国际海运承运人在多因致损下的赔偿责任研究
发布时间：2019-03-29 11:52
【摘要】： 多因致损时赔偿责任承担规则关涉海上货物运输合同主体的切身利益,调整国际海上货物运输的重要公约,如《汉堡规则》《鹿特丹规则》等以及《法国海商法》《挪威海商法》《美国海上货物运输法》《中华人民共和国海商法》等各国国内法都对此给予了充分重视和密切关注。 多因致损下的赔偿责任,虽须仍尊重一因致损下的赔偿责任承担规则,但处理起来显非1+1=2或1-1=0那么简单。由于多因的“因”的复杂性以及相关利益平衡的需要,确定多因致损下的赔偿责任是比较棘手的。这也是为何在国际范围内对此问题的解决存在三种立法例以及21世纪之初维也纳会议秘书长报告Possible future work on transport law将多因致损下的赔偿责任列为“承运人责任”中未解决的3个问题之首的重要原因。 但国内外海商法学界对此问题尚未展开系统的深入的研究,国际公约及各国国内法的相关规定也瑕瑜互见,由此便导致了国内外相关司法裁判出现诸多的冲突与矛盾,而2009年底通过的旨在“构建统一的崭新的责任体系”的《鹿特丹规则》对此问题更是语焉不详。显然,这种情况对国际社会一直追求的创建顺畅而高效的海运业是十分不利的。 国际海运承运人在多因致损下的赔偿责任是一项系统工程,因此,必须运用系统论的研究方法和充分掌握其所遵循的立法例、考量要素、举证责任分配规则等,才能作出正确的判断。 运用比较法、文献法、案例分析法等,围绕题设进行剖析,深究考量要素之本旨,并分析和比较在《海牙规则》《汉堡规则》《鹿特丹规则》及中国《海商法》下未履行适航义务、管货义务、直航义务与不负责事项共致货损时国际海运承运人赔偿责任的承担,以便为统一裁判思路和完善中国《海商法》提供借鉴。 论文由引言、正文和结论组成。 引言介绍了论文的主要研究范围及相关研究状况。 正文包括三个部分。 第1章“多因致货损时赔偿责任承担的立法例”。归纳相关立法例,对《鹿特丹规则》抛弃《汉堡规则》“瓦里斯库拉原则”和COGSA 1999(草案)“平均分摊损失原则”而采“严格区分责任原则”原因进行分析,指出其实为“三个推定”的必然结果,平衡船货双方利益的特殊需要,积极追求公平价值目标的深刻反映。 第2章“多因致货损时确定赔偿责任承担须考量的要素”。重新审视货损、归责原则、不负责事项、首要义务、举证责任等核心要素的内涵,为具体分析多因致货损时赔偿责任的承担奠定基础。 第3章至第6章是对多因致货损时承运人赔偿责任承担的具体考量。在梳理《海牙规则》《汉堡规则》《鹿特丹规则》和中国《海商法》下货损赔偿责任确定路径的基础上,结合各自立法例、核心要素,考量各自的赔偿责任承担,并对完善中国《海商法》相关内容提出立法建议。 结论归纳了论文的要点。
[Abstract]:The rules relating to the vital interests of the subject of the contract for the carriage of goods by sea and the adjustment of the important conventions governing the international carriage of goods by sea, For example, Hamburg rules, Rotterdam rules, Norwegian Maritime Code, U.S. Maritime Transport Law, Maritime Law of the people's Republic of China, and other domestic laws have attached great importance to this issue and paid close attention to it. Although the liability for multi-cause damage must still respect the rules of liability under one cause of damage, it is not so simple to deal with it as 11-1-2 or 1-1-0. Due to the complexity of multi-cause "and the need of balance of related interests, it is difficult to determine the liability of multi-cause damage. That is why there are three legislative examples of international solutions to this problem, and the report of the Secretary-General of the Vienna Conference at the beginning of the twenty-first century, Possible future work on transport law, does not include liability for multiple damages as "carrier's liability". The main reason for solving the first of the three problems. However, the domestic and foreign maritime law scholars have not carried out a systematic and in-depth study on this issue, and the relevant provisions of international conventions and domestic laws have also met with each other, which has led to many conflicts and contradictions in the relevant judicial decisions at home and abroad. The Rotterdam rules, adopted at the end of 2009, aimed at "building a unified and brand-new system of responsibility", are even more vague on this issue. Clearly, this situation has been pursued by the international community to create a smooth and efficient maritime transport industry. The liability of international maritime carrier under the condition of multi-cause damage is a systematic engineering. Therefore, it is necessary to use the research method of system theory and fully grasp the legislative examples it follows, consider the elements, and distribute the burden of proof, and so on. In order to make the right judgment. Using comparative law, literature method, case analysis method, etc., to analyze and consider the essence of the elements, and to analyze and compare the non-compliance of seaworthiness obligations under the Hague rules, the Hamburg rules, the Rotterdam rules, and the Maritime Law of China, The liability of the international maritime carrier in the event of joint damage caused by the obligation of managing goods, the direct shipping obligation and the non-responsible matters, in order to provide a reference for the unification of the thinking of adjudication and the perfection of the Maritime Law of China. The thesis is composed of introduction, text and conclusion. The introduction introduces the main research scope and related research status. The text consists of three parts. Chapter 1 "legislation on liability for damages caused by multiple causes". Summing up relevant legislative examples and analyzing the reasons for the adoption of the "strict distinction of liability" principle in the Rotterdam rules, abandoning the Hamburg rules and the COGSA 1999 (draft) principle of average allocation of losses, It points out that it is the inevitable result of the "three presumptions", balancing the special needs of the interests of both shipping and cargo parties, and actively pursuing the profound reflection of the goal of fair value. Chapter 2 "factors to be considered in determining liability for multiple causes of damage to goods". Re-examining the connotation of the core elements, such as loss of goods, imputation principle, non-responsibility, primary obligation, burden of proof, etc., will lay the foundation for the specific analysis of the liability for compensation for multi-cause damage caused by goods. Chapters 3 to 6 consider the carrier's liability in the event of multiple damages. On the basis of combing the path of determining liability for cargo damage under the Hague rules, the Hamburg rules, and the Maritime Code of China, considering their respective legislative examples and core elements, and considering their respective liability commitments, And put forward the legislative suggestion to perfect the related content of China Maritime Law. Conclusion the main points of the paper are summarized.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D996.1
本文编号：2449518
[Abstract]:The rules relating to the vital interests of the subject of the contract for the carriage of goods by sea and the adjustment of the important conventions governing the international carriage of goods by sea, For example, Hamburg rules, Rotterdam rules, Norwegian Maritime Code, U.S. Maritime Transport Law, Maritime Law of the people's Republic of China, and other domestic laws have attached great importance to this issue and paid close attention to it. Although the liability for multi-cause damage must still respect the rules of liability under one cause of damage, it is not so simple to deal with it as 11-1-2 or 1-1-0. Due to the complexity of multi-cause "and the need of balance of related interests, it is difficult to determine the liability of multi-cause damage. That is why there are three legislative examples of international solutions to this problem, and the report of the Secretary-General of the Vienna Conference at the beginning of the twenty-first century, Possible future work on transport law, does not include liability for multiple damages as "carrier's liability". The main reason for solving the first of the three problems. However, the domestic and foreign maritime law scholars have not carried out a systematic and in-depth study on this issue, and the relevant provisions of international conventions and domestic laws have also met with each other, which has led to many conflicts and contradictions in the relevant judicial decisions at home and abroad. The Rotterdam rules, adopted at the end of 2009, aimed at "building a unified and brand-new system of responsibility", are even more vague on this issue. Clearly, this situation has been pursued by the international community to create a smooth and efficient maritime transport industry. The liability of international maritime carrier under the condition of multi-cause damage is a systematic engineering. Therefore, it is necessary to use the research method of system theory and fully grasp the legislative examples it follows, consider the elements, and distribute the burden of proof, and so on. In order to make the right judgment. Using comparative law, literature method, case analysis method, etc., to analyze and consider the essence of the elements, and to analyze and compare the non-compliance of seaworthiness obligations under the Hague rules, the Hamburg rules, the Rotterdam rules, and the Maritime Law of China, The liability of the international maritime carrier in the event of joint damage caused by the obligation of managing goods, the direct shipping obligation and the non-responsible matters, in order to provide a reference for the unification of the thinking of adjudication and the perfection of the Maritime Law of China. The thesis is composed of introduction, text and conclusion. The introduction introduces the main research scope and related research status. The text consists of three parts. Chapter 1 "legislation on liability for damages caused by multiple causes". Summing up relevant legislative examples and analyzing the reasons for the adoption of the "strict distinction of liability" principle in the Rotterdam rules, abandoning the Hamburg rules and the COGSA 1999 (draft) principle of average allocation of losses, It points out that it is the inevitable result of the "three presumptions", balancing the special needs of the interests of both shipping and cargo parties, and actively pursuing the profound reflection of the goal of fair value. Chapter 2 "factors to be considered in determining liability for multiple causes of damage to goods". Re-examining the connotation of the core elements, such as loss of goods, imputation principle, non-responsibility, primary obligation, burden of proof, etc., will lay the foundation for the specific analysis of the liability for compensation for multi-cause damage caused by goods. Chapters 3 to 6 consider the carrier's liability in the event of multiple damages. On the basis of combing the path of determining liability for cargo damage under the Hague rules, the Hamburg rules, and the Maritime Code of China, considering their respective legislative examples and core elements, and considering their respective liability commitments, And put forward the legislative suggestion to perfect the related content of China Maritime Law. Conclusion the main points of the paper are summarized.
【学位授予单位】：大连海事大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D996.1
【引证文献】
相关博士学位论文 前1条
1 王威;《鹿特丹规则》下海运履约方法律制度研究[D];大连海事大学;2011年
相关硕士学位论文 前3条
1 石佩文;《鹿特丹规则》下承运人责任基础问题研究[D];大连海事大学;2011年
2 李静;《鹿特丹规则》下海运履约方法律地位研究[D];中国海洋大学;2011年
3 戴韬;国际海上货物运输承运人责任的归责原则研究[D];苏州大学;2011年
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