海上拖航法律問題研究
發(fā)布時間：2018-11-21 15:40
【摘要】：第1章海上拖航的界定。海上拖航是指拖船對被拖物的拖帶行為或服務(wù),是一種內(nèi)容非常寬泛的海上服務(wù)。通過對拖航性質(zhì)學(xué)說的辨析,得出海上拖航合同是一種具有服務(wù)性質(zhì)的有名合同,且按照具體情形的不同可分為具有雇傭特征和具有承攬?zhí)卣鞯暮Ｉ贤虾胶贤�。另�?在比較海上拖航與海上運輸、海難救助港內(nèi)拖航等其他海上服務(wù)行為諸多不同。 第2章海上拖航的適拖義務(wù)。主要以海上拖航中承拖方與被拖方的適拖義務(wù)為研究對象,通過研究英國、美國以及我國案例,總結(jié)出承拖方與被拖方各自的適拖義務(wù),并參照英國判例,從首要義務(wù)、絕對義務(wù)、謹慎處理說的角度考證適拖義務(wù)的性質(zhì),最后結(jié)合適航義務(wù)的舉證責(zé)任程序,提出了海上拖航中適拖義務(wù)的舉證責(zé)任分配。 第3章海上拖航航程中的義務(wù)。拖航作業(yè)和拖航航行中,承拖方和被拖方之間義務(wù)的一般標(biāo)準(zhǔn)是盡到適當(dāng)技能和注意。在此標(biāo)準(zhǔn)下,以控制地位為依據(jù)劃分承拖方和被拖方之間的義務(wù),并且分析了拖航航程中特殊情況——拖航受阻與放棄拖航中拖船的義務(wù)。承拖方和(或)被拖方對第三船的義務(wù)主要體現(xiàn)為盡到良好船藝和遵守航行規(guī)則。 第4章海上拖航的損害賠償。拖航作業(yè)中的損害賠償具有一般性和特殊性,本章綜合考查了針對拖航特殊性發(fā)展出的支配者原則、雇傭推定、控制原則和中國法的規(guī)定,分析承拖方和被拖方之間的損害賠償與涉及第三人的損害賠償中的責(zé)任分配問題。 第5章海上拖航的責(zé)任免除。海上拖航中的責(zé)任免除包括合同約定的免責(zé)條款和法律規(guī)定的免責(zé)事由。該章對拖航標(biāo)準(zhǔn)合同中普遍存在的各種形式的免責(zé)條款進行了具體分析,如“雇傭條款”、"Named Vessel"條款,各國司法實踐對于標(biāo)準(zhǔn)合同中的免責(zé)條款的效力一般不予認可。并從人為和自然力兩個角度對法定免責(zé)事項進行了研究。 第6章海上拖航的轉(zhuǎn)化救助。拖航與海上救助存在密切聯(lián)系,本章重點討論拖航向救助轉(zhuǎn)化的兩個條件：一是不能被雙方合理預(yù)計的情形使被拖物處于危險之中,二是產(chǎn)生的風(fēng)險或拖船履行的義務(wù)不在合同的范圍內(nèi)。本章還研究了拖航轉(zhuǎn)化為救助的情況下對原合同的影響,拖航合同中存在的特殊條款和承拖方過失對取得報酬的影響。 第7章研究拖航的責(zé)任限制。認為海上拖航的責(zé)任限制,適用《1976責(zé)任限制公約》時具有一定的局限性；在英美,船舶的概念得到擴展,限制較少。英國是按照拖航船隊中有過失的船舶各自的噸位分別限制責(zé)任。而美國法則區(qū)分索賠方和責(zé)任人之間是否存在合同關(guān)系,從商業(yè)目的的角度分析,進而產(chǎn)生了“船隊規(guī)則”和“純侵權(quán)”規(guī)則。我國海上拖航責(zé)任限制應(yīng)在“船舶”的界定和拖船和被拖船責(zé)任限額的確定兩個方面,適當(dāng)吸收英美的合理做法進行完善。
[Abstract]:Chapter 1 the definition of towing at sea. Towing at sea refers to the towing behavior or service of towed objects by tugboats, which is a kind of very broad marine service. Based on the analysis of the theory of towing nature, it is concluded that the maritime towing contract is a famous contract with the nature of service, and it can be divided into two kinds according to the specific circumstances, which have the characteristics of employment and contracting. In addition, there are many differences between sea towing and maritime transportation, and other maritime service behaviors such as tug in salvage port. Chapter 2 the obligation of towing at sea. By studying the cases of Britain, the United States and our country, the author summarizes the respective towing obligations of the towing party and the towed party, and makes reference to the British jurisprudence, and from the primary obligation, taking the towing and the towing obligations as the research objects, and the case study of the United Kingdom, the United States and our country. In the view of absolute obligation, careful handling theory, the nature of suitable towing obligation is studied. Finally, combining with the procedure of burden of proof of seaworthiness obligation, the distribution of burden of proof of suitable towing obligation in sea towing is put forward. Chapter 3 obligations in the course of a towed voyage by sea. The general standard of obligations between towing and towed parties in towing and towing operations is to exercise due skill and care. Under this standard, the obligations between the towing party and the towed party are divided on the basis of the control position, and the special case in the towing voyage is analyzed, that is, the tug is blocked and the tug is abandoned. The obligations of the towed and / or towed party to the third ship are mainly embodied in good shipbuilding and compliance with navigation rules. Chapter 4 compensation for damage caused by Sea towing. The damage compensation in towing operation is general and special. This chapter synthetically examines the dominator principle, the employment presumption, the control principle and the provisions of Chinese law, which are developed in view of the towing particularity. This paper analyzes the problem of liability allocation between the dragon-trailing party and the towed party and the damage compensation involving the third party. Chapter 5 exemption from liability for Sea towing. Exemption from liability in maritime towing includes contractual exemption clauses and legal exemptions. This chapter has carried on the concrete analysis to the various forms of exemption clauses in the standard contract of towing, such as "the employment clause", "Named Vessel" clause, the judicial practice of various countries generally does not approve the validity of the exemption clause in the standard contract. And from the point of view of human and natural force, the legal exemption is studied. Chapter 6 conversion salvage of towing at sea. There is a close relationship between towing and salvage at sea. This chapter focuses on two conditions for the transformation from towing to salvage: one is that the towed object is in danger if it cannot be reasonably expected by both parties. Second, the risk or tug performance of the obligations outside the scope of the contract. This chapter also studies the effect of towing on the original contract, the special clause in the towing contract and the effect of the fault of the towing party on the compensation. Chapter 7 studies the limitation of towing liability. It is considered that the liability limitation of maritime towing has some limitations when applying < 1976 Convention on limitation of liability, while in Britain and America, the concept of ship has been expanded and limited. The British limit liability according to the respective tonnage of the negligent ships in the towing fleet. The United States law distinguishes whether there is a contractual relationship between the claimant and the responsible person, and analyzes it from the point of view of commercial purpose, and then produces "fleet rules" and "pure tort" rules. The limitation of liability for towing at sea in our country should be perfected in two aspects: the definition of "ship" and the determination of the limitation of liability of tug and towed ship, and the reasonable practices of Britain and the United States should be absorbed appropriately.
【學(xué)位授予單位】：大連海事大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2014
【分類號】：D996.19
本文編號：2347404
[Abstract]:Chapter 1 the definition of towing at sea. Towing at sea refers to the towing behavior or service of towed objects by tugboats, which is a kind of very broad marine service. Based on the analysis of the theory of towing nature, it is concluded that the maritime towing contract is a famous contract with the nature of service, and it can be divided into two kinds according to the specific circumstances, which have the characteristics of employment and contracting. In addition, there are many differences between sea towing and maritime transportation, and other maritime service behaviors such as tug in salvage port. Chapter 2 the obligation of towing at sea. By studying the cases of Britain, the United States and our country, the author summarizes the respective towing obligations of the towing party and the towed party, and makes reference to the British jurisprudence, and from the primary obligation, taking the towing and the towing obligations as the research objects, and the case study of the United Kingdom, the United States and our country. In the view of absolute obligation, careful handling theory, the nature of suitable towing obligation is studied. Finally, combining with the procedure of burden of proof of seaworthiness obligation, the distribution of burden of proof of suitable towing obligation in sea towing is put forward. Chapter 3 obligations in the course of a towed voyage by sea. The general standard of obligations between towing and towed parties in towing and towing operations is to exercise due skill and care. Under this standard, the obligations between the towing party and the towed party are divided on the basis of the control position, and the special case in the towing voyage is analyzed, that is, the tug is blocked and the tug is abandoned. The obligations of the towed and / or towed party to the third ship are mainly embodied in good shipbuilding and compliance with navigation rules. Chapter 4 compensation for damage caused by Sea towing. The damage compensation in towing operation is general and special. This chapter synthetically examines the dominator principle, the employment presumption, the control principle and the provisions of Chinese law, which are developed in view of the towing particularity. This paper analyzes the problem of liability allocation between the dragon-trailing party and the towed party and the damage compensation involving the third party. Chapter 5 exemption from liability for Sea towing. Exemption from liability in maritime towing includes contractual exemption clauses and legal exemptions. This chapter has carried on the concrete analysis to the various forms of exemption clauses in the standard contract of towing, such as "the employment clause", "Named Vessel" clause, the judicial practice of various countries generally does not approve the validity of the exemption clause in the standard contract. And from the point of view of human and natural force, the legal exemption is studied. Chapter 6 conversion salvage of towing at sea. There is a close relationship between towing and salvage at sea. This chapter focuses on two conditions for the transformation from towing to salvage: one is that the towed object is in danger if it cannot be reasonably expected by both parties. Second, the risk or tug performance of the obligations outside the scope of the contract. This chapter also studies the effect of towing on the original contract, the special clause in the towing contract and the effect of the fault of the towing party on the compensation. Chapter 7 studies the limitation of towing liability. It is considered that the liability limitation of maritime towing has some limitations when applying < 1976 Convention on limitation of liability, while in Britain and America, the concept of ship has been expanded and limited. The British limit liability according to the respective tonnage of the negligent ships in the towing fleet. The United States law distinguishes whether there is a contractual relationship between the claimant and the responsible person, and analyzes it from the point of view of commercial purpose, and then produces "fleet rules" and "pure tort" rules. The limitation of liability for towing at sea in our country should be perfected in two aspects: the definition of "ship" and the determination of the limitation of liability of tug and towed ship, and the reasonable practices of Britain and the United States should be absorbed appropriately.
【學(xué)位授予單位】：大連海事大學(xué)
【學(xué)位級別】：博士
【學(xué)位授予年份】：2014
【分類號】：D996.19
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