论提单首要条款的性质和效力

On Nature and Validity of the Paramount Clause of Bill of Lading

提单的首要条款是指明提单特定事项受某公约或某国家特定国内法支配的条款 ,从性质上讲 ,就是法律适用条款。提单首要条款与提单一般法律适用条款地位相同 ,如果提单中这两类条款同时存在 ,且规定不同 ,则可考虑采用“分割适用互相补充法”或“重叠适用和谐解释法”。

The paramount clause of bill of lading is a clause that indicates the special articles in a bill of lading ruled by a certain international convention or a certain national law. In nature, it belongs to a kind of clause of law application. The paramount clause (special clause of law application) and the general clause of law application in a bill of lading enjoy equal status, same in validity. If both of them exist in a bill of lading and is stipulated differently, “the method of separate application' or “the method of double application' based on specific conditions may be considered to be exploited. The legal validity of paramount clause will mainly be tested by domestic compulsory rules having absolute validity of the country where the case is being judged.