Study On The Control Of Goods By Sea

The international conventions (including the Hague Rules, the Hague - Visby Rules and Hamburg Rules) on the carriage of goods on sea are not unified when used in the maritime transportation. There are even conflicts or left blank on some major issues, which hinder the smooth development of maritime transportation. Considering this situation, the United Nations Commission on International Trade Law(UNCITRAL) invited International Maritime Committee (CMI) to draft a united International Convention on Maritime Transportation from 1996. They want to devote themselves to the unification of international Maritime Transportation Convention. After more than 10 years of hard work, finally a draft on a unified transportation convention:[wholly or partly] [on sea] the draft convention has been drawn up. The draft not only has already surpassed many of the provisions in the existing international system to adapt to container cargo, multi-way transport and e-commerce, transportation, and other modern practice, which has made outstanding contributions, but also it's the first time for the law of the sea transportation to introduce the provisions of the trade law, such as the transfer of rights, the right of appeal, right of control of cargo, and so on. There are a lot of innovations. In this paper, I choose one of the innovations, but also the focus of one of the somewhat controversial topics- right of control to explore and analyze.In the international trade, if the seller wants to deliver the goods to the buyer, he often has to utilize the transportation with the help of the carrier to deliver the goods to the buyer. It is not like domestic trade in which he can get the goods as soon as he makes the payment. However, because of the change of the circumstances, force majeure, or other factors, the buyer can't pay, the seller wants to re-possess the goods to protect his own interests. Here are two legal relationships, one is the contract of transportation between the shipper and the carrier, the other is the contract between the buyer and the seller. Although the two contract closely link, they are two mutually independent contracts. According to the contract relative principle, the seller who is not paid can only request the counterpart -the buyer to fulfill the obligation and don't have the right to request a third person that is the carrier to stop the delivery of the goods because the carrier must act in accordance with the contract of transportation. Then the seller meets the bottlenecks to get the relief. So it's necessary to make the provision of the right of control to make the remedial right in the contract law (common law: right of stoppage in transit; Civil law: right to demur unrest) and the remedial right in the transportation law linked, which can help the seller to get effective legal remedies.In fact, in the international conventions of rail transport, air transport, road transport, there are the similar provisions of the right of control. In stead, they use "the right of disposal". Why the provision of right of control in maritime transport appeared so late? That is because the special nature of sea transport, bills of lading system unified the world, so it is not necessary to need the right of control, whoever has the bill of lading (usually blank B/L of or to order B/L), he has the right to control the goods. But with the development of maritime transport, sea waybill, B/L of signing a name, and other non-negotiable transport document are widely used and the rise of the large number of electronic B/L. So, the law is not clear who owns the right of control of cargo. Moreover, with the development of practice, a lot of new things will come out. Only depending on the system of B/L, which came into being from the long-term development in practice, can't afford such a burden. Therefore, it is necessary to make the provision of the right of control in transportation law to establish a complete system of the right of control together with the system of bill of lading to form a strong protection of international trade to further promote the development of maritime transport.The Paper is divided into five chapters. The first chapter makes an outline of the right of control of cargo by sea. This chapter is divided into four sections. The first section has described in details the coming to being, the relevant legislative background and the legislative process of the right of control of cargo. Second, I make a brief introduction on the concept and content of the right of control. The so-called right of control of cargo refers to the right that the controlling party makes instructions on the cargo to the carrier during the period of transportation according to the transportation contract. It consists of three aspects: (1) give or modify instructions in respect of the goods that do not constitute a variation of the contract of carriage; (2) demand delivery of the goods before their arrival at the place of planned destination or any place of inland when making inland transport, and (3) replace the consignee by any other person including controlling party. Third, I analyze the reasons why the right of the control of the cargo produce. I think there are mainly three reasons for this: (l)connect the relief right of the seller between trade law and the transport law;(2) for the development of a modern marine cargo transportation;(3) resolve the problem in the application of relevant legal deficiencies in judicial practice. Finally, in order to understand the right of control of cargo better, I compare it with the right of stoppage of transit in the origin of the two kinds of rights, the body of the right, content, and conditions of exercising the rights, existing period and so on. The second chapter analyzes the nature of the right of control. It is discussed from two angles. First, speaking from the content of the right of control, it belongs to the right of creditor rather than property right; speaking from the role of the right or right power, it belongs to the right of claim instead of forming right. The third chapter explains in details how to exercise the right of control of the cargo, the subject and object of the right, the ways of how to exercise the right, and existing time of the right in order to have a comprehensive understanding about the right. Chapter IV presents the current situation of Chinese related legislation, including the relevant provisions of the China Maritime Code and the right in the Article 308, Contract Law. I also analyze the shortcomings of system of right of control in our laws. It is proposed to add the provisions of the right of control of cargo to make up for gaps in the relevant laws to closely follow the pace of reform of the International Convention on the Transportation of cargos by Sea, to promote the safe trading, and to pave the way for the smooth development of maritime transportation. Chapter V makes a conclusion of the entire thesis on the right of control of cargo.