중국 해상법에 따른 복합운송인의 책임제도는 다음과 같은 측면에서 개선되어야 한다. 둘째, 복합운송사업자의 책임제한에 관한 법률을 완성할 필요가 있다.
Introduction
The Purpose of Study
In China, the framework of the legal system for adapting international multimodal transport has not yet been built. The liability system of the multimodal transport operator (MTO) is the core of the law on international multimodal transport.
The Scope and Method of Study
Overview of International Multimodal Transport
Concept and Structure of Multimodal Transport
- Development and Unification of Titles about International Multimodal
- International Convention, Rules and Comprehension of Laws about
- The Essential Component of International Multimodal Transport
International multimodal transport is defined in the United Nations Convention on the International Multimodal Transport of Goods (May 1980). According to the United Nations Convention on Multimodal Transport, it is of course not international multimodal transport.
Development of Multimodal Transport
In addition to the contract of carriage between the multimodal carrier and the freight carrier, there are many other complex relationships. Later, the land-rail multimodal transport and rail-water multimodal transport documents were produced.
Legal Rules of International Multimodal Transport
In recent years, China has used international multimodal transport with some counties and regions to adjust and adjust foreign trade traffic. Subsequently, UNCTAD and ICC established rules for multimodal transport documents to gain consensus and cooperation in the world.
Legal Status of Multimodal Transport Operator
Multimodal Transport Operator
- Definition of Multimodal Transport Operator in Law
- Character of Multimodal Transport Operator in Law
- Classification of Multimodal Transport Operator
- Status of International Multimodal Transport Operator
- Qualification of Multimodal Transport Operator
But the only one that enters into a multimodal transport contract with a freighter or shipper is an MTO. But the only one that signs a multimodal transport contract with a freighter or shipper is MTO.
Multimodal Transport Operator and the Forwarding Agent
- Definition and Legal Status of Forwarding Agent
- Types of Forwarding Agent
- Differences of Multimodal Transport Operator and Forwarding Agent
In the business of international multimodal transport, the freight forwarder can be an agency of an international multimodal carrier. The client is an international multimodal carrier and a contracting party to an international multimodal transport contract. In other words, the freight forwarder is an international multimodal carrier and is responsible for the multimodal transport contract.
Therefore, the business area of freight agents covers the business area of an international multimodal carrier. 46. However, in general, the main and general scope of business of international multimodal carriers and freight forwarders is reflected in the table above. Freight forwarders for participation in the international multimodal transport of goods in a single or double role.
Multimodal Transport Operator and Operators of Transport Terminals
But as a third party outside the contract, he is an agent of the carrier and does not need a power of attorney. Eg. the port operator carried out the delivery of the goods based on the mandate of the carrier, which is the exercise of the right to perform agents. In other words, independent contractor of the port operator in the contract does not affect him as a customer.
In CMC, Article 46: The responsibilities of the carrier in relation to the goods carried in containers shall cover the entire period during which the carrier is in charge of the voyage. The carrier's responsibility in respect of non-containerized goods extends to the period during which the carrier is in charge of the goods, from the time the goods are loaded onto the ship to the time the goods are discharged. It is clear that the carrier's responsibility for the freight can be divided into two different situations: first, before the container cargo is delivered to the consignee, which is entirely the responsibility of the carrier.
Liability Principle of Multimodal Transport Operator
- International Regulation on Multimodal Transport Operator’s Liability
- Chinese Law on Liability Principle of Multimodal Transport Operator
In addition, damage and loss of goods in the multimodal transport operator always occurs in the period of the continental section. It can be embodied in the Hamburg rules, so the joint liability regulation based on the strict liability principle is the ultimate end result of the multimodal transport operator's liability principle. The contract law that came into force in 1999 has special regulations for the multimodal transport contract.
Maritime law requires that there must be a maritime shipping mode in the advancement of multimodal transportation. Contract law only requires that multimodal transport be combined with two transport modes or higher. Therefore, it can be assumed that multimodal transport contracts in maritime law are one of the models in contract law.
Limitation of Compensation Liability of International Multimodal Transport
- International Regulation on Limitation of Compensation Liability of
- Correlative Regulation on Compensation Limitation of Liability of
But multimodal transport differs from maritime transport, which is a single form of transport. In their multimodal transport journey, on the one hand, they are more accustomed to the liability system for maritime transport, and especially to the limitation of liability thereof. On the other hand, the multimodal carrier cannot get enough compensation from the ocean shipping carriers.
One reason is that it regulates higher liability. limitation to the multimodal transport operator than to the maritime carrier. In the current state, which does not combine the liability limitation of the multimodal carrier, the "corridor scheme" does not work either. So when including ocean shipping, if there is a loss in a part that is not part of ocean shipping, the multimodal carrier still assumes responsibility according to the lower limit of liability for ocean shipping.
Period of Liability of Multimodal Transport Operator in the Chinese Law
When the damage to goods occurs in the section of transport that is dominated by domestic transport law, the limitation of compensation liability is made according to the contract of carriage of goods by rail, road, air or water. In its terms, all one-way transport operators undertake the actual damage of the goods. When damage to the goods occurs in the section of transport dominated by the one-way transport treaty, under the current and effective one-way transport treaty, the limitation of liability for compensation for damage is from 8.33 SDR gross weight to 17 SDR before kg.
Therefore, he should be responsible for the cargo throughout the transportation and deliver the goods to the places of the port of shipment with the original bill of lading. The accident memorandum proved that the damage to the goods occurred during the transport to the place of delivery. 34;Goods accepted” as long as the cargo is in charge of the carrier, if the goods are on board at this time.
Liability System of Multimodal Transport Operator
The Building Mode of Liability of Multimodal Transport Operator
Once the multimodal transport of goods has been damaged, such damage may either be certain to occur in a particular type of unimodal transport sector or impossible to determine when it occurred. Third, in the field of international multimodal transport, the legal relationship of transport tends to network structure, because multimodal transport is an independent form of transport based on multimodal transport contract. When a multimodal transport operator performs multimodal debt, he has the legal relationship with the various carriers based on unimodal transport contract.
The legal relationship constitutes the multimodal network based on the multimodal transport operator and the carriers. 78 When the goods are damaged, the external compensation relations consist of the obligation that the OTPs pay to the interested party of the goods. A multimodal transport operator has the right to ask the carrier to recover damages, which is the internal relationship of claims. And the internal relationship of the claims in the applicable legislation is controlled by the unimodal transport conventions or domestic legislation.
Existing Liability System of Multimodal Transport Operator
Despite these problems, the modified network liability system is used by some of the standard shipping documents in use. The biggest advantage of the uniform liability system is its predictability, especially with regard to the sender. Unlike the liability gaps described above in connection with the network liability system, under the uniform liability system, the carrier's liability will always be the same.
According to the so-called modified single liability system, the MTO's liability depends on whether the damage can be localized or not. However, if the damage can be localized, MTO's liability is determined by Establishing a single liability approach provides a basic liability system that provides predictability for both the shipper and the MTO.
The Principle of International MTO’s Liability
By only taking into account the liability limit of the applicable unimodal transport law rather than applying the law as such, as the network liability system does, it is ensured that problems with liability gaps do not arise. This is because in the case where damage occurs between two modes of transport and no unimodal liability scheme applies, the uniform liability system for the multimodal scheme will apply. Therefore, the liability system of multimodal transport operators developed from network liability system to modified network liability system and then to uniform liability system.
Therefore, the MTO's responsibility system has completely abandoned responsibility for the maritime system, which is not realistic. Therefore, the carrier's liability in the Land Transport Act, as the unified standard for the MTO's liability system, is closest to the actual situation and furthest reduces the difference between the MTO's liability system and the carrier's liability sector. So if MTO's liability system takes uniform liability system, it should be based on Land Transport Act's liability system.
Liability of Multimodal Transport Operator under the Chinese Law
- Introduction of Chinese Liability of Multimodal Transport
- Legislation on Liability of Multimodal Transport Operator in China
The carrier shall be liable for loss or damage to the goods caused by delay in delivery due to the fault of the carrier, except those arising out of or resulting from causes for which the carrier is not liable as provided for in the relevant articles of this agreement. Chapter. Where the loss or damage to or delay in delivery of the goods occurred at a particular stage of the multimodal transport, the liability of the multimodal carrier and its limitation shall be governed by the relevant laws and regulations of that particular stage of transport. the transport. If the multimodal transport includes maritime transport, the limitation of liability is governed by the Maritime Code of the People's Republic of China;
96 Management rules for international multimodal freight transport with containers Article 27, subsection 1: The multimodal transport operator is responsible for the loss of or damage to or delay in the delivery of the goods that occurred while the goods were in his responsibility. Any claim against the multimodal transport operator relating to loss resulting from the loss of or damage to or delay in the delivery of the goods is subject to the limitation of liability set out in Articles 27 and 28 hereof, regardless of whether such claims are justified in the contract. liability or otherwise. 99 Administrative Rules for the International Multimodal Transport of Containerized Goods, Article 29: Any claim against the multimodal transport operator in respect of loss resulting from the loss of or damage to or delay in delivery of the goods is subject to the limitation of liability set out in Articles 27 and 28 hereof , regardless of whether such claims are based on contract, compensation or otherwise.
Conclusion
The liability of multimodal transport under the law is essentially a network liability system and a unified liability system. The liability of a multimodal carrier and a carrier using a single means of transport is different. Sometimes the liability system may depend on the agreement between the multimodal carrier and the subcontractor.
At present, the multimodal transport convention mainly uses the uniform liability system and the subsidiary network liability system. Although the Convention regulates the form of liability of the operator of multimodal transport, the Convention that enters into force recently is very small. Zaiyang Wu and Xuewei Ni, Comparison of multimodal transport contract and future trends, Zhujiang Watercraft, No.4,2001.
