1、無船承運人的責任問題(the liab訂ity of nvocc)liability of nvocc txt48 smile, is a green in spring, is under the sun hungry a shade, autumn is a cool breeze, a winter campfire smile and face it, you will feel that life is so warm international freight forwarders exam essentials: the liability of nvocc publisher:

2、 st. learned network release date: 2010-10-07 total of 31 people visit the 13:28 in a large smallnvocc is a carrier as well as a shipper in the course of the whole foreign trade transportation, and its identity varies with different relative people the emergence of the nvocc has communicated the inf

3、ormation between the owner of cargo and the oceangoing public carriers, and has been active in the foreign trade transportation market, which has reduced the transportation cost of the small and medium shippers to some extent. but, on the other hand, the participation of the nvocc in the whole cours

4、e of transportation has blocked the legal connection between the shipper and the oceangoing common carrier and may increase the risk of shipper shippers therefore, it is necessary to make clear the provisions concerning the liability of the carrier and nvocc this chapter will discuss the liability o

5、f nvocc and the actual carrier and the legal aspects of the liability of nvocci. liability of nvoccnvocc is the carrier, and the determination of the liability of nvocc is generally determined by referring to the carrier，s liability in the fourth and second sections of the maritime law of china the

6、carrier in maritime law of our country adopts the responsibility system is not complete fault liability system, so enjoy the ocean common carrier incomplete responsibility for fault of nvocc can enjoy, in addition to a number of exemptions can make the nvocc from the cargo loss, damage liability not

7、 only that, nvocc also enjoys the carrier s collection of freight, lien goods and other rights however, in terms of the statutory obligations of the carrier, make the vessel seaworthy, reasonable dispatch, unreasonable deviation, careful management of goods properly and so forth, is for the operatio

8、n of ships for ocean common carrier, has nothing to do with the nvocc in addition, the exemption clause, sailing negligence, ship schiff, pipe ship fire, salvage and other terms, but also for the ocean common carrier, nvocc is not due to the actual ship owned or operated, would not be able to perfor

9、m these activities in fact, in terms of the rights and obligations of the contract of carriage, the nvocc has only the function of "setter therefore, nvocc is incomplete responsibility for fault in ocean common carrier behavior based, and whether the ocean common carrier of contract obligations

10、 and behavior exemption, decided whether nvocc should bear the responsibility of transportation or exemption. in summary, when the nvocc in transport, assume the duties of the carrier, nvocc responsibility is not completely fault liability, but the incomplete fault liability is to act as the basis o

11、f the actual carrierin shipping practice, nvocc is often closely related to the freight forwarder (freight forwarder), and the transportation service usually exceeds the scope of the carrier, because it is the organizer of the transportation. in the arrangements for the transport of goods, in additi

12、on to the actual carrier in the process of shipping behavior caused by cargo loss and damage, delay it can enjoy incomplete fault liability, other modes of transpott, free shipping per capita should bear strict liabilityon the wocc own behavior, there is no incomplete fault liability that can be exc

13、used because of negligence are related to the operation of ships, such as sailing vessel negligence, negligence, careful handling the ship has not yet found potential defects, nvocc itself does not operate the ship, their behavior has nothing to do with the fault therefore, the nvocc shall be fully

14、liable for the loss of or damage to the cargo in the course of its own conduct for example, the nvocc and the shipper conspire to sign the house bill of lading, causing the loss of the consignee and shall be fully liable for the lossnvocc shipper as the responsibility should be in accordance with th

15、e provisions of china maritime law chapter fourth section third, undertake strict liability, namely for ocean coimnon carrier nvocc in the consignment of goods, shall be properly packed and shall guarantee the name, provided the goods at the time of shipment marks, packages or packages correct weigh

16、t or volumetwo. the joint liability of nvocc and actual carrierin practice, the nvocc responsibility ability, solvency, plus sixty-third of china，s maritime law stipulates: the carrier and the actual carrier are liable for compensation, they shall be liable jointly and severally within the scope of

17、responsibility. once the damage or loss, regardless of whether the owner will properly, often nvocc in conjunction with the actual carrier sues to the court,although it is sometimes the sole responsibility of nvocc, the ultimate carrier is often the actual carrier moreover, in fact, the provisions o

18、f the sixty-third article of maritime law have become the basis of trial in many caseschina，s ''maritime law" in article forty-second are defined on the carrier and the actual carrier is provided, the provisions of，zcarrier，z refers to himself or ent rust others to enter into a contract

19、 of carriage of goods by sea in my name and the shipper who. "actual carrier，z means the person engaged in the transportation or partial carriage of the goods, entrusted by the carrier, including any other person who accepts the commission to undertake the transportation the carrier in china，s

20、maritime law includes nvocc therefore, we can also understand the sixty-third article of the maritime code: when both the nvocc and the actual carrier are liable for compensation, the two parties shall be jointly and severally liable within the scope of this liabilityjoint and several liability is a

21、 kind of property responsibility of two or more persons who pay the same subject as the content according to the law or contract its purpose is to make the realization of the creditor，s right not affected by one or part of the obligor，s non performance capacity, and in essence is a kind of special p

22、roperty responsibility that fully safeguards the interests of creditors the provisions concerning joint and several liability belong to the civil liability of tort in civil liability mainly in civil law of china such as the ''general provisions of the civil law, the 130th article provides: t

23、wo or more joint infringement caused damage to others, should be jointly and severally liable" in the case of breach of contract, the civil law is not clearly defined. it can only be found in the provisions of agency, partnership and guarantee but it is also sufficient to extract the basic elem

24、ents of joint and several liabilityjoint liability can be divided into two kinds: a contractual relationship exists between the outside of the main debt, a joint liability and the debt debtor, but related to the main debt, such as guaranteed contract, agency contract, but it should be noted, is liab

25、le to the principal debt is not at fault two, the joint and several liability of the obligor in the coimnon name of direct external business debts, or have common tort and produce debt, and by all the obligations of the legal consequencesif a summary of the conditions of joint and several liability

26、is made, it can be concluded that the consequences of the damage caused by the perpetrator are based on the same kind of civil act it is only between the debtor and the creditors of a legal relationship, or contract or tort relationship, there is no relationship between credit and debt in the joint

27、liability obligations and creditors respectively constitute infringement or breach of the situation.in the legal relationship of nv0cc，s participation in transportation, the owner is in the contractual relationship with the nvocc, and the nvocc and the actual carrier are based on another independent

28、 contractual relationship. in the transport process of nvocc in the goods, if the loss, damage or delay in delivery, the owner can be the court on the basis of nvocc in violation of contract of carriage of goods by sea agreed to the lawsuit, the civil liability of nvocc shall also be liable for brea

29、ch however, for the actual carrier, because the owner does not have a contractual relationship with it, it can not be sued for breach of contract, but can be sued for infr in gement, and exercise the right of relief this is because the goods are in fact by the actual carrier for the delivery of the

30、cargo, or delay in delivery or by the actual carrier，s liability caused by the at this time, the non vessel carrier and the actual carrier are liable for compensation to the owner, but their liability is different, resulting in tort or breach of contract different legal facts based on the non vessel

31、 carrier and the actual carrier for the loss have no common subjective intent or common interests, and the debt of civil law usually seen due to joint tort and joint responsibility guarantee causes parties only or tort or breach of a legal relationship is different as a result, the legal basis for t

32、he damage to the owner of the legal relationship of the parties to undertake joint and several liability is inadequate moreover, the relationship between the non vessel carrier and the actual carrier is another independent contract, that is, the independent contractor as a result, they are without p

33、reconditions for joint and several liabilitythen, does this mean that the provisions of joint and several liability in china，s maritime law are incomplete? is there a lack of theoretical support for nvocc? in fact, not necessarily, from another point of view, no one of the obligations of the carrier

34、 and actual carrier ship can be exempted from another debtor to creditors, and the joint liability in civil law and in common. the same content of this multiple debtor based on the different causes of the payment, the negative all the obligations, and because of the debtor's discharge the debt a

35、ttributable to the elimination of debt in civil law, called gesamtschuld,its internal validity can be expressed as the obligation of the person who has performed the debt and has the right to recover from the final responsible person who is ultimately responsible. if the nvocc xianhengpeifu, and the

36、 quantity of goods shortage, loss, damage or delay in delivery does occur during the actual carrier transport, the actual carrier shall be responsible for the final is the nvocc has right of recourse the author believes that, based on the ''maritime law，z article sixty-third of the legislati

37、ve intent is to protect the interests of creditors to achieve, therefore, can be extended the terms of interpretation, which is the joint responsibility of the carrier and the actual carrier including gesamtschuldthree the guarantee of nvocc liab訂ityamong the problems involved in nvocc, the most con

38、troversial issue is the liability of nvocc, which is the root of many problems faced by nvocc on the one hand, when the nvocc encounters the high claims made by the owner or the shipowner, and sometimes even exceeds the registered capital of the non vessel carrier, it is insolvent on the other hand,

39、 it has led some nvocc to use this to cheat the bona fide third party such as shipper all of these have disturbed the normal order of shipping management and made all the shipping circles abhor therefore, it is imperative to improve the solvency of nvocc and solve the problem of the infotmation of n

40、vocc the author believes that the liability of nvocc can be achieved in two ways: the margin system and the form of liability insurance(i) margin systemthe united states has a strict management system in the management of nvocc according to the 1998 u s shipping reform act (0sra1998) regulations, in

41、ternational freight forwarding agent (freight forwarder) and nvocc (nvocc) are subject to the federal maritime commission (fmc) for obtaining the business license, and pay a deposit the margin amount is: international freight forwarding ($50000); nvocc ($75000); non corporate branches; $10000; forei

42、gn nvocc ($150000) the united states federal maritime commission according to the parties to the nvocc complaints made to the nvocc punishment or pay compensation awards in the nvocc refused to pay or unable to pay the case, is allocated in the margin. in the united states, either a fine or a civil

43、compensation is decided by fmc and is transferred from the depositour country from the u s federal maritime commission approach, in the introduction of the new z，international maritime regulations article seventh stipulates: the business of nvocc, shall go through the formalities for registration of

44、 bill of lading to the transportation department of the state council, and pay a deposit article eighth: "nvocc shall be filed to the transportation department under the state council to apply for registration of bill of lading and attach the relevant materials proving in accordance with the pr

45、ovisions of this ordinance to pay margin. the amount of earnest money in the preceding paragraph shall be rmb 800 thousand yuan, and a deposit of rmb 200 thousand yuan shall be set up for each branch a deposit shall be deposited with a bank within the territory of china"in addition, the "r

46、egulations" also use of the margin is made clear, the provisions for settlement of nvocc margin because it fails to perform the obligations or obligations arising from improper debts and fines in the third paragraph of article eighth in. the provision expressly limits the use of the security de

47、posit, and its use is limited to the liabilities and fines arising from the operation of nvocc, and shall not be used for other purposes if a company operates both nvocc and freight forwarding business, the liabilities arising from other business other than nvocc shall not be liquidated by the guara

48、ntee china has established a system of security system, can to some extent limit the nvocc into the shipping market of shell companies in nature, and can give nvocc dealing parties with security in the nvocc bankruptcy or the economic losses caused by its own fault fails to fulfill the contract matt

49、ers in transport, nvocc refused to assume or unable to assume liability for the case, the department in charge of transportation can be the request of the parties, to pay the transfer from the nvocc's margin, to compensate for the for the economic losses however, in judicial practice, it is wort

50、h noting that the transportation departments in the acceptance of civil compensation request, must be based on the final results of the judiciary as the basis, to confirm whether the nvocc shall bear the liability for compensation and thespecific amount of compensation. generally speaking, the "

51、;regulations" to establish the security system not only set the market access conditions, and the establishment of a compensation relief system and administrative accountability system, is conducive to the prevention and reduction of maritime fraud, protect the legitimate rights and interests o

52、f the parties,reduced the risk of a carrier system with or without a carrier, and in some ways increased the cost of illegal operations(two) liability insurancedespite the implementation of margin system, to some extent, can alleviate the shipper，s concerns, but the margin system is the product of t

53、he planned economy, the amount of 800 thousand yuan is also very difficult to achieve the prevention and mitigation of liability risk, compensation and relief of the parties concerned with the interests of the original intention, solve the nvocc liability insurance clause and premium rate, claims a

54、series of technical problems, promote the establishment of the liability insurance system should be more effective than the margin system, easy to be accepted by enterprises1, conceptthe so-called liability insurance, also known as the "third party liability insurance", is that once the in

55、sured because of the accident or other factors must be their claims (third people) liability for compensation, insurance by the insurerto make up for the insurance in other words, when an insured person avoids the need for compensation for any risk arising from an accident, it is called liability in

56、surance with the insurance company to enter into an insurance contract liability insurance belongs to a commercial insurance2, necessityfor nvocc, because of its financial factors, it can not face the claims of the goods independently, and the adoption of such risks can be guaranteed. as a matter of

57、 fact, many nvocc benefit from it. such as: a nvocc issued house bill of lading, carrying a shipment of goods from singapore to london, the bill of lading in line with the requirements of the letter of credit it sends the bill of lading issued by the actual carrier to the london agent，s office and i

58、nstructs it to exchange the bill of lading in favour of the non vessel carrier in favour of the bill oflading however, due to negligence, the bill of lading has been issued to the consignee without receipt of the bill of lading of the nvocc the consignee refuses to pay the freight and the price afte

59、r picking up the goods the shipper shall sue the liability insurer for the value of the goods to the nvocc in this case, according to the investigation by the insurancecompany, the london agent of the accordance with the instructions ''negligence and negligence", and accepted the claim in insured this liability bankruptcy. at present, covered such liabilitynvocc has not acted inthe case,insuranceof his client, which is the liability insurer has it was because the nvoccthat it saved itself frommany domestic nvocc and forwarder have insur