海上拖航法律问题研究
发布时间：2018-11-21 15:40
【摘要】：第1章海上拖航的界定。海上拖航是指拖船对被拖物的拖带行为或服务,是一种内容非常宽泛的海上服务。通过对拖航性质学说的辨析,得出海上拖航合同是一种具有服务性质的有名合同,且按照具体情形的不同可分为具有雇佣特征和具有承揽特征的海上拖航合同。另外,在比较海上拖航与海上运输、海难救助港内拖航等其他海上服务行为诸多不同。 第2章海上拖航的适拖义务。主要以海上拖航中承拖方与被拖方的适拖义务为研究对象,通过研究英国、美国以及我国案例,总结出承拖方与被拖方各自的适拖义务,并参照英国判例,从首要义务、绝对义务、谨慎处理说的角度考证适拖义务的性质,最后结合适航义务的举证责任程序,提出了海上拖航中适拖义务的举证责任分配。 第3章海上拖航航程中的义务。拖航作业和拖航航行中,承拖方和被拖方之间义务的一般标准是尽到适当技能和注意。在此标准下,以控制地位为依据划分承拖方和被拖方之间的义务,并且分析了拖航航程中特殊情况——拖航受阻与放弃拖航中拖船的义务。承拖方和(或)被拖方对第三船的义务主要体现为尽到良好船艺和遵守航行规则。 第4章海上拖航的损害赔偿。拖航作业中的损害赔偿具有一般性和特殊性,本章综合考查了针对拖航特殊性发展出的支配者原则、雇佣推定、控制原则和中国法的规定,分析承拖方和被拖方之间的损害赔偿与涉及第三人的损害赔偿中的责任分配问题。 第5章海上拖航的责任免除。海上拖航中的责任免除包括合同约定的免责条款和法律规定的免责事由。该章对拖航标准合同中普遍存在的各种形式的免责条款进行了具体分析,如“雇佣条款”、"Named Vessel"条款,各国司法实践对于标准合同中的免责条款的效力一般不予认可。并从人为和自然力两个角度对法定免责事项进行了研究。 第6章海上拖航的转化救助。拖航与海上救助存在密切联系,本章重点讨论拖航向救助转化的两个条件：一是不能被双方合理预计的情形使被拖物处于危险之中,二是产生的风险或拖船履行的义务不在合同的范围内。本章还研究了拖航转化为救助的情况下对原合同的影响,拖航合同中存在的特殊条款和承拖方过失对取得报酬的影响。 第7章研究拖航的责任限制。认为海上拖航的责任限制,适用《1976责任限制公约》时具有一定的局限性；在英美,船舶的概念得到扩展,限制较少。英国是按照拖航船队中有过失的船舶各自的吨位分别限制责任。而美国法则区分索赔方和责任人之间是否存在合同关系,从商业目的的角度分析,进而产生了“船队规则”和“纯侵权”规则。我国海上拖航责任限制应在“船舶”的界定和拖船和被拖船责任限额的确定两个方面,适当吸收英美的合理做法进行完善。
[Abstract]:Chapter 1 the definition of towing at sea. Towing at sea refers to the towing behavior or service of towed objects by tugboats, which is a kind of very broad marine service. Based on the analysis of the theory of towing nature, it is concluded that the maritime towing contract is a famous contract with the nature of service, and it can be divided into two kinds according to the specific circumstances, which have the characteristics of employment and contracting. In addition, there are many differences between sea towing and maritime transportation, and other maritime service behaviors such as tug in salvage port. Chapter 2 the obligation of towing at sea. By studying the cases of Britain, the United States and our country, the author summarizes the respective towing obligations of the towing party and the towed party, and makes reference to the British jurisprudence, and from the primary obligation, taking the towing and the towing obligations as the research objects, and the case study of the United Kingdom, the United States and our country. In the view of absolute obligation, careful handling theory, the nature of suitable towing obligation is studied. Finally, combining with the procedure of burden of proof of seaworthiness obligation, the distribution of burden of proof of suitable towing obligation in sea towing is put forward. Chapter 3 obligations in the course of a towed voyage by sea. The general standard of obligations between towing and towed parties in towing and towing operations is to exercise due skill and care. Under this standard, the obligations between the towing party and the towed party are divided on the basis of the control position, and the special case in the towing voyage is analyzed, that is, the tug is blocked and the tug is abandoned. The obligations of the towed and / or towed party to the third ship are mainly embodied in good shipbuilding and compliance with navigation rules. Chapter 4 compensation for damage caused by Sea towing. The damage compensation in towing operation is general and special. This chapter synthetically examines the dominator principle, the employment presumption, the control principle and the provisions of Chinese law, which are developed in view of the towing particularity. This paper analyzes the problem of liability allocation between the dragon-trailing party and the towed party and the damage compensation involving the third party. Chapter 5 exemption from liability for Sea towing. Exemption from liability in maritime towing includes contractual exemption clauses and legal exemptions. This chapter has carried on the concrete analysis to the various forms of exemption clauses in the standard contract of towing, such as "the employment clause", "Named Vessel" clause, the judicial practice of various countries generally does not approve the validity of the exemption clause in the standard contract. And from the point of view of human and natural force, the legal exemption is studied. Chapter 6 conversion salvage of towing at sea. There is a close relationship between towing and salvage at sea. This chapter focuses on two conditions for the transformation from towing to salvage: one is that the towed object is in danger if it cannot be reasonably expected by both parties. Second, the risk or tug performance of the obligations outside the scope of the contract. This chapter also studies the effect of towing on the original contract, the special clause in the towing contract and the effect of the fault of the towing party on the compensation. Chapter 7 studies the limitation of towing liability. It is considered that the liability limitation of maritime towing has some limitations when applying < 1976 Convention on limitation of liability, while in Britain and America, the concept of ship has been expanded and limited. The British limit liability according to the respective tonnage of the negligent ships in the towing fleet. The United States law distinguishes whether there is a contractual relationship between the claimant and the responsible person, and analyzes it from the point of view of commercial purpose, and then produces "fleet rules" and "pure tort" rules. The limitation of liability for towing at sea in our country should be perfected in two aspects: the definition of "ship" and the determination of the limitation of liability of tug and towed ship, and the reasonable practices of Britain and the United States should be absorbed appropriately.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.19
本文编号：2347404
[Abstract]:Chapter 1 the definition of towing at sea. Towing at sea refers to the towing behavior or service of towed objects by tugboats, which is a kind of very broad marine service. Based on the analysis of the theory of towing nature, it is concluded that the maritime towing contract is a famous contract with the nature of service, and it can be divided into two kinds according to the specific circumstances, which have the characteristics of employment and contracting. In addition, there are many differences between sea towing and maritime transportation, and other maritime service behaviors such as tug in salvage port. Chapter 2 the obligation of towing at sea. By studying the cases of Britain, the United States and our country, the author summarizes the respective towing obligations of the towing party and the towed party, and makes reference to the British jurisprudence, and from the primary obligation, taking the towing and the towing obligations as the research objects, and the case study of the United Kingdom, the United States and our country. In the view of absolute obligation, careful handling theory, the nature of suitable towing obligation is studied. Finally, combining with the procedure of burden of proof of seaworthiness obligation, the distribution of burden of proof of suitable towing obligation in sea towing is put forward. Chapter 3 obligations in the course of a towed voyage by sea. The general standard of obligations between towing and towed parties in towing and towing operations is to exercise due skill and care. Under this standard, the obligations between the towing party and the towed party are divided on the basis of the control position, and the special case in the towing voyage is analyzed, that is, the tug is blocked and the tug is abandoned. The obligations of the towed and / or towed party to the third ship are mainly embodied in good shipbuilding and compliance with navigation rules. Chapter 4 compensation for damage caused by Sea towing. The damage compensation in towing operation is general and special. This chapter synthetically examines the dominator principle, the employment presumption, the control principle and the provisions of Chinese law, which are developed in view of the towing particularity. This paper analyzes the problem of liability allocation between the dragon-trailing party and the towed party and the damage compensation involving the third party. Chapter 5 exemption from liability for Sea towing. Exemption from liability in maritime towing includes contractual exemption clauses and legal exemptions. This chapter has carried on the concrete analysis to the various forms of exemption clauses in the standard contract of towing, such as "the employment clause", "Named Vessel" clause, the judicial practice of various countries generally does not approve the validity of the exemption clause in the standard contract. And from the point of view of human and natural force, the legal exemption is studied. Chapter 6 conversion salvage of towing at sea. There is a close relationship between towing and salvage at sea. This chapter focuses on two conditions for the transformation from towing to salvage: one is that the towed object is in danger if it cannot be reasonably expected by both parties. Second, the risk or tug performance of the obligations outside the scope of the contract. This chapter also studies the effect of towing on the original contract, the special clause in the towing contract and the effect of the fault of the towing party on the compensation. Chapter 7 studies the limitation of towing liability. It is considered that the liability limitation of maritime towing has some limitations when applying < 1976 Convention on limitation of liability, while in Britain and America, the concept of ship has been expanded and limited. The British limit liability according to the respective tonnage of the negligent ships in the towing fleet. The United States law distinguishes whether there is a contractual relationship between the claimant and the responsible person, and analyzes it from the point of view of commercial purpose, and then produces "fleet rules" and "pure tort" rules. The limitation of liability for towing at sea in our country should be perfected in two aspects: the definition of "ship" and the determination of the limitation of liability of tug and towed ship, and the reasonable practices of Britain and the United States should be absorbed appropriately.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D996.19
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