中国法上港口经营人法律地位之研究

Abstract

In the carriage of goods by sea, regarding the loss of or damage to the goods caused by the port operator, there is the question of how to determine its liability and whether the carrier's defences or limitation of liability clauses can be invoked. In theory and practice, it is often necessary to first determine the legal status of the port operator, as there are currently no explicit provisions in Chinese law. This article analyses and discusses the legal status of port operators in China from three aspects: the evolution of Chinese legislation, the theoretical views of Chinese academics and the judgments of Chinese courts, with the following findings: ① At the legislative aspect, since the repeal of the relevant Government Departmental Regulations in 2016, there are no explicit provisions on port operators in Chinese law. ②At the theoretical aspect, Chinese scholars have developed various views on the legal status of port operators based on the relevant provisions of China's Maritime Law and other international legislation. ③ At the judicial aspect, in the absence of specific regulations, Chinese courts have often required legal interpretation of the legal status of the port operator considering the specific circumstances of the case to determine whether the provisions of the Maritime Law or general civil law apply when deciding such disputes,which has resulted in different types of judgments in practice. In 2020, China's Maritime Law (Draft for Examination) was published, which provides a definition of port operator and specifies that the carrier's defences and limitation of liability can be invoked. However, the legal status of the port operator and the manner of division of liability with the carrier were not specified; thus a theoretical foundation and legal clarity in the application of the law is lacking regarding the assumption of liability by the port operator.This amendment should be used as an opportunity to identifying the legal status of the port operator as Contractual Assistants of the carrier, which will not only unify the theoretical foundation of the port operator's legal status, but also facilitate the clarification of its liability with that of the carrier. Therefore, a balance of interests between the cargo sid e, the port sid e and the ship sid e can be achieved.