Conflicts And Coordination Of Legal Norms On Compensation For Ship-sourced Damage To Marine Eco-environment

Ship-sourced marine eco-environmental damage means the damage to marine ecoenvironment caused by pollutants from ships.The pollutants include oils and other polluting goods carried onboard and escaped or discharged of from ships,the ballast waters discharged from ships,the domestic garbage dumped from ships,and the particulates contained in the exhaust gases emitted from ships.In this dissertation,shipsourced marine eco-environmental damage refers to the pollution of marine environmental or the damage to marine eco-environment caused by the oils and other polluting goods escaped or discharged from ships.The conflicts of legal norms on the compensation for the ship-sourced damage to marine eco-environment refer to the conflicts of legal principles,statutory rules and interpretations between domestic law and international treaties or between special law and general law.The conflicts cause difficulties to realizing the purposes of legislation,lead to inconsistent legal consequences in similar cases.The conflicts are also highlighted by the increasing number of domestic legislations relating to marine environmental protection.With the promotion of the ocean power strategy in China,the governance of marine eco-environment has reached to the national strategic level and should be relied on legal governance.Due to the global mobility of ships,international treaties have reasons to regulate the legal issues caused by ships,and it is necessary to coordinate the national legal norms of marine eco-environmental protection with international treaties to which China is a party.Based on the analysis of the basic concepts relating to the damage to marine ecoenvironment,by adopting methodologies of legal norm research,comparative studies etc.,this dissertation conducts an in-depth research on several aspects of the conflicts of legal principles and rules,so as to provide a theoretical support for mitigating the conflicts and the coordination of legal norms on the compensation for the ship-sourced damage to the marine eco-environment.There are abundant researches on the law of the general compensation for the damage to marine eco-environment.However,the researches rarely relate to the law of compensation for the ship-sourced damage to marine eco-environment or are not deep enough in this regard,and lack the exploration on the essence of the issues concerned.These researches are seldom conducted from the perspective of coordination or globalization of legal norms.This dissertation consists of an introduction,main context and a conclusion.The introduction includes the background of study,the current status of study and literature review,the significance of study,the research methodologyies,the technical roadmap,and the core concepts involved in the damage to marine eco-environmental.The main context includes five chapters,and their contents are concerned with some important issues of the legal regime of compensation for ship-sourced damage to marine eco-environment in which the conflicts of legal norms and the urgent issues to be solved in practice are also more obvious.However,due to the limitation of this dissertation’s length and in order to highlight the topic,not all the contents of this legal regime are concerned.In detail,the main content of this dissertation includes the conflicts and coordination methods in the aspects of the subjects of the legal relations,the exemptions of liability,the scope of damage compensation and the punitive liability of the compensation for the ship-sourced damage to marine eco-environment.All parts have both common theoretical basis and some characteristics of their own.Chapter 1 is about the origins,philosophy,principles and methodologies of the conflicts of legal norms on the compensation for the damage to marine eco-environment.This Chapter takes the common issues of the conflict of legal norms as a general outline,and clarifies the contents of the conflicts,the theories and methodologies of the coordination of legal norms,which is the basis for understanding common concepts and issues in later chapters.The conflicts are manifested in three aspects:conflict of legal principles,conflict of legal rules and conflict of legal interpretations.The conflicts of legal norms violate the principle of unification of legal orders,and it is necessary to coordinate the conflicting legal norms by appropriate methods.The choice of the coordination methods cannot be made without the guidance of basic principles which are exacted from the basic theories.Guided by the basic theories of distributive justice and unification of legal orders,the coordination principles are that of coordination between domestic legislations and international treaties and that of coordination between special laws and general laws.The inter-conversion between domestic law and international treaties,and the revision of Chinese Maritime Code in the near future and the adoption of dynamic claim mechanism are the general ways to coordinate the conflicting legal norms.Chapter 2 is about the conflict and coordination on the subjects of the legal relations regarding compensation for ship-sourced damage to marine eco-environment.This chapter analyses the conflicts and coordination on two aspects of claimants and liable parties.In terms of claimants,the conflicts are manifested in the diversification of claimants and their causes are the functional overlap of the marine environment supervision and administrative organs and the blurred positioning of the public prosecution offices.The coordination of the functions of the marine environment supervision and administrative organs can realize the coordination of the diversity of claimants.In terms of the liable parties,the conflicts are manifested by the difficulties in identifying the liable parties.Through the revision of Chinese Maritime Code,stipulating the shipowner as the liable party is the coordination method to achieve the unity of the liable parties for the compensation for the ship-sourced damage to marine eco-environment.Chapter 3 is about the conflicts and coordination on the exemptions of liability for compensation for the ship-sourced damage to marine eco-environment.This Chapter analyses the conflicts on the exemptions of liability between domestic law and international conventions,as well as among domestic laws.Coordination of the legal rules can be achieved by stipulating the exemptions of liability through revision of Chinese Maritime Code in the near future.Chapter 4 is about the conflicts and coordination on the scope of compensation for the ship-sourced damage to marine eco-environment.This Chapter analyses the conflicts on the scope of compensation for such damages stipulated in Chinese Civil Code and that in international treaties to which China is a party.The causes of such conflicts are twofold:one is the lack of typology on the damage to marine ecoenvironment,the other is the absence of special law to govern the scope of compensation for the damage to marine eco-environment.In particular,damage to marine eco-environment is characterized by the intersection of public and private interests and their mutual transformation,and the remedies for the damage are also dynamic.The traditional "all-or-nothing" approach to civil remedies cannot cope with the complexities of damage to marine eco-environment.The coordination of the conflicting legal norms should respond to the causes thereof.First,it needs to classify the damage to marine eco-environmental and to limit the scope of compensation within the costs that have actually be incurred or will be incurred.Secondly,coordination of the conflicting legal rules can be achieved by revision of Chinese Maritime Code to stipulating a special chapter on compensation for pollutions damage from ships.Chapter 5 is about the conflicts and coordination of punitive liability for the shipsourced damage to marine eco-environment.This Chapter analyses the innovation,conflicts and coordination on the punitive liability for damage to the eco-environment as stipulated in Chinese Civil Code in the field of environmental torts.The conflicts are mainly reflected in three aspects:first,the conflict between the disciplinary function and the compensation function;secondly,the conflict between the principle of excess compensation and the traditional principle of liability for leveling loss;thirdly,the coexisting of punitive damages,eco-environment restoration costs,administrative penalties and criminal penalties.The conflicts arises from the fundamental differences between the common law regime and the Chinese civil legal regime as punitive liability was created by common law.Therefore,this Chapter analyses the elements of punitive liability,and explores the advantages and disadvantages of its application.The author concludes that punitive liability is not appropriate to be applied to compensation for ship-sourced damage to marine eco-environment.The conclusion summarizes the main points of the dissertation and the author’s views.