Study On The Legal System About The Parties In The International Carriage Of Goods By Sea

Under the backgrounds of evolutions of the relevant international conventions,the Civil Code of PRC coming into force,the setting up of the program of amending the Maritime Code of PRC,this paper focuses on the six parties concerned(subjects)namely(contractual)shipper,(contractual)carrier,consignee,actual shipper(consignor),actual carrier,port operator involving in the laws concerning the international carriage of goods by sea,firstly outlining the whole structure of the parties in such Laws,and then analyzing respectively the legal system about the six parties,eventually making comments in the whole on the structure of the parties'system to put forward the macroscopic and comprehensive guides in the conclusion.Chapter ? “the outline of the legal System about the Parties in the International Carriage of Goods by Sea”,briefly introduces the connotation and characteristics of the law concerning the international carriage of goods by sea,as well as the scope and framework of the subject of the law.It is pointed out that the main feature of the law of international carriage of goods by sea is the organic unity of its formal “hybrid” feature representation and internal “homogenization” value goal.This chapter tries to put forward the idea of analysis about the parties consisting of three levels,namely primary basic party,basic derivative party,derivative auxiliary party.Chapter?“Primary basic party(1):the(contractual)shipper”,analyses the legal system about the definition and classification of the shipper in the board sense,and studies the problems about the(contractual)shipper's claim for the loss of and damage to the cargos,mainly including the coordination between the shipper's right and the consignee's right and the shipper's right of claim after transferring the bill of lading.This chapter illustrates the backgrounds of international legal system concerning the provisions about the shipper in the Maritime Code of PRC and trends of amending this code through outlining the evolutions of international legislations concerning the shipper in the contract of international carriage of goods by sea,puts up the rules of judgment to be established in the maritime judicial decision and the recommendatory clauses for amending the Maritime Code of PRC,with considering the problems reflected in the implementation of China's Maritime Code and taking the case about the ship “Wan Sheng” published in Gazette of the Supreme People's Court(the case published in Gazette of the Supreme People's Court is referred to as the gazette case)and other typical cases as the subject matter.The conclusions made in the study of this chapter mainly cover the following points: 1.From the view of shipper,this chapter puts up the rule of coordinating the shipper's right and consignee's right,and recommends the clause in detail to be added in the amending the Maritime Code of PRC;2.This chapter makes clear that the legal basis for the holder of bill of lading to obtain the right of claim in the Maritime Code of PRC is“doctrine of statutory right ”rather than “doctrine of contract transfer ”,on the basis of this legal basis,a new rule of judgment is proposed which is different from the Supreme People's Court's opinion in the gazette case about the ship “Wan Sheng”,that if the(contractual)shipper actually suffers losses under the contract of carriage after transferring the bill of lading,it still has the right to claim against the carrier.Chapter ? “Primary basic party(2):the(contractual)carrier”,in view of the dilemma of carrier identification in judicial practice,analyzes in further the causes of the dilemma,makes historical,comparative and empirical studies,and draws clear distinctions between the identification criteria and the basic legal systems of the Common Law system(Anglo-American law system)and the Continental Law system,defines properly the legal basis of identifying the carrier under the law of PRC,and comments on the advantages and disadvantages of the rule about identifying the carrier in the Rotterdam Rules,puts forward in proposal the judgment rules and legislative scheme of carrier identification under the legal system of our country.The conclusions made in the study of this chapter mainly cover the following points:1.According to the basic legal system of civil and commercial law of our country,it is suggested that the essence of some carrier identification rules stipulated in Article 37 of the Rotterdam Rules should be absorbed and taken for reference in the maritime legislation of China,but should be taken into the “Sinicization” transformation(the transformation with Chinese characteristics)in the legislative technique,not adopting the formulation of rule about presuming the owner of the ship or the bareboat charterer as the carrier in Article 37 of the Rotterdam rules,and establishing rules for the liability when a carrier is not identified by name in the transport document,adopting in the rule expression structure the order of “the document states--the shipowner bears the burden of proof--The shipowner bears the liability for failure of proof(bears the liability of the carrier)”;2.This chapter adopts a “priority but not absolute” position with regard to the carrier's information contained in the document,such a position means that the carrier shall be identified in principle according to the one as contained in the bill of lading,except where the bill of lading is held by the shipper or the holder of the bill of lading proves that the carrier has issued the bill of lading as another person to avoid the carrier's liability.Chapter? “Primary basic party(3):the consignee”,studies the purport and method of defining the right of claim of the consignee in judicial practice,aiming at the problem that the consignee's right of claim in the carriage of goods without bill of lading is not stipulated or is prescribed unclearly in the relevant international conventions and domestic law of PRC.The conclusions made in the study of this chapter mainly cover the following points: 1.In accordance with the guidance of Article 522 of the Civil Code of PRC and in the light of the practice of international carriage of goods by sea,aiming at the issue of the consignee's right of claim in the carriage of goods without bill of lading in the legislative gaps,this chapter puts forward the opinions of confirming in principle the consignee's right of direct claim in the contract of carriage of goods by sea both in terms of interpretation and legislation.2.It is suggested that the rules concerning the consignee's right of claim in the contract of carriage of goods by sea are supplemented to the revision of the Maritime Code of PRC in such four aspects as the consignee's right of claim and the conditions for obtaining it,the independence of the consignee's right of claim,the coordination of the consignee's right of claim and the shipper's right of claim,and the incidental obligation attached to the consignee's right of claim.Chapter ? “Basic derivative party(1): the(actual)shipper”,mainly focuses on the problems of judicial practice and the system design of “actual shipper” in the revision of the Maritime Code of PRC to comprehensively analyze and summarize the problems arising from the judicial practice and experiences of handling such problems since the provision about two kinds of shipper in the Maritime Code of PRC coming into force through the methods of empirical and comparative study,and to put forward some proposals on the judgment rules and about how to amend the provisions concerning the actual shipper in the legislation from the two aspects of the theory of interpretation and the theory of legislation,by comparing the legislations and case rule of the Common Law system with the ones of the Continental Law system,as well as making an in-depth analysis according to the civil and commercial jurisprudence.The conclusions made in the study of this chapter mainly cover the following points:1.In terms of interpretation,the people's courts of PRC should strictly follow the legislative intent as to stipulating the two shippers in the Maritime Code of PRC,limiting in principle the scope of rights and obligations of the actual shipper to matters relating to his obtaining the bills of lading and controlling of goods,it is made clear that the obligations imposed on the contractual shipper by law in the origin do not apply to the actual shipper,but the duty of care of the actual shipper based on the principle of good faith shall not be excluded.2.In terms of legislation,on the basis that the purpose of the Maritime Code of PRC stipulating the “actual shipper” is only to protect the rights and interests of the seller in obtaining the bill of lading to control the delivery of goods in FOB export trade,it is suggested that the concept of“consignor” in German commercial code(HGB)should be adopted to replace the concept of “actual shipper” in the Maritime Code of PRC in order to give priority to“consignor” in obtaining the bill of lading,as well as attaching in due cause to the“consignor” some additional obligations of declaring the information relating to delivery and receipt of cargos.Chapter ? “Basic derivative party(2): the actual)carrier”,in view of the hot and difficult issues that have arisen successively since the Maritime Code of PRC adopted the relevant provisions of the Hamburg Rules for reference,such as the identification of the actual carrier,the scope of responsibility of the actual carrier,the conditions under which the actual carrier exists(whether there is an actual carrier under the voyage charter party),etc.,and the legal nature of the liability of the actual carrier,which has been ignored for a long time,puts forward some rules of judgment and legislative proposals concerning the actual carrier,by analyzing and summarizing the formation and evolution of the actual carrier system in the relevant international maritime treaties,in the context of the promulgation and implementation of the Civil Code of PRC and the revision of the Maritime Code of PRC,making a comprehensive and systematic study of the actual carrier system,taking the two gazette cases relating to the ship “Sheng Yang” and the ship “Tong Cheng” as the subject matter for analysis.The conclusions made in the study of this chapter mainly cover the following points:1.It is proposed for the first time that the nature of the actual carrier's liability is a relatively independent statutory liability(not excluding the possibility of constituting tort liability at the same time)which is different from contractual liability and tort liability in the norms of contract law,the statutory liability and the carrier's contractual liability are of the same legal nature;2.On the basis of the above-mentioned definition of the nature of the actual carrier's liability,this chapter puts forward for the first time to perfect the litigation procedure,rights and obligations in merits and the rules of private international law concerning the actual carrier's liability;3.In the course of proving that the actual carrier system is applicable to the carriage under voyage charter party,it is held that the domestic legislation should be based on the domestic legal system and the tradition of legal culture and face up to the advantages and disadvantages of international treaties,get rid of the inertia of following blindly the international conventions and surpass the international treaties,the author puts forward that Section 1 to Section 6 of Chapter 4of the Maritime Code of PRC are applicable to voyage charter party both in terms of interpretation and legislation.4.An independent and critical analysis is focused on the Supreme People's Court's opinions in twice retrial of the case concerning the ship“Unison Praise”and some theoretical writings on the judgments of this case,a fresh rule of judgment is proposed in detail on the scope of liability of the actual carrier.Chapter ? “Derivative auxiliary party:the port operator”,focusing on two key issues,namely,whether the port operator can invoke the limitation of liability originally stipulated for the carrier and how the port operator shall take liability in the delivery of the goods,summarizes the evolution of the relevant international legislations and outlines some foreign legislation and cases,selects typical domestic cases,and then proposes the relevant rules of judgment and some amendments to the Maritime Code of PRC respectively from the theory of interpretation and the theory of legislation under the background of the implementation of the Civil Code of PRC and the revision of the Maritime Code of PRC in the light of the jurisprudences of civil law and international law.The conclusions made in the study of this chapter mainly cover the following points: 1.The port operator shall be defined in the legal standing as the performing assistant of the carrier or the actual carrier in the carriage of goods by sea,or the trustee of the cargo interests under the contract of handling in port(in the case of being entrusted by the cargo interests);2.This chapter puts forward the judgment opinion that it is unlikely for the port operator to invoke the statutory“Himalaya Clause” in the Maritime Code of PRC and that the port operator may not invoke the carrier's legal defense and limitation of liability;3.This chapter puts forward the judicial methods of determining the validity of the “Himalaya clause” and the circular indemnity clause stipulated in the bill of lading;4.This chapter agrees in principle that the port operator shall fall into the protection scope of the system of limitation of liability of units(without considering whether the port operator was entrusted by the carrier or by the cargo interests)in Article 74 of the revised and submitted draft of the Maritime Code of PRC in 2020,an amendment is also proposed that the scope of such protection shall be limited to the case where the port operator engages in the carrier's loading and discharging operations from the time of receipt of the goods to the time of delivery,resulting in the loss,damage or delay in delivery of the goods;5.This chapter puts forward some rules of judgment about how to determine the liability of the port operator for the delivery of goods according to the different deliveries due to the claim right or the right of real claim under the current laws of PRC;6.The chapter puts forward a proposal about how to amend the Article101 aforesaid,aiming at Article 101 of the revised draft of Maritime Code of PRC in2020,which stipulates that the port operator shall deliver the goods against a delivery document issued by the carrier or its agent.Chapter ? “The general thoughts and Prospects on the constructions of the PRC's legal System about the Parties in the international carriage of goods by sea ”,starting from the history and overall development of China's reform and opening up,puts forward that the development of China's maritime law should adhere to the guiding ideology of organic unity of internationalization and Sinicization(localization)and effectively serve the strategic goal of ensuring the construction of China's international maritime judicial center in the conclusion.This chapter proposes that the establishment and development of our country's system relating to the parties in the contract of international carriage of goods by sea should be paid much more attentions to maintaining the structure of partie's system in balance,perfecting the legal system,strengthening the strategic guidance,it is recommended in further that the future development of maritime law in China should be based on the idea of“surpassing the convention” and the basic work of “making clear the true implications of law from its source” and “making innovations on basis of the true meanings implied from the source of law”.The paper makes “Conclusion and Enlightenment” in the end.Based on the success and failure,gain and loss of international legislation about carriage of goods by sea reperestend in the Rotterdam rules,the paper points out that legislation on International Carriage of goods by sea needs to improve legislative technology;Nowadays,it is more difficult to unify the new round of international legislation about carriage of goods by sea.In the new era,China proposes to build a community of human destiny as a global governance plan for China to contribute to the international community,and China needs to actively play a leading role in international maritime trade rules;The revision of Maritime Code of PRC needs to strengthen the construction of the parties' system of the international carriage of goods by sea law,so as to play an exemplary role in the unification of the laws about international carriage of goods by sea.