Research On The Identification, Legal Status And Liability Of The Actual Carriers

The concept of actual carrier is correspondent with the carrier's definition .Actual carrier was established for the purpose of improving the system of distribution of liabilities in the international carriage of goods by sea. According to the mandatory provisions of the international maritime legislation, distribute the liability of compensation to the subjects who perform the carrier's duties under a contract of carriage. Keep the balance of interests between shippers and consignees. At the same time, leave the application space for the participants in the multimodal transportations. This paper give analysis mainly on the China Maritime Code (hereinafter referred to as CMC) and in conjunction with relevant international maritime legislation system.The first chapter discusses the definition of the actual carrier by reviewing the process of the evolution. The concept of the actual carrier was presented in the"Guadalajara convention"for the first time.With the development of international carriage of goods by sea rapidly, some new subjects who performed the duties of the carrier's but not the party of the contract of carriage of goods by sea came out. How to regulate the new subjects and define their legal status is a tuff issue. As to deal with it, the"actual carrier"was adopted into the"Hamburg Rules".China Maritime Code is similar to the"Hamburg Rules"in the much of the content .There are a lot of debates about the concept of the actual carrier. And the focus of these debates is the different interpretations of the three elements in the concept of the actual carrier. The three elements are"entrust","performance"and"transport". In order to give a more reasonable explanation to it, the paper use the methods of systematic interpretation and purpose interpretation. First,the actual carrier is not the party of the contract of carriage of goods by sea. There maybe one or more actual carriers but only one carrier in a transportation of goods by sea .Second, if there is a charter contract or a contract of carriage of goods between the carrier and the actual carrier,we can also consider it as the actual carrier have accepted the carrier's entrust. Third, the actual carrier must participate the transportation by himself .if he just accept the carrier's entrust and then entrusted it to the others ,we can not define it as a actual carrier .Forth, the form of the transportation includes the carriage of the goods on the land .The second chapter analyzes the liability of actual carrier under three main aspects .First, the quality of the liability for actual carrier. The CMC is a special law to the Civil Law .Many regulations in CMC belong to the exceptions of doctrine of privity and the freedom of the contract. On the premise of that and compare the basis of the default responsibility and the tort liability. Further demonstrate the malpractice of the tort liability, the author get the conclusion that the quality of the liability of the actual carrier is the default responsibility .Second, define the joint and several liability of the carrier and actual carrier according to the Article 63 of the CMC. Where both the carrier and the actual carrier are liable for compensation, they shall jointly be liable within the scope of such liability. Third, analyzes whether the actual carrier should be liable for the loss, damage or delay in delivery of the goods depends on the burden of proof, relationships and the scope of the liability of the carrier and actual carrier. The last point of the second chapter is about the distribution of liabilities between the carrier and actual carrier. The carrier shall nevertheless remain responsible for the entire carriage as he is the party of the contract of carriage of goods by sea. And the actual carrier just take the liability when the loss, damage or the delay in delivery of goods was happened in his charge.The third chapter is about the identification of actual carrier. Distinguish the legal status of actual carrier with the employee or agent of the carrier and the port operators.According to introduce the typical case and the adjudications of the maritime court in the carriage of goods by sea, we can define the concept and the liability of the actual carrier more clearly.The last chapter introduces the regulations concerning actual carrier underthe"1999COGSA"and UNCITRAL"Transport Law (draft)".According to it, the author puts forward some proposals about modifying the regulations about the actual carrier under the CMC. The"maritime performing party"put out from the UNCITRAL"Transport Law(draft)"is a new development and compatible with the current development of the shipping industry. To avoid the debates, the draft have substituted the"entrust","trans-entrust"for"at the carrier's request or under the carrier's control or supervision, either directly or indirectly"or"physically performs"in the concept of the performing party. which expands the period of actual carrier's liabilities from the sea to the land. And including all the operations of loading, discharge, storage, care services on the land. The draft enlarges the applicable scope of actual carrier. The delegations participated in the NEW YORK conference have widely accepted it. Neither of the two drafts use the mode of regulating the liability of actual carrier counterpart to the carrier's. Both of the drafts list the rights, duties, liabilities of the actual carrier and the carrier respectively .That is helpful to protect the shipper's interests. In order to improve the systems of the actual carrier under the CMC, the author puts forward suggestions as follows: First, avoid to use the obstacle words in the definition of the actual carrier such as"entrust".Second, enlarge the interpretation of the meaning of transport, which includes the transport-related services on land. Third, actual carrier will be liable for compensation on the premise that he had breached the obligations under the contract of carriage of goods by sea. Fourth, regulate the rights, duties, liabilities of the actual carrier and carrier respectively. Fifth, the actual carrier will take the burden of proof .