Discussion On The Freedom Of Contract In The Carriage Of Goods By Sea Act

The freedom of contract is one of the three principles of modern civil law, and the cornerstone of private law. As a branch of private law, Carriage of Goods by Sea Act, is dominated by the principle of freedom of contract. Due to the existing laws in this branch tend to restrict the freedom of contract. And have reached a considerable degree. Based on the view of freedom of contract, this article analyzed the Carriage of Goods by Sea Act. Through this way, I hope to explore the deepest function in this area, and open a new development of the Carriage of Goods by Sea.The paper is divided into four chapters:Chapter 1: The freedom of contract and the development of the Carriage of Goods by Sea Act. First, the author provides a brief description of the principle of freedom of contract. It includes the development of the principle of freedom of contract and the elements contained in it. The author believes that the development of the principle of freedom of contract have experienced four stages: original stage,resting stage,active stage and stable stage. Different stage of development is decided by the different economic factors. After explaining the phases, it is necessary to extract the elements of the theory. In my view, the autonomy of the will,the limits of the contractual freedom and the contractual justice are the three core elements of the theory of freedom of contract. These three elements grasp the principle of freedom of contract from internal, external and overall aspects and consolidate the status of the principle of freedom in the contract. After explaining the theory, it could be inferred the role of the theory in the carriage of goods by sea act. The clue of the Hague Rules, the Visby Rules and the Hamburg Rules is the freedom of contract. The three rules increased the limits of contractual freedom; the Hamburg Rules is the most stringent. However, the ultimate goal of these three rules is the freedom of expression and the justice of contract. Chapter 2: The position of contractual freedom in the Carriage of Goods by Sea Act. This chapter addresses the status of the principle of freedom of Contract in the Carriage of Goods by Sea Act, which through some aspects of the principle. Concerning the freedom of whether or not establish a contract and chose a relative party, it mainly focused on discussing this aspect on the public transport contracts. By listing the CMC of the major countries, they explain such a conclusion: the limits of this aspect is mainly concentrated in the area of the public transport contract, the main reason is that the contracting parties had unequal status. Section 2 is mainly about the contents of the contract. By listing and comparing the CMC of the major countries, conclusions are drawn as follows: First, the parties of the time charterparty and the multi-transport contract must obey the three obligations, except these they had the rights to determine the contents. So the parties had more freedom to determine the contract; Second, the bill of lading involved in the liner shipping contracts, expect the three obligations , the carrier must abide other restrictive provisions. In other words, the carrier is not allowed to detract from the obligations stipulated by laws. On the freedom of dismissal, every country had two aspects of provisions. By consensus the parties are able to dismiss the contract, which is the proper meaning of freedom of contract, not corroboration. On the other hand, about legal dismissal, a tendency to protect the interests of the shipper, this design reflects COGSA's characteristics. Most of the shippers are the parties of the sale's contract, when the conflict happened between the sale's contract and the transport contract, the interest of the sale's contract is primary. Thus, every country stipulates the shipper's legal dismissal. Finally, the freedom of choice of law and the resolution of dispute methods, which the freedom from the two main aspects: First, the contracts of carriage of goods by sea; Second, the bill of lading. With regard to the former, these are the terms of the contract, and independent existences of the contract. It is obvious to bind the parties. About the latter, it is complex. This represented on the important clause and the jurisdiction clause of the bill of lading. If the bill of lading only fixed between the parties, this is not complicated. However, when the bill of lading comes into circulation, the problem is very conspicuous. If it is measured by the freedom of contract, the holder should not be subject to the terms. However, when the bill of lading is the contract itself, it carries the freedom, the holder should be bound by the bill of lading. Moreover, when it comes to a FOB, CIF contracts trade, the third person's holding the bill of lading is inevitable. How to resolve the demurral by the third party, this practice is worthy of concerning.Chapter 3: The theory of the freedom of contract and the legislative trends of the Carriage of Goods by Sea Act. First, by analyzing the function of the freedom of contract in the contract law, the author wants to derive its main function in the Carriage of Goods by Sea Act. The freedom of contract in the law of contract is to promote the trade and balance the parties; these two functions formed its unique function in the contract law. This principle had the similar role in the Carriage of Goods by Sea Act. Based on such a basic concept, sum up all the advantages and disadvantages of the existing Convention, CMI was entrusted with the drafting of the Uniform Act. They hoped that they can manage every area of the transport law, end the conflict of the law era. It is possible that formulating a unified convention only restricted to the area of Carriage of Goods by Sea Act, and it is extremely necessary. The limits of contractual freedom and the freedom of contract on the'Draft Instrument on Transport Law'are forward-looking compared with other conventions, and bring the provision of the volume contract. It opened a window for the freedom of contract which will return to the liner. Analysis of the "draft" can be drawn from these findings: first of all, the "Draft" intents to balance the power of freedom and limit, it is a transition that the limits had the important status. Secondly, the significance of these changes is mainly in the contents of the contract, the choice of law and whether or not to deal contract etc. Thirdly, from the "draft" we can see that the freedom of contract will return to the Carriage of Goods by Sea.The freedom of contract is the clue of the development of the Carriage of Goods by Sea Act. And it guides the direction of the development in this area. However, we should clearly know the limitations of the contractual freedom in this area. The decisive factor is the limited resources. Moreover, the maritime transport of goods subjects to the trade in goods. The status affects the legislative purpose -- to promote the development of the trade. So, how to balance the interests between them, how to rank those benefits, the future legislation must concern on them.