Review and Prospect of the Exemption Clauses in the Contract of the Carriage of Goods by Sea – Focusing on the fault or neglect of the Carriers servants or agents
Date Issued
2010
Date
2010
Author(s)
Huang, Chieh-Lin
Abstract
During the process of carrying goods by sea, the carrier has the liability for seaworthiness of ship and the duty of care for cargoes. In order to fulfill the purpose of developing shipping industry and lightening the burden on carriers, legal exemption from liability was instituted. Therefore, liability of the carrier and legal exemption from liability are great significance to carriage of goods by sea, because they are decisive to liability allocation when it comes to maritime carriage.
The idea above is fundamental throughout this thesis, where thorough analysis on defining carrier’s period of responsibility and on discussing the appropriateness of legal exemption from liability is made. Due to the fact that maritime carriage of goods involves international trade, Maritime Act, which regulates any carriage by sea, is international to a certain level; it is also impacted by international conventions and legislative examples in other countries. This thesis starts with introductory chapters of those international conventions and foreign legislative examples regarding carriage of goods by sea, giving basic understanding such as the legislative background and history of Maritime Act, accompanied by the latest development and future trends of maritime carriage around the world.
If a carrier of goods by sea claims for the benefits of legal exemption from liability, it is only feasible within the period of responsibility, in line with the Maritime Act; a carrier is not allowed to claim for any exemption if the claim is raised within the period of responsibility stated in Civil Law. Therefore, the following chapters discuss definition of maritime goods carrier’s period of responsibility, along with the controversial issue of whether to apply “Carrier Taking Full Responsibility of Goods Approach” or “Carrier Sharing Responsibility of Goods with Shipowner Approach”. This thesis provides prods adapted from international conventions, foreign legislative examples, elaborating via practical experiences and academic theories respectively and concluding with position this thesis takes.
Last part of the thesis discusses legal exemption from liability of the carrier of goods by sea, stressing the malpractice by performing parties. In accordance with Subsection 1 and 3, Article 69 of Maritime Act, which state the exemption from liability if any loss or damage of cargoes arising or resulting from nautical faults and of fire, the carrier is able to claim for discharge of liability when it is the performing parties who cause the problem. Legislative background, theoretical foundation, definition of these 2 law subsections under current legal framework, and the necessity to remove them are all important issues studied in this part. Moreover, with the Subsection 17, Article 69 of Maritime Act being a well-known exclusion clause, its relation with the duty of care for cargoes and whether it is necessary to remove this clause, are looked into in this part as well. This thesis sums up by predicting future prospect of the subject law.
Subjects
the Rotterdam Rules
compulsory period of responsibility
exemption from liability of nautical faults
exemption from liability of fire
exclusion clause
Type
thesis
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