"Right Of Control" On The Goods During Maritime Transportation In International Trade

The regulations of "right of control" in national laws are different and irregular and the existing maritime conventions are silent about the right of control, which may result in disorder in current practice in maritime transportation. Therefore, it is necessary and urgent to establish a proper system of right of control, renovate the present system and smooth the existing contradictions. Systematical research on this system not only can contribute to the perfection of international maritime transportation system, but also can offer a good theoretical basis for the benefit of maritime transportation to international commodity trade. The article is divided into three parts. The first part is the introduction. First, I distinguish the concept of "right of control" in maritime transportation law system from that of "right of stoppage in transit" in commodity trade law system through comparison and analysis on regulations of such relief measures for sellers in relevant conventions, national transport laws or sale laws. I also analyze the regulation of right of control in the Draft Instrument on Transport Law by CMI and define right of control of the goods during the carriage as "the right under the contract of carriage to instruct the contracting carrier in respect of these goods during the period of its responsibility provided that the execution of such instruction is reasonably possible at the moment that it reaches the person under a duty to perform it, does not interfere with the normal operations of the carrier or result in damages to the carrier or any person interested in other goods carried on the same voyage. Such right to instruct the contracting carrier may include: to give or to modify instructions in respect of the goods in accordance with the terms and conditions of the contract of carriage; the demand of delivery of the goods before their arrival at the place of destination; the substitution of the consignee for any other person including the person who exercises the right of control, etc." Then I discuss the quality of right of control from two perspectives. From the point that the right of control is a kind of substantial right, I analyze that it has some essential characteristic of credit in respects of object, content and persons with obligation. However, there are some differences between the right of control and typical credit from the point that the core and essence of the former is to control goods, thus it is similar to a kind of real right, though this kind of control is indirect and incomplete. It is not feasible defining it as credit or real right. It is a kind of relief right without typical characteristic. From the point that the person in possession of right of control can modify the existing rights and obligations through one-sided instructions to the contracting carrier, I think it is a kind of right formation and the institution of right of control is a theoretical basis of variation of the contract of carriage. Second, I discuss the necessity of regulation of system of right of control in the field of maritime carriage. The establishment of this system in the field of maritime carriage embodies the infiltration of international commodity trade rules into maritime carriage institution. Meanwhile, it also can protect and promote international commodity trade. The relief right granted by the contract of sale and sale law such as "right of stoppage in transit" can not be fulfilled thoroughly and perfectly during carriage because the seller can not confront with the carrier, who has not direct relationship with the contract of sale, therefore, regulation of right of control in the field of maritime carriage is a better relief measure and control of the goods during their carriage is an issue that has to be dealt with under transport law. Last, I discuss the jurisprudential basis of right of control. The aim of establishing the system of right of control is to protect international trade and offer the interested parties a sound relief measure so as to fulfill fairness a...