Research On The Application Of International Maritime Custom

Maritime cases have close relationship with the fields of trade and insurance, etc, so the maritime judicature is very specialized and encountered with many different legal issues. But China's maritime legislation is far from perfection, and the conventions acceded by China is numbered. So China's courts are often encountered with the embarrassment of "no suitable rules to be applied" in judicial practice. Under this situation, courts need fill the gap with the international maritime custom.Considering the above situation, the author tries to make a systematic research on the application of international maritime custom. Based on the abundant materials and author's judicial experiences, the author combines the theoretical research with the study of cases, and makes the research according to the following chapters:Chapter 1 named general introduction to international maritime custom, expatiates the definition, features, origin, classification, nature of international maritime custom, and the necessity and possibility of application of international maritime custom.Chapter 2 named characterization, ascertainment and interpretation of international maritime custom, mainly analysis the methods of characterization, routes of ascertainment, and means of interpretation of international maritime custom.Chapter 3 called the conflict and settlement of international maritime custom, puts forward 5 ways and means of settling the conflict of international maritime custom.Chapter 4 named modes of application of international maritime custom, introduces the particular issues and basic modes of application of international maritime custom.Chapter 5 named conditions of application of international maritime custom, sums up 5 conditions of application of international maritime custom.Chapter 6 named status and perfection of application of international maritime custom in China, generalizes the main questions of application of international maritime custom in China, and puts forward some suggestions for perfecting the application: (1)the application of international maritime custom shall be subject to the relevant regulations and acts of China. (2) the judicature of maritime cases may refer to international maritime custom. (3) the application of international maritime custom shall keep pace with its progressive development.The author puts some new opinions on application of international maritime custom, including: (1) international maritime custom is not only a kind of law, but also the rules of law which shall be respected and applied positively in China's courts. (2) the rules of convention which have not been approved or acceded by China or the drafts of convention which have not come into force may be applied as international maritime custom. (3) the reasonable interpretation shall be given according to the course of negotiation and relative evidence which may prove the existence of corresponding international maritime custom following the insistence of national sovereignty. (4) the new application mode combining with the application of domestic law. (5) certain formulas for the settlement of the conflicts which may be encountered during the application of international maritime law.