从船货利益平衡视角看国际货物运输公约

Hague System,Hamburg Rules and Rotterdam Rules——rereading from a balanced perspective

从利益平衡视角重读海牙系列(《海牙规则》及《海牙—维斯比规则》)、《汉堡规则》与《鹿特丹规则》,得出以下结论:海牙系列最偏船方,《海牙—维斯比规则》最怠惰——对于20世纪60年代开始发展的集装箱化运输视而不见、毫无作为。唯船多货少国家究在少数,奈何却多以海牙系列,尤其是《海牙—维斯比规则》参考订定国内法。《汉堡规则》确实过度偏向货方,却也是最早开启多式联运大门的公约。《汉堡规则》看似步入多式联运,却未能对多式联运的新发展拿出彻底的解决方针;就舱面货缺乏专属规定、无船承运人无力保障船舶适航性等问题,都没能订定解决方案。《鹿特丹规则》最公平,船货双方却都对其产生疑虑。《鹿特丹规则》将《汉堡规则》的实际承运人分类后,以海运履约方得以因应适航性的方式解决了问题。舱面货亦订有特殊规定。对《汉堡规则》提出的单证数据以电子方式传输,《鹿特丹规则》订定了放货规则。运输单证比照空运新增的海运单的放货方式,亦赖《鹿特丹规则》将单证分类后解决。海商法必须参考国际法,通过分析,解答哪个公约最能使船、货双方达成利益平衡的问题。

The advent of sets of Rules Carriage of Goods by Sea concerned is the trail of the development of the legal system in international carriage of goods.Hague Rules of Hague System are inevitably tainted with the color preferred by the Ships,while the Hamburg Rules flatly dash to the extreme of the Cargos.Hague-Visby Rules of Hague System in between are grabbed and dragged by Ships as they could not do anything meaningful to bring container shipping into the scope of application.Hague-Visby Rules finally turned out to be merely a revision of or supplemental to Hague Rules although they are,by nature,independent and complete.This is to re-read the Rules entered in force and Rotterdam Rules under ratification from a more practical viewpoint of self-interest supremacy from each Cargo and Ship side.Hague-Visby Rules though the most idleness is the most popular to be referred to in National legislation even though the Hamburg Rules are the first Convention to open gate of discussion of multi-model transport since containerization already developed in 1960.Hamburg Rules regrettably left open of practical issues multi-model transport concerned.Rotterdam Rules is the fairest to take care of ship/cargo interest while protested by both sides.Non-vessel Operator is the main stream to issue transport document since containerization developed while actual carrier defined by Hamburg Rules still cannot solve the suspicious of sea-worthiness protection issue that solved easily by Maritime Performing Party of Rotterdam Rules.Hamburg Rules deal with signature on transport documents made by electronic means but have less to do with the release of cargo.Rotterdam Rules solve the cargo-release of electronic record and sea waybill as well by division among documents.It is concluded that there is better reference to be followed.