The Conflicts Between Joint & Several Liability And Limitation Of Liability For Maritime Claims

Neither the traditional law nor the law merchant,for the specific factors of sea,could carter to the requirement of the countries and the parties involved in shipping trade,as economic activities processing with ships and others.Hence,lex mercatoria came to be the rule of the legal nexus concerning the sea activities,ships focused,and has envolved into maritime law system with integration today.In accordance with the particularity of the legal nexus concerning the sea,there is no lack of unique regime under maritime law system,compared to the traditional civil law system,such as the limitation of liability for maritime claims.For longer and steadier development of one country,the encouragement for marine adventure with high risks taken as the original intention of the LLMC,makes considerable practical significance as yet.Nevertheless,the uniqueness of maritime law also indicates the risk of incompatibility with the general civil law,verified by the maritime judicial practice and study,and exampled as the conflicts between the application of limitation of liability and joint&several liability.This article,based on the basic factors of limitation of liability and joint&several liability,concludes several relating models under different circumstances and dissects the reasons of the conflicts,integrating practical cases and legal provisions.From a comprehensive perspective,this article presents the coordinated schemes under legislations and theories at home and abroad,and further,studies on the essential problems schemes concerning.To seek one consistent with the present situation of legislation and judicature in China,this article aims at providing helpful references for maritime judicial practice.This article is divided into three parts except the introduction and conclusion.The first part ascertains the definition of joint&several liability and LLMC to clarify the study object and briefly introduces the legal nature,value and applicable rules of the both.Summing up the specific circumstances where joint&several liability applies under maritime law system in China,with the high frequency of LLMC where admiralty cases occur,highlights the value of this article.The second part discusses the reasons and forms of the confliction by modeling separately where the liable parties share one limit of liability and not.In addition,this part analyses the special impact on the confliction within the rule applying to counterclaims where the respective claims shall be set off against each other and LLMC shall only apply to the balance,if any.The third part researches the solution and its theoretical basis within the key countries around globe under comparative law,and comments on the compatibility with the confliction.It is concluded that further discussion shall process between the noninterference one and joint amount restricted one.The fourth part focuses on the topics of scope of validity of LLMC,the rules applying to ascertain the joint amount and the supporting litigation mode,where the two solutions above get compared comprehensively.The noninterference one shows theoretical necessity and practical value,even though the others dominates the main trend instantly in China.