The Theory Of The Imbalance Between Ship Interests And Cargo Interests On The Carriage Of Dangerous Goods By Sea

With the fast development of chemical industry, dangerous goods are increasingly carried by sea every year. The carriage of dangerous goods by sea has been a significant problem related to security of property and life at sea for a long time. Once dangerous accidents incur, not only the carrier and the shipper would suffer loss, but also may cause the third party to suffer economic loss, e.g. other shippers who have cargo on board or victims of marine pollution. Therefore, compared with ordinary goods, domestic laws of several states and the relevant maritime international conventions provide specific provisions concerning the carriage of dangerous goods by sea and regulate special rights, duties and the doctrine of liability fixation for the shipper and the carrier.China Maritime Law does not provide dangerous goods a clear conception. Although it stipulates rights and duties of shippers and carriers in explicit terms, these terms might cause the imbalance between ship interests and cargo interests in practice. Otherwise, our Maritime Law does not expressly stipulate the third party’s loss caused by the carriage of dangerous goods by sea. As a result, it is so difficult for the third party to recover its loss from the shipper and the carrier according to China Maritime Law.The Chapter One generally analyses the current situation of the carriage of dangerous goods by sea and points out legal loopholes by discussing the relevant cases. Then referring to the UK Maritime Law, examine and determine the concept of ‘dangerous goods’ on the base of the narrow sense and the broad sense. This dissertation supports the opinion of broad sense and considers that the definition of ‘dangerous goods’ is not appropriate to be confined to the goods with inherent dangerous chemical or physical nature, but should also include the goods that are intrinsic safe but cause accidents when it meets a special environment or condition during the sea voyage.The Chapter Two describes the relevant legislation situation concerning the carriage of dangerous goods by sea based on the three aspects, namely the international conventions, foreign domestic laws and China domestic laws, and analyses the development, legal resource and application of the important international convention--- International Maritime Dangerous Goods(IMDG Code). Generally describe the provisions on dangerous goods in other marine international conventions. Under foreign domestic laws and China domestic laws, this chapter will generally introduce the development of legislation and the relevant rules of UK, USA and P.R.C respectively.The Chapter Three detailed analyses all sorts of duties of the shipper and the carrier, and examines the standards of completely performing these duties. It points out the problems concerning the imbalance between ship interests and cargo interests under certain rules by comparing the shippers’ rights and duties and the carriers’ rights and duties. 1. Since the exemption clause and the insurance clause of Maritime Law exempt the indemnity liability of the carrier and the insurer in terms of the loss caused by improper package or unclear mark of goods and the shipper is not allowed to be protected by the exemption clause and the limitation of liability. Therefore, once dangerous goods cause large loss suffered by the carrier due to the shipper’s fault, the shipper might have to confront with bankruptcy. 2. By analyzing the legal effect of ‘the Unknown Clause’ and ‘the Rust Clause’ that are often stated by the bill of lading under the notice liability of the shipper, it could be argued that the Unknown Clause is valid but the Rust Clause is invalid. 3. Where the shipper transfers its duties of package or mark to the third party, if the carrier suffers loss due to the third party’s improper completion of such duties, the recovery procedure is so complicated and not good for the shippers’ interests. 4. Although Article 68 of Maritime Law provides that the carrier enjoys the right of disposal, the right is too broad and general, which would result in the carrier’s economic loss.The Chapter Four analyzes the doctrine of liability fixation with regard to the shipper’s duties and the carrier’s duties through examining the relevant maritime international conventions and the marine cases under the UK law. The shipper is strictly liable for the carriage of dangerous goods. Where the loss is also caused by the carriers’ fault or negligence, the two parties shall jointly bear the loss based on the proportion of their fault or negligence. Under China Maritime Law, the carrier bears incomplete fault liability. It could be suggested that the Maritime Law could stipulate the obligation of seaworthiness of the carrier as ‘the overriding obligation’ referring to the UK law, meaning that in case the carrier breaches the obligation of seaworthiness, it would not be allowed to claim the exemption clause.The Chapter Five clarifies the reasons and sense of such litigation through analyzing the litigation background and the needs of practical operation. Then it makes legislation suggestions concerning the imbalance between ship interests and cargo interests based on the Chapter Three and the Chapter Four. 1. In terms of the unclear definition of dangerous goods, it can be suggested that the Maritime Law could clearly list the classification of dangerous goods and then make a general expression to include the dangerous goods in broad sense. 2. Where the shipper transfers the duties of package or mark to the third party and the carrier suffers loss due to the third party’s fault or negligence, it could be proposed that the shipper and the third party are jointly liable for the carrier’s loss. 3. To limit the right of disposal of the carrier, the Maritime Law could provide that if a qualified, reasonable and prudent carrier has the competence to save and keep the vessel and the dangerous goods at the same time under the same circumstances, the carrier is not entitled to perform the right of disposal. Otherwise where the carrier abuses the right of disposal and causes the shipper’s loss, the carrier shall be liable for the shipper’s loss. 4. Referring to the package methods in the IMDG Code, the Maritime Law should provide a clear standard for ‘proper package’. 5. The Maritime law is suggested to provide the limitation of liability for the shipper in terms of the duties arising from the carriage of dangerous goods by sea.The last chapter provides legislative suggestions in respect of the situation of the third party suffering loss caused by the carriage of dangerous goods by sea. There is no specific chapter under the Maritime Law to protect the third party’s interests no matter whether they are shippers who have goods on board the same vessel or victims of marine pollution. Therefore, it could be suggested that China should join the HNS Convention and require the shipowner to provide the compulsory liability insurance and the double layers compensation system for the third party. Otherwise, the domestic law and compensation system should be adjusted as soon as possible to be consistent with the HNS Convention.