《鹿特丹规则》中海运履约方制度研究

发布时间：2018-08-19 15:36

【摘要】： 本文从结构上分为三章。第一章分析了海运履约方的涵义,并探讨了海运履约方的来源——源自美国1999年《海上货物运输法草案》的契约承运人和履约承运人制度。分析了海运履约方制度对喜马拉雅条款的影响,由于海运履约方包括了独立合同人和港区陆上承运人,因此海运履约方制度扩大了喜马拉雅条款的保护范围。讨论了海运履约方的法律地位,由于海运履约方是以自己的名义而不是以承运人的名义履行债务,所以海运履约方属于独立合同人而不是债务履行辅助人,其受雇人属于债务履行辅助人。并将海运履约方制度和实际承运人制度、港口经营人和多式联运海运承运人进行了比较分析。第二章研究了海运履约方的权利和责任,海运履约方的权利包括列明事项的免责、责任限制和货物留置权,这些权利与承运人的权利是相同的,但是其他权利,例如收取运费的权利并不与承运人相同。海运履约方的责任期间是货物到达船舶装货港至离开船舶卸货港的期间内,并且货物在其掌管期间内,或者其参与履行运输合同所涉及任何活动的其他任何时间内,与承运人的责任期间是完全衔接的。海运履约方与承运人的连带责任是一种法定责任,而其享有承运人的抗辩和赔偿责任限制,可以用“契约群”理论来解释,故海运履约方制度兼有侵权和合同的特征。海运履约方与承运人承担的是不真正连带责任。第三章分析了我国实际承运人、港口经营人、多式联运经营人制度的缺陷,认为我国法律制度可以从海运履约方制度中有所借鉴,最后提出了修改我国相关法律制度的建议。
[Abstract]:This paper is divided into three chapters from the structure. The first chapter analyzes the meaning of maritime performing party, and discusses the source of maritime performing party, which originates from the contract carrier and performing carrier system of the United States 1999 draft Law on the Carriage of goods by Sea. The influence of maritime performing party system on Himalayan clause is analyzed. Since maritime performing party includes independent contractor and port land carrier, maritime performing party system expands the scope of protection of Himalayan clause. The legal status of maritime performing parties is discussed. Since maritime performing parties perform their obligations in their own name rather than on behalf of the carrier, maritime performing parties are independent contractors rather than debt performance auxiliaries, His employees are subordinates to debt performance. The system of maritime performing party and actual carrier, port operator and multimodal transport carrier are compared and analyzed. Chapter II studies the rights and responsibilities of maritime performing parties, which include exemption from liability, limitation of liability and lien on goods, which are the same as the rights of the carrier, but other rights, For example, the right to collect freight is not the same as that of the carrier. The period of liability of a maritime performing party is the period between the arrival of the goods at the port of loading on the ship and their departure from the port of discharge of the ship, and the period during which the goods are in charge or at any other time during which they are involved in any activity covered by the contract of carriage, The period of responsibility of the carrier is fully connected. The joint and several liability between the maritime performing party and the carrier is a kind of legal liability, but it enjoys the defense and limitation of the liability of the carrier, which can be explained by the theory of "contract group", so the system of maritime performing party has the characteristics of both tort and contract. The maritime performing party and the carrier are not truly jointly and severally liable. The third chapter analyzes the defects of the system of actual carrier, port operator and multimodal transport operator in our country, thinks that the legal system of our country can be used for reference from the system of maritime performing party, and finally puts forward some suggestions to modify the relevant legal system of our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D996.19

【引证文献】