The Latent Defects Of Ships Of The Exemption Of Carrier:Implication、Application And Improvement

As one of the carrier’s exemptions,the latent defects of the ships means that the loss caused by the latent defects of the ships that the carrier has not found after handling the ship by due diligence,the carrier can exempt the liability.In China’s legal system,the only provision about the exemption of latent defects of ships can be found in Article 5(1),paragraph 11 in the Maritime Law.In terms of law application,this provision is obviously too principle.If this article is to be cited in judicial trial,the legal standards that need to be met are not clear,resulting in inconsistencies in the application of law.Most of the researches on the cause of carrier exemption in academia focus on the aspects of negligence in the navigation or in the management of the ship,fire,act of God and etc.However,in judicial practice,when the carrier applies the exemption clause for latent defects of ships,the court applies this clause to focus on whether the "latent defects" can be reasonably identified.Second,the carrier needs to fully prove the loss of the cargo and the legal causal relationship between the "latent defects of the ships" and the loss of cargo.Also needs to fulfill the obligation to handle the ship by due diligence.However,the ambiguity of legal provisions and the uncertainty of judicial practice have brought great difficulties to the trial of such cases.The scope of ship’s latent defects,the criteria for determining which belong to the latent defects ofthe ships,and applicable rules are all worthy of study.Therefore,this article will analyze the meaning of "latent defects of ships",whether the application of this clause should be based on the seaworthiness obligation and to make a thorough inquiry of the rules when apply to this clause.Through reviewing the academic theories,and thinking deeply about the judicial cases.Systematically studying on the application of the one of the carrier’s exemption and put forward legislative suggestions on the amendment of Maritime Law of China.Studying the implication of "latent defects of ships",whether the application of this clause should be based on the seaworthiness of ships,and researching on the conditions and dilemmas to be met in the application of this exemption clause have far-reaching significance.To answer the above questions,we cannot simply focus on this single regulation.We should trace its roots,explore the original intent of the legislation,consider the maritime practice and the inherent logical relationship between this regulation and the whole system and other regulations.This article is divided into four chapters in addition to the preamble and conclusions.They are the implication of "latent defects of ships",whether the application of the exemption clause of latent defects of ships is based on the seaworthiness obligation and the application of the exemption clause.According to the current situations of application of the clause,this paper aims to think deeply and give some advice to the amendments of Maritime Law and trial practice.It consists of four parts.The contents of each chapter are briefly summarized as follows.The first chapter of this article sorts out and analyzes the meaning and applicable scope of the latent defects of ships.Literally,the "latent defects of the ships" is divided into three parts: "ship","latent" and "defect",and then to analyze and discuss the scope of the “latent defects of ships” so that there is a relatively certain and reasonable range on the application of the entire clause.The second chapter of this article elaborates whether the application of the ship’s latent defects clause is subject to the carrier’s seaworthiness obligations.There are two steps to analyse this question.Begin with the question whether the seaworthiness obligation is the primary obligation,and then based on the conclusion of the analysisto think about the question whether the application of latent defects of the ship is based on the premise of seaworthiness obligations.Through the analysis of the system of legislation,the views of maritime law scholars and the cases in judicial practice,a hierarchical analysis is made and conclusions are drawn.The third chapter of this article analyzes the legal issues raised by the exemption clause of the latent defects of ships in the application process,including the "due diligence" obligations to be fulfilled and the legal causality to be satisfied,as well as the particularity of the burden of proof and balance with the allocation institutional of loss compensation.Through the analysis of the above issues,the application of this clause has a more comprehensive understanding and deeper thinking.The fourth chapter of this paper aims to put forward some legislative suggestions on the amendment of China’s Maritime Law.Through the previously three chapters,the problems faced in the application of the exemption clauses for latent defects of ships and the dilemmas of judicial application are tried to give the courts and the parties a relatively reasonable and clear rule guides.In summary,through the above analysis,the article aims to have a clearer and deeper understanding of the latent defects of the ships of one of the carrier’s exemption clauses,so that this clause can get rid of the fate of “ zombie clause”,and benefit both legislation and practice.