Study Of Quasi-judicial Powers Of The Sea Captain

With the global economic integration and the close trade relation of various countries, the seaborne trade has become the important component of the world economics intercourse. During the process of Maritime transportation, ship, which is the important object, is affecting the shipping practice. However, the captain plays a pivotal role in shipping industry. Captain have multiple legal statuses because of the particularity of marine. Modern legislation and practice at home and abroad pay great attention to the captain's power of the ship navigation and operation, just as driving and management of ships, agents, rescue ships, wage request, medical expenses. Although it is very important for captain to exercise these private power, in the "small community" which is far away from the land, the mandatory power is beyond its reach. The most important issue is how to protect the normal exercise of these powers. By now, some government functions of the administration and jurisdiction would naturally fell on shoulders of captain.Actually, captain's public power is the protection of private power. As the quasi-judicial power of the captain is an important component of its public power, it has theoretical and practical significance in their research. To enhance understanding of the quasi-judicial power of the captain and find a suitable way of legislation consolidation of domestic and abroad in this field, this article extend further exploration and research. It will be gratified if any ideas of this article could be helpful for proper behaviour of captain in practice and enhancing development of global. This article is divided into five parts to research and analyse the quasi-judicial power of the captain.Part 1 defines the concept of the captain through the analysis of the captain's historical status and the clarification with relevant concept. During a long period of time, the captain is a title, enjoys the greatest honor, not only needs to directly operate ship, but also have the leadership responsibility for the management and business of ships. Along with the progress of science and technology and the development of navigation, the proportion of operating ship has been getting smaller and smaller. Although captain has become a kind of technical title and the duty, which have significant responsibilities and obligations. In order to analyse the quasi-judicial power of the captain, we need to define the concept of the captain at first. This part analyses and compares "One-system "(define crew in narrow sense)and "Dual-system"(define crew in broad sense) from the relationship of the conception of captain and crew, arrive at a conclusion that the captain and other crew members should be defined separately. the special status and important role of the captain in the maritime transport emphasis on the relationship between the captain and several important participants in the maritime transport such as the ship, the pilot, the shipowner, the cargo owner and the tenant.Part 2 researches how to execute the quasi-judicial power of the captain by comparing and analysing the legislation and practice in the world. At first, I compare the same and different of several typical countries about legislation of the quasi-judicial power of the captain. Now, we especially discuss the issues that the captain is allowed to accept complaint or not and criminals on ship surrender to the captain constitutes surrendered and commutation in the Criminal Code or not. These lead to a conclusion that the captain is allowed to accept complaint and criminals on ship surrender to the captain constitutes surrendered and commutation in the Criminal Code. There is no uniform legislation and theory about the quasi-judicial power of the captain. In fact, The quasi-judicial power is a special authority which defend the safety of personnel and cargo on board, also some scholars said that it is "The Police Function"or"The security Function". Secondly, we often confuse the quasi-judicial power of the captain with the emergency disposition power and the notarial power. Several methods such as comparative and analytic methods are used for the confusion above in this article. At the end, I describe the legal features and constitutive requirements of the quasi-judicial power to explicate the conception and legal nature of it, meanwhile put out the"benign violation against rules under reasonable condition" principle to exercise the power correctly under the limited condition and assure the crews' personal and property rights as well as the security of ship and cargo.Part 3 researches the legislation and practice of the quasi-judicial power of the captain in China. First of all, though the the maritime law system is huge and there are several kinds of laws and regulations in our country, it is very few and fragmentary about the rules involve the quasi-judicial power of the captain. The maritime law in our country always focus on using the legislations and experiences of other Countries while neglecting the legal value and the adaptability to environment. China's legislation system uphold the characteristics of the Civil Law system and formulate corresponding code for different legal departments. But it is unable to meet the requirements of the development of Maritime Law. There is neither integrated legislation nor chapter in law about the captain. It only can be found in article and clause sporadically. These clauses are so simple that the situation is unable to meet requirements in practice. Secondly, the conclusion that lawmakers should take "experience" as valuable reference and consider practical need in process of law formulation and revision can be reached based on analysis of specific cases. In this way, the law will become flexible and suitable in reality.Part 4 focuses on perfecting the captain law in China. Firstly, I analyse the factors which affects the perfection of captain law from two aspects of external and internal. Secondly, I summarize three principles of the quasi-judicial power of the captain: the principle of separate legislation, the opening principle of legal applicability and the principle of positive participation. Finally, On base of understanding and defining the quasi-judicial power of the captain accurately, this article make a proposal of text structure of captain law and the content of the quasi-judicial power of the captain should be involved, in order to find a appropriate way for combination of China's legislative and the adequacy of international rules and methods, and better promote maritime captain of the legislation and practice of international unity and world for the healthy development of maritime trade.Part 5 expecting the development prospect of legislation unification about the quasi-judicial power of the captain. The level and quality of captain are affecting to the protection degree of the national sovereignty and the person property, the implementation and completion of the shipping safety in production and the navigation, the measurement which prevent the marine accident occurs and other major issues such as transport costs. The unification of maritime legislation is not only beneficial for the formation of consensus on the rule of law, but also a basic logical premise of build a better law system. In order to guarantee the normal advance of marine transportation industry, it is urgent to integrate the laws of the quasi-judicial power of the captain. The foothold of this article is the issue of legislation combination about captain between China and international society. We should confront constantly changes in legislation and practice with a positive attitude, maintain the forefront of legislation to abolish the two-track system of domestic legislation and keep up with the movement of international legislation in filed of the quasi-judicial power of the captain.