Study Of The Law Applicable To The Bill Of Lading

With the rapid development of the international trade, the carriage of goods by sea has been playing a more and more important role. But because of the different provisions of the Maritime Law of the countries, the different scope of application of the international treaties relating to bill of lading, a great number of conflicts of law about the carriage of goods by sea are emerging, thus the carriage of goods has been affected in some degree.The bill of lading, as evidence of carriage of goods by sea contract and the significant document of title in the carriage, becomes more decisive because it involves the interests of the carrier, the shipper, the consignee and the holder of the bill of lading. Here in the article, it gives some typical international cases and some relevant rules of the countries' Maritime Law or Private Law. I wish it could be helpful in the carriage practice and judicial practice about the application of law in bill of lading.This article is divided into three parts, including the introduction and the conclusion, organized by about 30 thousand words. The three parts of the text are the brief introduction of the bill of lading, the basic principles of the application of law in bill of lading and the main clauses relating to the application of law in bill of lading.The introduction is about the aim of the article and the thinking train of the author in working on the article.The first part " the brief introduction of bill of lading" conations the developmental history of the bill of lading, its legal function, the three international treaties relating to it (Hague Rules, Visby Rules and Hamburg Rules) and the domestic legislation of some counties.The second part focuses on the main principles about application of law in bill of lading: the doctrine of mandatory law, the doctrine of international treaty, the doctrine of party autonomy and the doctrine of the most significant relationship. Among these four, the doctrine of mandatory law should be firstly considered in deciding the applicable law, because there exist some differences between the countries' domestic legislations,the international treaty and the domestic rules. Putting the mandatory law at the first place will avoid the conflict of these laws and will more effectively protect the interests of the parties. According to some international principle, the international treaty must be complied with by the courts of the signatory countries, in the condition of the public order and the mandatory law being abided by in the country of the hearing court. The doctrine of " party autonomy" has a long history with its original form proposed by Dumoulin a French lawyer. The main maritime countries, such as England, U.S.A, France, and Germany, have adopted this principle through domestic legislation or practice or precedent because the doctrine of " party autonomy" gives full expression to the parties' will. The last but not least one, the doctrine of the most significant relationship, just like the "party autonomy" is also indispensable in choosing applicable law of bill of lading.The third part of this article is imposed on three typical clauses about law choosing in bill of lading: paramount clause, choice of law clause and local clause. The party's liberty to choose applicable law is bonded by the international treaties relating to bill of lading and the domestic mandatory law of the relative countries, thus the paramount clause and the local clause come into being. Whether the paramount clause has the binding force or not depends upon whether it runs counter to the mandatory rules of the applicable law of the bill of lading, at the other respects where the both coordinate, the applicable law is effective. As to the local clause, when the trade is relating to the certain region, it can be incorporated in the bill of lading. The legal relation between paramount clause, local clause and Maritime Law of People's Republic of China is also analyzed in this part.The conclusion is to making a simple summary and look forward to the future development. Although the problems about application of law in bill of lading can't be resolved thoroughly because of the differences between the international treaties and the domestic legislations, all the efforts are inspiring.