An Analysis On Latent Defect As An Exemption Of Marine Carrier

Since the Hague Rules were established,latent defect not discoverable by due diligence,as an exemption clause,has existed for more than 90 years as a defense of the maritime carrier.However,there have been very few cases in which the maritime carrier has successfully cited it to be free of liability in judicial practice of our country.Although article 51,paragraph 1(11),of China's Maritime Law expressly provides for this exemption,the carrier still cannot be exempted in practice.The major difficulties are the definition of the exemption,the burden of proof and the determination of causality.This article is about the definition of latent defects,the determination of due diligence and the relationship between the exemption reason and the seaworthiness,trying to make suggestions on the determination and understanding of this exemption when the Maritime Law is faced with revision.This article uses theories of comparative laws,case analysis,analyzing the definition of latent defects of vessels under the common law system,as well as the specific application of the latent defects as an exemption in our judicial practice.The full text is comprised of introduction,body and conclusion.The body the is divided into five chapters.Chapter one introduces the basic concept of the latent defects,distinguishes it from normal wear and tear,and expounds the origin and historical evolution of this exemption.Chapter two analyzes the identification of the latent defects of vessels in the Anglo-American juris prudence.The cases used spans more than 200 years and draws a more uniform definition of the meaning of the latent defects.What's more,due diligence,appeared in the latent defects of vessels and seaworthiness cannot be simply equated;It also analyzes all the cases in which China's maritime carrier cites this exemption,and compares the cases under different legal systems,and explores the different implications of the due diligence to the carrier.Chapter three lists several difficulties that the carrier will face in the course of invoking this exemption,discusses the dispute between whether due diligence is a legal issue and the distribution of the order of evidence,and lists four causal relationships between latent defects and losses,and makes applicable suggestions.Chapter four analyzes the effect of the primary obligation,that is the seaworthiness obligation,on the carrier's invocation of the latent defects,discusses whether the seaworthiness obligation as the carrier's primary obligation should be given evidence before the carrier invokes the latent defect,and the impact of the ISM rules on the subject matter of the exemption as a yardstick to measure the performance of the seaworthiness obligation.The last chapter summarizes the questions raised in the above chapters and makes recommendations on how the maritime carrier should invoke the exemption and successfully exempt it.