Conflicts Between Rotterdam Rules And Relative Conventions On International Carriage Of Goods And Its Solutions

The subject of this thesis is the international legal conflicts caused by the Rotterdam Rules. Main parts of this paper are made up of the relations between existing related conventions and this newly international treaty and the way and pattern to solve conflicts thereof.In Introduction, the author tells the significance of this study, the identification of the subject, the selection of the approach and the structure of the whole paper. In Chapter One, the author practically provides detailed presentation of those different rules concerning Rotterdam Rules and others. In Chapter Two, the auther provides basic issues regarding conflicts between Rotterdam Rules and others. In Chapter Three, the author provides discussions in terms of solutions in regard of treaty interpretation. In Chapter Four, the author provides analysis with respect to conflict-of-conventions clauses. In Chapter Five, the author provides analysis with respect to lex posterior deroga legi priori and lex specialis. In Chapter Six, the author provides alternatives to make uniformity by the means other than uniformed legislations. In the part of Some Conclusions, the author concludes the whole paper and figures out possible ways for further study and research.In Chapter One"Comparison between the Rotterdam Rules and Relative Conventions", the author practically concludes details about the differences between the Rotterdam Rules and the Three Shipping Conventions and Uni-modal Conventions. The Chapter is divided into four sections.The subject of the first section is the legislation of the background and progress of the Rotterdam Rules. The background thereof is the failure of the former three conventions to meet the call of modern international shipping industry. The problems of the Hague Rules and the Visby Rules are much outdated content and their various domestic transformations. The problem of the Hamburg Rules is the barely anticipated countries, which makes the uniformity impossible. Besides, the four legal masterpieces conflict ferociously with each other which bring an urgent call of one modernized and unified international convention on carriage of goods by sea. The legislation of the Rotterdam Rules could trace its origin back to 1996. After 12 years of discussion and debate, the treaty finds its passing way on 11th December, 2008 and opens for signature on 23rd September, 2009.The subject of the second section is the comparison between Rotterdam Rules, the Hague/Visby Rules and Hamburg Rules. In the first part, the author focuses on the comparison between Rotterdam Rules and the Hague/Visby Rules.Firstly, the author makes general introduction of Hague/Visby Rules. The Hague Rules is the most popular and therefore the most important legal framework for international shipping. The core of the Hague Rules is the minimum responsibility and the maximum exemption for carriers. On the base of the Hague Rules, the Visby Rules renews the old one on some fundamental issues, such as limitation of liabilities. Secondly, the author presents the specific differences between Rotterdam Rules and the Hague/Visby Rules. There are different provisions in the Rotterdam Rules with respect to period of responsibilities, carrier's obligations and exemptions, grounds of liabilities, time bars and limitation of liabilities. In the second part, the author focuses on the comparison between Rotterdam Rules and the Hamburg Rules. Firstly, the Hamburg Rules is discussed generally at the beginning. The Hamburg Rules is not only compromise between cargo interests and ship interests, but also compromise between traditional shipping powers and new developing countries. As a result of only 34 contractual parties, most of which are inland countries, the Hamburg Rules is more often to be deemed as a great failure. Secondly, the author presents the specific differences between Rotterdam Rules and the Hamburg Rules. There are different provisions in the Rotterdam Rules with respect to period of responsibilities, carrier's obligations and exemptions, grounds of liabilities, time bars and limitation of liabilities.The subject of the third section is the the comparison between Rotterdam Rules, CMR, CIM, and Montreal Convention. In the first part, the author focuses on the comparison between Rotterdam Rules and CMR/CIM. Firstly, the author makes general introduction of CMR/CIM. CMR/CIM are regional conventions on carriage of goods. Secondly, the author presents the specific differences between Rotterdam Rules and CMR/CIM. There are different provisions in the Rotterdam Rules with respect to period of responsibilities, carrier's obligations and exemptions, grounds of liabilities, time bars and limitation of liabilities. In the second part, the author focuses on the comparison between Rotterdam Rules and Montreal Convention. Firstly, the author makes general introduction of Montreal Convention. Montreal Convention replaces some other convention in 1999. Secondly, the author presents the specific differences between Rotterdam Rules and Montreal Convention. There are different provisions in the Rotterdam Rules with respect to period of responsibilities, carrier's obligations and exemptions, grounds of liabilities, time bars and limitation of liabilities.The forth section concludes the Chapter. The section clearly tables the differences between the Rotterdam Rules and Hague Rules, Visby Rules, Hamburg Rules, CIM, CMR and Montreal Convention.In Chapter Two"General Knowledge about the Conflicts between Rotterdam Rules and Relative Conventions on International Carriage of Goods", the author concludes the definition of those conflicts, their causes, categories and representations, and divides the Chapter into five sections.The subject of the first section is the definition of the conflicts between Rotterdam Rules and others. As treaty law, private law and important applicable law for international shipping community, the conflicts between Rotterdam Rules andothers not only reflect characteristics of general conflicts between internationalconventions, but also bear particulars of normal legal conflicts in private internationallaw's extent. As a result of such bi-natures, conflicts defined thereof should be thatthey are conflicts not only in text, but also in legal relations which they aim toregulate.The subject of the second section is the causes that make the conflicts betweenRotterdam Rules and others. There are complicated reasons for international unifiedrules to conflict each other. Both macro and micro reasons should be taken intoaccount. Those macro ones might be enormous promotion of international shipping,increasing emergence of international organization, big chaos in internationallegislation, and differed calls for various interest groups. While the micro ones couldbe the highly overlapped period of responsibilities and multiple packed of treaty'sscope. As a result of these reasons of two categories, conflicts the paper discusses areformed at last.The subject of the third section is the different categories of conflicts. Basicallyspeaking, there are three categories in this regard, which contain genuine conflict andfalse conflict, conflict of carrier's rights and obligations and conflict of shipper'srights and obligations,and horizontal and vertical conflict. The first kind of conflictshould be solved by interpretation of treaties. The second category is unique amongInternational Carriage of Goods Treaties. The third is focused and densely discussedin the paper. The vertical one in the forth kind means conflict between treaties withhighly identical application scope, while the horizontal one means conflict betweentreaties with different but overlapped application scope.The subject of the fourth section is the different representations of conflictsbetween treaties of International Carriage of Goods. Basically speaking, there are twocategories from practices and cases. With respect to conflicts between RotterdamRules and shipping treaties, it reflects the conflicts between the Rule of PartyAutonomy and the Rule of Pacta Sunt Servanda. With respect to the conflicts betweenRotterdam Rules and unimodal treaties, it reflects the conflicts between applicable laws.In Chapter Three"The Solution to Conflicts between Rotterdam Rules and Relative Conventions on International Carriage of Goods: Treaty Interpretation", the author practically concludes details about application of interpretation rules solving false conflicts between conventions. The Chapter is divided into four sections.The subject of the first section is the relation between conflicts of treaties and the rules to interpret treaties. The first part defines what treaty interpretation is and the relations between treaty interpretation and legal interpretation, as well as ways of treaty interpretation and the source of law in this regard, i.e. the Vienna Convention on the Law of Treaties. The second part analyzes how rules of treaty interpretation work out towards conflicts between treaties, which mainly solve false conflicts by interpreting specific provisions and wordings and therefore act as an indirect way of conflict solution.The subject of the second section is the statutory rules of treaty interpretation to solve convention conflicts. The first part deals with the Vienna Convention on the Law of Treaties and problems arising therefrom. Provisions of Article 31 to Article 33 establish statutory rules for treaty interpretations. Four principles are included, which are good faith principle, texture interpretation principle, systematic interpretation principle and purpose interpretation principle. They have ranks accordingly. The second part deals with the application of interpretation rules established by the Vienna Convention on the Law of Treaties. Those rules are refrained by the limitation of contractual parties and the effective date. They can only be helpful towards conflicts between the Rotterdam Rules and Hamburg Rules, CIM and the Montreal Convention. The main conflicts here are conflicts in responsible period, grounds of liabilities, time bars and limitation of liabilities.The subject of the third section is the solution presented by the academic rules of treaty interpretation. The first part is the definition of all the main academic rules in this regard. They are subjective test, texture test and purpose test. They can be applied to solve conflict between treaties. Part two analyzes application of these academic rules in the solution of conflicts between Rotterdam Rules and other conventions. Due to the failure of the statutory solutions provided by the Vienna Convention on the Law of Treaties, the conflicts between the Rotterdam Rules and the Hague Rules, the Visby Rules and CMR have to be solved by these academic rules. These rules can be used to solve conflicts in the responsible period, liability grounds, limitation of liabilities and time bar.The forth section draws some conclusion to the Chapter. Firstly, this part concludes and ascertains the value of these academic interpretation rules. Meanwhile, this part also discloses defects thereof. Additional solutions must be added to the solution of treaty conflicts.In Chapter Four"The Solution to Conflicts between Rotterdam Rules and Relative Conventions on International Carriage of Goods: Conflict Clause", the author studies threoies about Conflict Clause and finds their real value in solving conflicts between the Rotterdam Rules and other transport conventions. The Chapter is divided into four sections.The subject of these four sections is the solution provided by conflict clauses. The first part introduces the definition of the conflict clause and conflict clause in the Rotterdam Rules. Conflict clause is clause contained in a treaty which purpose is to regulate relations with other related treaties. Article 82 and Article 89 are conflict clauses of the Rotterdam Rules. The second part analyzes the conflict solution by these two articles. Article 89 solves conflicts between the Rotterdam Rules and other sea borne transport conventions. Article 82 solves conflicts between the Rotterdam Rules and other transport conventions. The third part analyzes the defects of conflict clause in Rotterdam Rules.In Chapter Five"The Solution to Conflicts between Rotterdam Rules and Relative Conventions on International Carriage of Goods: Lex Posterior Rule and the Lex Specialis Rule", the author studies the Lex Posterior Rule and the Lex Specialis Rule and finds their real value in solving conflicts between the Rotterdam Rules and other transport conventions. The Chapter is divided into three sections.The subject of the first section is the solution provided by the Lex Posterior Rule. The first part analyzes the solving effect of the Lex Posterior Rule to the conflicts between the Rotterdam Rules and other international conventions on transport. The Rotterdam Rules and the Hamburg Rules are formulated by UNCITRAL while the Hague Rules and the Visby Rules are formulated by CMI. Thus the Lex Posterior Rule can be used to resolve the application of the Rotterdam Rules or the Hamburg Rules but fails to solve the problem between the Rotterdam Rules and the Hague Rules and the Visby Rules.The subject of the second section is the solution provided by the Lex Specialis Rule. The first part introduces the definition of Lex Specialis Rule. The Lex Specialis Rule allows the special provisions overcome the generals in one treaty system. The second part analyzes the conflict solution by the Lex Specialis Rule. As to the Hague Rules, the Rotterdam Rules is more general. The Lex Specialis Rule can partly be used to raise certain solutions.The third section draws some conclusion to the Chapter. Firstly, this part concludes and ascertains the value of the Lex Posterior Rule and the Lex Specialis Rule. Meanwhile, this part also discloses defects thereof. Additional solutions must be added to the solution of treaty conflicts.In Chapter Six"The Solution to Conflicts between Rotterdam Rules and Relative Conventions on International Carriage of Goods: Avoidance of Conflicts", the author studies the function international organizations can invoke with respect to the avoidance of treaty conflicts and the solving effect provided by international shipping usages which shall be deemed as alternatives. The Chapter is divided into three sections.The subject of the first section is that international organizations can improve development of treaties of uniformity but can also do harm to the harmony of international legislations Cooperation must be paid great attention to by international organizations to avoid further conflicts. The legislation process making the Rotterdam Rules reveals this point very clearly.The subject of the second section is the clarification of certain basic question of international shipping usages. Three aspects are outlined in this part, which are issues of the idealism, inflexibility, sovereignty and etc. Meanwhile, the author finds the alternative value added by international shipping usages in solving conflicts between treaties. The author also draws a picture of the relation between international shipping usages and public order reservation. In the end the author draws some conclusion to the Chapter.In Conclusion, the autuor sums up the whole thesis, rethinks the development of international transport treaties and recommends new views toward the future thereof.