The Evolution Of Carrier's Liability System In The Uniform Law Of International Carriage Of Goods By Sea

The carrier's liability system is the core content of the contract of carriage of goods by sea, as well as the basis of the carrier's rights and obligations. The carrier's liability in the uniform law of international carriage of goods by sea has evolved to reflect the obvious reinforcement of the carrier's liability. At present, the"Hague Rules", the"Hague-Visby Rules"and the"Hamburg Rules"coexist in the international carriage of goods by sea. Some major shipping countries have successively announced their new national laws about carriage of goods by sea. These domestic legislations have a common characteristic of the obvious reinforcement of the carrier's liability and are similar to the"Hamburg Rules"in much of the content. With the integration of the global economy and the rapid development of the shipping industry, the new international uniform law of carriage of goods by sea is necessary to be formulated. When CMI formulates the"Final Draft Outline Instrument", the carrier's liability system is still the focus of the debate on the reform of the system. By reviewing the history of the carrier's liability in the international law of carriage of goods by sea, this paper analyzes the rule of the evolution and its reasons. In the end of this paper, the author discusses the new development of the carrier's liability system in the"Final Draft Outline Instrument"and put forward some proposals.The first chapter discusses the reinforcement of the carrier's liability which is the rule of the evolution of the carrier's liability system in the uniform law of international carriage of goods by sea by reviewing the process of the evolution. In the period when the bill of lading came into being, the United Kingdom was the largest shipping country. According to the Common Law, public carrier assumes strict liability. Public carrier should be liable for loss or damage to the goods except the loss or damage resulting from the act of god, act of queen's enemies, inherent defect of the goods and the negligence of the owner of the goods. The carrier's assumption of the liability is not according to whether he has subjective fault. If there is loss or damage, the public carrier should assume the liability. If the carrier wants to reduce or remove his liability, the carrier should prove that there are some defensive grounds. As the strict liability is implied in the Common Law and the principle of freedom of contract is also legally recognized and protected, the carrier can change the contents of contract to limit their liability. This leads to the abuse of exemption clause and harms the interests of the owner of goods. Under such circumstances, the"Hague Rules"establishes a new carrier's liability on the basis of the American"Hart Act". The subjective fault is the necessary condition of the carrier's liability and the carrier assumes the responsibility of proving that he has no fault. The"Hague Rules"cited seventeen statutory exemption items which are not attributed to the carrier except the fault in navigation and management of the ship and the fire. Because of the special provisions about the fault in navigation and management of the ship, the carrier's liability which is established by"Hague Rules"is called the principal of incomplete default liability. It brings an end to the carrier's unlimited exemption. With the development of the international economy, trade and shipping, the"Hamburg Rules"came into being."Hamburg Rules"abolishes the fault exemption and establishes the principal of complete default liability. The carrier assumes liability for fault, even for fire if it is caused by the fault of the carrier or his agent or servant. Meanwhile,"Hamburg Rules"abolishes the exemption of navigation fault and provides that the carrier needs to assume liability for fire. It prolongs the period of the carrier's liability. Finally, the author discusses the results of the evolution of the carrier's liability, that is, the reinforcement of the carrier's liability.The second chapter analyzes the reasons for the evolution of the carrier's liability system in the uniform law of international carriage of goods by sea in four aspects. Firstly, starting from the trend of the publicity of private law, the author discusses the major manifestations of the publicity of private law which are the publicity of commercial law and the limitation of the freedom of contract. Then the author analyzes its influence to law of carriage of goods by sea which is the element of international commercial law. Accordingly, laws which provide mandatory provisions on the carrier's liability limit the freedom of contract and reinforce the carrier's liability. Secondly, the author discusses that reinforcement of the carrier's liability results from the characteristics of public transportation in three aspects, that is, the mandatory obligation of contracting, monopoly position and implied obligation under common law of the carrier's liability. Thirdly, the author discusses the relationship between the international trade and public transportation by their development. Initially public transportation was adjusted by merchant law, and then was limited by domestic law. The international law of carriage of goods by sea tends to unity under the trend of the uniform of international trade. The process of development is also a process of the limitation to the contract of international carriage by sea and the reinforcement of the carrier's liability. Finally, the author discusses that the reinforcement of carrier's liability is to balance the interests of both carrier and the shipper by introducing the development of the international law of carriage of goods by sea.The third chapter is mainly about the new development of carrier's liability system in the uniform law of international carriage of goods by sea, that is,"Final Draft Outline Instrument". The author discusses and estimates the new changes of the carrier's liability system in the"Final Draft Outline Instrument"by introducing its content. The"minimum mesh system"established by the"Final Draft Outline Instrument"is compatible with the current development of the shipping industry. The"Final Draft Outline Instrument"enlarges the scope of its application and prolongs the period of carrier's liability. It makes the carrier assume the liability in the whole process of transportation to restrain the relationship of contract with larger scope and longer period. The"Final Draft Outline Instrument"lists four patterns of the basis of carrier's liability, prolongs the period of carrier's liability and abolishes the exemption of navigation fault. The"Final Draft Outline Instrument"mainly absorbed merits of the previous international law of carriage of goods by sea and also has many breakthroughs and innovations. The"Final Draft Outline Instrument"is still under fierce discussions. And the different groups which are representatives of carrier and shipper's interests have yet stop their fighting. But the international uniform law of carriage of goods by sea should be consistent with the trend of the reinforcement of carrier's liability to suit the development of modern trade and shipping industry.The evolution of carrier's liability system in uniform law of carriage of goods by sea reflects the reinforcement of carrier's liability. With the rapid development of international economy, trade and shipping, this trend of the evolution is bound to be reflected in the new development of international uniform law of carriage of goods by sea. Meanwhile, Chinese"Maritime Law"will be improved in the trend to be consistent with the international uniform law of carriage of goods by sea.