邮轮霸船之法律考量——以《旅游法》为分析进路

The Legal Consideration of Occupying the Cruising Ferry:An Analytical Approach of Tourism Law

邮轮霸船已成为邮轮旅游发展之实质障碍,在2013年《中华人民共和国旅游法》(以下简称《旅游法》)生效之后,将邮轮霸船行为置于《旅游法》框架下进行考量确为解决问题之良策。首先明确邮轮公司与旅客各自的法律定位,邮轮旅客身份发生了从旅客到消费者再到不轨旅客的嬗变,将邮轮公司定性为《旅游法》下的履行辅助人则更为恰当,并厘清彼此之间的法律关系,进而分析邮轮霸船中"不轨旅客"因违反法定义务而对邮轮公司法定权利的践踏与公共秩序安全的危害。为此,邮轮霸船问题的有效解决亟须确立"疏堵并举"的法治化治理理念,严格执法,并以倒逼的方式来培养旅客的规则意识,同时,需要通过域外旅游纠纷裁决制度的本土化构建来形成一套行之有效的争端解决机制。

In recent years touristshave refused to leave cruise shipsin China because of disputeswithtour operators. These events have resulted in image problems for Chinese tourism and adverseeconomic effects for Chinese communities. It appears that no similar events have been reported inforeign countries. Therefore, the images of tourists refusing to leave a cruise ship have become asubstantive obstacle for the development of cruise tourism in China. The new“Tourism law of thePeople’s Republic of China”that came into force in 2013 （hereinafter referred to as the“TourismLaw”）, may be a good way to solve this problem if the problems arising from this form of touristbehavior can be dealt with under the framework of tourism law. This paper discusses the problem fromthe following points of view： first, the legal status of both cruise line operators and tourists is assessed,as are the legal relations between each group under the Chinese legal system; second, from the view ofTourism Law, the paper points out that a cruise line company is considered an assistant performer inrelation to a cruise tour. This enables discussion of the infringement of the legal rights of cruise linesand the harm to public order and security when tourists violate their legal duty in the event ofoccupying the ship on the basis of the relationship between assistant performer and actual performer;and, third, the paper shows that the reasons for the problems arising from tourists refusing to leave acruise ship are various. On the one hand, there is no clear and definite unified law or regulation ofcruise tours in China;the issues concerned with cruise shipping are promulgated by several separatelaws, regulations and ordinances. On the other hand, one effective solution should be found to solvedisputes between tourists and cruise operators within reasonable limits, and not to lead to individualcriticism of cruise tourists. By establishing one reasonable and effective mechanism to solve thedisputes and concerns between tourists and cruise operators, the occurrence of tourists refusing to leavecruise ships in port maybe avoided eventually and completely in China. To figure out a solution to thisproblem, new forms of legalization and governance have to be formulated. Meanwhile, to effectivelysolve the problems of tourists refusing to leave a cruise ship, it is necessary for administrativeauthorities to enforce the law and regulations strictly and legally. It is also necessary to cultivate touristconsciousness in relation to obeying and following appropriate rules and regulations during a tour. Andlastly, the paper discusses the possibility of setting up an effective dispute settlement mechanism underthe new Tourism Law in China, along with the lines of similar mechanisms established in some foreigncountries. It is estimated that the cruise shipping industry will develop rapidly in China in future years,and hopefully, the suggestions in this paper will be helpful in providing the basic theoretical frameworkfor administrative authorities to make realistic policies.