What Are The Responsibilities And Exemption Clauses Of The Captain And Carrier?

First of all, the captain should clarify the basic obligations and responsibilities of the carrier, that is, careful handling to make the ship seaworthy, fulfill its duties, take care of the goods, and do not navigate.

About seaworthiness of ships.

The maritime code and the Hague rules provide for this. The carrier should handle the ship carefully before sailing and sailing, so that the ship is in a seaworthy condition, properly equipped with crew, equipped with ships and supplies, and is suitable for cargo hold, refrigerated compartment, air-conditioned cabin and other loading points, and can safely receive, carry and hold the goods.

How can we determine whether the carrier has handled the ship with caution so that we should consider the following aspects:

First, the so-called seaworthy vessels are capable of resisting normal marine risks, or ships that are not dangerous or damaged to cargo in the usual navigational environment.

The second, first conscientious carrier should carefully inspect the ship before the voyage starts to see if there are any defects. If there are any defects, defects should be eliminated before the ship starts sailing.

Third, careful inspection of ships means regular and comprehensive inspection of ships, including maintenance, operation procedures, ship management and routine orders on board.

From this we can see that the carrier can be careful in handling the ship's seaworthiness, and the captain and crew play a key role, because the inspection and maintenance are all done by the captain and crew.

Therefore, as a representative of the carrier, the captain must carry out the perfect management of the ship, organize the crew to carry out various inspection and maintenance work, and do a good job of recording carefully. These records include various logs, work plans, daily work records and various report forms.

In the event of a dispute over the seaworthiness of the ship, the carrier and the captain will be able to present the above evidence and prove that the carrier has made careful handling of the seaworthiness of the vessel.

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We should conscientiously take care of the goods.

The provisions of China's maritime code and the Hague rules provide that the carrier should properly load, move, stow, pport, care for and unload the goods.

The carrier's duty to take care of the goods is to start from accepting the goods until the delivery of the goods. During this period, the carrier must do all necessary work to ensure that the goods can be delivered to the consignee in good condition.

In pit, the captain is fully responsible for the care of the goods and has full responsibility for loading and unloading operations.

Therefore, during the loading and unloading operations, we must make good records of the abnormal conditions in the operation, try to get the signings of the parties concerned, and take photographs or videotape. All these records will be extremely valuable evidence and characteristic parameters. If the captain is doubtful about the status and characteristics of the actual shipment, we can request a fair surveyor or an expert to carry out the verification and issue the inspection report.

In order to avoid liability when the goods are damaged or damaged, the carrier must prove that he has fulfilled the obligation of adequately and carefully taking care of the goods through accurate and detailed records and on-site evidence.

About navigation.

China's maritime law and the Hague rules provide for the carriage of goods to the unloading port according to the agreed or customary or geographical route. The vessel's salvage or attempt to salvage human life or property at sea is not a violation of the provisions of the preceding paragraph.

It can be seen that unreasonable navigation will constitute a breach of contract.

In practical work, it is quite difficult to explain what is reasonable to navigate. When determining whether the deviation is reasonable, the factors not only include the carrier's viewpoint, but also include the owner's opinion.

In order to save lives or property at sea, the ship can not navigate, but the ship can not delay the time at any time.

There are generally two kinds of situations that are considered in the following reasonable situations. First, if there is danger or danger, the carrier can navigate in order to protect or preserve the goods. Second, if the terms of the free contract are included in the pport contract, the carrier can navigate, but it is not safe to navigate on such terms only, because the interpretation of such clauses is very narrow and restrictive.

In actual work, if the ship deviates from the agreed, direct or customary route, or if there is a delay in the voyage, the captain must notify the carrier immediately. At the same time, he must make a comprehensive record of the exact and detailed reasons for the departure or delay. These records include the logbook, shore communication, heading records, charts and meteorological navigational warnings.

After clarifying the responsibility of the carrier, we should clarify what the exemption of the carrier is.

The purpose of the carrier's liability is to deliver the goods in a "similar good condition". However, because of the special risks of the carriage of goods by sea, the law also stipulates the exemption of the carrier. That is, the carrier can be relieved from the "similar good condition" responsibility for delivery of goods because of the loss or damage of the goods caused by the non carrier's control or force majeure.

The Maritime Code of China and the Hague rules expressly stipulate the exemption of the carrier, that is, the loss or damage of the goods is caused by the following reasons, and the carrier is not liable for compensation.

This includes driving a ship or managing a fault, a fire, a natural disaster or a shipwreck, a war, a government act, a strike, a rescue of life or property, a behavior of the owner, the characteristics of the goods, and a package defect.

When a consignor claims a loss or damage to the goods, the carrier must first prove that it has been prudent to make the ship seaworthy, properly safekeeping and taking care of the goods, and that it can not invoke the exemption clause if it wants to defer claims.

That is, the carrier's fulfilling the liability clause is the premise and basis for invoking the exemption. At the same time, the carrier must bear the burden of proof for the reasons and facts of the exemption when invoking the exemption clause.

From the current arbitration and litigation cases, there are more and more strict restrictions on the exemption of the carrier.

Therefore, when considering the exemption clause, we should pay attention to the following points: the carrier must not rely excessively on the exemption clause, because the interpretation of the exemption clause is narrow; the carrier should constantly learn from the experience and case, because the scope of the exemption is shrinking; the carrier can only help the carrier if he has done everything possible to ensure that the ship is seaworthy, the goods are taken care of and the damage is prevented, and the carrier has the full burden of proof when invoking the exemption clause.

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Although it is very difficult for the carrier to invoke the exemption clause, it is very difficult to claim the claim. However, as long as the carrier can provide a valuable set of evidence, the chances of winning the defense are great. There are many such cases.

Therefore, after knowing the terms of the carrier's liability clauses, the exemption clauses and the relationship between the two, the captain's important task in the actual work is to collect evidence. The following points are available for reference by the captain in ship management and collection of evidence.

1. ship certificate.

A ship certificate is a written proof of a ship's compliance with international conventions, state regulations and classification societies. It is also an important proof of seaworthiness of ships. Therefore, it is necessary to maintain the effectiveness of various ship certificates.

Regarding the validity of the certificate, we should pay attention to the validity period of the certificate, and carry out all kinds of tests according to the regulations during the validity period, and have a visa to remove the remaining items in the inspection report in time, and the certificates must be complete.

2. shipping log.

These include logs, marine logs and radio logs. These logs have important evidence value. Therefore, good records and orderly custody of ship logs will play a positive role in both giving testimony and impressions of judges and arbitrators.

Otherwise, if the record is untrue and is repeatedly altered or confused, judges and arbitrators will be suspicious of the authenticity of the ship log and will think that the ship is not well managed.

When recording ship logs, it is important to note that they must not be altered or altered. If they are wrongly written, they can only be crossed out and signed.

3. various records.

When making various records, we must pay attention to the fact record, which is objective and realistic, and do not add personal views and reasoning.

These records include inspection, maintenance, measurement and operation (such as temperature, sewage, ventilation, drainage, etc.), loading and unloading facts, inspection records (such as inspection of cargo, hatch cover, cargo hold, binding, etc.).

In addition, records should be made with the Charterers, shippers, agents, stevedores and other personnel involved in the operation.

4. should pay attention to the collection and preservation of the following inspection reports and documents: inspection certificate, cargo certificate, water scale inspection report, chief mate receipt, stowage chart, manifest and inspection report on goods or ship equipment.

5. audio-visual materials.

Including audiotapes, photographs and video tapes, these audio-visual materials have high value of evidence.

6. maritime declaration and accident report.

Ships may be unable to avoid losses when they are subjected to storms, typhoons, strong winds, waves, lightning, earthquakes, tsunamis, fog, icebergs, ice areas or other natural forces.

After arriving at the first port after the natural disaster is defeated, the ship shall submit a maritime statement and a summary of the log book to the relevant authorities immediately and obtain a visa.

When a ship loses its cargo caused by an accident, the captain must prepare an accident report and submit a visa to the authorities concerned.

It should be noted that accident reports can be used by parties concerned in litigation or arbitration. Therefore, when preparing the accident reports, the captain is only limited to describing the objective situations. He should avoid making comments on the causes of the accidents, because the captain's opinion is very important to the investigation and characterization of the accident. Therefore, the captain's early opinion in the accident report will often make the carrier passive or disadvantageous in the defense.