論載貨證券管轄權條款之問題

Study on Some Problem of Jurisdiction Clause in Bill of Lading

國際訴訟案件管轄權之取得為對涉外民事訴訟案件審理之前提，於取得國際訴訟案件管轄權後，一國始得將案件分配於內國法院審判。海上運送因各國法律規定不同，對當事人間權益影響甚鉅，故常有擇地訴訟情形發生。又海上運送人於運送單證（如載貨證券）載有管轄權條款，此時該條款是否得以拘束當事人？就此，學說與實務之見解相當分歧。聯合國於2008年通過最新國際海上運送公約──鹿特丹規則，就此有詳細規範。故我國雖無機會簽署鹿特丹規則，但似可將鹿特丹規則作為範本，藉以供國內未來就相關規定修法之參考。

International jurisdiction is prerequisite for the international lawsuit case to distribute the case to the domestic court trial. Various rules in Maritime Act in different countries have great influence on both carriers and cargo owners and which might lead to the forum shopping. Also it is common to have jurisdiction clause in the maritime transport contract (i.e. B/L). Were parties bounded by the clause? The views between the theory and practice differ. UN has adopted Rotterdam Rules in 2008 and it has codified in maritime jurisdiction. Though there seemed no chance for our country to sign Rotterdam Rules as not being a member of UN, that Rotterdam Rules could be a model law for our country for further legal system reformed which will be stated in this article.