国际海上货运承运人损害赔偿责任制度基本理论问题研究

发布时间：2018-03-10 07:10

本文选题：国际海上货物运输合同　切入点：承运人损害赔偿责任　出处：《上海海运学院》2001年硕士论文　论文类型：学位论文

【摘要】： 本文在国际社会试图统一海上货物运输法律和我国正在酝酿修改《海商法》的背景下，以国际海上货物运输承运人损害赔偿责任制度为线索，根据我国《海商法》，结合我国民法、合同法理论，并参照国际公约和国外有关的判例和学说，分析讨论海上货物运输合同中承运人损害赔偿责任中的基本理论问题：承运人的义务及其违约行为、承运人的过错、承运人应负责的损害事实和承运人违约行为和损失之间的因果关系。第一章，，承运人的义务及其违约行为。一般认为使船舶适航、管理货物和不绕航是承运人在国际海上货物运输合同中承担的基本义务。本章以货方通过证明货物“交好返坏”即完成举证责任为根本出发点，通过分析“交好返坏”这一事实和船舶适航、管理货物等“基本义务”之间的关系，提出完好地、及时地将货物运抵目的地，交付给收货人是承运人在合同中承担主要义务。然后分析了承运人的违约行为以及和违约行为有关的一些具体问题。第二章，承运人的过错。本章首先阐述了讨论承运人过错的意义，提出无论承运人的责任原则是过错责任还是严格责任均涉及过错问题，在严格责任下，过错是承运人援引免责事由的前提。然后，根据承运人不能通过证明无过错来免除责任的做法，提出我国《海商法》中承运人的责任原则应当是严格责任。接着，根据承运人的完好及时交付货物的义务，提出承运人的过错表现为没有为完好交付货物采取善良管理人应当采取的措施，具体表现为没有采取适当措施使船舶适航等，并通过分析过错和免责事由之间关系，讨论了过错的证明问题。最后分析承运人为履行辅助人负责的根据等问题。第三章，承运人应负责的损害事实。本章针对货物损坏或者灭失时，承运人是否赔偿利润损失以及其他经济损失的争论，通过分析货物“灭失或者损坏”的含义，提出承运人应当对货方遭受的经济损失承担责任、第四章，承运人的违约行为和损失之间的因果关系。本文针对审判中判断因果关系的方法和标准不统一的问题，提出应当明晰化实践中采用的因果关系认定方法，认定因果关系时应当分两个层次进行，首先是根据要不则无规则判断事实上的因果关系是否成立，其次是根据合理预见规则判断法律上的因果关系是否成立，最后根据因果关系得出承运人的赔偿范围。
[Abstract]:Under the background that the international community is trying to unify the law of carriage of goods by sea and our country is preparing to amend the Maritime Law, this paper takes the system of carrier's liability for damages in the international carriage of goods by sea as the clue. According to China's Maritime Law, combined with the theory of civil law and contract law of our country, and referring to international conventions and relevant foreign cases and doctrines, This paper analyzes and discusses the basic theoretical problems in the carrier's liability for damages in the contract of carriage of goods by sea: the carrier's obligation and its breach of contract, the carrier's fault, The causality between the fact of damage to which the carrier is liable and the carrier's breach of contract and loss. Chapter I, obligations of the carrier and its breach of contract. It is generally considered that the ship is seaworthy, The management of goods and non-deviation is the basic obligation of the carrier in the contract for the international carriage of goods by sea. This chapter takes the completion of the burden of proof by certifying that the goods are "good for good and bad" as the fundamental starting point. By analyzing the relationship between the fact that the ship is "good for good and bad" and the "basic obligations" such as seaworthiness and cargo management, it is proposed that the goods be transported to their destination in a sound and timely manner. Delivery to the consignee is the carrier's main obligation in the contract. Then the carrier's breach of contract and some specific problems related to the breach are analyzed. Chapter two, the fault of the carrier. This chapter firstly discusses the significance of the carrier's fault, and points out that whether the carrier's liability principle is fault liability or strict liability is related to fault, under strict liability, Fault is the prerequisite for the carrier to invoke the exoneration. Then, according to the fact that the carrier can not exempt himself from liability by proving no fault, it is proposed that the carrier's principle of liability in Maritime Law of China should be strict liability. According to the carrier's obligation to deliver the goods in good condition and in time, it is pointed out that the carrier's fault is that the carrier has not taken the measures that the good manager should take for the good delivery of the goods, and the specific manifestation is the failure to take appropriate measures to make the ship seaworthy, etc. Through the analysis of the relationship between fault and exoneration, the problem of fault proof is discussed. Finally, the basis of carrier's responsibility for the performance of assistive person is analyzed. Chapter III, the fact of damage to which the carrier is liable. This chapter argues whether the carrier will compensate for the loss of profits and other economic losses when the goods are damaged or lost, and by analyzing the meaning of "loss or damage" of the goods, It is proposed that the carrier shall be liable for the economic loss suffered by the consignor, Chapter 4th, causality between the carrier's breach of contract and loss. Aiming at the problem of inconsistent methods and standards of judging causality in trial, this paper puts forward the method of determining causality in the practice of clarification. When determining causality, it should be divided into two levels: first, to judge whether the factual causality is established or not, and secondly, to judge whether the legal causality is established according to the rule of reasonable foresight. Finally, according to the causality, the carrier's compensation range is obtained.
【学位授予单位】：上海海运学院
【学位级别】：硕士
【学位授予年份】：2001
【分类号】：D996.19

【引证文献】