Comparative Research On The Liability Of Marine Carrier For His Performance Assistants Under Chinese Law And German Law

Performance assistants of carrier play a very important role in the carriage of goods by sea in modern times. Modern transport relies not only on the assistance of the carrier's employees such as captain and crew, but also on the assistance of the relative industry such as lighterage, stevedores, storage and so on. Moreover, most of damage to or loss of the cargo or delay in delivery of goods is caused by the performance assistants. Therefore, it is necessary to properly define the legal relations between contracting party and performance assistants, to clarify the legal status of performance assistants, carrier and shipowners, which would help to promote transaction efficiency, to balance the interests of concerning parties, to reduce commercial conflicts and also to increase the healthy development of shipping industry and trade .According to Arts.278 & 831 of HGB, as well as Arts.607 & 485 of BGB, all the conflicts concerning to performance assistants' fault and carrier's liability are supposed to be resolved. On the contrary, there are more clauses about performance assistants in CMC such as Arts.51 (12), 54, 58, 60 & 61, but gaps still exist. There is also no definition about performance assistants in Chinese civil law. The general rules do not coordinate with the special ones.In view of such a situation, this thesis focuses on the liability of carrier in the carriage of goods by sea for his performance assistants, compares the rules, precedents and theories under Chinese and under Germany law. It analyzes whether the carrier should take responsibility for his performance assistants and what kind of liability he should take because of his performance assistants' fault. Concerning the research methods, this thesis pays equal attention to functional comparative method and case study, with the help of thinking mode based on Anspruchgrundlage. This thesis systematically reviews regulations mentioned above in general civil law and maritime law in order to coordinate them.The context is compound of six parts including preface, Chapter 1 conatining the definition and kinds of performance assistants, Chapter 2 discussing performance assistants' fault and liability of obligor in civil law, Chapter 3 discussing performance assistants' fault and liability of the carrier, Chapter 4 putting forward suggestions on the amendment to CMC, and the conclusions.As a result of the analysis and comparative study of Chinese law and German law, this thesis puts forward five suggestions on the amendment to CMC including, inter alia, definition of a performance assistant and its category, carrier's liability for the fault of his performance assistants to the same extent as for his own fault, except the nautical fault.