A Study On The Legislation Of Multimodal Transport Of Goods Of China

With the rapid development of economy, a single mode of transport cannot satisfy the requirements of cargo trade, multimodal transport of goods appears in response and has been developing constantly. In Rotterdam Rules, the scope has been expanded to the door to door multimodal transport of goods by sea plus. Many countries started to pay attention to and intensify the legislation of multimodal transport of goods, especially the multimodal transport with sea transport. The provisions on multimodal transport in China are scattered in the Contract Law, Maritime Law and other legislations of single mode transport. With obvious lag, the legislation can not adapt to China's overall development strategy of maritime power and Belt and Road. Based on this, the paper,using the comparative research methods, theory and practice research methods and other research methods, comprehensively and systematically studied on the legislation of multimodal transport of goods in China.Except for the introduction, the conclusion and the appendix, this paper is divided into six chapters.The introduction part consists of the significance, the status, the main contents and the research methods of this paper. It objectively analyzed the necessity and feasibility of the research on the legislation of the multimodal transport in China, introduced the domestic and foreign research results. At the base of untangling the research ideas,it determined the main contents of this paper.The first chapter clarified the concept of multimodal transport and introduced its developing status. From the mode of transport, multimodal, transport and other aspects,multimodal transport could be defined as the combination of any two or more transport modes among water transport, road transport, rail transport and air transport. It is cleared that whether there is a change of means of conveyance or whether there are different types of transportation involved is a standard of judging the means of Multimodal. Compared with comprehensive transportation, logistics and associated transportation, multimodal transport was truly different. Focusing on the sea-railway transport, land bridge transport, sea-air transport, land-air transport and other major modes of multimodal transport, this chapter introduced and analyzed the status quo of multimodal transport of goods in China and worldwide.The second chapter established the legislative model of multimodal transport of goods in China on the basis of theoretical research. By making a distinction between the broadly and narrowly definition of the legislative model, the paper clarified the purposiveness, constructivity, dynamic and integrity of the legislative model of multimodal transport. The analysis about the legislation of multimodal transport in other countries showed that the choice of the legislative model of multimodal transport was affected by various factors such as the political, economic, cultural and the development of multimodal of that country. By analyzing the different viewpoints of the separate legislation model and the decentralized legislation model of multimodal transport of goods held by domestic scholars,this paper put forward the idea of adopting a separate legislative model, that is, the Law on Multimodal Transport of Goods of the People's Republic of China formulated by China's National People's Congress and its Standing Committee. This chapter summarized the adjustment scope of this law and proposed that the Ministry of Transport is responsible for the proposal and fully promote democracy. Furthermore, it was also necessary to modify the existing laws, and to gradually promote the relevant administrative legislation and local legislation.The third chapter demonstrated the necessity and feasibility of the separate legislation of multimodal transport of goods in China. It explained the necessity of separate legislation on five aspects, that is, to comply with the development of multimodal transport of goods, to conform to the international development trend of multimodal transport legislation, to promote the construction of our comprehensive transportation legal system, to solve the problem of legal application in practice and to make up the loopholes of existing laws. It also explained the necessity of legal form legislation which is to conform to the running trend of our legislative authority, to effectively avoid the conflict of legal effect, to contain the main legal system of multimodal transport of goods with private legal attributes and to follow the guiding ideology and principles of legislation in our country. In addition, with the adoption of the Rotterdam Rules, the support of China's multimodal transport policy, the advancement of the reform of the majority system and the research results of experts and scholars, it was feasible to choose the separate legislation mode of multimodal transport in China.The fourth chapter clarified the nature of the law on multimodal transport of goods in China. This chapter analyzed the difference between public law and private law in the field of multimodal transport, according to the distinguish theories on the public law and private law. The contract system, the multimodal transport document system, the multimodal transport operator liability system and the limitation of action system were considered to have private nature. China\ s Law on Multimodal Transport of goods mainly consists of these systems, and could be determined as private law. Meanwhile,the access system of multimodal transport operator, tthe management and punishment system of multimodal transport operator and the infrastructure construction of multimodal transport, were considered to have public nature and would be standardized by the administrative legislation or departmental rules.The fifth chapter established the position of China's law on multimodal transport of goods. The general principles of the multimodal transport contract which is not covered in the law, should be governed by the provisions of the Contract Law. According to the Network Liability System of the Law on Multimodal Transport of goods, Maritime Law and other single-mode transport legislations would be applied as a section of transport legislation when they meet the conditions. In the future, the amendment of the provisions on multimodal transport in the Contract Law and the Maritime Law should be consistent with the Law on Multimodal Transport of Goods. And the choice of extraterritorial legislation should apply to the Voluntary Principles and the Doctrine of the Most Significant Relationship of the international private law.The sixth chapter studied on the main legal system of the Law on Multimodal Transport of Goods. Firstly, it defined the scope of the multimodal transport contract.The provisions of the law shall apply to all contracts of transport between two places,the place for the taking in charge of the goods and the place for delivery of the goods, at least one of these two places should be located in China, no matter whether it contains water transport. Secondly, it explicitly stipulated main bodies and their rights and obligations under the multimodal transport contract. The author suggested the introduction of the concept of a Performing Party in the Rotterdam Rules, that is,a person other than the multimodal transport operator (MTO) or undertakes to perform any of the MTO's obligations under a contract of carriage with respect to the receipt,loading, handling, stowage, carriage, care, unloading or delivery of the goods, to the extent that such person acts, either directly or indirectly, at the MTO's request or under the MTO's supervision or control. Thirdly,it clarified the liability system of the multimodal transport operator. Drawing on the Rotterdam Rules, the revised network liability system of multimodal transport operators would be limited to a minimum. In this part, it was clarified that the basis of the liability should apply the doctrine of presumptive and the provisions of exemption and the burden of proof. The exemption and burden of proof were provided. It was made sure that the period of responsibility of the operator is between the time he takes over the goods and the time of delivery, and the multimodal transport operator shall be liable for total or partial loss of the goods or damage to the goods, as well as for any delay in delivery. The limits of the liability for loss resulting from loss of or damage to the goods would be distinguished between the multimodal transport with water transport and the multimodal transport without water transport. The liability for loss resulting from delay in delivery shall not exceed two and a half times the amount of the charge payable, and the aggregate liability shall not exceed the limit of liability for total loss of the goods. Fourthly, the multimodaltransport document system. The multimodal transport operator shall deliver the goods by virtue of the original negotiable document and shall apply the provisions of delivery of goods without production of bill of lading. Fifthly, the limitation of action system of the multimodal transport contract. The limitation of action does not apply to the network liability system. In this section, drawing on the General Principles of Civil Law, the author determined the limitation of action system of the multimodal transport contract,the length of limitation of recourse and the starting point. And it was also determined the limitation of action to the claim of the multimodal transport operator to the performing party.Through the above chapters, this paper has carried out the design of legal provisions of the Law on Multimodal Transport of Goods of the People's Republic of China(legislative proposals),as the appendix of this paper, for reference by our legislative department. It is expected that this paper will promote the legislation of multimodal transport of goods in China, improve the domestic legal system of comprehensive transportation of goods, promote the sustainable development of multimodal transportation market, and realize the overall development strategy of maritime power and Belt and Road as soon as possible.