Study On The Liability Limitation Of Port Operators

Along with the development of modern shipping industry, port operator, as the entitywho runs and manages the terminal connecting the sea and land transportation,becomes to be an independent legal subject and plays significant role in shippingindustry, especially in cross-border shipping industry. In the process ofabovementioned transform, several legal disputes arise, among which whether theport operator shall be entitled the right of liability limitation similar to the carrier isfocused on more and more. For a quiet long time in past, such issue has mainlyresulted in that the port operator sought to quote Himalaya clause as to enjoy the rightof liability limitation of carrier, which arouse controversy in the academic as well asin domestic and foreign judicial practice.In the light of comparing the diversity between the port operator and carrier, thisarticle intends to demonstrate whether the right of liability limitation or which of thesame shall be entitled to the port operator.This article consists of the following seven chapters:Chapter Ⅰ: Clarification of relevant concepts, mainly about the definition of portoperator.Chapter Ⅱ: Summary of the status in quo on the topic, literature review andintroduction on the related international covenant and domesticlegislative history.Chapter Ⅲ: Demonstration on the necessity of legislation of liability limitation ofport operator. The author is of the opinion that the port operator shouldbe endowed with the right of liability limitation. Chapter Ⅳ: Analysis on the two approaches to regulate the liability limitation ofport operator, i.e. to adopt the same liability limitation of carrier (called“unified liability limitation”) or to establish an independent liabilitylimitation for port operator differing form the one for carrier (called“independent liability limitation”), and introduction on the legislationof typical countries.Chapter Ⅴ: Analysis in the light of comparing with the carrier on the elementswhich should be took into consideration in the process of suchlegislation, including risk characteristics of port operator, economicanalysis and cost of legislation.Chapter Ⅵ: Analysis on the advantages and disadvantages of adopt unified liabilitylimitation or independent limitation. The author points out that1)expanding the extent that Himalaya clause applies to the port operatoras to implement unified liability limitation can hardly fit the domesticlegal regime and is also deficient in justifiability;2) incorporating theport operator into the concept of overall shipping for implementationof unified liability will involve excessively numerous matters and incurenormous cost, which the author would not lend countenance to; whilst3) to carry out independent liability limitation suits to the risk andeconomic characteristics of port operator and can be integrated withthe present domestic shipping legal system, of which the cost iscomparatively controllable, as a result, is preferable in the sight of theauthor.Chapter Ⅶ: Summary of the viewpoints of this article, based on which legislativeproposals are provided.