海商法_Maritime_Law_PPT

1、Maritime Law,Welcome to the wonderful world of maritime law,Time,Maritime Law is taught at the following time this semester,Study Resources,Texts The two leading texts on maritime law are: The Law of Admiralty Shipping Law,初级（大一大二，这段时间要多看些民商等基础法律,1. 中华人民共和国海商法中、英文本 北京：人民交通出版社 2. 海牙规则 威斯比规则、汉堡规则（英文版）

2、 3. 海商法/魏文达编著 北京：法律出版社 4.海商法/於世成等著 北京：法律出版社 5. 中国海事审判年刊专著/金正佳主编 北京：中国交通出版社 6. 中国交通出版社海商法学/吴焕宁主编 北京：法律出版社7. 中国典型海事案例评析/金正佳主编 北京：法律出版社8.租船实务与法律郭萍 大连海事大学出版社,中级：（大三大四,1. 航运实务丛谈/杨良宜著 ,大连海事大学出版社，这套书要看四本： 国际贸易法期租合约承租合约海事法 2.海上货物运输法 尹东年、郭瑜 人民法院出版社 3. 提单法律制度研究/郭瑜著 北京：北京大学出版社 4. 金康合约， NYPE合约 46/93（英文版），安特卫普规则

3、 5. 英国海上货物运输法 美国海上货物运输法 6. 海商法/吉尔摩著，吴焕宁、杨召南译，中国大百科全书出版社,高级(研,1. Carriage of Goods By Sea 2. Voyage Charters 3. Time Charters 4. CIF and FOB 5. Shipping Law 6. The Law of Admiralty 7. Admiralty,Internet resources,/ http:/www.standard- http:/www.lloydsoflordon.co.uk http:/ http:/t

4、etley.law.mcgil.ca/ http:/www.cut.ac.za/depts/shiplaw/ porthole.htm /topics/admiralty.html,国内网站： 中华人民共和国交通部http:/ http:/.tw/中国外轮代理公司http:/,TABLE OF RULES,1877 York Antwerp Rules 1924 Hague Rules 1968 Hague-Visby Rules 1972 International Rules for the Prevention of Collisions

5、 1973 York Antwerp Rules 1978 Hamburg Rules,CONTENTS,CHAPTER 1 Admiralty Jurisdiction and Maritime Law CHAPTER 2 Ships and its Rights in Rem CHAPTER 3 Contract of Carriage of Goods by Sea CHAPTER 4 Bills of Lading CHAPTER 5 Charterparties CHAPTER 6 Collisions CHAPTER 7 Salvage CHAPTER 8 Towage CHAPT

6、ER 9 General Average CHAPTER 10 Limitation of Liability,CHAPTER 1 ADMIRALTY JURISDICTION AND MARITIME LAW,Contents : Origins of Maritime Law The International Dimension Admiralty Jurisdiction in Tort Cases Admiralty Jurisdiction in contract Cases International Organisations,ORIGINS OF MARITIME LAW 1

7、. Concept of MARITIME LAW 2. The History of MARITIME LAW 3. Maritime Code of the Peoples Republic of China,Concept of MARITIME LAW (Admiralty) The law of admiralty, or maritime law, may tentatively be defined as a corpus of rules, concepts, and legal practices governing certain centrally important c

8、oncerns of the business of carrying goods and passengers by water,The History of MARITIME LAW The earliest sea-code Lex Rhodia The medieval sea-codes (the Rules of Oleron) Lex Oleron Lex Consolato Laws of Visby Black Book of the Admiralty,Maritime Code of the Peoples Republic of China Maritime Code

9、of the Peoples Republic of China was adopted at the 28th Meeting of the Standing Committee of the Seventh National Peoples Congress on November7, 1992, promulgated by Order No.64 of the President of the Peoples Republic of China on November7,1992, and effective as of July 1,1993,This Code is enacted

10、 with a view to regulating the relations arising from maritime transport and those pertaining to ships, to securing and protecting the legitimate rights and interests of the parties concerned, and to promoting the development of maritime transport, economy and trade. Maritime transport as referred t

11、o in this Code means the carriage of goods and passengers by sea, including the sea-river and river-sea direct transport. The provisions concerning contracts of carriage of goods by sea as contained in Chapter IV of this Code shall not be applicable to the maritime transport of goods between the por

12、ts of the Peoples Republic of China,Questions: 1. When did Maritime Code of the Peoples Republic of China come into effect? 2.What is the earliest sea-code in the history of Maritime Law,The International Dimension A cargo of iron ore may be purchased from an Australian mining corporation by Japanes

13、e dealers in order to fulfill a contract with a West German steel manufacturing companyThe cargo may be put aboard a Greek-ownedPanamanian-registered bulk ore carrier at Townsville，Queensland for a voyage to HamburgThe vessel may then collide with a BritishregisteredBritishowned oiltanker carrying o

14、il belonging to a United States oil company，and the orecarrier be lost with its cargo and the coasts of Papua be polluted by the escaping oilThe insurers of the various ships, cargoes and 1iabilities may be found in EnglandJapan and the United States,Admiralty Jurisdiction in Tort Cases 1.The tort o

15、ccurred on navigable waters 2. The tort bore some relationship to traditional maritime activity. The term “navigable waters of the United States” is a term of art that refers to bodies of water that are navigable in fact. This includes waters used or capable of being used as waterborne highways for

16、commerce, including those presently sustaining or those capable of sustaining the transportation of goods or passengers by watercraft. To qualify as “navigable waters,” bodies of water must “form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over whi

17、ch commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.,Exercises: Decide whether the following statements are true or false 1. A body of water need flow between two states or into the sea to be navigable. 2. Man

18、-made bodies of water, such as canals, may not qualify as navigable waters. 3. Navigable waters need not be navigable at all times,Case in point: Executive Jet Aviation, Inc. v. City of Cleveland, This case held that federal courts lacked admiralty jurisdiction over an aviation tort claim where a pl

19、ane during a flight wholly within the U.S. crashed in Lake Erie. Although maritime locus was present, the Court excluded admiralty jurisdiction because the incident was “only fortuitously and incidentally connected to navigable waters” and bore “no relationship to traditional maritime activity.,Admi

20、ralty Jurisdiction in contract Cases Focused on the subject matter of the contract Suits on contracts for the carriage of goods and passengers; for the chartering of ships (charter parties); for repairs, supplies, etc., furnished to vessels, and for services such as towage, pilotage, wharfage; for t

21、he services of seamen and officers; for recovery of indemnity or premiums on marine insurance policies,International Organisations IMO the International Maritime Organization CMI the Comit Maritime Internationale BIMCO the Baltic and International Maritime Conference,IMO the International Maritime O

22、rganization The leading maritime agency is the International Maritime Organisation(IMO)，which was，until 1982the Intergovernmental Maritime Conference Organisation (IMCO)IMO was established in 1959 on the coming into force of a Convention agreed at Geneva in 1948 for the setting up of a standing mari

23、time conference：before the Second World War international maritime conferences were arranged ad hoc for particular purposesBecause of its origin，IMO, although its membership is open to all UN members，began as an organisation supported by nations with particular interests in shipping，whether as carri

24、ers or shippersIMO has two major active committees，its Safety Committee and its Legal Committeethe first gave us SOLAS，the Convention on Safety of Life at Seathe International Collision Regulations and the various Traffic Separation Schemes that operate in contested shipping lanesThe second produced

25、 the various pollution conventions, including the Convention on Liability for 0il Pollution (CLC)，the Intervention Convention and many more as well the Athens Convention on the Carriage of Passengers and their Luggage and the 1976 Limitation Convention,CMI the Comit Maritime Internationale The Inter

26、national Maritime Committee, or the Comit Maritime Internationale (CMI)，which is an organisation composed of national Maritime Law AssociationsIt was established at the beginning of the twentieth century and is continuously activeIts main function has been to make drafts for international convention

27、salthough it is often not the official “depositary” of the convention when madeThusthe CMI has been responsible for the 1910 Collision Convention ，the Hague and Hague-Visby Rules，the 1952 Arrest Convention and many more,BIMCO the Baltic and International Maritime Conference,The Baltic and Internatio

28、nal Maritime Conference (BIMCO) was formed in 1905 by shipownersbut it also includes shipbrokers and P.IClubs in its membershipIts primary function has been to represent the interests of tramp shippingbut it has also arranged for the drafting or approval of a large number of standard legal shipping

29、documents：there are now more than 100 approved forms，charterparties，bills of lading and other documentsincluding such well known examples as the Guenon and Bal time charters,CHAPTER 2 SHIPS AND ITS RIGHTS IN REM,Contents : 1. Concept of Ships and its Characteristics 2. Types of Ships 3. Registration

30、 4. Ownership of Ships 5. Mortgage of Ships 6. Maritime Liens 7. Possessory Lien,Concept of Ships and its Characteristics,1. Definition Ship as referred to in this Code means sea-going ships and other mobile units, but does not include ships or craft to be used for military or public service purpose

31、s, nor small ships of less than 20 tons gross tonnage. The term ship as referred to in the preceding paragraph shall also include ships apparel,Questions: Which of the following belongs to the ships in MC? A. ships or craft to be used for public service purposes B. warship C. ships of 18 tons gross

32、tonnage D. mobile sea drilling platform,2. Its Characteristics Personification Chattel ( real property) Synthetic,Types of Ships,Registration,1. Registration is generally , but not always, the test of a vessels nationality. 2. A ship which sails under the flags of two or more States, using them acco

33、rding to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. 3. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the sh

34、ip,R v Bjornsen (1865) 12 LT 473 CCR A murder took place in a ship on the high seas. The ship flew the British flag, and the man accused of the crime was later take to England and put on trial. In order to establish jurisdiction, evidence was put forward to prove the ship was British, including docu

35、ments showing that the port of registration was London and that London was the place of business of the Owner. However, overriding proof was produced that the owner was an alien (non-British), that the ship was foreign-built and that the officers and crew, including the accused man, were aliens,Owne

36、rship of Ships,The ownership of a ship means the shipowners rights to lawfully possess, utilize, profit from and dispose of the ship in his ownership. The acquisition, transference or extinction of the ownership of a ship shall be registered at the ship registration authorities; no acquisition, tran

37、sference or extinction of the ships ownership shall act against a third party unless registered. The transference of the ownership of a ship shall be made by a contract in writing. Where a ship is jointly owned by two or more legal persons or individuals, the joint ownership thereof shall be registe

38、red at the ship registration authorities. The joint ownership of the ship shall not act against a third party unless registered,Mortgage of Ships,The right of mortgage with respect to a ship is the right of preferred compensation enjoyed by the mortgagee of that ship from the proceeds of the auction

39、 sale made in accordance with law where and when the mortgagor fails to pay his debt to the mortgagee secured by the mortgage of that ship. The owner of a ship or those authorized thereby may establish the mortgage of the ship. The mortgage of a ship shall be established by a contract in writing. Th

40、e mortgage of a ship shall be established by registering the mortgage of the ship with the ship registration authorities jointly by the mortgagee and the mortgagor. No mortgage may act against a third party unless registered,Maritime Liens,A maritime lien is the right of the claimant, to take priori

41、ty in compensation against shipowners, bareboat charterers or ship operators with respect to the ship which gave rise to the said claim,Its legal Characteristics,indelible secret non-consensual inchoate non-possessory,What kind of maritime claims shall be entitled to maritime liens,1) Payment claims

42、 for wages, other remuneration, crew repatriation and social insurance costs made by the Master, crew members and other members of the complement in accordance with the relevant labour laws, administrative rules and regulations or labour contracts; (2) Claims in respect of loss of life or personal i

43、njury occurred in the operation of the ship; (3) Payment claims for ships tonnage dues, pilotage dues, harbour dues and other port charges; (4) Payment claims for salvage payment; (5) Compensation claims for loss of or damage to property resulting from tortious act in the course of the operation of

44、the ship,Possessory Lien The possessory lien means the right of the ship builder or repairer to secure the building or repairing cost of the ship by means of detaining the ship in his possession when the other party to the contract fails in the performance thereof. The possessory lien shall be extin

45、guished when the ship builder or repairer no longer possesses the ship he has built or repaired,Question? What is the rank of creditors rights? A) mortgage of ships B) maritime liens C) possessory lien D) comon creditors right,The Ioannis Daskalelis1974 1 Lloyds Rep174， Supreme Court of Canada On 20

46、 December 1961 the vessel Ioannis Daskalelis was mortgaged to the defendantsIn March 1963 the plaintiffs rendered necessary repairs to the vessel at New York，but the sum due to them was not paidIn June 1964 the vessel was sold，and the question arose whether the plaintiffs claim in respect of the rep

47、airs had priority over the defendants mortgage,CHAPTER 3 Contract of Carriage of Goods by Sea,Contents : 1. Concept of Contract of Carriage of Goods by Sea 2. Carrier Obligation and Liability 3. Shipper Obligation and Liability,Concept of Contract of Carriage of Goods by Sea A contract of carriage o

48、f goods by sea is a contract under which the carrier, against payment of freight, undertakes to carry by sea the goods contracted for shipment by the shipper from one port to another. Carrier means the person by whom or in whose name a contract of carriage of goods by sea has been concluded with a s

49、hipper; Actual carrier means the person to whom the performance of carriage of goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted under a sub-contract; The provisions with respect to the responsibility of th

50、e carrier contained in this Chapter shall be applicable to the actual carrier. Where both the carrier and the actual carrier are liable for compensation, they shall jointly be liable within the scope of such liability,Carrier Obligation and Liability Make the Ship Seaworthy properly and carefully lo

51、ad, handle, stow, carry, keep, care for and discharge the goods carried. Material deviation is not allowed Issue Bills of Lading,To Make the Ship Seaworthy The carrier shall, before and at the beginning of the voyage, exercise due diligence to make the ship seaworthy, properly man, equip and supply

52、the ship and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation,Elder Dempster b) The person by whom or in whose name or on whose behalf the goods have been delivered to the carrie

53、r involved in the contract of carriage of goods by sea,Shipper Responsibilities Pay the freight goods properly packed and provide all relevant informations Perform all necessary procedures for export special duties on shipment of dangerous goods,CHAPTER 4 Bills of Lading,Contents : 1. Bills of Ladin

54、g and their Functions 2. Application of the Hague/Visby Rules 3. Bills of Lading-the Hamburg rules 4. Bills of Lading issued under Charterparties 5. Multimodal Transport,Bills of Lading and their Functions,1. Definition 2. Three-role function 3. Bills of lading and third parties 4. Problems in prese

55、ntation of a bill of lading,Definition: A document which evidences a contract of carriage by sea and the taking over and loading of the goods by the carrier and by which the carrier undertakes to deliver the goods against surrender of the document,Three-role function,a) a receipt for the goods on bo

56、ard； (b) best available evidence of the contract of carriage；and (c) a document of title,Bills of lading and third parties Liability in tort Leigh and Sillivan Ltd v Aliakmon Shipping Co Ltd, The Aliakmon 1986 AC 785 Leigh and Sillivan were buyers of a cargo of steel coilsThe coils were damaged by b

57、ad stowage，which caused crushing，condensation and then rustThe damage was done at a time When the risk，but not the legal property in the goods had passed to the buyers. The special terms of the purchase contract agreed between the buyers and the sellers of the steel meant that，in the unusual circums

58、tances of the case，the buyers had no right of action in contract against the owners of Aliakmon.The following extract deals with the claim made by the buyers against the shipowners in tort,Glyn Mills Currie and if upon the voyage the speed be reduced by defect in or breakdown of any part of her hull

59、, machinery or equipment, the time so lost，and thereof, and a11 extra expenses shall be deducted from the hire,Net loss of time It means that only the actual (net) loss of time is taken into account when calculating the period over which it is intended to place the ship off-hireThe principle of net

60、loss of time can produce the anomaly that a ship can be wholly or partially disabled but still the charterer may not have suffered a loss of time in actual fact,Forestships International Ltd v Armonia Shipping and Finance Corp, The Ira I 995I Lloyds Rep 103 Facts The Ira was time chartered on the NY