Legal Research On Negotiatory Collision Avoidance

The widespread existence of Negotiatory collision avoidance bring many new challenges to the judgement of ship collision cases,this article,whose title is Legal Research on Negotiatory Collision Avoidance,will combine the practice of collision avoidance at sea and start with the No.31 guiding case.This paper mainly discuss the rationality,legal character,legal effect,legal consequence of negotiatory collision avoidance,its effect on the division of collision liability and other problems using the research method of comparative analysis and empirical analysis.This article is divided into four chapters.Chapter one,"The Outline",illustrates the basic concepts relating to this thesis,such as the concept,sort,manifestation of negotiatory collision avoidance,the navigation rules and usual practice that ships should comply with,etc.This chapter will also analyze the rationality of negotiatory collision avoidance from two aspects:advantage and risk.Chapter two,"The Legal Character,Legal Effect,and Legal Consequence of Negotiatory Collision Avoidance",mainly discuss the legal character,legal effect,and legal consequence of negotiatory collision avoidance.Chapter three,"The Sharing of Collision Liability When Negotiatory Collision Avoidance Lead to Collision",mainly discuss the influence produced by negotiatory collision avoidance to the nature of collision liability,the burden of proof and discovery techniques of collision avoidance agreement,the fault of ships collision during the period of negotiatory collision avoidance,and the division of collision liability.Chapter four,"legislative proposals",puts forward the amending advice of the Rule according to the full text’s discussion.The main conclusions finally obtained are:①the advantages and risks of negotiatory collision avoidance coexist,the function of negotiatory collision avoidance about coordinating collision avoidance action between ships should be brought into full play by guidance and training;②The Rule should clarify the legal status of negotiatory collision avoidance when conditions are ripe;③Collision avoidance agreement belongs to the category of the contract,and its legal effect depends on whether it violates the mandatory provisions of the navigation rules;④When the agreement departs from the Rule,both the two ships lose right of way;⑤It will be more reasonable if the action of violating collision avoidance agreement is considered to be the fault of ships collision;⑥Division of the collision liability should be mainly based on navigation rules and good seamenship,and some references should be given to collision avoidance agreement reached by ships;⑦The important task of supervising navigators to observe navigation rules should be handed over to the Maritime Administrative Law.