| According to China's Maritime Code, the liabiIity of breaching a contract ofcarriage of goods by sea is determined by whether the breaching party has f8ult ornot, While it aIso stipuIates in ArticIe 51 that; "The carrier shaII not be Iiable fOr theloss of or damage to the goods occurred during the period of carrier'sresponsibility arising or resulting from any of the fOIIowing causes((1 ) Fault of theMasteF, crew members, pilot or servant of the carrier in the navigation ormanagement of the ship". That is the reason why our maritime Iaw scholars namethe Iiability system as "incompIete fauIt liabiIity basis". On the other hand, theshipper shall not onIy be liable for his fauIt, but aIso for the vioIation of theguarantee in ArticIe 68 which are granted as a striCt IiabiIity by the maritime court.Now we can draw a concIusion that there exists an inequaIity of right and liabilitybetWeen the carrier and shipper in China's maritime law Considerinb thatdangerous goods are a threat to the ship and its creW and the shipper is theperson who knows the danger of the goods and how to prevent it, the authoraccepts that it is understandable to put a strict IiabiIity on the shipper who consignsdangerous goods. In contrast, the author believes that it is unreasonabIe that thecarrier have immunity from the fault of his crew under up-todate navigationcondition. The author will justify his opinion by;(1) Discussing the history of liabiIity basis system and the evoIution of its civiIIaw standardiThe IiabiIity basis system experienced objeCtive distribution stage tosubjective stage, which indicates the negation of subjective f8ult. And theapplication of the striCt IiabiIity principIe imposes larger responsibiIity on the debtorWhiIe China's Maritime Code stipulates that the carrier shaII be immune from theresponsibility occurred or resuIted from his creW which deviates from the moderndeveIopment of liabiIity basis system.The basic notions of civiI laW i.e. the civiI law standard, was deveIoped fromIiability standard to right standard under whiCh human rights was enIarged greatlyIn recent decades, the civiI law standard has evolved to society standard,' whichemphasizes the proteCtion of pubIic interests and the weIf8re of weak socialgroups. In practice of carriage of goods by sea, the individuaI shipper is theconsumer of service, beIongs to a weak social group, so that the party who needsproteCtion by the Iaw shaII be the shipper but not the carrieL HoweveF. the case isthat the maritime law immunes the carrier from the liability of navigation negIeCt,which severely ignores the evolution of the civiI law standard.(2) AnaIyzing the effects of tWo diff8rent kinds of distribution of liability fFom alegal economics viewpoint.Legal economics theories believe that if an act andlor a Iaw theory isreasonable, it will maximize the sociaI wealth.The effeCts of tWo different kinds of distribution of Iiability indicate that, in orderto maximize the sociaI weaIth, it is more desirabIe to impose the f8ult liability onthe carrier, because the ship owner is in charge of the ship and the goods during avoyage. lf we canceI the carrier's immunity of navigation negleCt, the ship ownerwiIl pay more attention to the management of its crew members, and the crewmembers wiIl aIso be more carefuI in their voyage because of the incitation of theirshipping company The resuIt is. Iess maritime accidents happen and more sociaIwealth is saved, which concords to the opinion of legal economics.(3) Comparing the diff9rent social conditions betWeen the years in whichimmunity of navigation negIeCt appeared and the recent years.ln 19th century the navigationaI teChniques were undeveloped, once the shipleft the dock, the ship owner could not control the ship and his crew effeCtiveIy andoften the ship never came back because Of great sea periIs. W8 aIl know thereason an employer shaII be responsibIe fOr his employee's fau... |
PDF Full Text Request