海上货物运输权责二元制与一体化:从喜马拉雅条款到海运履约方制度

The Right & Liabilities' Dualistic Structure and Integration of Carriage of Goods by Sea: from Himalaya Clause to Maritime Performing Party System

海上货物运输承运人与其代理人、雇用人、分合同人、受托从事实际运输任务的人、履行或承诺履行承运人任何义务的其他履约方的权利与责任,以及相应的货方的权利与责任,从喜马拉雅条款下的二元对立,发展到实际承运人制度下的融合一体,再发展到海运履约方制度下的深入一体化,体现了贸易、航运产业利益博弈的均衡。这一发展规律对我国如何对待最新的国际海运公约《鹿特丹规则》具有启发意义。

In carriage of goods by sea, the relationship between the right ＆ liabilities of cargo owner party and the right ＆ liabilities of ship owner party （ which including the carrier, agents, servants, independent contractor, sub - contractor, person performance of carri- age has been entrusted by the carrier, performing party to the extent that it performs or undertakes to perform any of the carrier＇ s obli- gations }, has developed to integration of actual carrier system form dualistic opposition under Himalaya Clause, and now is becoming intensive integration in maritime performing party system, which reflects a balance of the interests of the game between the trade indus- try and the shipping industry. This law of development is instructive for China to understand correctly the“Rotterdam Rules” as the latest international maritime convention.