On The Application Of Law For Foreign-related Personal Injury To Passengers On Cruise Ships

Although the Yang case heard by Shanghai Maritime Court in 2018 has exposed the dilemma in the application of the traditional conflict rules theory in the foreign-related personal injury to passengers on cruise ships,the revision of Chinese Maritime Code has no clear provisions on this question.Therefore,in order to promote the sustainable and healthy development of international cruise tourism in china,this thesis tries to choose ‘on application of law for foreign-related personal injury to passengers on cruise ships’ as the theme,which is under the cause of tort to research on the application of law for liability disputes of personal injury to passengers caused by the cruise companies and their servants or agents fail to fulfill their security obligations during cruise on the sea or in navigable waters connected to the sea.This thesis is divided into four chapters for argument and analysis.The chapter one analyses the basic characteristics and legal nature of foreign-related personal injury to passengers on cruise ships.This chapter expatiates on the five basic characteristics of foreign-related personal injury to passengers on cruise ships.And the legal nature of foreign-related personal injury to passengers on cruise ships from the perspective of private international maritime law is distinguished.Namely,it belongs to dispute of foreign-related maritime personal injury liability in a broad sense;it should belong to the dispute of foreign-related personal injury to passengers on ships from the narrow point of view.The Chapter two studies the application of law for foreign-related personal injury to passengers on cruise ships from an extraterritorial perspective.At present,it can be found that many countries adopt the model of direct selling cruise tickets,which basically recognize the establishment of contract of carriage of passenger by sea between passengers and cruise companies,and cruise tourism has the dual attributes of carriage by sea and tourism consumption.Firstly,internationally,foreign-related personal injuries to passengers on cruise ships are bound by the Athens Convention.Secondly,as the representative of the regional legislation of cruise tourism,the EU law stipulates that the2002 Protocol and the EU package tourism law should be applied among the EU member states.Finally,due to the particularity of foreign-related personal injury to passengers on cruise ships,countries often do not apply the law of flag state but directly apply lex fori.The chapter three discusses the dilemma and reflection of the application of law for foreign-related personal injury to passengers on cruise ships in china.On the one hand,from the perspective of lex lata,this chapter pointed out that the current dilemma of the application of law for foreign-related personal injury to passengers on cruise ships has the following characteristics: the application of Athens Convention is confusion about applicable law or limitation;the choice of law of clause in cruise ship ticket conflict with party autonomy;the law at common habitual residence has fallen through;there is a vacuum between the flag of convenience hoisted by cruise ships and the law of flag state;there is a dilemma of the determination of lex loci delicti caused by cruise on the high seas to cruising;the application of the principle of the closest connection conflicts with the predictability for the application of law.On the other hand,from the perspective of lex brenda,this chapter are used to theoretically reflect on the application of Athens Convention,party autonomy,the law at common habitual residence,the law of flag state,lex loci delicti,and the principle of the closest connection to foreign-related personal injury to passengers on cruise ships.The chapter four provides the system construction of the application of law for foreign-related personal injury to passengers on cruise ships in China.On the one hand,the chapter puts forward two construction principles,which are following the principle of protecting the interests of the weak in international private law and pursuing the principle of unity of opposites of predictability and flexibility in the application of law.On the other hand,the chapter suggest that China may set up the provisions of the application of law for foreign-related personal injury to passengers on cruise ships when revising the Chinese Maritime Code and clarify for the judicial application of article 44 and article 2(2)of the Chinese Application of Law.