Study On Exception Clauses For International Shipping Carrier

Because of the specialty and great risks of the international shipping, almost all the relevant international conventions and maritime codes give some privilege to the carrier, who is the contact party, especially exclusion clauses. The exclusion clauses are widely used in the carriage of goods by sea. Exclusion clauses are very important tool to distinguish the liable party of the shipping contracts. Normally, the beneficiary of the exclusion clauses in the bills of lading is the carrier. The exclusion clauses can mitigate the great pressure of carrier due to international shipping risks. On the other side, the exclusions are at the risk of the cargo interests. Therefore, in order to protect cargo interests, there are strict limits for carrier to apply the exclusions clauses. In this thesis, the author will summarize and compare concerning rules of the international convention, Draft Convention on the Carriage of Goods and Maritime Code of the People's Republic of China, to make out how to apply, how to construe, how to limit those exclusion clauses.Chapter One of this thesis, the author cited and analyzed major exclusion clauses in the Hague Rules, the Hamburg Rules, Draft Convention on the Carriage of Goods, and Maritime Code of the People's Republic of China. All those clauses were divided into five kinds, such as excluded for negligence or fault, excluded for perils, for the omission of the shipper, for inherent defect of the goods, and Catch-all Clause. In view of the shipping and legal practices, we researched those clauses respectively on different liability rules, burden of proof and legal liability, and tried to give some useful advice to the general problems occurred in practices on exclusion clauses.Chapter Two is an introduction to the rules of the construction, which contains the rule of contra proferentem, the construction of negligence clause and the construction of the fundamental breach clause. The exclusions are quite useful for carrier. But those clauses must be construed and be applied strictly. So this part explained the rule of the construction applied in the judgment. Only construction in accordance with the special rules applied in Anglo-American courts can realize equity, justice and efficiency.Chapter Three cited the rules to limit the exclusion clauses, especially some most important incidents which can bar the carrier's right of escaping liability under the exclusion clauses. Such incidents for discussion are negligence in care of goods, unseaworthiness, and deviation. The carrier must try to avoid those incidents, so that they can apply the exclusions clauses successfully. And those rules can balance the liability between carriers and cargo interests.Since those exclusion clauses come into the world, they play a great rule in protecting the developments of international shipping trade. China is planning to be one of the biggest shipping countries. So those exclusion clauses, which are legal and widely accepted by courts in most countries, will do much favor to our country. Only know them more, they can service us better.