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On To Modify The Interaction Between The Maritime And Maritime Liability Restriction System

Posted on:2005-08-04Degree:MasterType:Thesis
Country:ChinaCandidate:W T ZhangFull Text:PDF
GTID:2206360182956149Subject:International Law
Abstract/Summary:PDF Full Text Request
Nowadays, carriage of goods by sea, the broad adoption of which makes it an essential link in the modern international trade and commercial chain, is one of main modes of transportation in the world. As a special mechanism in the maritime field, limitation of liabilities for maritime claims is such an important issue that confuses and troubles shipowners as well as salvors. After the International Convention Relating to the Limitation of the Liability of Owners of Sea-going Ships, 1957 came into being and effect, preliminary frame has been achieved in the international level with regard to legal system of "shipowner's limitation of liabilities" which is the predecessor of "limitation of liabilities for maritime claims".In the operation of vessels, masters or crews' negligence and omission occasionally cause serious personal injuries and casualties or loss of property, the liability for which is likely to exceed the value of the offending vessel. Each country will limit such liabilities legally in order to safeguard its shipping industry as well as the interests of shipowners.Limitation of liabilities for maritime claims is a special and traditional maritime mechanism, under which the shipowners (including charterers and ship operators) and salvors, as parties liable for the occurrence of serious maritime accidents, are entitled to limit their liabilities to a certain amount in accordance with laws and therefore, the interests of shipowner are well protected.China, having reference to the Convention on Limitation of Liability for Maritime Claims, 1976, has formulated its own legal system with regard to the limitation of liabilities for maritime claims which is embodied by the Maritime Code of PRC. However, the provisions with regard to persons entitled to limitation of liability, claims subject to limitation of liability, claims not subject to limitation of liability, the principles of liability, limitation fund and its constitution are not inconformity with the international conventions and the legislation of main shipping countries, which produces tremendous disputes and doubts with regard to the mechanism of limitation of liabilities for maritime claims.Both Article 213 of the Maritime Code of PRC and Article 101 of the Maritime Procedure Law of PRC provide that a person held liable who wishes to apply for limitation of liability in accordance with the law may, after the occurrence of a maritime accident, file the application with a maritime court for constitution of a limitation fund for maritime claims. There is no absolute corresponding relationship between the limitation of liability for maritime claims and the constitution of limitation fund. The constitution of limitation fund is the procedural condition provided in the Maritime Procedure Law of PRC. The statutory condition upon which the person liable is entitled to limit its liability, i.e. the claims subject to limitation liability, provided in Maritime Code of PRC from Article 207 to Article 209, fall in the issues concerning liability defenses in the substantive disputes. There is obvious difference between them with regard to the laws and procedures applicable. However, in normal circumstances, maritime courts will examine the application in accordance with such substantive laws as the Maritime Code of PRC when an application for constitution of limitation fund is filed.Several typical cases recently tried by China's maritime courts with regard to limitation of liability for maritime claims have been quoted in this essay. Although maritime courts and high people's courts, in accordance with prevailing legislation and relevant provisions, have made right judgments and orders with regard to these cases, it can be discovered that, compared with the legislation in main shipping countries against the background of establishment and development of limitation of liability for maritime claims and the establishment of the definition of "vessel" in the Maritime Code of PRC, the orders made by our people's courts in accordance with prevailing legislation are unjust with regard to some specific vessels.Discussions, from the perspective of establishment of the mechanism of limitation of liability for maritime claims, the persons entitled to limitation of liability, and the circumstances upon which the right of limitation of liability can be enjoyed, are made in respect of the issue of limitation of liability for maritime claims in this essay through comparing and analyzing conventions in relation to limitation of liability, the legislation in main shipping countries and the relevant regulations and provisions of the Maritime Code of PRC and Ministry of Communication combined with some recent leading cases domestically and abroad selected and putting theory into practice. I would like to have this opportunity of amending the Maritime Code of PRC to point out the defects in the Maritime Code with regard to limitation of liability for maritime claims and propose some suggestions on amendment of the same.
Keywords/Search Tags:limitation of liability for maritime claims, scope of application, manager of ships, vessels sailing in inland rivers
PDF Full Text Request
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