On Reform Of Carrier Liability Regime In The Law Of Carriage Of Goods By Sea

The regime of carrier liability in the law of carriage of goods by sea is the core of maritime law. The debate about its reform is a consistently controversial topic since 1970's. Recently, in the duration of preparing a new transport law draft by CMI, the discussion of this regime attracts many specialists' attention once more.This dissertation aims to analyze three relative issues concerned with the regime of carrier liability, that is the principle of completely fault liability, the cancellation of exception of nautical fault and the distribution of burden of proof in this regime. The returning to the principle of complete fault liability is the precedent condition of the cancellation of the exception of nautical fault. If the exception of nautical fault is cancelled, the allocation of burden proof will become a more important secondary tool to adjust the risk and benefit between the carriers and the cargo interests though it is mainly a regime of civil procedure. It is important to keep a balance among these three regulations for the sake of the reform mentioned above.By recalling the short history of the regime of carrier liability, the first chapter concludes that the new technology application in the ocean transportation, the shift of the carriers and the cargo interests' predominance and the change of political and economic conditions determine that it is necessary to reform of carrier liability regime.The second chapter analyzes the jurisprudence of carrier liability with a economic method and points out that the preferable value of carrier liability regime shall be efficiency. So promotion of the entire efficiency of ocean transportation shall be the guideline to the reform of this regime.Naturally in the third chapter the principle of complete fault liability, the cancellation of exception of nautical fault and the allocation of burden of proof are discussed in detail. From the historical analysis of carrier's liability legislature and judicial practice since Harter Act, I concludes: that from the very beginning of Harter Act, the court's decisions trended to limit the carrier's random superiority, it is an unavoidable result to cancel the exception of nautical fault and return to the principle of complete fault liability; that all the reasons object to cancel that exception is contributed to the path-dependence and the benefit group's objection which will gradually disappear when new transport law draft becomes convention due to the constant information exchange between both parties; that the allocation of burden proof, as a buffer for the plaintiff and defender, is still important to keep a balance between parties and the accumulation of judicial practice and precedence already made a well-arranged system which shall be highly respected and prudently reformed.