缔约托运人权利、义务及责任问题研究

【作者】 邓松；

【导师】 姚洪秀；

【作者基本信息】 上海海事大学 ， 国际法学， 2005， 硕士

【摘要】 为保护发货人的利益,我国《海商法》借鉴了《汉堡规则》的规定,将发货人纳入“托运人”的概念范畴,该规定历来存在着很大的争议。文章将以缔约为特征的托运人称为缔约托运人,将以交货为特征的托运人称为交货托运人,结合国内外法律法规、国际公约以及大量案例对缔约托运人的权利、义务及责任做了研究。 全文共分三章。第一章研究了国际海商立法中托运人定义的演变过程,分析了我国《海商法》中托运人定义带来的一些理论困惑和实践困难,提出了修改《海商法》时将两类托运人分别改称为“托运人”和“发货人”的观点,并探讨了缔约托运人的识别方法。 第二章论述了缔约托运人的权利。首先探讨了缔约托运人获得运输单证的权利,指出航运实践中扣签提单的做法于法无据,提出了两种托运人并存时提单应优先签发给交货托运人的观点。其次介绍了《UNCITRAL统一运输法草案》关于控制权的规定,分析了缔约托运人对海运货物的控制权,指出控制权随提单的转让而转让,阐述了缔约托运人行使该权利的注意事项,并对我国《合同法》第二百零八条的规定作了评论。再次,探讨了缔约托运人在船舶开航前与开航后的合同解除权,介绍了大陆法系的任意解除制度。最后,探讨了不可转让运输单证和可转让运输单证下缔约托运人对承运人的诉权,分析了我国司法实践中的不同观点,指出了提单转让后实际受到损害的缔约托运人享有对承运人的诉权的必要性,阐述了《UNCITRAL统一运输法草案》关于诉权的规定对修改我国《海商法》的借鉴价值。 第三章论述了缔约托运人及时交付备妥待运的货物的义务,提供合理必须的信息、指示和单证的义务,支付运费的义务,违约责任归责原则以及与交货托运人的义务责任关系,特别探讨了缔约托运人托运危险货物时的责任。 文章在引言中简要介绍了选题意义,在结束语中对全文内容及论述方法做了总结。更多还原

【Abstract】 Shipper is one important party of the carriage of goods by sea. But there have been held strong debates about the definition of "shipper" specified in CMC. In China, its definition, borrowed from the Hamburg Rules, covers the sender of the goods with a view to protecting the legitimate rights and interests thereof. In this thesis, the person, by whom a contract of carriage of goods by sea has been concluded with a carrier who is involved in the contract, is referred to as Contracting Shipper, and the person, by whom the goods have been delivered to the carrier, Delivering Shipper. By seeking references from a great many domestic and foreign laws and regulations, international conventions as well as cases at home and abroad, this thesis goes deep into the rights, obligations and liabilities of the Contracting Shipper.This thesis falls into three chapters.in the first chapter, a survey of the definition of "Shipper" in the maritime laws at home and abroad, especially its changes, is made and then it analyzes the theoretical predicament and practical dilemma caused by the definition of "Shipper" set out in CMC. Therefore, it is put forward that the two types of shippers should be defined respectively as "Shipper" and "Consignor" and that the classification of the Contracting Shipper should be laid on the basis of a transport contract.Chapter Two focuses on the rights of the Contracting Shipper. First, the right to obtain transport documents is expounded with a detailed analysis of illegality of detending Bill of Lading after B/L is signed in the shipping practice, then a viewpoint comes up with that the Delivering Shipper enjoys priority over the Contracting Shipper in obtaining transport documents if the two types of shippers co-exist and vie with each other for B/L. Second, by introducing the Right of Control provided for in UNCITRAL Instrument on Transport Law, the thesis studies how the Contractng Shipper uses the Right of Control in transit, pointing out that the Right of Control is transferred with the transfer of B/L. And it also touches on something that theContracting Shipper should be aware of when he is executing this right and comments on Article 308 of Contract Law of PRC. Then the thesis shifts to the Right of Cancellation of contract of carriage of goods by sea by the Contracting Shipper before and after the carrying ship sails from the port of loading and to the System of Random Cancellation in the Continental System of Law. At last, the focus is cast upon the Right of Suit whether or not enjoyed by the Contracting Shipper against the carrier under non-negotiable or negotiable Bill of Lading, a serious question disputed in the judicial practice when the B/L has been transferred to a third party. On the basis of a profound research of current viewpoints in this respect, the thesis points out that it is necessary for the Contracting Shipper to be vested the Right of Suit against the carrier when he suffers a loss or damage after the B/L is transferred to a third party. It also expounds the value of the relevant provisions in the UNCITRAL Instrument on Transport Law in terms of revising CMC.Chapter Three studies the obligations of the Contracting Shipper to prepare and deliver the agreed goods ready for carriage within the specified period, to provide the reasonable and necessary information, instruction and documents requested, and to pay the agreed amount of freight. It also studies the principles of dealing with the liabilities borne by the Contracting Shipper in breach of contract, especially the liabilities of the Contracting Shipper when shipping dangerous goods, and the relationship between the obligations and the liabilities borne by the two types of shippers.In the preface, a brief introduction about the choice of the topic is given. In the conclusion, the contents of the whole thesis and the way of argument are summarized.更多还原