喜馬拉雅條款之研究-兼論中國大陸港口經營人之責任規範

Abstract

Abstract English common law adopts strict liability as the basis of liabilities of marine cargo carrier. After carrier's obligation to pay careful attention to vessel seaworthiness has been changed as stipulated in Hague Rules, the carrier can claim limitation and exemption of his liabilities. Meanwhile, whether subordinated performance assistant of the carrier could set up the plea by citing limitation and exemption of carrier's liabilities was confirmed after the court judgment in the case of England Himalaya vessel. Afterwards, such a regulation was referred to international convention such as Hague-Visby Rules, etc. including every carrier's domestic laws. Taiwan incorporated this clause in Article 76 of Maritime Act after amendment in 1999. Again, whether independent performance assistant could cite the cause for the limitation and exemption of carrier's liabilities has been regulated since Hamburg Rules. Himalaya clause is still difference between that expressly stated in Taiwan's Maritime Act and that used in international convention. The former limited the clause to those independent performance assistants who only can cite the limitation and exemption of carrier's liabilities in commercial port area. This article discussed Himalaya clause mixed with international and every country's law, including the relevant regulations for Mainland China port operator.