【作者】 杜娟；

【导师】 韦经建；

【作者基本信息】 吉林大学 ， 国际法学， 2008， 硕士

【摘要】 门到门运输在国际货物运输中的比重越来越高,如何调整门到门运输下承运人责任问题变得越来越重要。随着《运输法草案》的制定,调整门到门运输下承运人责任出现三大模式,传统的多式联运承运人责任模式、单式公约加合同安排下的承运人责任模式和《运输法草案》下承运人的责任模式。这三大模式在调整门到门运输下承运人责任问题上各有优缺点,分别加以详细的论述。同时通过对三大模式的冲突与协调进行深入分析,尤其是对责任期间、责任形式等问题进行深入的研究,总结出《运输法草案》模式下将责任期间延伸为门到门的合理性,以及采用最小网状责任制的好处。提出对修改我国《海商法》关于承运人责任规定的建议,以使我国《海商法》在调整国际货物运输上更能满足当前国际形势,满足贸易发展的需要。更多还原

【Abstract】 Since the emergence and development of carriage in containers, which has been almost a half of century, the form of carriage of international goods by sea has evolved from port to port to door to door, and carrier begins to provide the door to door services. So in such circumstances, it becomes necessary to do research combining the tradional carriage by sea and other forms of carriage. For so many years, there is no one uniform international convention governing the multimodel transport, at the same time, as for the carriage of goods by sea,“the Hague Rules”,“the Hague-Visby Rules”and“the Hamburg Rules”,are all the three conventions which have came into force. The differences of the three conventions lead to the arise of lots of legal conflicts, which therefore become the development obstacles of international trade and navigation economy. In the sphere of carriage of goods, it is becoming a trend to make a uniform Transportion Law, the“Draft of Transportion Law”drawn by UNCITEAL is such an effort to attempt to unify the recent conflicted laws on international transport to meet the urgent need of door to door carriage. Thereby, further research on the liabilities of carrier of door to door carriage, including comparative analyses on conflicts and harmonization of the three kinds of modes of door to door carriage ,which includes the liability mode of traditional multimodel carrier, the liability mode of carrier under the arrangement of contract and convention, and the liability mode of carrier of the“Draft of Transportion Law”, will help to amend the Maritime Law about the liabilities of carrier.My prensent endeavour is to research the carrier’liabilities of door to door carriage under the whole system of carrier’liabilities ,which will help to lay down a set of reasonable and effective liability system ,and to solve the recent conflicts of laws. This paper put emphasis on analyzing and discussing the liability period and forms of carrier, and some other relevant problems in the way of comparing the character, analyzing the respective existing problems, researching the conflicts and harmonization of the three modes of door to door carriage. Last but not least, I will try to bring up some reasonable advices to solving the extisting problems on the basis of legislative status quo home and abroad. This paper separates from three parts to observe.The outline of this paper follows:The first part will introduce the recent three modes governing the carrier’liability of door to door carriage, the liability mode of traditional multimodel carrier, the liability mode of carrier under the arrangement of contract and convention, and the liability mode of carrier of the“Draft of Transportion Law”, and will elaborate the undertaking of liabilities of carrier and the exsiting problems under the three modes repectively. Under the responsibility mode of traditional multimodel carrier, my endeavour in this prensent is the liability forms of multimodel carrier, and will introduce three forms: responsibility sharing system, the network liability system ,the uniform liability system, and in conclusion point out the most problem of this mode——the loss of international uniform law. The liability mode of carrier under the arrangement of contract and convention is the common usage governing the carrier’s liability of door to door carriage, there are three international conventions under this mode——“the Hague Rules”,“the Hague-Visby Rules”and“the Hamburg Rules”, but there are quite different rugulations on carrier’s liability. The conflicts of the conventions arise many problems, at the same time, the carrier’s liability ususlly involves the application of domestic laws before loading and after discharging, so this will lead to the application conflicts between domestic laws and conventions and conventions themselies. This part’s points is observing the undertaking of carrier’s responsibility under the mode of“the Draft Transportion Law”, and will briefly introduce the background, scope of application, period of liability, and the form of liability of the draft, and then examine the least network of liability and confirm the reasonability of the period of liability.The second part of the essay: analyzing the conflicts and the co-ordinations of the three modes. The essay also focuses on the three areas of the conflicts and the co-ordinations in three levels. First, it is the stipulated conflict and co-ordination of the liability period. It points out the stipulations for the carrier of the liability period in the“the Hague Rules”,“The Hague - Visby Rules”,“Hamburg Rules”,“transport draft law”and China’s“CMC”. It also shows that it is the best way in the background of the“draft transport law”, to extend the liability period of the carrier to door-to-door scale to clarify the responsibility of the carrier and is suitable for the current international good transportation. It is also the best approach to co-ordinate the conflicts of the liability period. Secondly, it describes the conflict and the co-ordination of the carrier’s responsibility on a single transportation rule. Especially it expounds the stipulations of the“transport draft law”, and the co-ordination problems of the“CMR”,“COTIF”and“CMNI”, Last it analyzes the international transport of goods between the three parties that the cargo, door-to - Gate carrier and the issues of the co-ordination taken by the between the performing parties liability . It shows which choice is more reasonable and more suitable for the fact in the basis of the summarization of the analysis of the possible conflicts and how to coordinate in the three modes.The third part of the essay: the section is the focus of the essay. In the basis of the former analysis and comparison, it gives the suggestions of the stipulations of the carrier’s responsibility“CMC”of China. It first analyzes the present conditions of China’s“CMC”, interprets the several existing problems of China’s“CMC”and expounds the necessities to revise the law from the perspective of the limitation of the scope of the“CMC”and the existing defect of the“CMC”,in order to make it suitable for the new international conditions ,also to make it helpful for the development of our international trading and the maritime economy. The essay proposes three suggestions in the aspect of revising the carrier responsibility of the“CMC”. First , enlarging the scope of the“CMC”to avoid its limitation, and making it can also adjust the river transport. Second, increasing the segment of the port terminal operators responsibility in order to stipulate the principle of liability, limitation of liability of the operator’s liability period. Third, deleting the duplicate contents in the“content law”to safeguard the unity of the legal system and reduce conflicts of laws.The purpose of the discussion of the essay is to clarify the carrier responsibility under the door-to-door transport better and protect the interests of the international transport of goods parties more equitable and reasonable. The essay combines the characteristics of the international transport of goods and makes the comparisons and the analysis of the relevant existing international conventions and different national laws . It takes a research on the carrier liability from a liability system level and draws a conclusion in the basis of the research .It also makes an attempt exploration to the revision of China’s“CMC”in order to attract more scholars to concern on the problems of the carrier liability under the door-to-door transport and to put forth to a reasonable solution as early.更多还原