Study On The Rotterdam Rules: Institutional Innovation And Its Lessons

The subject of this thesis is Rotterdam Rules. The institutional innovation of this newly international convention and the lessons China can draw therefrom consist the main parts of this paper.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 provides the legal issues to be solved by the Rotterdam Rules. In Chapter Two & Three, the author provides analysis of the solution given by the said convention. In Chapter Four, the author provides discussions in terms of the lessons China can draw therefrom. 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"Rotterdam Rules: Legal Issues to Be Solved", the author concludes seven legal issues and divides the Chapter into seven sections.The subject of the first section is the identification of the carrier. The issue thereof can be understood in two ways: firstly, the identification between shipowners and charterers; secondly, the identification of carrier in the age of containerization. Thanks to the short period of Time Bar, it's paramount for the concerning party to identify the right carrier instantly, or he will surely lose his subjective right if time bar is due. As an legal issue, the identification of the carrier can be understood in two ways: firstly, the governing rules thereof turn out to be too much complicated; secondly, the governing rules thereof turn out to be too much simplified. Identification can be carried out according to the caption, signature and the clauses of the bill of lading. And the definition of Actual Carrier is too much ambiguous.The subject of the second section is the legal definition of shipper. With respect to protect the FOB seller, the Hamburg Rules defined the second shipper. As a result of some loopholes thereof, the identification of shippers must be carried out without any possibility. The rights and obligations of these two shippers are not clear enough to avoid further problems.The subject of the third section is carrier's period of responsibility. Due to some misunderstandings in terms of Hague Rules and Hamburg Rules, the legal definition thereof remains unclear and the compulsory nature of this period may cause further conflicts.The subject of the forth section is carrier's foundation of liability. The history of the development of relevant rules consists five phases. Some rules remain reasonable today while others do not. The real legal issue thereof is whether the carrier can exempt his liability by fault of navigation.The subject of the fifth section is carrier's limitation of liability. Hague Rules firstly set provisions in terms of carrier's limitation of liability. However, the actual amount thereof, some relevant definitions, the scope thereof and the waiver thereof are all important legal issues in this area.The subject of the sixth section is carrier's duty of delivery. In practice, it's harder and harder for the carrier to deliver the cargo against the bill of lading. The legal nature of deliver the cargo not against the bill of lading and whether the carrier is obliged to deliver the cargo against the straight bill of lading are two main problems here.The subject of the seventh section is right to control. The right to control is the counterpart of stoppage in transit. Due to some reasons, these two rights can fit each other in the same time. Therefore, the legal issue thereof is to find some way to establish the right to control.In Chapter Two"Rotterdam Rules: Upgrades on the Old Rules", the author concludes five legal issues and divides the Chapter into five sections. The subject of the first section is the identification of the carrier. The Rotterdam Rules turns out to quite good to simplify the old identification rules in terms of bill of lading. However, the rules set out by the convention are also very arbitrary to shipowners and disponents.The subject of the second section is the legal definition of shipper. The Rotterdam Rules gives a very clear and unambiguous definition to shipper and settles well the issue of combination of two shippers'obligation.The subject of the third section is carrier's period of responsibility. The Rotterdam Rules solve some conflicts of laws and leave others unsolved. The convention fails to give a definition of carrier's period of responsibility and also fails to consider domestic laws. What's more, the convention may be in direct conflict with Hague Rule, Hague Visby Rules and the Hamburg Rules.The subject of the forth section is carrier's foundation of liability. The Rotterdam Rules eliminates the exemption of the fault of navigation and well protects the interests of shipowners. It's considerably successful to set provisions like this. The subject of the fifth section is carrier's limitation of liability. The Rotterdam Rules sets out a single and uniform amount of limitations, and avoid further conflicts respectively. The convention also gives definitions to certain legal terminologies and includes indirect damages. It also set clear rules for the waiver of limitations. However, Rotterdam Rules also leave some loopholes therein.In Chapter Three"Rotterdam Rules: Upgrades in New Areas", the author concludes two legal issues and divides the Chapter into two sections.The subject of the first section is carrier's duty of delivery. The Rotterdam Rules provides rules justifying delivery not against bill of lading and will throw great impact upon traditional system of shipping practice.The subject of the second section is right to control. The Rotterdam Rules successfully combines relevant rules in terms of right to control and stoppage in transit.In Chapter Four"Rotterdam Rules: Lessons to China", the author concludes several legal issues and divides the Chapter into three sections.The subject of the first section is problems found under Chapter Four CMC. The Rotterdam Rules provide various ways to solve these problems and that makes it significant to learn the innovation of this newly convention.The subject of the second section is the way China shall follow to absorb relevant innovation of Rotterdam Rules. Details have been given to analyze the possibility to do that and what should be done accordingly.The subject of the third section is a list of provision suggested to the authority.