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Study On The Status Of Obligation Of Seaworthiness Under The International Shipping Carrier’s Liability Regime

Posted on:2016-04-19Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiangFull Text:PDF
GTID:2296330470978628Subject:Maritime law
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This thesis takes legal status of obligation of seaworthiness in international shipping carriers’system as the research subject. On one hand, the legal status of obligation of seaworthiness decides the inner relationship in carriers’responsibility system; on the other hand, it decides the responsibility distribution between carriers and claimant. There is no explicit term in China’s Maritime Law defining the legal status of obligation of seaworthiness, which leads to a lack of inherent connection in carriers’ responsibility system and disputes about responsibility distribution.Chapter one discusses that the obligation of seaworthiness, as a necessary term of charterparties initially, developed into a strict legal obligation gradually. Established by modern maritime law, the "obligation of exercise due diligence" alleviated "absolute obligation of seaworthiness" or "warranty of seaworthiness", making the nature of obligation stable.As described in Chapter two, the "obligation of exercise due diligence" is a legal Nebenleistungspflicht of obligations under the terms of carriage of goods by sea contract. Obligation of seaworthiness and cargo management are the carriers’basic duty of diligence. When it comes to carriers’Zurechnung, the performance of the obligations of seaworthiness is the condition precedent to rely upon the exceptions from unseaworthiness. Admitting that the obligations of seaworthiness are prime obligations, the performance of the obligations of seaworthiness is the condition precedent to all exemption.According to the opinion in Chapter three, among the exemptions of carriers, fault in navigation or management of ship and latent defect of the ship have a close relation with the obligation of seaworthiness and cargo management. The exemption of ship’s latent defect is a supplement to the obligation of seaworthiness. Established by Hague Rules, the system of the obligation of seaworthiness, management of cargo and the obligation gives the primary significance to the obligation of seaworthiness.In comparative law perspective, Chapter four discusses that the systemconstruction in the obligation of seaworthiness of carriers’responsibility system is diverse with both positive and negative opinions. The feature of the obligation system construction is emphasized by Handelsgesetzbuch and Japan COGSA with the theoretical background of Civil Law. And Hamburg Rules and Rotterdam Rules reflect the new international trend in the legislation of carriers’responsibility.In Chapter five, this paper presents the idea that Maritime Code of the People’s Republic of China shall make it explicit that the obligation of seaworthiness and the obligation of cargo management is the legal Nebenleistungspflicht in the carriage of goods by sea contract, combining unseaworthiness, breach of obligation and exemptions into an organic system. Considering the causation between unseaworthiness and damage or loss, it shall redefine the legal status of obligation of seaworthiness.
Keywords/Search Tags:International shipping carrier, obligation of seaworthiness, obligation of the cargo management, exemptions, condition precedent
PDF Full Text Request
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