Theory Of Transport Law Of Goods By Sea Mandatory Norms Conflict And Solve

The mandatory of The Carriage of Goods by Sea Act, mainly emphasizes that the parties may not derogate from certain rules of COGSA by agreement, otherwise theconflicting agreement will be null and void. The core issue of the contract of carriage of goods by sea is to define the obligations and responsibilities of the carrier. Peremptory norms of the COGSA prescribe the minimum range of the obligation and the maximum range of the exemption of the carrier,aiming to share risk and to balance the interests of both sides.From a legislative point of view, the establishment and implementation of the peremptory norms in the field of maritime transport of goods, is essentially that the state legislature intervenes the private law autonomy and excludes the contract freedom on the parties. The COGSA was deeply marked by the mandatory imprint from the day generated.The COGSA with the core of the carrier’s liability system developswith the characteristics of mandatory from beginning to end in history.This article will firstly explains the historical evolution of the system of the mandatory rules of COGSA from the historical origin perspective, and analyzes the influencing factors, such as economic basis, public policy, the abuse of the freedom of contract, etc. Then the paper will mainly analyze the present situation of conflict of the mandatory norm of COGSA from the aspects of substantive law and conflict law. The former mainly analyzes the expansion of the mandatory rule system from the perspective of the content of mandatory rules, including the subject of responsibility, the duration of responsibility and the scope of application of mandatory rules.At the same time anal size the conflict of the principle of liability fixation correspondingly.The latter mainly refers to the conflict of the application of mandatory norms, including the conflicts of court jurisdiction and the arbitration clause, and the conflict of the Choice of Law Clause.The half of the paper will make a try to propose solutions to the conflict of the mandatory norms from the perspective of conflict law and substantive law. The coordination and unity of the conflict rules can effectively solve the problem of application of law, but as an indirect adjustment method it still can’t remove the differences of the content between the domestic laws and international conventions. In the trend of unification of international private law, the formulation of a unified convention of maritime carriage of goods can effectively resolve the conflict.The consistent situation of Hague Rules, Visby Rules and the Hamburg Rules, lead to the conflict and confusion of the application of the law. In2002the United Nations Committee of the International Trade Law,namely UNCITRL,brought in the UN Convention on the Contracts of International Carriage of Goods Wholly or Partly by Sea,namely Rotterdam Rules and then adopted by the UN Assembly.The Rotterdam rules tried to conform to the international trade and business development, and unify the scattered international COGSA, but its effects still need to follow-up test of practice.In addition, the return of contract freedom bring new challenges for the mandatory norms system of COGSA.Finally, the author will make a rough consideration of the COGSA’s mandatory norms system under the Chinese maritime law, and put forward corresponding thinking for its reform.