Research On The Harmonization Of Contract Law Of Carriage Of Goods By Sea

Harmonization of law is simply regarded as the inter-changing of different national legal rules demanded by the society development and based on even closed international relationships. During such process, the harmonization of Contract Law of Carriage of Goods by Sea (hereinafter CLCGS) is outstanding. This article is started with the concept and features of CLCGS. The achievements of CLCGS international harmonization are summarized, and the author theoretically analyzed its reasons, contents and features. Finally, it points out that with the accelerating internationalization, the harmonization of CLCGS is unavoidable, and that it is developing. Meanwhile, this would be meaningful to our legislation.The first part of the article is the general introduction to CLCGS. Firstly, the author discusses the concept of CLCGS: it is a legal form to adjust the relationships between equal subjects in the maritime cargo transition, and it is with general features. Secondly, the author discusses the sources of CLCGS, mainly conclude international treaties, international customs, and national laws. Finally, the author discusses the relation between CLCGS and contract law, through the contrast of the features between the CLCGS and our Contract Law, points out their relationships and the principles of application.Chapter two mainly discusses the development of CLCGS and the harmonization of CLCGS. Firstly, the author discusses the present situation of CLCGS. Started with the action and influence of commercial customs and international treaties to the CLCGS, this article points out that the draft and current situations of Hague Rules, Visby Rules and Hamburg Rules. Then, by analyzing the basic features of international maritime customs, it gets to that , the customs of the sea are transnational and arbitrary behavior forms. In this section, many maritime related rules are listed. For the last part of this section, with the rules upon CLCGS coded in national maritime law and contract law, the author points out that the multiple developing features of CLCGS. Secondly, the author discusses the trend of CLCGS harmonization. Based on the introduction to the meaning of harmonization of law, this article points out that specific expression of the trend of CLCGS harmonization is regarded as the trend of international unification, interchanging of different national legal subjects demanded by the society development and based on even closed international relationships. Such trend, in the case of maritime law, is indicated as the reduction of legal conflict areas, the maritime law went further harmonized, and the position changing of Carriers and Goods Owners under either general laws or maritime laws. Such changing, however, not only issued new demand for CLCGS harmonization, also helped in its promotion. Thirdly the author discusses the reason of CLCGS harmonization. By analyzing the difference and position in the international trade of Hague Rules, Visby Rules and Hamburg Rules, the author points out the function and influence of CLCGS to international trade. With the features of maritime transition market, it may find that the independence of CLCGS is indicated by its obvious difference with other legal subjects, and it is enforceable. Finally the author discusses the reason of such enforceability, and on this, the reason of its harmonization.Chapter three discusses the features and the content of CLCGS. Firstly, the author discusses the features of CLCGS. It is with the feature of standard and formulization. CLCGS is an important maritime contract, besides the common attributes shared by other formulized terms, it has its seaway specials. The harmonization and uniqueness is another important feature. Currently, there are three treaties in this area, the entire international society should be seeking for unification legislation of CLCGS. CLCGS has its special features with justice jurisdictions and arbitration jurisdictions. Through the contrast of the above three rules, the CLCGS is being more and more harmonized. Then, as the frequency of disputes aroused from seaway carriage, arbitration became an important method to adjust the disputes. Through the contrast between internal and foreign arbitration terms, it may see that arbitration terms are also one of the features of CLCGS harmonization. Secondly, it is the content of CLCGS harmonization. The CLCGS concludes many subjects, mainly the carrier, actual carrier, shipper, charter party and consignee, and might also be the material for our analyzing of harmonization. Through this and their comparison within Hague Rules, Visby Rules and Hamburg Rules, it may understand more of the CLCGS harmonization. For the next, this article expounds the responsibility regime of CLCGS. In considering the CLCGS subjects, it will hereby introduce the responsibility regime in detail. Thirdly, it is the prescribed period for litigation of the harmonization of CLCGS. Through the contrast of prescribed period for litigation between Chinese law and international treaties, and related regulations about suspending, stop and extention of suit time, it will understand that, it too, bares the feature of harmonization. Finally the author discusses the harmonization of Bill of Lading (hereinafter B/L) system in CLCGS. B/L is the important legal document and transition bill; it is also the most important and most special bill for seaway carriage. In some way, the exceptionality of B/L embodies the exceptionality of CLCGS. It is not only carriage bill. In another level, it is also a trade bill which bares great functions in international trade. As an important part of the CLCGS harmonization, B/L shares a lot in this process.Chapter four mainly discusses the problems in the process of CLCGS harmonization and its reference experience to our legislation. Firstly, the author defines the difference between harmonization and unification. That is, harmonization is the base for unification. On the other hand, unification is the advanced form result of harmonization. Then the author discusses more about the defects in the harmonization process through the conflicts of CLCGS and the gap of free trade. Finally, referenced by the harmonization of CLCGS, it points out the wild significance for improving our internal legislation.