Port Operators In The Civil Legal Relationship Study

The Port Act of the People's Republic of China (hereinafter referred to as The Port Act) was promulgated on 28 June 2003 and was effective as of the date 1 January 2004. The implementation of The Port Act is a great progress in developing the legal system of port in China. However, The Port Act is mainly an administrative act in port due to the legislative reasons. At the same time, port, being an important product and operation site, is playing an important role in the civil legal relations. The civil legal relations in port operations are not regulated by The Port ACT, but that doesn't mean the problems of the civil legal relations in port operations don't exist. Due to the above reasons, this article chooses the civil legal relations in port operations as the topic and mainly probes into the civil legal responsibilities.This article is divided into two parts.The first part is general discourse, from chapter one to three, summarizes the factors of, the character of and the influence of the Himalaya Clause to the civil legal relations in port operations.The second part is respective discourse, from chapter four to seven, analyses and discusses the several aspects as the legal status of the port operator, liability principle, scope of compensation and liability limitation etc.Chapter one first analyses the concept of the port operator, pointing out the difference from the carrier, multimodel transport operator, freight forwarder and stevedore and the relations with the actual port operator. Section two mainly discusses two questions: the non-contractual compesation right of the port operator and the validity of the relative punishing provisions stipulated by the port operator.Chapter two first sums up the character of the civil legal relations in port operations, then focuses on the relations between the port operator and passanger, pointing out they are the relations of debtor and the third party in the contract for the third party. In China, they are direct legislative relations after The Port Act coming into force.Chapter three briefly reviews the appearance and the legitimacy of the Himalaya Clause. Section two researches the influence of it to the civil legalrelations in port operations, pointing out that to a certain extent, it could make the civil legal relations in port operations be protected under the tranport legal system.Chapter four first gives an account of the different opinions of the legal status of the port operator. Section two analyses the opinions on this issue and concludes that the port operator should be the independent operator and enjoy the rights and defences pertaining to carrier when she is entrusted by carrier. Section three introduces the history of the legal status of the port operator in China.Chapter five first briefs the concept, category and application in transport laws of the liability principle. Section two points out the strict liability principle should be applicable to port operator for all the port operations.Chapter six first briefs the concept of the scope of compensation. Section two analyses the provisions and understandings of the carrier's compensation scope. Lastly section three points out the range of, basic principle of and the predictable rule applying in the port operator's scope of compensation.Chapter seven first introduces the origin and significance of the liability limitation system. Section two gives an account of the argues on the limitation for port operator's liability, then points out the author's opinion and lastly analyses whether the port operator could limit her liability by contract.Du Juan (International Law Department) Directed by Professor.Jiang Zhengxiona...