A Comparative Study On Obstacles To Contract Of The Carriage Of Goods By Sea Due To COVID-19

At the end of 2019,the outbreak of COVID-19 brought a huge shock to the shipping industry,and the contract of carriage of goods by sea could not be performed,partially performed or delayed.As the parties will agree to apply British law in addition to Chinese law,they are generally concerned about how to choose relief methods and put forward performance defense under Chinese and English law,so that they can be exempted in whole or in part.To solve this problem,this thesis analyzes and compares force majeure and changed circumstances under Chinese law and frustration of contract under British law on the basis of sorting out relevant laws and regulations of the two countries,and discusses the problems encountered in the application of relevant systems.Through theoretical and case studies,this thesis puts forward targeted countermeasures to the parties to the contract of carriage of goods by sea who may be adversely affected.In addition to the introduction and conclusion,this thesis is divided into four chapters:Chapter one analyzes the legal nature of COVID-19 and its prevention and control measures and its impact on the performance of the contract of carriage of goods by sea.COVID-19 should be considered as force majeure on the macro level under Chinese law,but there is room for the application of changed circumstances and principle of fairness in specific cases.Under English law,it is appropriate to recognize the COVID-19 as a force majeure event.However,whether the parties to the contract of carriage of goods by sea can argue that the epidemic constitutes a force majeure event should be analyzed under their respective domestic laws.The second chapter compares the relevant systems under the laws of China and Britain.First of all,it clarifies the meaning,constituent elements and legal consequences of force majeure and changed circumstances in Chinese law,and introduces three viewpoints on the relationship between them,the opposite relationship,causality and the cross relationship.Secondly,it interprets the concept of the frustration of the contract under English law.Thirdly,it explains the establishment of force majeure clause and its relationship with the frustration of contract.Finally,by comparing the relevant systems under the laws of the two countries,it is concluded that force majeure under the laws of China corresponds to the impossible in the frustration of contract in English law,while the changed circumstances correspond to the impracticability and frustration of purpose.The third chapter summarizes the problems in the application of relevant systems under Chinese and English laws by analyzing specific cases.Under Chinese law,the parties generally rely on the legal force majeure exemption.The identification standard is high,one case one discussion,time-consuming and laborious.It is difficult for the parties to provide proof.Under English law,frustration of contract is usually difficult to establish,and according to the provisions of The Law Reform(Frustrated Contracts)Act 1943,frustration of contract is not applicable to the contract of carriage of goods by sea,and the parties can only rely on the force majeure clause.Based on the previous analysis,the fourth chapter puts forward countermeasures for the parties to the contract and suggestions on the imperfections in the application of relevant laws in China.It is suggested that the parties should timely review and revise the contract terms,choose methods according to the extent of the impact of the epidemic,properly collect and keep evidence and timely fulfill the obligation of notification.Under English law,they should pay attention to signing effective force majeure clause to supplement the scope of the frustration of contract.It is suggested that the standard of constitutive elements of force majeure in China can be appropriately reduced in the future,and the setting of force majeure clauses can be encouraged.