On The Legal Regime Of Maritime Performing Party Under The Rotterdam Rules

In order to make a truly unified maritime legal regime for the international carriage ofgoods and balance the interests between the ship and the interests of cargo as far as possible,UNCITRAL adopts United Nations Convention on Contracts for the International Carriage ofGoods Wholly or Partly by Sea--the Rotterdam Rules on11December2008. Maritimeperforming party regime is one of the innovative regimes in the Rotterdam Rules,UNCITRAL meticulously conducted a questionnaire survey, discussed and drafted on theconcept, legal status, responsibility regime of maritime performing party. If we can introducethe maritime performing party regime to solve the problems existing in actual carrier regimeand the port operator regime in our country, not only it’s conducive to complete our maritimelegal regime, but also can greatly promote our shipping industry’s prosperity anddevelopment. However, the maritime performing party regime scatters in every chapter in theRotterdam rules and doesn’t form a system, therefore, this paper hope it could present theclear and complete system of maritime performing party regime through a comprehensive,complete sorting of maritime performing party regime’s entity content, and provide effectivesuggestions for the modification of the related regime in our maritime law.This paper studies the maritime performing party regime in Rotterdam rules through thecomparative method, the deductive method, inductive method, model method and othermethods. The views of on maritime performing party regime are quite complex, so this paperonly adopts the mainstream views, then sums up the views which I support after acomprehensive study.Besides the introduction and conclusion, the paper is divided into five chapters, a total of25,071words.The first chapter through the analysis of the interpretation on the definition and legalstatus of maritime performing party of domestic and foreign scholars, we know the maritimeperforming party only covers two compliance assistants--the independent contractors and thecarrier’s agents engaged in carriage of goods by sea, including maritime carrier, port operator,stevedoring company, warehouse company, etc. They are protected by “Himalaya Clause”, and the carrier and the maritime performing party’s servants may not be sued as maritimeperforming party.The second chapter first analyzes two groups of legal relationship involving maritimeperforming party. On this basis, it analyzes the main or changed rights and obligations ofmaritime performing party in Rotterdam rules, such as exemption right, the seaworthinessobligation and the relationship among seaworthiness obligation, obligation of management ofcargo and exemption right.The third chapter mainly researches the liability regime of maritime performing party,including the liability in different situations, the legal basis of maritime performing party’sliability, and the joint and several liability between the carrier and maritime performing party.The fourth chapter analyzes the existing problems referring to the maritime performingparty regime in our maritime law. It mainly relates to actual carrier regime and port operatorregime--it is difficult to define and identify the actual carrier in practice, and the portoperator is often excluded from the actual carrier, so that they take the high risks which do notmatch their income.The fifth chapter through the analysis for the relevant maritime law experts’ opinion intheory and the shipping industry in our country, objectively comes to the affirmativeconclusion that we should alter the maritime law by introducing the maritime performingparty regime. And this paper sums up a construction mode of maritime performing partyregime in our country according to our national conditions and the shipping practice--directly, flexibly introducing maritime performing party regime in our maritime law.