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Legal issues of the carrier in the contract dispute of passe

时间:2015-10-27 来源:未知 编辑:梦想论文 阅读:

0 Introduction

 

Modern liner transport has made the traditional international maritime passenger transport has changed, although it is carrying passengers, but the cruise ship is not only stay in a simple maritime transport, but also to provide visitors, leisure, catering, entertainment and other high-end services. All kinds of legal relationships on the cruise are becoming more complex. Because at present our country tourist aboard the cruise ship in the vast majority are of foreign nationality, navigable waters including international waters, departure and destination although the same or located in a country, but according to the contract of carriage or shipment, midway port of call in another country. Therefore, the cruise transportation is refers to the International Carriage of passengers by sea. The traditional international carriage of passengers by sea, the relevant domestic legislation mainly is "the people's Republic of China Maritime Law" (hereinafter referred to as the "maritime law"), the relevant international conventions is mainly the 1974 sea passenger and luggage Athens Convention relating to the carriage of "(hereinafter referred to as the 1974 Athens Convention). The legislation, provisions on the rights and obligations of the carrier, obviously lag to meet the needs of the development of modern transport ship. Therefore, it is clear that the relevant legal issues of the carrier will help to solve the problem of the cruise ship contract disputes, safeguard the legitimate rights and interests of the parties, in order to comply with the rapid development of the cruise tourism in china.

 

1 the law applicable to the contract of liner shipping

 

Cruise ship contract signed by the carrier and the passenger, due to its special nature, the contract should be attributed to the unknown contract, this paper calls for the cruise contract. Article 107 of the contract and China's "maritime law": "a contract of carriage of passengers by sea is a carrier for carrying passenger ship passengers and their baggage from a Hong Kong transported to another port. By the passengers pay the fare of contract by sea." The contract is the most similar, but there are also different. The cruise transportation port of departure and destination is often the same port, but from a midway ports of call to a midway ports of call is still "trafficking" for the purpose; second, cruise in the process of transportation, passengers have to in the middle of each ports from ship to shore on tourism, from the management and control of cruise carrier; third, cruise in the process of transportation not only provide transportation service also provides similar to "the hotel" high standards of accommodation, catering, leisure, entertainment, shopping and other services.

 

Because the liner shipping is based on the contract of carriage, and the carriage of goods by sea, the shipping contract is made by the liner company in advance, which contains the complete terms of carriage. Therefore, the law of the application of the liner shipping contract is the domestic legislation or the international convention which is established by the first clause of the contract. For example, Royal Caribbean International Cruise Company carrier clause paragraph D of Article 11 clearly: not in the United States aboard, landed and undocked ships any of the ports in the United States, carrier to enjoy all the rights of the 1974 Athens Convention; in addition, for all other ships for (1) of the law of the United States. Standard shipping terms of the Mediterranean cruise ship twenty-third also clear the application of the contract for the carriage of the 1974 Athens convention.

 

Due to the international cruise passenger transport on the domestic legislation of each country can't enumerate, considering the rapid development of China's cruise tourism demand, many cities have build with independent fleet cruise home port development plan. Therefore, this paper mainly according to the maritime law of China and the 1974 Athens Convention to elaborate cruise carrier involves a number of legal issues.

 

2 the meaning of a cruise ship

 

According to China's "maritime law" provisions of Article 108, the carrier is refers to enter into a contract of carriage of passengers and, the actual carrier is to accept the carrier commissioned in whom the whole or part of the carriage of passengers, including the acceptance of sub delegation in the transport of other people. According to the definition of the 1974 Athens Convention, (a) "carrier" refers to a in addition to the carrier, the actual implementation of the all or part of the transport of the shipowner, the lessee or operator by it or in whose name a to enter into a contract of carriage, regardless of the carriage is practical by the implementation or by the implementation of the actual carrier; (b) "actual carrier".

 
In addition, according to the "people's Republic of China" (hereinafter referred to as the "tourism law") in October 1, 2013, the 111st provisions of the "law of the people's Republic of China" (hereinafter referred to as "tourism law"): "the meaning of the following terms in this law:...... (three) the package tour contract is a contract that the travel agency arranges for two or more travel services, such as travel, accommodation, catering, travel, tour guide or tour guide, etc........ (six) the performance of the auxiliary, is the existence of a contract with the travel agency, to assist in the implementation of the package tour contract obligations, the actual provision of legal or natural persons related services."

 

In the form of a package tour contract, the carrier is known as the performance of the auxiliary, is to provide the relevant services, but, in the legal status, the cruise carrier is the actual implementation of the whole or part of the transport, it should be regarded as the actual carrier.

 

3 passenger liner carrier responsibility

 

1) of passengers by sea and comes with luggage transport period of responsibility according to the provisions of China's "maritime law" Article 111, "maritime passenger transport and passenger cabin luggage during the period of carriage, since the passengers boarding up to passengers from the ship stop, fare ticket contain the cost of transport. During the period of carriage and comprises a carrier by water will passenger received from the shore on ships and sent from ship to shore of time, but does not include time for travelers in Hong Kong Station, wharf or in other port facilities." This provision considers that the carrier of passengers and their own baggage is not the responsibility of the period, without taking into account the characteristics of modern cruise transportation, and therefore, the legislative lag is obvious. However, the spirit of the legislation can be inferred, cruise passengers and comes with luggage in the middle of the anchored Hong from the ship ashore travel to return to their vessels during this period, because from the management and control of cruise carrier, does not belong to the cruise carrier liability period.

 

2) passenger cabin luggage outside the other luggage transport duty during the passenger cabin luggage outside the other luggage, period of liability of the carrier from travellers will baggage delivery carrier or his servant or agent to the carrier or the carrier's servants, who returned to the passengers when check. Of course, the law considers that the carrier is effective in the terms of the contract of carriage, which is still responsible for the contract.

 

4 the jurisdiction of the contract dispute of the liner shipping

 

4.1 civil legal relationship

 

In accordance with the provisions of China's "maritime law" Article 1, Article 2, the Chinese port of the international cruise transportation import and belongs to the adjustment object of the maritime law of China should be subject to the adjustment of China Maritime Law. Once between the carrier and the passenger in case of disputes, which belongs to the maritime contract dispute case, shall be subject to the jurisdiction of the maritime court for China's "maritime law" and "maritime law" doesn't stipulate the time for the provisions of the "contract law", "tourism law" and other relevant laws.

 

In accordance with the provisions of the scope of Article 2 of the 1974 Athens Convention ":" this Convention for any international transportation under the following conditions, a ship is flying the convention a when the flag of the country or in the domestic registration, or (b) contract of carriage the Convention in a when the contract, or (c) in accordance with the contract of carriage, the departure or arrived in this Convention a when the domestic. " Therefore, Chinese nationals of the cruise the carrier or the cruise transportation contract in our country entered into or departure (destination), midway ports of call in China when the 1974 Athens Convention relating to apply.

 

Our country "Civil Procedure Law" article 244th: "foreign contract or foreign property rights and interests of the parties, you can use a written agreement to choose and dispute the actual contact of the court jurisdiction. The people's Court of the people's Republic of China shall not violate the provisions of the jurisdiction and exclusive jurisdiction of the people's Republic of China, even though the parties concerned are not in the territory of the people's Republic of China." Can be seen, for Chinese citizens in the cruise on the occurrence of civil cases, can be in accordance with the law of the jurisdiction of the court to determine the jurisdiction of the Chinese court of justice.

 
4.2 criminal legal relationship

 

In the course of the cruise transportation, it is inevitable to have the problem of crime. If there is a problem of piracy, stealing, fighting, etc.. The sixth article of the Convention on the high seas in 1958 provides that: "the ship shall be suspended by a national flag, except in the case of an international treaty or the exception of the provisions of this article, which is under the jurisdiction of the public." "The United Nations Convention on the law of the sea" has also made the general provisions of the high seas ship by ship exclusive jurisdiction. If the nationality of a ship is a country, the victim is in country B, the suspect is in country C, criminal acts occurring on the high seas. Then if the flag is not as may causes the victim to the vassal state because of have no jurisdiction caused the victim rights are not protected.

 

In addition, for cruise crime also face many obstacles, such as event occurred on the high seas and cannot report, investigators were unable to get aboard the ship quickly, difficult to obtain evidence.

 

Although the flag state jurisdiction is under the jurisdiction of the high seas, the most important principle, but when its citizens on the high seas was hurt, if the flag state not for crimes under the jurisdiction of the, victims of the country has the right to according to the objective territorial jurisdiction principle, negative personal jurisdiction jurisdiction to protect its citizens benefit [1].

 

5 passenger liner carrier's liability

 

Passengers during the cruise, may face a threat to personal safety, property safety, based on the transport contract, the main responsibility of the carrier is to protect the safety of passengers on board, to fulfill the obligations of the baggage. Article 114 of the 1974 Athens Convention relating to Article 3 of "and" maritime law "stipulates that: 1) the losses caused by the passenger death or injury and loss of or damage to luggage, such as the cause of this loss of accident occurred during the transportation, and is due to the carrier or its duties within the scope of the act of employment due to the fault or neglect of the agent, the carrier is responsible. 2) the claimant shall bear the burden of proof in the extent to which the accident occurred during the period of carriage and the loss or damage caused by the loss or damage. 3) if the death or personal injury to the passenger or bring their own baggage loss or damage to the ship due to shipwreck, collision, stranding, caused by defects in the explosion or fire or ship, or related to this, unless proof to the contrary, otherwise it should be presumed to be the carrier or the employment or agent of the fault or neglect of duties within the scope of their business. For other baggage loss or damage, regardless of cause loss and damage accident of nature, unless proof to the contrary, otherwise it should be presumed to be of such fault or neglect. In all other cases, the claimant shall bear the responsibility for the fault or neglect of the burden of proof. "Article 71 of the tourism law stipulates:" due to ground operators, perform auxiliary causes of default, the tour take responsibility; tour of responsibility can be to ground operators, perform assisted recovery.

 

Due to ground operators, perform auxiliary caused by tourists personal injury and property loss of, tourists can for ground operators, perform auxiliary bear compensation responsibility, may also require that the group organizing agencies shall bear the liability for compensation; tour of responsibility can be receiving agency, fulfill the auxiliary recovery to more. However, due to the reasons for the public transport operators to damage the personal injury, property damage, the public transport operators to bear the responsibility of compensation, travel agencies should assist tourists to the public transport operators claim. "

 

6 passenger liner free of responsibility

 

1) passenger negligence or neglect

 

Article 115 of the 1974 Athens Convention, "Article 6 and the maritime law" stipulates: "such as if the carrier proves that the death or personal injury to the passenger or his baggage loss or damage due to the passenger's fault or negligence caused or contributed to, accept the court cases can be total or partial exemption from the carrier liability in accordance with provisions of the law of the court. "


2) force majeure and accidents

 

"Tourism law" sixty-seventh provisions: "due to force majeure or travel agents, to fulfill their obligations still can not avoid the event, the impact of travel itinerary, according to the following circumstances: (a) the contract can not continue to perform, travel agents and tourists can terminate the contract. The contract can not be fully performed, the travel agency to the tourists to make a description, can be in a reasonable scope of the contract; the tourists do not agree to change, you can terminate the contract. (2) of the termination of the contract, the organizing tour agency shall after deducting has to agency or perform helper payment and non refundable fee will refund the balance of tourism; contract change, so increase the cost borne by the tourists, reduce the travel reimbursement. (three) the safety of the person or property of the tourist, the travel agency shall take the corresponding safety measures, so the cost of the travel agency shall be shared by the travel agency and the tourist. (IV) caused by stranded tourists, travel agencies should take appropriate measures in place, so increase the cost of room and board, shall be borne by the tourists; increase the cost of return, by the travel agency and tourist sharing. "The contract law also provides for the right of the carrier to be exempted from the force majeure situation.

 

3) valuables

 

According to the provisions of Article 5 of the 1974 Athens Convention "and" maritime law "article 116, carrier of currency, negotiable securities, gold, silver, jewellery, ornaments, works of art, or other valuables loss of or damage to the irresponsible, except for agreed safety storage, such valuables has been handed over to the custody of the carrier.

 

7 the limitation of the liability of the carrier

 

Provisions of China's "maritime law" and "117th": 1974 Athens Convention Protocol "carrier in each carriage of passengers by sea in the limits of liability, executed in accordance with the following provisions: (a) passenger personal injury, per passenger less than SDR 46666; (two) the passenger cabin luggage loss or damage each passenger, not more than 833 SDRs; (three) passenger vehicles including the load loss of or damage to the luggage, each vehicle does not exceed SDR 3333; (four) of this paragraph (two), (three) other than loss of or damage to luggage other, per passenger no more than 1200 sdrs.

 

The carrier and the passenger may agree that the loss of the carrier to the other than the passenger vehicle and the passenger vehicle. However, the loss of the total amount of the loss of each vehicle shall not exceed 117 of the special drawing rights, the loss of the total amount of other baggage on each passenger's vehicle shall not exceed 13 of the special drawing rights. In calculating the amount of compensation for the loss of any other baggage other than the vehicle or the passenger's vehicle, the agreed amount of compensation shall be deducted....... "Is noteworthy, responsibility for the navigation, cruise the carrier shall enjoy the right to limitation of liability to pay compensation, because the system of limitation of liability for maritime claims is a major marine accident occurs, the accident bear the liability of the shipowner, salvor or others for maritime compensation request of claim for compensation in accordance with the law to apply for a restricted within a certain amount of legal system. This is peculiar to the maritime law compensation system [2]. Due to the" maritime law "Article 207 provisions, people can limit the liability claims:" on the ship occurred directly related to the operation of the ship or salvage operations, or casualty or property loss of or damage to... "The law emphasizes the damage that is directly related to the operation of the ship, the carrier can enjoy the right of limitation of liability.

 

Therefore, for passengers in the process of taking a cruise, because the use of recreational sports facilities or other non - carrier causes of personal injury, the carrier is not entitled to limit the rights of maritime claims. At this point, according to the cruise contract or the contract of the travel contract to determine the carrier should bear the liability of compensation.

 

8 legal issues to be resolved

 

In recent years, with the rapid development of China's economy, cruise tourism has become a new trend in China's tourism market, the International Cruise Shipping Law has been a lot of vacuum or lagging behind. In the cruise operators in the process of its meets the legal relationship will be more complicated, especially many of our cruise home port and its strategic partners are planning to build its own cruise ships. Therefore, under the current background should be to perfect the law relating to carriage of passenger liner, especially the need to further clarify the issue of the following law.

 
1) the carrier shall be for the cruise insurance carrier's liability insurance or obtain corresponding financial guarantee the 2002 maritime passenger and luggage Athens Convention relating to the carriage of "(hereinafter referred to as the Athens Convention, 2002) on 23 April 2014 to enter into force, the provisions of the Convention when land registration, allowed to carry more than 12 passenger ship carrying passengers and the application of the Convention, the actual implementation of the whole or part of the transport of the carrier shall be covered by insurance or other financial security, such as the guarantee of banks and similar financial institutions, to honour the provisions of the Convention to the passenger death and injury of the responsibility. Compulsory insurance or other financial guarantee shall not be less than the 250000 special drawing rights of each passenger in each of the shipping accidents.

 

In addition, on the basis of the responsibility of the carrier, the Athens Convention in 2002 to distinguish between shipping and non shipping accidents." Shipping accidents "refers to the wrecked ship, overturn, collision or grounding, the ship explosion or fire or ship defects;" ship defects "refers to when used by travellers to escape and evacuation and got out of the boat, or for propulsion, steering, safety of navigation, mooring, mooring, arrived from the berth or anchorage or immersion damage control, or when used for lowering life-saving equipment, any part of the vessel, or the equipment fault, failure or inconsistent with applicable safety regulations. Non shipping accident, refers to other accidents, such as the loss caused by the loss of the event of the occurrence of the accident, the loss caused by the accident, such as the loss caused by the use of a cruise entertainment facilities.

 

The carrier shall bear the responsibility for the loss of the passenger in each of the 250000 special drawing rights, unless the carrier proves that the accident (a) is caused by a natural phenomenon of war, hostilities, civil war, civil war, riots or abnormal, inevitable and unavoidable, and inevitable and unavoidable and inevitable, and that is not caused by a total of third parties. If the loss of a shipping accident exceeds that limit, the carrier shall be responsible for the application of the liability of negligence, that is, in the scope of the limitation, unless the carrier proves that the loss is not due to the carrier's negligence or negligence. The carrier is responsible for the loss caused by the non shipping accident, and the liability limit is 400000.

 

According to the provisions of the second applicable scope of the Athens Convention in 1974, even though China has not joined the 2002 convention, it is a state party to the Convention and the carrier of our country is still likely to apply the Convention, that is, the high compensation liability and compulsory insurance costs [3].

 

In 2013, the "domestic waterway transport management regulations" also provides that the business operators of waterway passenger transportation shall be responsible for the insurance of the carrier's liability insurance or obtain the corresponding financial guarantees. Although, the specific implementation details have not yet been introduced, but reflects the increase in passenger market access threshold, improve the safety level of passenger traffic, to protect the interests of passengers damaged the spirit of effective compensation. Therefore, our country should as soon as possible to develop in line with the conditions of the cruise carrier's liability insurance or financial guarantee system, both to maintain the legitimate rights and interests of cruise passengers, but also can reduce cruise operators in the major shipping accidents after the financial burden.

 

2) provide third party security, additional cruise insurance project, clear cruise passengers direct litigation rights cruise company as the insured party can with high quality, the credibility of good insurance companies to establish long-term relations of cooperation, for boarding passengers in terms of personal safety, property safety, tourism services and other insurance. After the accident, passengers can rely on the insurance company claims, thereby avoiding the passengers to take the extreme form of the ship. Through insurance companies to provide insurance coverage of the operational risks of the company, on the one hand, can greatly reduce or reduce the pressure of the passenger liner company in the face of the passengers, but also to provide a legal way for the benefit of damaged passengers can get payment [4].

 
3) the establishment of the criminal jurisdiction system of Chinese citizens traveling on the cruise ship is a case of the crime of the crime, the criminal jurisdiction of our country can be realized through the principle of the jurisdiction of the jurisdiction of the Chinese citizens. International law does not prohibit the exercise of jurisdiction over certain persons or certain crimes beyond the realm of a country, but the international law will limit the scope of its jurisdiction over a certain range. Passive personal principle is to the nationality of the victim is according to claim jurisdiction. According to this principle, a country can to foreigners in addition to their implementation of their national has caused or will cause detrimental effects of crimes under the jurisdiction of proposition. Our country "criminal law" in the field of foreign nationals in our country for the crime, and according to the provisions of this Law for three years of imprisonment, the application of this law, but in accordance with the law of the crime is not subject to the provisions of the law is to limit the application of this principle, but also our country on the basis of foreign criminal jurisdiction. Because of the criminal law of China in the field of Chinese citizens, the maximum sentence of criminal law in the three years of difficult jurisdiction, the need to further improve the criminal law.

 

Concluding remarks

 

Along with the development of China's cruise tourism, the disputes and problems associated with the cruise tourism services are constantly emerging, the cruise economy in China's healthy and orderly development, and can not be separated from the sound legal system, therefore, the relevant laws and regulations of the cruise carrier has important significance.

 

This civilization has the legal responsibility of the carrier's meaning, liability, liability, liability, limitation of liability, etc., and finally put forward that we should provide third party guarantee, increase the cruise insurance program, clear the right of the cruise passengers, establish the criminal jurisdiction system of China's civil maritime travel.

 

[reference]

 

[1] Li Weijia. - the criminal jurisdiction of foreign vessels to explore the high seas costacrociere theft case. Economic and law [J]. 2012 (4): 189-191.

 

Department of policy and regulation of [2]. Maritime law article [M]. Beijing: China Communications Press, 1993

 

[3] Gong Qian. The development trend and the cause analysis of the international maritime passenger transport law -- on the revision of the 2002 Athens Convention and the influence on China [J]. Tianjin city political and legal management cadre college journal, 2004 (1): 34-37.

 

[4] Guo Ping, Lv Fangyuan. Cruise ship: rights or hegemony. Theory and modern 2013,5: 40-45. [J].

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