Research On Carrier’s Fault Exemption System In The International Maritime Transportation

In the international carriages of goods by sea, the carrier’s fault exemption system is a special system in the foreign countries’maritime legislation and relevant international conventions. In1893, America firstly established the fault exemption system in their legislation of Harter Act in order to protect the shippers’ benefits. Then it led to the prosperity of the maritime transport and brought to enormous economic benefits for America. From that time on, many countries started to establish the fault exemption system in the legislation one by one. Therefore, in1924, in article4.2of Hague Rules, for the first time recognized the carrier’s fault exemption in the international legislation, and made it improved and unified of international carriage of goods by sea. Since then the fault exemption system has begun its glorious history in the maritime transport of the world and promoted the prosperity of the international trade. Therefore, in1992, China formulated "the Maritime code of the People’s Republic of China", and established the carrier’s fault exemption of the legislation. However, the fault exemption system is not perfect in the Maritime law, there are a number of issues existed in it, Such as the vague and obscure of the words and the sentences in law text. In another words, what’s the contact among the carrier’s obligation of seaworthiness, the obligation of management cargos, and the fault exemption system? Those series of issues should be paid more attention on our country, as soon as possible to promulgate the judicial interpretation and perfect relevant legislation in order to guarantee the accurate of the application in carrier’s fault exemption system.Of course, just as every coin has two sides. The fault exemption system is no exception, and it has advantages and disadvantages. In current, the system is on controversy in the international maritime transport. Whether reservation or abolition or not, which is a problem to our country. In1999, the Unite States has abolished the fault exemption in the COGSA1999. Ten years later, in2008, the CMI of UN formulated United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, named Rotterdam Rules. It abolished the fault exemption system in the international legislation once again. Facing on the situation, What our country should do and which our country should choose?Therefore, study on the issues concerning the reservation or abolition of the carrier’s fault exemption system presents rather important theoretical and practical significance regarding our country’s enacting transport law on carriage of goods by sea.This dissertation, taking carrier’s fault exemption system and whether to reserve or abolish it as the main object of study, can be divided into three major components, the introduction, the body and the conclusion; the body section can be divided into four parts.The first part systematically explains the theoretical basis of the carrier’s fault exemption system in the international carriage of goods by sea. Firstly, Include to illustrating the definition, type, uniqueness and the theoretical background information of the carrier’s negligence exemption system. Then, the carrier’s negligence includes negligence in navigation of ship, the negligence in management of ship, the negligence of fire. Finally, from the perspective of economics and law, the paper analyzes the reasonable of the existence of the system.The second part mainly introduces the comparative study of carrier’s fault exemption of international maritime transport. From the "Hague Rules, Visby Rules" to the "Hamburg Rules, Rotterdam Rules", the author analyzed the different trend in the system of the international maritime legislation. Besides, combined with the maritime law of U.S COGSA1999, Germany, France and Japan analyze the relevant provisions in order to provide a reference of China maritime law.The third part mainly analyzes the current situation, problems and reasons of fault exemption in China. This part focuses on presenting the conflict and difference among the Civil Law, Maritime Law, Contract Law and Tort Liability Law about the system. In the next section, the writer expressed the disadvantages and differences of carrier’s liability in ocean carrier, multi-joint type transport, coastal ports transport, highway transport, railway transport and air transport.The forth part offer to some suggestions to perfect the carrier’s fault exemption of China. Firstly, In Section one systematically elaborates the reasons about the system between reservation and abolition. The author come a safe conclusion that we should be taken to reserve the fault exemption system. It is necessary and justification for our country. Secondly, In Section two provided the principles of application and emphasized the relationship between the obligations of seaworthiness, the management cargo obligations. In Section three described the identification of conditions and the certification process of fault exemption system. And then perfected the current burden of proof between carrier and shipperThe main contributions of this paper are:For one thing, the paper innovates about views, systematically elaborates the carrier’s fault exemption, including legal concept, historical origin, different type; by means of such study methods as comparison analysis, practical analysis, domestic law and international law analysis, deeply analyzed the issues about whether to reserve or abolish the system. The paper draw a conclusion as follows, on the basis of current situation of our maritime transport and relevant maritime legal systems, it is a wise and sensible to reserve the carrier’s fault exemption system to incorporate and promote the development of our international maritime transport. Then the writer provides some suggestions about accurately stipulates the principle of application, the applicable standards, and should perfect the carrier’s fault exemption system.For another thing, the paper innovates about research methods. This paper adopts the law and economic analysis to illustrate the generation and rationality of carrier’s fault exemption system. From the principles of fairness and efficiency analysis of the fault exemption system is essentially to promote the prosperity and development of the international maritime transport. The writer use cost-benefit theory in economics, supply and demand theory to demonstrate the benefits outweigh the costs of the fault exemption system, and further indicate the economic value and survival foundation of the fault exemption system.