LeLegal Development of Sea Transportation

Abstract

             This research aims at studying about the law of shipping by Ocean-liners under the Marine Carriage Act of, B.E. 2534 (1991) because the law has been provided for a very long time. Therefore, there are provisions which are not universal and do not comply with the international trade practice. The law should be developed in accordance with such trade customs or trade form.

               According to the study, it is found that the provisions on the definition of the carrier and the contract of carriage by ocean-liners do not comply with the trade customs because the provisions specify for the components of being carrier and the contract of carriage by ocean-liners shall be a contract between the carrier and the shipper only, then the carrier shall be considered as the carrier and the carrier’s status is considered as the carrier. If a carrier makes a contract of carriage by sea with other persons other than the shipper, the carrier shall not have the status of carrier, but the carrier becomes contractor for hire of work according to the Civil and Commercial Code. In so doing, the carrier shall make the hire to be successful, without receiving any right as provided by the Marine Carriage Act, B.E. 2534 (1991). The making of contract of carriage by sea, the carrier shall make a contract with the shipper and in some cases, the carrier shall make a contract with the consignee or the receiver of bill of lading. If the case is the complying with the requirement in delivering the goods, or conditions of delivering of goods according to Incoterms (International Commercial Terms), especially in term of E and F groups, that the consignee must be the ship's employer. Therefore, if the carrier makes a contract for transporting in these two terms with the consignee, the carrier is not in the status of the carrier. Therefore, there is a problem with the carrier in receiving the right under the Marine Carriage Act, B.E. 2534 (1991) and does not comply with the enforcement of the Act that shall cover all cases of shipping by ocean-liners because the law is the law of transporting by ocean-liner directly. In addition, in order for the status or position of the party to be clear, there shall be using of the form of the carrier and the actual carrier to be used with the Marine Carriage Act, B.E. 2534 (1991). There shall be cancelling of the use of the form of other carriers who have unclear status and there shall be using of rule of being principal and agents to be used for enforcement instead of using of the Marine Carriage Act, B.E. 2534 (1991), it shall comply with the concept of shipping by ocean-liners more. There shall be determining for giving power to carrier in order to inspect and handle dangerous goods in shipping. Furthermore, in addition to the above cases, there shall be improving of Section 4 regarding scope of the enforcement. The principle to be used is the principle of responsibility or duty to be used for specifying the scope of enforcement of the Marine Carriage Act, B.E. 2534 (1991), so that the usage for enforcement is wide. This is not to use principle of dividing of maritime boundaries to be the guidelines for enforcement, because it is difficult to determine the exact maritime boundaries in enforcement of the law and maritime boundaries of Thailand and neighboring countries, there are overlapping and claims of ownership. It requires the form of calculation of damages in accordance with the Special Drawing Rights (SDR), instead of the calculation form, using the Thai Baht as defined in the Marine Carriage Act, B.E. 2534 (1991), Section 58.

            From the study, there is recommendation that there should be improving of provisions on the scope of enforcement of the definition of the words: “Shipping Carrier", "contract for shipping by ocean-liner", "Actual Carrier," "Special Drawing Rights Unit."  The definition shall be cancelled for “other carriers”. In addition, there shall be adding of provisions regarding the power of the carrier to handle dangerous goods, the bringing of calculation form of the Special Drawing Rights Unit to be specified in Section 58 and adding of the provisions in the Marine Carriage Act, B.E. 2534 (1991), relating to the improvement of the above issues