海商法上 運送人의 損害賠償責任에 관한 硏究-중국 해상법상의 개정방향을 중심으로

Abstract

Maritime Code of the People's Republic of China(MCC) was adopted at the 28th Meeting of the Standing Committee of the Seventh National People's Congress on November 7, 1992 and came into force on July 1, 1993. This law accepts the resonable provisions of international conventions and shipping practice, so it receives many favorable comments as an advanced legislation. In Chapter IV of MCC, Contract of Carriage of Goods by Sea was stipulated with reference to Hague Rules, Hague-Visby Rules and Hamburg Rules.

There is no perfect legislation in the world and therefore MCC is not an exception. Many disputes have arisen in the process of application of MCC because of ambiguous expression and loophole existing in provisions. The provisons about the carrier's liability cannot avoid this situation.

The object of this dissertation is to study the carrier's liability. In particular, subject of liability, period of responsibility and basis of liability are deeply analyzed and studied under MCC. This dissertation is intended to find out the solution to the problems involved relevant provisions, so this dissertation is expected to provide some valuable references for the amendment of MCC.

In order to accomplish this purpose, the method of comparative law and legal theory is mainly used as a method of study in this dissertation.

The contents are as follows.

In the first chapter, the purpose of this study, and the scope and method of this study are described.

In the second chapter, the author makes a general study of carrier's liability, analyzing the legal meaning of carrier's liability, examples of national legislation and international conventions on carrier's liability, and legal system of the Chinese ocean carrier's liability.

In the third chapter, the subject of liability under the contract of carriage of goods by sea is mainly discussed. In particular, A distinction between a carrier(contractual carrier) and an actual carrier is clearly made.

In the fourth chapter, great emphasis is put on the period of responsibility. In this chapter, the author tries to compare the provision of MCC with other legislations related to the period of responsibility and to point out some issues concerning the provision of MCC.

In the fifth chapter, the basis of liability is mainly discussed, The exception of a navigation fault and a fire, the system of a carrier's liability, and the issues over the burden of proof are deeply analyzed.

In the final chapter, this study is summarized and some proposals are advanced on the amendment for the carrier's liability under MCC.

Through the study of the carrier's liability under MCC, the major improvements of MCC are put forward from a legislative point of view as follows.

1. Subject of Liability

Article 41 (1). "Carrier" means the person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper. However, the carrier shall be identified only by the mentioned items of a bill of lading when the claimant is a bill of lading holder who is a third party acting in good faith.

Article 41 (2). "Actual carrier" means the person who physically performs any of the contractual carrier's responsibilities under contractual carrier's period of responsibility, entrusted by the contractual carrier or entrusted under a sub-contract.

Article 63. Where both the carrier and the actual carrier are liable for compensation, they shall be jointly liable within the scope of such liability.

The claimant's claim for indemnity, exemption, merger done to one person between the carrier and the actual carrier cannot affect the other.

2. Period of Carrier's Responsibility

Article 46. The responsibilities of the carrier cover the entire period during which the carrier is in charge of the goods, starting from the time the carrier has taken over the goods until the goods have been delivered. The time of receipt and delivery of the goods can be agreed in the contract of carriage, but the agreement intended to reduce the period of carrier's responsibility is void.

However, the responsibilities of the carrier with reference to sea carriage under multimodal transport cover the entire period during which the carrier is in charge of the goods, starting from the time the goods have been unloaded from the overland vehicle at the port of loading until the goods have been loaded at the overland vehicle at the port of discharge.

The carrier shall be liable for the loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place in the period of his responsibility, except as otherwise provided for in this Section. It shall be presumed that the occurrence which caused the loss, damage or delay took place in the period of carrier's responsibility, if the loss of or damage to the goods took place in the period of carrier's responsibility or delay in delivery took place at the port of discharge.

The responsibilities of the actual carrier cover the entire period during which the actual carrier is in charge of the goods under the period of carrier's responsibility.

3. Basis of Liability

Article 47. The carrier shall, before and at the beginning of the voyage, exercise due diligence to make the ship seaworthy, properly to man, equip and supply the ship, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.

The carrier can be exempt from the liability about unseaworthiness if the carrier proves that he has exercised "due diligence" to perform this responsibility, when the carrier proves that the loss has resulted from unseaworthiness.

Article 48. The carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried.

The carrier can be exempt from the liability about carelessness on goods if the carrier proves that he has done "properly and carefully" to perform this responsibility, when the carrier proves that the loss has resulted from carelessness on goods.

Article 49. The carrier shall carry the goods to the port of discharge on the agreed or customary or geographically direct route. Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an act deviating from the provisions of the preceding paragraph.

The carrier can be exempt from the liability about deviation if the carrier proves that the deviation in question was a reasonable deviation, when the carrier proves that the loss has resulted from deviation.

Article 51. The carrier shall not be liable if he can prove that the loss arose or resulted from any of the following causes. However, before the carrier claims exemption under this article, he must prove that he has performed the responsibility provided in Article 47 and Article 49 or that the loss cannot be avoided even if he did not violated these responsibilities.

(1) Fault of the Master, crew members, pilot or servant of the carrier in the navigation or management of the ship

(12) Any other causes arising without the fault of the carrier or his servant or agent.

(11) Latent defect of the ship not discoverable by due diligence

(10) Insufficiency of packing, or inadequacy or illegibility of marks

(9) Nature or inherent vice of the goods

(8) Act of the shipper, owner of the goods or their agents

(7) Saving or attempting to save life or property at sea

(6) Strikes, stoppage or restraint of labour

(5) Act of the government or competent authorities, quarantine restrictions or seizure under legal process

(4) War or armed conflict

(3) Act of God and perils, dangers and accidents of the sea or other navigable waters

(2) The loss of the goods shipped on board due to fire, unless the claimant proved that the fire was caused by the actual fault of the carrier