Papers Category:Legal Papers
- International Law Papers
Post Time:2014/2/24 16:27:00
Abstract With the rapid development of China's export-oriented economy, China's maritime domain and the International Chamber of Shipping relatively closely connected, in order to ensure the rights and obligations of the parties to the international shipping process effective constraint, the international maritime commonly used 'Hague Rules' international maritime standards. As representatives of developing countries, the international ocean carrier liability regime very seriously, in accordance with the provisions of the Hague Rules, the provisions given many rights in international maritime shipping States, worthy of all maritime countries to comply. Taking into account China's fast-growing maritime economy, we must have a comprehensive and profound understanding of the international ocean carrier liability regime in order to ensure reasonable international shipping interests to ensure the legitimate rights and interests of our country. Therefore, China should actively carry out international maritime liability of the carrier system, international maritime liability of the carrier system can play a positive role in promoting the sustained, rapid and healthy development of China's marine economy.
Paper Keywords international ocean carrier liability regime
First, the current conventions of the international carriage of goods by comparison with the specific provisions of the liability of the carrier
In the field of international maritime convention on the carriage of goods by sea three, namely: the Hague Rules, Visby Rules, the Hamburg Rules. Three conventions has become the main conventions of the international maritime cargo transport, maritime transport of goods on the world has played a strong role in binding. However, due to the three international conventions developed by different countries, the responsibility of the carrier during transport of goods by sea, have different emphases, in order to ensure the liability of the carrier and rights of international maritime transport of goods can be effective requirements and constraints, we must specific provisions of the responsibility of the carrier in the existing Convention on the international carriage of goods by comparison.
(A) not entirely fault the principle of comparative analysis
Incomplete fault principle in the international shipping process, if the carrier is at fault, it is necessary to assume the liabilities and losses caused by the negligence, but in some cases, the carrier may be exempted. Being taken not entirely fault the principle of the Convention 'Hague Rules' and 'Visby Rules. In the 'Hamburg Rules' for the carrier's fault provisions mainly taken the 'presumption of negligence, plus general negligence principle of attribution.
(B) the carrier's liability limit comparative analysis Limitations on the liability of the carrier in three conventions have provided, but each of the provisions of the Convention are not the same.
'Hague Rules' according to the unit, which is required for each unit must be less than 100 pounds. Visby Rules to calculate the losses in accordance with the so-called 'gold francs', the gold franc pegged to gold, reflecting the absolute value. 'Hamburg Rules' provides the right to pick up to compensate for the losses.
(C) comparative analysis of the definition of goods by sea
Definition of goods by sea in the three conventions are different, 'Hague Rules' for the definition of the goods is the sea in the cargo hold of the goods, including goods and animals on board the deck of the ship. 'Hamburg Rules' for the definition of goods by sea is relatively comprehensive, 'Hamburg Rules' for all goods on board are identified as goods by sea, animals, deck cargo and container are included.
(D) comparative analysis of the statute of limitations for ocean carriers Often occur in the process of international maritime trade litigation, the dependence of the International Covenant on relatively large.
The three international conventions for the limitation of actions shall IV are not the same. 'Hague Rules' the provisions of the statute of limitations time period is one year, 'Visby Rules' provisions of the statute of limitations is two sides agreed, including litigation to recover compensation must be within three months. 'Hamburg Rules' the longest, the statute of limitations can usually be extended to 2 years.
Second, the history of the development of the international maritime carriage of goods analysis
Was the result of three international carriage of goods by the phenomenon of the Convention, is mainly determined by the history of the development of international maritime transport of goods. The birth of the Hague Rules, Visby Rules and the Hamburg Rules 'are in a special historical conditions, with a strong historical and national imprint. The following analysis will focus on the history of the development of the three conventions.
(A) the development of the 'Hague Rules' historical analysis
Found by international maritime historical research, 'Hague Rules' the birth of the earliest dating back to the mid-nineteenth century, the United Kingdom is the overlord of the sea during this period, accounting for maritime transport initiative, so in the rule-making has an absolute authority, so most British Disclaimer sea freight rules. But with the development of the situation of international maritime transport, more and more countries are unlikely to comply with the rules of free trade, resulting in effective protection of the legitimate rights and interests of the international ocean carriers are not based on the real reason the United States to promote the Hague Rules 'was born, the first time clearly the rights and obligations of the international ocean carriers, with international maritime rights provisions of the prototype.
(B) the development of Visby Rules 'historical analysis
'Visby Rules' is born after World War II, after this historical period, the British maritime supremacy is not, many coastal countries are involved in the international shipping process, when the original 'Hague Rules' on the rights and responsibilities of the carrier, as well as compensation for standard setting has been showing a non-adaptive For this reason, many countries have made to carry out a thorough revision of the 'Hague Rules'. However, Britain and other countries also lost hegemony, but the strength in the international shipping is still strong, 'Hague Rules' has been practiced for many years, has a deep practice based multinational, 'Davis than the rule 'is just the liability and the statute of limitations to make changes.
(C) the history of the development of the 'Hamburg Rules'
Due to the rise of the developing countries, more and more participation of developing countries in the international maritime affairs, 'Hague Rules' and 'Visby Rules' are inclined to developed countries, based on the current situation in many developing countries to promote to modify the movement of international ocean carriers Liability Convention, and has been the support of the United Nations. Thus launched the 'Hamburg Rules', the 'Hamburg Rules' for the rights and interests of the owner, the maintenance of the highest degree of detailed provisions on the responsibility of the shipping carrier. However, due to this Convention to promote the countries are developing countries, this convention has not been developed and largest maritime countries to join, but the 'Hamburg Rules' for the terms of the liability of the carrier system, existing international maritime provided Reference and learn from. Reposted elsewhere in the Research Papers Download http://eng.hi138.com
Third, the international ocean carrier responsibility principle The need to adapt analysis
Through the above analysis we can see that the terms of the three existing international maritime conventions, the Hamburg Convention has not been developed and largest maritime countries wide response, but the principle of liability for ocean carriers to adjust in line with international maritime situation development, it is necessary to comply with international maritime law of development. I believe that with the continuous development of international maritime transport, international shipping will continue to adjust on the principle of responsibility of the carrier to proceed until meet international maritime career development. Therefore, we should actively analyze the principle of the need for adjustment of the international maritime liability of the carrier.
(A) 'Hamburg Rules' on the carrier's responsibility to adjust in line with the common interests of both cargo
The interests of both cargo balance the interests of principles and international trends 'Hamburg Rules' in the 'presumption of culpability for negligence, plus general negligence' principle is balanced and balanced cargo needs of the interests of both sides, in line with the development trend of international maritime legislation, but also conducive to promoting international shipping enterprises in developing countries to strengthen management, improve its ability to compete in the international shipping. Early application of the 'Hague Rules' based largely on the limitations of marine technology, the carrier showed great adventure to withstand the perils of the sea, Governments, particularly a maritime country in order to stimulate the development of the shipping industry and allow the carrier to enjoy sailing mistakes Disclaimer benefits.
(B) actively adjust the international ocean carrier liability is the only way for the development of developing countries, shipping
The interests of developing countries should be more and more attention, the Second World War, independent developing countries on the international shipping legislation stage, play an increasingly important role in the international carriage of goods by legislation. To safeguard the rights and interests of developing countries under the premise of fairness is the proper meaning of the development of international rules. Thus, developing countries want to have more right to speak, and to ensure that their legitimate rights and interests in the international shipping, it is necessary to actively adjust the international maritime liability of the carrier.
(C) the original Convention on the drawbacks of Nautical Fault gradually revealed, is imperative to adjust Nautical fault exemption disadvantages.
The one hand, at this stage, still adhere to the nautical fault exemption no longer the limitations of marine technology as its reasons; On the other hand, the nautical fault exemption established, there is no fully implement fault liability principle, serious damage to the legitimate interests of the cargo. The fundamental reason is that the nautical fault exemption Western shipping manipulated by the developed countries significantly favoring the interests of the ship and set up, can not meet today's international political and economic situation.
, China's international ocean carrier principle of liability adjustment comprehensive utilization
Taking into account the characteristics of developing countries in China, as well as the needs of the growing shipping, China in order to ensure that the maritime economy healthy and steady growth, it is necessary to carry out an in-depth study of existing international maritime conventions, and use the 'Hamburg Rules' a powerful opportunity to promote, efforts to adjust the international shipping carrier's liability system, and the principle of international ocean carrier liability adjustment for comprehensive utilization. We mainly from the following aspects:
(A) the correct understanding of the principle of carrier Liability adjustment Carrier liability rules in principle the adjustment process, we should promote the 'Hamburg Rules', 'Hague Rules' as the main basis.
Taking into account the actual application situation, the current international standards are set up based 'Hague Rules', so we want to make it clear to adjust the price to be paid by the liability of the carrier. We should accelerate the responsibility of the carrier, to coordinate with the other countries of the Convention on the shipping carrier's liability attributable to ensure that China's shipping economy has a relaxed international environment for the development of policies and regulations support for China's shipping economy to provide legal support.
(B) unity of Maritime modify the ocean carrier principle of liability should be adjusted
In order to ensure that the maritime economy able to achieve positive development outcomes, formulated the 'Maritime' as a major maritime economic laws in our country, and played an active role. But with the development of the situation of the International Chamber of Shipping, Maritime need to be adjusted in order to adapt to the new situation development needs. The principle of liability of the ocean carrier adjustment is a major adjustment in the maritime economy. Therefore, in order to ensure that China's maritime economy can be rapid and healthy development, unity of Maritime modify the ocean carrier principle of liability should be adjusted so that the maritime economy of our country can have strong laws in the domestic and international and the support of the Convention.
(C) actively promote the reform of the ocean carrier liability, appropriately canceled Disclaimer Elimination of nautical fault exemption, appropriate to increase the liability of the carrier, making both cargo risk-sharing is more reasonable.
This is the international carriage of goods harmonization of laws trend, but also the development trend of China's cargo transportation system of liability of the carrier. China must do to prepare to adapt to this trend, improve the liability insurance of the ship to ensure the healthy development of China's shipping industry, to provide protection for the country's international trade. Therefore, the departure from the promotion of China's ocean carrier liability reform, we should strive to improve the maritime environment for economic operation, and continuously improve the domestic law and to promote the reform of the International Covenant on seeking a good development environment, for the country's maritime economy.
We can thus conclude, we cope with the international ocean carrier liability regime to conduct an in-depth study, to have a comprehensive and correct understanding of the international maritime conventions, to learn the correct use of international maritime conventions, efforts to promote the rapid development of China's marine economy.
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