Research On System Of Transfer Of Rights In Carriage Of Goods By Sea

In the domain of international trade, as an effective method of finance, transfer of rights has advantages for the fluent transaction of cargo and the optimum distribution of resource to maximize the wealth. Transfer of rights has been one of the most important systems in domain of international trade. As a unifying legislation in the domain of international transport of cargo related to the international trade, the reason why the draft instrument on transport law prescribed the system of transfer of rights is to meet the need of the development of international trade. Based on such comprehension, it is a bold attemption that the article has founded a theoretical framework for the system of transfer of rights, which used the two clauses on transfer of rights prescribed in the draft instrument on transport law and followed the common train of thought used in researching legal issues, in carriage of goods by sea. The article is composed of 7 sections.In the early 20 century, the main mission of CMI was to unify the transport law in carriage of goods by sea, and CMI had achieved something displayed by two wide-accepted conventions: the Hague Ruls and the Visby Rules to create an unifying era of transport law. After the Hamburg Rules went to effect, the dispution rose again about unifying the legal system, especially in 90's, some countries modified their maritime laws by adopting parts of the convention based on respective benefits so that the differences of the legal system among countries were intensified and lots of legal conflicts rose, which would do harm to the development of the transport. The only way to sovle the dilemma was to lay down a new convention, then came the draft instrument on transport law at this situation. The initial motive to lay down the draft instrument on transport law had relation with the transfer of rights. It was not free from all the foundations that the draft instrument on transport law prescribed the system of transfer of rights, however, the system seemed oriented from the British law. In order to solve the problem of the right of suit, Britain had enacted Bill of Lading Act in 1855 and Carriage of Goods by Sea Act in 1992 which took the place of the former and achieved good effects by establishing the system of transfer of rights. There were many gaps in the roles of B/L and SWB, the relations between these documents and the rights and obligations of the parties in the contract of sale of goods, and the status of the third party who applied one party of the transport contract with finance, however, some countries had lain down different rules on it while other countries did nothing about it, which obstructed the fluent transaction of cargo and increased the costs of transaction, and that is why the draft instrument on transport law prescribed the system of transfer of rights.To clarify the conception of transfer of rights is the premise to do further research, so the article distinguished the words related to transferation and the basic conceptions, especially the conception of the holder, to clarify the conception of transfer of rights and make substantial foundations to do further research. The main problem the article needed to solve was why the holder could assert a claim written into the B/L to the carrier when the B/L was negotiated to him and how to determine the legal relation, i.e. how to analyze the theoretical basis of transfer of rights. The relation between the holder and the carrier which the B/L had established was a sort of obligatory rights, however, the basis of why the holder could assert a claim to the carrier mainly lied in the theory of agency relation, the theory of identification of law, the theory of security system, the theory of the contract for third parties'interests, the theory of implied contract and the theory of assignment of the contract. After the analysis of theories concerned, the article drawn a conclusion that the holder's rights were oriented form the partial assignment of the contract. The draft instrument on transport law did not prescribe the content of transfer of rights in chapter 11. As to the obligatory relationship between the holder and the carrier, the reason why the holder could assert a claim written into the B/L to the carrier was that the rights and obligations under the transport contract had partially assigned. All in all, the rights which were transferred by negotiating the B/L were a sort of obligatory rights. Based on the judgement above and the analysis of the clauses in the draft instrument on transport law, we could draw a conclusion that the assignable rights should cover the claim for delivery of cargo, the right of control of cargo and the right of suit, but not including the right of title.The transfer of rights in carriage of goods by sea needed to obey a kind of rules, and the draft instrument on transport law prescribed that the rights under the transport contract should be transferred by the way of negotiating the documents. However, the rights under the transport contract should be transferred not only by the way of negotiating the documents but also needing to fulfil the following conditions: firstly, there should be a negotiable B/L; secondly, it was the certain subject that negotiated the B/L; thirdly, negotiating the B/L should obey legal procedure; lastly, the B/L should be negotiated within a certain period. Whether the rights or both the rights and obligations were transferred to the holder by negotiating the documents, there wasn't a unifying style. By contrasting the differently legislative style and analyzing the standpoint the draft instrument on transport law took, the article held the view that the synchronous transfer of rights and obligations sounded reasonable and easy to realize the value of the B/L.There were three parties concerned in the relationship of the transport contract and the B/L, the shipper, the carrier and the holder, so different parties might get different legal results after the rights were transferred. Following the clue which the clauses prescribed in the draft instrument on transport law provided, the article analyzed the effect of transfer of rights from three aspects, i.e. for the holder, for the shipper and for the carrier, and layed down the rights the parties concerned enjoyed and the obligations the parties concerned bore. When the system of transfer of rights first appeared in the draft instrument on transport law, there was a heated argument about the fate and the content of the transfer of rights, which was devided into two factions: the reservating faction and the abrogating faction. The People's Republic of China held the view that the system of transfer of rights should be prescribed in the draft instrument on transport law in order to solve the problem of linking up the area of international trade and the area of transportation. By analyzing the reports of UNCITRAL working group III on the work of its all previous sessions, the article argued the necessities of the system prescribed in the draft instrument on transport law form five aspects: firstly, the system could satisfy the inherent needs of transport law; secondly, the system could promote the development of the electronic business; thirdly, the system could meet the trading merchants'reasonable needs and encourage the banks to provide the financial services; forthly, the system could balance the benefits among the respective parties and promote the negotiating of the B/L; fifthly, the system prescribed in the draft instrument on transport law could follow the trend of international legislations. At the same time, the draft instrument on transport law still had its drawbacks needed to be improved under the further discussion in five aspects: firstly, the conditions by which the holder bore the obligations were not satisfactory; secondly, the clauses about the status of the shipper should be improved; thirdly, it was a historical retrogression that the draft instrument on transport law deleted the condition of not issuing any negotiable documents and electronic records; forthly, there was a disharmony amoung the clauses prescribed in the draft instrument on transport law; fifthly, there were drawbacks about the words and the terms. It was definite to say that the analysis of the necessities and the drawbacks of the system of transfer of rights prescribed in the draft instrument on transport law would be an enterprising point.By analyzing Chinese Maritime Law, the Contract Law, the General Principles of the Civil Law and other laws including the Commercial Instrument Law and the Special Maritime Procedure Law, we could draw a conclusion that there was a legislative vacancy on transfer of rights in the carriage of goods by sea in Chinese legislations. To meet today's need of modifying the Maritime Law, it was necessary to prescribe the system of transfer of rights in Chinese Maritime Law in order to promote the unification of the maritime law throughout the world. After inquiring the necessities of modifying Chinese Maritime Law and analyzing the clauses prescribed in the draft instrument of transport law, the article gave thirteen legislative advices for our legislation to overcome the weakness by making use of the reasonable clauses prescribed in the draft instrument in order to coordinate the differences between our legislation and the future transport convention, and at the same time to follow the trend of internationally unifying contract law.