Present Situation And Development Prospect Of The Carrier's Liability Regime In The Carriage Of Goods By Sea

The carrier's liability regime directly regulates the allocation of the risks between the carrier and cargo owner. In maritime judicial practice, most cases involve the disputes concerning whether the carrier shall respond the liability and the scope of the liability. Thus, the carrier's liability regime set in a country has a close impact on developments of international navigation industry and international trade. In this sense, the carrier's liability regime is the core and bedrock in the legal system of whole carriage of goods by sea.This essay uses different legal interpretative methods to analyze the meanings of relevant provisions, to criticize and comb different opinions in different periods, to conclude and induce different judicial verdicts. On this basis, the author put forwards his own views on the meanings of relevant provisions, and descriptions and comments of the real operations of the laws. Then, combined with requirements of the international navigation industry and navigational techniques, and the renovation and changes, taking reference to the carrier's liability legislations of developed countries, the author put forward his opinions on revision of the carrier's liability, which is instrumental for the Chinese Maritime Code circle to propose its views in the course of the inaction of the draft, thus to maintain Chinese interests and to be reference for the revision of the carrier's liability regime in Chinese Maritime Code.This essay consists of four chapters.The first chapter introduces the historic evolution of the carrier's liability. The author gives an analysis of the process of transitions from the carrier's strict liability to the liability of incomplete fault, then to the liability of complete fault. Regarding the most controversial point in the strict liability—negligence in navigation, the author believes it is a matter of risk allocation and interest balance between the carrier and the cargo owner. And in the long run, the carrier's immunity from negligence in navigation shall be eliminated. This chapter gives a preliminary analysis on relevant international agreements, legislations in China and other nations, pointing out China Maritime Code is formed by drawing on other legislations with her own characteristics. The provisions concerning the risk allocation in Chinese Maritime Code need harmonization and improvement compared with uniform trend in international maritime transport law. The author proposes the perfection in the later revision of the Chinese Maritime Code.The second chapter first gives a detailed analysis of such compulsory duties as sea worthiness, keeping care for cargoes. With the fast development of modern science and technology, the sea worthiness has been severe in relevant legislations, so shall China Maritime Code do; duty of caring for cargo shall cover the whole period from the loading to discharging; duty of caring cargo is mandatory and can not be dismissed due to the participation of the shipper. And the author studies several practical issues regarding the carrier liability in international carriage of goods by sea. The essay probes into the legal liability for the carrier's delay in delivery, gives an analysis of the source and rationality of the default in delivery, points out the defects in the relevant provisions in the Chinese Maritime Code, suggests that these defects will be highlighted with the firmer control of the carrier in navigation, proposes"the situation in which cargoes have not been delivered at the designated port of discharge within the expressly agreed on or reasonable time constitutes delay in delivery"as a definition taken to perfect China Maritime Code. B/L is a certificate of the property rights, which is a sub-definition of the certificate of right, and constitutes a basis for the delivery. Delivering cargoes without original B/L is an overlapping state of tort and breach of contracts; therefore the liability shall be distinguished in accordance with the objective the plaintiff sues. Under the situation of delivering without original B/L but guaranty letter, such delivery in good faith is effective. Of course, the carrier can defend against liable subjects or negotiations.The third chapter focuses on the multi-modal transport operator (MTO) liability. International multi-model transport action consists of many parties, the legal relationship of which is quite complicated; because the subject, the content and the multi-modal transport documents have their specialties. The liability form, principle of liability and the limitation differ from those in single form transport. It is of key importance to adjust these relations so as to define the legal status of the MTO in order to balance the rights, obligations and liabilities. According to the present pertinent rules and legislations, there are two main forms of the MTO's liabilities, network liability system, uniform liability, and the amended network liability system and modified uniform liability system. The author approves of the view that principle of the MTO's liability shall be based on the strict liability, meanwhile the MTO shall be endowed with privilege enable him free from the negligence in navigation and fire. In addition, under the premium of strict liability, exemption causes could be provided in accordance with the transport law and the characteristic of the transport, however the operation shall be burdened with the proof of these exemption causes. The author gives a comparative analysis of the rules embodied in the different countries, major international conventions and those in Chinese Maritime Code. The author believes that limitation on the carrier's liability shall be set up under different transport forms, suggesting that Contract Law and Maritime Code shall both adopt the provisions on the limitations on MTO's liability involving transport by sea or by other ways.The fourth chapter prospects the uniform of the carrier's liability of international carriage of goods by sea. In this area, there are three major international conventions, which are adopted by the parties taking their political, economic interests. There discrepancy brings about many legal conflicts, which causes such series of questions as the instability in legal application, unfair competition in sea transportation, and commercial cost increase, which have negative effect on the development of the international trade and international sea transport. The uniform of the carriage of goods by sea is instrumental for the fair competition, reduction of the navigation risks and the expansion of the international economy. The unification is the long-run trend and in conformity with the development international navigation.