Research On The Limitation Of Liability For Maritime Claims

The system of limitation of liability for maritime claims(LLMC)is a unique compensation rule in maritime field.The LLMC system redistributes the marine risk in a legal form,which confines the liability of participants in maritime activities within a limited range.The system aims at improving the anti-risk ability of all participants in maritime activities and plays an irreplaceable role in promoting the development of shipping and trade.However,the development of technology and marine risk-sharing mechanism,and the changes of marine transportation operation modes cause the weakening of the marine risk directly faced by humans.Thus,the objective basis of "the differences between marine and land risks" on which LLMC depends also has been questioned,which leads to the discussion on the abolition of LLMC.There are lots of different views,including the retention,abolition and improvement of LLMC.The challenge of the objective basis harms the legitimacy of LLMC,which confuses the theoretical and practical circle,and also hinders the effective operation of the marine risk-sharing mechanism.To maintain the function of LLMC in controlling maritime risk and safeguard the shipping and trade interests of P.R.China,it is urgent to remodel the legitimacy of LLMC through the improvement of the system to cope with the impact caused by the changes of maritime risk.In view of that,based on the background of changes in maritime risk,the dissertation discusses again the necessity of the LLMC.On that basis,to explore how to reshape the legitimacy of LLMC,and puts forward suggestions to improve the LLMC of China Maritime Code(CMC).Due to the distinctiveness of the Sea law(compared with the land law),the"Self-contained Characteristic" of maritime law is highly praised by scholars.As a result,maritime law has been unable to find its position in China’s traditional legal system,and its disciplinary localisation is not clear until now.The dilemma leads to the separation of maritime law from the traditional legal system,and makes the research results of maritime law appear to be overlooked.Meanwhile,the improvement of the special system of maritime law cannot draw nutrients from the traditional legal theory.This dissertation adopts the theory of "maritime law is a special law of civil law".Based on the origin and historical evolution of maritime law,this dissertation reveals that modern maritime law is a special law of civil law,and LLMC is a special rule of civil damage compensation system,the perfection of the LLMC should be guided by the theory of civil law.On this basis,this dissertation explores the improvement and legitimacy remodeling of LLMC under the civil law system,and finally puts forward specific countermeasures to improve the LLMC.Specifically,this dissertation includes four parts:introduction,formal text,conclusion and annex,and the formal text includes four chapters.The introduction introduces the significance of this research,which is to explore how to remodel the legitimacy of LLMC and improve China’s LLMC system.Then summarises current research status at the macro-level and analyses the focus of research at the micro-level.It also points out the limitation of the current research and the breakthrough that this dissertation aims to seek.Finally,it introduces the innovations of this dissertation:combs the historical evolution of the LLMC systematically;summarises the specific causes and effects of the evolution of modern maritime risk;discusses again the Legitimacy of the LLMC;puts forward the concept of exemption right in maritime field;puts forward specific countermeasures to improve the LLMC of CMC.The first chapter is related to the origin and historical evolution of the LLMC.In this chapter,the origin and specific connotation of LLMC are clarified,and it is proposed that LLMC can be traced back to the "Amalphitan Table" in the Middle Ages,which refers to "the legal system that allows the responsible person to limit his liability to a certain extent after an accident".On this basis,it explores the social background and legitimacy basis of LLMC and points out that the LLMC is the demand of development of the shipping industry,the necessary need of safeguarding the interests of domestic shipping and trade,and the consideration of improving the ability of the whole society to resist maritime risk.It conforms to the requirements of fair sharing of maritime risk,and it is an artificial correction of the general principle of damages.Secondly,this chapter studies the evolution of the LLMC from the customary law in the Middle Ages to the national legislation in modern Europe and America,and then to the modern maritime international conventions.Finally,it summarises the law of development of LLMC,and reveals that the LLMC shows the development trend of "the subjects of right of LLMC continues to expand,the conditions of losing the right of LLMC continues to be strict,and the limits of LLMC continues to increase".The second chapter concerns the changes of marine risk and its impact on LLMC.This chapter summarises the specific manifestations of the changes of maritime risks in modern times,which mainly includes the development of technology,the popularisation of risk dispersion mechanism and changes of modes of maritime transport operation.Then this chapter analyses how the changes of marine risk influence the LLMC,that is,the weakening of the differences between land and sea risks make the practice of preferential protection to participants in marine activities questioned,and the legitimacy of LLMC has been affected,which leads to the gradually "unlimited" of LLMC.Meanwhile,since the factors that "marine accidents still cause huge losses,the popularisation of new technology causes new risks,the application of artificial intelligence technology causes uncertainty to maritime risk,and LLMC plays an irreplaceable role in maritime risk dispersion",it is proposed that LLMC still has the necessity in contemporary.Finally,based on the weakening of the differences between land and sea risks,the enrichment of risk dispersion channels and the changes of global shipping situation,this dissertation proposes that the legitimacy of LLMC has been affected,and it is necessary to remodel the legitimacy.The third chapter refers to the reflection of the LLMC and the remodeling of its legitimacy.Through the analysis of the evolution of maritime law from ancient times to the Middle Ages and then to modern times,reveals that the "Self-contained Characteristic" of modern maritime law is limited,and its attribute should be the special law of civil law.The theoretical research of maritime law in China pays too much attention to the particularity of maritime law but ignores its commonness with the legal system on land.This kind of adherence to the "Self-contained Characteristic"of maritime law makes the theoretical research of maritime law neither recognized by the legal system of our country,nor able to obtain theoretical support from the traditional legal system,and take the risk of marginalization.Under the background of the changes of maritime risk,the improvement of the specific system of maritime law should be carried out under the civil law system,and guided by the theory of civil law.This chapter demonstrates that LLMC is a special system of civil law damage compensation,and analyses the dispute between substantive right and procedural right of LLMC under the civil law system,as well as the dispute between the right of defence,the right of the formation and the right of claim.On this basis,this chapter attempts to explore the nature of LLMC by using the theory of exemption,and proposes that LLMC is essentially a statutory exemption in the field of maritime claims,and then to clarify the positioning of LLMC under the civil law system.Based on the existing theories and legislation,this chapter reveals that some theories regard the exemption as the negative elements of liability,which confuses the relationship between the defense of irresponsibility and the exemption of liability,which is in contradiction with the logic of "accountability before exemption".To clarify the misunderstanding in the interpretation of existing theories,this dissertation puts forward the concept of exemption right and demonstrates its attribute,seeking the remodeling of legitimacy of LLMC under the guidance of the theory of exemption right and laying a foundation for the improvement of LLMC system in CMC.The fourth chapter is about the current legislation,difficulties and improvement countermeasures of the LLMC in China.The origin and legislative status of LLMC in Chinese mainland and Hong Kong,Macao and Taiwan are analysed.It is proposed that the legislation of LLMC in Chinese mainland and Hong Kong,Macao and Taiwan is different due to the differences in shipping and trade development policies.Nevertheless,Four Places Crossing Straits have a common pursuit,which is to promote the development of shipping and trade through LLMC.Meanwhile,with the changes of maritime risk,it is also the common expectation of the Four Places to reshape the legitimacy of LLMC through institutional reform.Based on the provisions of CMC,taking the cases of LLMC in Chinese mainland as the sample,this dissertation summarises the problems existing in the legislation of LLMC in China under the background of changes in maritime risk,such as "the unclear subject of rights,the ambiguity scope of protection,difficult identification of conditions for loss of rights and difficult determination of improvement scheme of liability limits".Also,puts forward the improvement countermeasures of LLMC:the subject of right should be expanded gradually,the object of right should be further clarified,the content of right should be coordinated with the damage compensation system of civil law.The conclusion part reiterates that LLMC plays an significant role in the development of shipping and trade industry,and LLMC still has the necessity of existence in the contemporary era.However,with the weakening of the differences between land and sea risks,the particularity of LLMC should be gradually weakened,to promote the balance between "controlling the risks faced by the claimed party" and"protecting the interests of the claiming party",and then remodeling the legitimacy of LLMC.To be specific,we are supposed to make clear the subject and boundary of right and to improve the limits of liability.By doing that,the LLMC could become a special provision of civil damages system in the maritime field,rather than a completely privilege.The Annex is a draft of the proposed articles on Chapter XI of China Maritime Code.