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Study On The Rules Concerning Carrier Identification In The Carriage Of Goods By Sea

Posted on:2020-02-27Degree:MasterType:Thesis
Country:ChinaCandidate:D Y ChenFull Text:PDF
GTID:2416330590976552Subject:Law
Abstract/Summary:PDF Full Text Request
The identification of carrier in international trade has become an inevitable problem with increasingly complicated division of characters in the maritime industry.As different legal systems and conventions deal with this issue in various way,there isn't a common theory that is widely accepted.However,for claimants suffering from cargo damage who want to claim the damage,a clear and unified standard of carrier identification is a prerequisite.The establishment of the identification standard is also an important aspect for the improvement of the maritime legal system.This thesis consists of 4 sections:The first section is the introduction,which mainly describes the research background,the significance of the research,the status at home and abroad,the research methods,content and the innovation.In the second section,it is discussed the definition of the carrier.The identification of carrier requires defining the concept of the carrier,namely the carrier is the person who has entered into a carriage contract with the shipper.The carrier does not necessarily need to actually perform the carriage of goods,but may entrust others to carry the goods on his behalf.Other participants in the carriage of goods,such as the actual carrier,the performing party and the shipping agent,shall be distinguished from the carrier.The third section analyzes the rules of carrier identification and the related Rotterdam rules.The core of identifying the carrier is the contract of carriage of goods by sea,thus the contract itself is the most important proof of identifying the carrier.But because of the existence and the transferability of the bill of lading,the contract cannot always become the basis for identifying the carrier.The holder of a bill of lading cannot always grasp the situation when the contract is concluded,so the bill of lading itself has become the most important basis for identifying the carrier,including the heading of the bill of lading,the signature on the bill of lading,name of the vessel,identity of carrier clauses and other matters.As the first international convention,The Rotterdam Rules will establish the rules for carrier identification.The carrier identification rules in the convention are divided into two parts,namely carrier identification and carrier presumption rules.The Rotterdam rules stipulate that the most important standard for identifying a carrier is the name in the contract particulars on the bill of lading and the electronic transport record,and exclude other contradictory evidence.The carrier presumption rule presumes the ship-owner and bareboat charterer as the carrier if no person is identified in the contract particulars.These provisions of the convention have great significance,but they are defective in themselves and are not suitable for Chinese judicial practice.The fourth section discusses the current situation of carrier identification and the establishment of carrier identification system in China.There is no special carrier identification rule in China,but carrier identification itself is an important problem that must be encountered in judicial practice.From Jiuhong Trade Firm case we can see that Chinese courts tend to judge the identity of the carrier from a variety of factors,including whether the ship is under control,whether shipmaster is under instructions,whether there is a charter with others,whether the charter is known by the shipper,etc.,but they have not yet formed a unified method to identify the carrier.It can only be based on the actual situation and the experience and judgment of the judge.Therefore,China should try to build a unified carrier identification rules,and improve the existing actual carrier rules,bill of lading rules,and the relevant legal system.
Keywords/Search Tags:Carriage of goods by sea, carrier, identication of carrier, bill of lading, Rotterdam Rules
PDF Full Text Request
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