| The Contract Law of P.R.C was ratified and then came into effect on Oct.1, 1999. The principle of market exchange and many new rules were initially completely built in China. The new Contract Law adapts to the needs of the development of Chinese economy and will bring many important influences on all kinds of commercial contracts. As we know, the relation between contract and Contract of carriage of goods by sea is general law and special law. So, with the change of contract law, Contract of carriage of goods by sea will change. After the adoption of the Contract Law of China, it will, I think, deeply influence Contract of carriage of goods by sea of China.In this thesis, what I firstly introduce is the relation between contract law and Contract of carriage of goods by sea, secondly about the relation in two legal system, namely Common law system and Civil law System, thirdly the regulations on Contract of carriage of goods by sea in international convention and routine, last is something about the Contract Law of China and Contract of carriage of goods by sea of China. Some new theories such as equality and free will, equity, good faith, standard contract, and all kinds of defenses, which adapting to the requirements of markets economy, are made out in the Contract Law.The article will study six questions about the influence of the new Contract Law on the Contract of the carriage of goods by sea. Such as:Formation of Contract of Carriage of Goods by Sea According todifferent circumstances occurred in practice, consideration about various kinds of contracts of carriage of goods by sea is made. And the standard form's influence on those kinds of contracts is also studied here.The Freight-prepaid To collect freight is the basic right of the carrier, thefreight is untouched and can't be reduced is an old maritime practice, but the provision of Contract Law had changes the situation, the risk of freight in transit should be born by the carrier, if loss of goods occurs because of force majeure, the carrier have no right to collect the freight, except as otherwise provided for in the contract.Lien of Carrier In accordance with the Contract Law, the carrier has a lienon the goods transported, and the ownership of subject matter have nothing to do with the lien. But in the Maritime Code, the carrier has the right of lien on the goods, which own to the debtor. The condition of carrier's lien depends on the difference of the navigating area is unreasonable. In order to secure and protect the legitimate rights and interests of the carrier, as a rule the lien on goods shouldn't be limited by the ownership of subject matter. The carrier may exercise the lien on goods by the manner of applying for seizure of the goods. But the Law of Special Proceeding of Maritime Action stipulates that the subject matter of seizure should belong to the defendant, the provision restricts the manner of exercising the right of lien, so we can draw a conclusion that the provision is not reasonable.Alteration and Assignment of Contracts The Contract of carriage ofgoods by sea usually involves the benefits of a third party. So stipulation about their alteration and assignment will indicate some different characters.Unlawful Deviation The Article 94(4) of the Contract Law establishes theregime of the fundamental breach of contract first time, either party refuses to perform its obligation under the contract and thus makes realization of aim of the contract impossible, this kind of illegal activities constitution the fundamental breach. So, After the Contract Law came into force, unlawful deviation should be govern by the Contract Law, whether the unlawful deviation constitutes the fundamental breach or not is not certain.The Regime of Liability of Carrier Under the Contract Law, the carrier'sresponsibilities had changed to the certain degree, whether the carrier should liable for the loss of or damage to the goods, as well as from delay of delivery or not, depends on the regime of liability, thi... |
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