淡化船舶拟人处理对减少扣船管辖冲突的作用

Weakening the personalization of ship and the resolution of jurisdiction conflict caused by the arrest of ship

船舶与一般的物不同,船舶的拟人处理使其具有一定自然人的属性。伴随着船舶的拟人处理,以及船舶的"拟责任主体"色彩,使涉及船舶的案件在确立管辖时更容易发生冲突。随着社会的进步,航运的风险降低,以船舶作为责任保证的需求也在降低。国际立法及国内实践均有淡化船舶拟人处理的倾向,船舶拟人处理的减弱也会使船舶扣押的机会收窄,自然会对扣船引起的管辖冲突的解决起积极的作用。对船舶的拟人处理的原因,船舶拟人处理对管辖权的影响,国际立法及司法实践对拟人处理淡化的倾向,以及对管辖冲突解决的作用进行论述。

The ship is different from the general objects and the personalization of ship has given it some certain characters of human being. The jurisdiction conflict about the ship becomes easier to happen with the personalization of ship and the character of its ＂virtual responsibilityundertaker＂. As the society is progressing and the shipping risk is reducing, the demand of making the ship as liability assurance is also reducing. There has been a tendency of weakening the personalization of ship both in the international legislation and in the domestic practice, which will help to reduce the chance of arresting ship and will naturally play an active role in solving the jurisdiction conflict caused by the arrest of ship. This paper focuses on the following points： the reason of the personalization of ship, the influence of the personalization ship to the jurisdiction, the tendency of weakening the personalization of ship in the international legislation and the domestic practice and the roles of the personalization of ship to the resolution of jurisdiction conflict.