Carriage Of Goods By The Carrier's Liability Problem

Regulation on carriers' obligation and responsibility is always focus of maritime legislation. The existing international treaties on maritime shipping contract, such as Hague Rules, Visby Rules and Hamburger Rules, all purpose to focus on defining the minimum compulsory obligation. Legal system of maritime carriers' responsibility distinguishes itself from other legal systems with highly internationalized integrity in its development and evolution. Nowadays, this traditional system is challenged by some new trends in practice and legislation at home and abroad. Therefore, divergence of regulation on some basic responsibility concerning carriers widely exists between different countries and regions due to legislative difference on maritime shipping in the world. And misunderstanding and controversy have long been an unsettled problem due to the vague expression on this issue in both international conventions and laws of different countries and regions. This paper tries to explore this issue by: 1). reviewing the historical evolution of doctrine of liability fixation of carriers; 2). analyzing the evolution process of carrier's responsibility system from principle of strict liability to imperfect liability for negligence and to responsibility system for full negligence, focusing on such representative issues as: voyage negligence, deferred delivery, multiple combined transportation and dispatch without bill; 3). exploring some international legislation which will influence the practice of and legislation on international maritime shipping industry in a certain sense. 4). with reference to relevant regulation of Maritime Law of the People's Republic of China, analyzing in detail legal system of responsibility of carriers which is crucial to update, in light of the new trends of international maritime shipping and trade, the existing carriers' responsibility system which has somehow fallen behind the requirement of social and economic development. 5). Exploring, on the base of the analysis of the efforts that all countries and international organizations have made in their respective legislation, the prospect of a united legal system of responsibility concerning carriers.6).explaining the enlightenment and significance of the practice and efforts made by CMI for this end on the correspondent measures China should take and on the amendment of Maritime Law of PRC.This paper is composed of five parts. The first part introduces the historical evolution of doctrine of responsibility fixation concerning international freight transportation carrier. And also, in light of the reality of China, it further analyzes the doctrine of responsibility fixation adopted in Maritime Law in China and the divergence and conflicts with other laws. The 1993 Maritime Law of PRC basically adopted, due to the facts then.The legal system of responsibility concerning carriers established by Visby Rules which is followed by the majority countries in the world. The second part explores some typical problems found in maritime shipping industry. l).The definition of subject of responsibility concerning carriers, including the identification of a carrier and time limitation, in international maritime shipping disputes. The carrier shall enjoy the right of impunity if any loss or damage occurs due to matters within the coverage of catalog of exceptions in time limitation. But the carrier should fully perform its due diligence, including the obligation of seaworthiness, which is the first crucial factor for exemption, and proper management of the said cargo. 2).Liability for loss and damage. Where any loss or damage happened, whether or not shall the carrier bear unlimited liability? The common practice in both international conventions and laws of different countries and regions is that the carrier shall enjoy a special right, eg, unit damage compensation limitation principle.3) Deferred delivery, which is another troublesome problem common for the freighter and the carrier. Hamburger Rules defined for the first in international conventions deferred delivery and legal liability of the carrier. The author discusses in this part the rationality of stipulation of Maritime Law of the PRC on deferred delivery and further analyzes this issue from a jurisprudent perspective. Contrasting to the single liability system concerning international maritime shipping, the liability system concerning multiple international intermodal carriers is unique in aspects such as form of liability, doctrine of liability fixation and limitation of liability for compensation. The third part discusses the relevant international legislations in the recent years and their influence on international maritime legislation and China. the COGSA came out in 1999。The most important change in this law is the abolition of exemption of liability for navigation negligence of carriers. In order to improve the security system and practice of shipping company and shipping administration and to strengthen control over some man-made factors, the International Maritime Organization passed ISM. In a sense, it is of great significance of ISM to deal with issues concerning shipping management security and its influence on China to which Chinese maritime experts shall attach enough importance is also very obvious. We should make early preparation and take the lead to maintain lasting healthy development in maritime shipping industry in China. The fourth part elaborates the disunity of existing laws concerning international maritime shipping. It begins with introduction of the divergent attitudes of different countries and interest groups toward unification of maritime shipping duty and further analyzes the necessity of unification of international maritime shipping management. The fifth part explores, on the base of the above discussion, the enlightenment of international legislation development on the revision of the existing Maritime Law of the PRC and issues on unification of the system of liability concerning maritime carriers with other relevant laws in China.