国际海上班轮货物运输合同中强制性规则的适当性

The Appropriateness of Mandatory Rule in Cargo Transportation Contract of International Maritime Liner

当法律需要实现的目标是对公共利益的维护时,强制性规则是必要的,但当法律试图调整承托双方之间的利益公平时,就产生了强制性是否需要和进行干预程度的问题。强制性规则虽然对国际海上班轮货物运输合同责任的公平性分配、保护货方利益发挥了重要的作用,但其整体效果仍有待进一步研究。强制性规则的缺陷集中体现在责任的固定上,这会削弱效率价值的发挥,而是否取消强制性干预主要是由船货双方谈判势力的平等性所决定的。目前的航运事实未能证明承运人继续和长期拥有这种优势的谈判地位,承托双方谈判势力趋向平等,从而为契约自由提供了基础。基于国际班轮运输的部分长期合作性合同中承托双方谈判势力趋向平等,《鹿特丹规则》中制定了批量合同,回归契约自由原则,以构建一个整体上有实效的,但应受到一种最低限度的航运安全、公共利益与公序良俗限制的航运秩序。这代表了当今国际海上班轮货物运输合同中强制性的干预程度、强制性规则与任意性规则平衡发展的趋势。

When the goal of the law is to safeguard public interest, the mandatory rule is necessary, but when the law tries to adjust interest equality between the carrier and the shipper, the issues that if the enforcement is necessary and how to confirm the intervention degree emerge. Although the mandatory rule has significant function in equal allocation of the contract responsibility and the protection of cargo owners＇ interest, the overall effect of restriction and protection is still necessary to study further. The defect of the mandatory rule is the settled responsibility, which will weaken the efficiency value, however, whether to cancel the mandatory intervention is decided by the negotiation powers of the carrier and the shipper. In the process with change and development, the relationship between supply and demand in the shipping market, the monopoly degree of liner transportation, the change of competition policy and the increase of the cargo owner＇s power in coalition and balance play leading roles in balancing the negotiation powers of two sides. The present shipping fact cannot prove that the shipper will maintain his advantageous negotiation position for a long time and the powers of the two sides will be equal, which provides the basis for contract freedom. Based on the fact that the negotiation powers of the two sides tends to be equal in partial contracts with long-term cooperation in the international liner transportation, the bulk contract is enacted in the Rotterdam Rules, the principle of contract freedom returns, which can reduce the mandatory rule in the contract to build a shipping order with actual effect and the lowest limitation in shipping safety, public interest, and public order and morals, it represents a balanced development tendency among intervention degree of the enforcement, the mandatory rule and the arbitrary rules.