The Research On Rationality Of Maritime Performing Party Liability System And Its Reference To The Maritime Law Of The People’s Republic Of China

The United Nations Convention on Contracts for the International Carriage ofGoods Wholly or Partly by Sea (hereinafter referred to as “The Convention”) waspassed by the United Nation Assembly on December11,2008. The Convention wasalso called as The Rotterdam Rules because it was open for signature by all States atRotterdam on September23,2009.The coming of The Convention is of significantimportance both to the legislation and the jurisdiction of the international carriage ofgoods because The Convention emphasis on the inconsistence facing by thelegislation and jurisdiction of the international carriage of goods currently andtherefore introduced and created many new concepts and relevant systems to improvethe above situations. For example, the Documentary shipper was introduced by TheConvention to clarify the legal status of the seller under the FOB trading. Some newconcepts such as the Maritime Performing Party and the Right of control were alsointroduced to The Convention. During which, the creation of the liability system forthe Maritime Performing Party can be said as a pioneering work of The Convention.Chapter one introduces the liability system of the maritime performing party. TheConvention created such liability system by providing the definition of the maritimeperforming party, the liability of maritime performing party, its entitled to thedefenses and limits of liability as provided for in the convention, the joint and several liabilities with the carrier. Article1of The Convention provides the definition andscope of the maritime performing party clearly, and then the liability of maritimeperforming party is provided as well. What’s more, the joint and several liabilitieswere also provided by the Article20of The Convention. Besides, Article61of TheConvention provides that the benefit of limitation of liability might be lost under twospecific circumstances provided by The Convention.Chapter two analyzes the rationality of the maritime performing party liabilitysystem. The creation of the liability system for the maritime performing party was nota contingency; it is the inevitable trend as the result of the development of thelegislation of the international carriage. The outcome of the liability system for themaritime performing party was decided by its theoretical basis, its historical origin,the advance of the system itself compared with other ones and the need of the practiceof the international carriage of goods.Chapter three explains the reference of the maritime performing party liabilitysystem to the Maritime Law of the People’s Republic of China. Compared with the“Himalaya Clause” and the actual carrier system, the maritime performing partysystem has the following two advantages: the first advantage is that the maritimeperforming party system clarified the facts such as the legal status of the carrier’sperforming assistant, the joint and several liability with the carrier, the defenses andthe liability limitation, and so on. The other advantage is that, the scope of themaritime performing party includes the port operators and therefore defines the legalstatus of the port operators. We should learn lessons from the relevant provisions ofthe maritime performing party liability system in order to improve the inconsistencycurrently faced by the legislation and the judicial practice of China.