The Doctrine Of The Most Significant Relationship In Laws Applicable To The Foreign Crew Service Contract

As a core member of the ocean shipping, the crew plays a huge role in international trade. Without them, half the world’s people will live in cold, and the other half will live in hungry. Because of the huge role of the crew, from the beginning of the ocean shipping until now, every country of the world is making measures to protecting the interests of the crew. But with the development of economic globalization, the international mobility of the crew is also growing. Nowadays China’s economy is closely linked with the world, the exchanges of the crew between China and other countries become frequent, and the form become diverse, which leads the disputes about the crew including crew labor disputes, also increase and tend in diverse. Because of the transnational mobility among the crew, it is every difficult to solve to the foreign crew labor contract disputes, and the difference of the law and particularity of the crew labor among every countries, leading each country has made different determinations when they were choosing the connection point and the applicable law.The first controversy about the foreign crew service contract is Characterization, some scholars hold the opinion that foreign crew service contract is a labor contract, while some others think that the foreign crew service contract is a service contract. After analysis foreign crew service contract, the author think that we should first classify the foreign crew service contract into different species, then according to the characteristics of the different species, we can qualify the crew service contract is a labor contract or a service contract. The second controversy is the choice of the applicable law. In so far China don’t has special provisions for the foreign crew service contract, but to apply the general provisions of the foreign contract and the foreign labor contract. Even if we have to apply the the general provisions, the Doctrine of the Most Significant Relationship is the core principle when choosing the applicable law. And when using the Doctrine of the Most Significant Relationship to determine the applicable law, we should take the particularity of the crew’s service contract in choosing the Collecting Point into account, and also should introduce the Principle of Protection the Weak, because as a weak party in the contract, the crew should be taken better protect. This thesis is divided into the following sections:The first part is the introduction of the case. This part first introduced Andeiytukalov v. Maxima shipping company foreign shipping service contract disputes; Second, it introduces the basic facts of the case, and then talk out the two controversies of the case: the doubts about the characterization of the foreign crew service contract and applicable law; finally point out that the focus of the most controversy of the case is using the Doctrine of the Most Significant Relationship to choose the applicable law.The second part is the related legal analysis of the case. For the first controversy, we should qualify the foreign crew service contract according to it’s particularity; for the second controversy, the author talked about the conflict of law of several major nations on foreign crew service contract, as well as the applicable law rules of our legislative and academia’s opinion on foreign crew service contract.The third part is how does the Doctrine of the Most Significant Relationship use in the case. First of all, to qualify the crew service contract under the consideration the particularity of this case; second, according to the conflict of laws of the foreign crew service contract, using the Doctrine of the Most Significant Relationship to determine the applicable law of this case.The fourth part is the shortage of the Doctrine of the Most Significant Relationship and measures to make up for it. First, to analysis shortage when using the Doctrine of the Most Significant Relationship to determine the applicable law; second, to make some suggestions: separate legislation and introduce the Principle of Protection the weak.