On The Loss Of The Right Of Limitation Of Liability For Maritime Claims

The system of limitation of liability for maritime claims constitutes an important part of China Maritime Code (CMC), also an indispensable part of maritime law system. In history, this system had great impact on the development and prosperity of shipping industry. Even in nowadays, limitation of liability for maritime claims still plays an significant role.From an evolution perspective in law, the system of limitation of liability for maritime claims may be categorized into two modes: the first was represented by the legislation mode of the 1957 Convention, while the second was represented by the legislation mode of the 1976 Convention. Up till now, the first mode still exists, which means both modes coexist in world.Any right cannot be executed without a limitation. As a statutory privilege, limitation of liability for maritime claims also has its limitation. Pursuant to the 1957 Convention Article 1 (1), this line is drawn to "actual fault or privity." The U.S. legislation takes the similar standard of "privity or knowledge". However, the 1976 Convention draws the line to "A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result."CMC has based its own limitation of liability for maritime claims on the 1976 Convention. In Article 209, CMC has similar wording as that of Article 4 of the 1976 Convention to stipulate conduct barring limitation of liability for maritime claims. Therefore, CMC falls into the second mode as the 1976 Convention.Despite of certain relationship between the two modes resulting from history, conducts barring limitation of liability for maritime claims under these two modes vary a lot. In order to have a better understanding of CMC Article 209, it is necessary to compare and analyze the typical representatives under these two modes and take a look at judicial practices and understandings in main shipping countries in the world.This thesis is divided into four chapters:Chapter One is an introduction to the basic knowledge of Conduct Barring Limitation of Liability for Maritime Claims.Chapter Two attempts to analyze Conduct Barring Limitation of Shipowners' Liability under the 1957 Convention. By studying the precedents of U.K. and U.S., this Chapter will examine the material conditions of the Conduct Barring Limitation of Shipowners' Liability under this system, including: Definition of Actual Fault or Privity, Identification of Personality of Shipowner, Duty of Shipowner and Causation, etc.Chapter Three makes effort to analyze Conduct Barring Limitation of Liability for Maritime Claims under the 1976 Convention. By studying the precedents of U.K, this Chapter will examine the material conditions of the Conduct Barring Limitation of Liability for Maritime Claims under this system, including: Burden of Proof, Development of Identification of Personality of Shipowner, Understanding of "Knowledge", "Reckless" and their Relationship, Understanding of "Such Loss", etc.Chapter Four is devoted to a reconsideration of CMC Article 209. By virtue of comparing and analyzing Chinese cases and foreign cases, this Chapter will try to sum up concepts of Test of Knowledge, Identification of Personality, Such Loss, etc.