not been able to satisfy the need of solving the conflict of law in modern world. On the contrary, the principle of closest connection is so flexible that it can realize the justice of court decision, but its default is also very clearly. Because it deeply depends on the judges, the quality of judge influences the court decision greatly. And just for this, the principle makes the court decision instable. For instance, there are many times that using the same principle different judges apply different laws. The result is that the court decision will so different that people have a doubt to it. The lex fori is meaningful to stand up for the sovereignty and keep the society in order but its application will also lead to the choice of court and getting different court decision in respective country. The most but not the least, the lex fori expands the application of native law excessively, this is not identical with the aim of international private law. It seems that the eclectic principle evades the shortcoming of using the lex loci delicit or lex fori separately. As matter of a fact, it also does not break away from the traditional idea of the choice of law. It is not a perfect method of solving the conflict of maritime tort law. The law of flag state is good for the realizing of identity of maritime tort law. It can save the judicial cost and improve the judicial efficiency as well,because it is very simple and clear. But it also exists differences when the ship collision happens on the sea. The most important thing is that the law of flag state is challenged by the vessel flying flags of convenience,double or multiple nationality and bareboat charter. The part autonomy doctrine embodies the spirit of civil law and realizes the dream of the civil law. It strengthens the flexibility of law which help to protect the interest of both parties. But unlimited freedom makes no freedom, so the application of this principle is often restricted. At the beginning of the last section of this passage, the writer gives a brief introduction of some basic principles of law value and points out that among the basic form of the law values, such as justice, order, efficiency and safety, justice and efficiency are the most important ones. Base on the analyzing of the justice and efficiency which are opposed to but at the same time consolidate into each other, The writer believes that these two things are not completely opposite to each other and on the contrary they can go in harmony with each other. The value of maritime tort law, as a part of the law value, also applies for the common theory about the value. And the tropism of the value of the maritime tort law is also shown in the forms of justice and efficiency. But, because of the particularity of relationship of maritime tort law, the level of the justice value of traditional maritime tort law seems very low. However, with the world economy stepping into globalization, the globalization of the economic life has a deep effect on the social life as well as the law. At the same time, the legal system of the civil rights has been formed, and this along with the develop of the ship industry in developing countries and the improvement of the consolidation in international maritime law, make the aim of justice value get more recognitions. Then make it go harmoniously with the efficiency value. So, the writer believes, the harmonious develop of the justice and efficiency value is going to become the trend of the value of the later maritime tort law. Secondly, the writer also makes a brief review on the...