A Study On The Transfer Of Rights In Rotterdam Rules

After more than a decade's negotiation, United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea, also called as "Rotterdam Rules", was passed on December 11 in 2008 in the 63th United Nations General Assembly, and the signing ceremony was held on September 23, 2009. Transfer of rights is the new rule that was added to the Rotterdam Rules, which was not included in the prior three existing effective international conventions related with international carriage of goods by sea. The establishment of this rule bears great theoretical and practical importance to the determination of the relationship between carriage and trade, as well as to the harmonization of the conflicts between carriage laws and trade laws. Accordingly, this article endeavors to penetrate into a set of issues related with the transfer of rights in international carriage of goods by sea.The article is divided into five parts, with more than 30000 words.Part I, setting forth as an Introduction, mainly focus on the origin of the rule of the transfer of rights, and the importance of studying this rule. With the discussion of the 1855 Bills of Lading Act, 1922 The Carriage of Goods by Sea Act, and the Rotterdam Rules in a chronological sequence, the origin of the rule of the transfer of rights is introduced. Meanwhile, the great importance of the existence of the rule is analyzed through the discussion of several cases.Part II involves the analysis of the basic concepts in the transfer of rights. The definitions of the transfer of rights and the holder of the bill of lading are given, and the importance of the credit relationship concerning the bills of lading as well as the relative scholastic views about its characteristics are discussed systematically, with a comparison of the merits and flaws of different scholastic views. The author's own view concerning this issue is reached in this section.Part III is about the rule of the transfer of rights. This section starts with the introduction of two types of statutory rules about transfer of rights, including asynchronous transfer of rights and obligations and synchronous transfer of rights and obligations. And the specific time of the transfer of rights in compliance with the Rotterdam Rules are analyzed through the discussion of the elements required for establishing and effectuating the transfer of rights.Part IV concerns the content of the transfer. This is the essence as well as the difficult issue of this article. The"transferable rights"are determined through the analysis of the provisions of the Convention, which includes the"right to take delivery of goods"and"the right of control". The content of both types of rights are set forth later in this section. This part then analyzed the scholastic view which contends that the"transferable rights"should include the"property right"and the"right of litigation", followed by the conclusion reached by the author, which argues that the"transferable rights"in Rotterdam Rules only includes the"right to take delivery of goods"and"the right of control".Part V involves the recommendations for China by considering the rule of the transfer of rights in Rotterdam Rules. The current status quo of the legislation in terms of this issue is concluded from the discussion of the regulations in Maritime Law and Contract Law in China. Consequently, some recommendations are provided for the reform of the Maritime Law of China.The approaches of study in this article mainly involve the methods of historical analysis, comparative study and case study. In terms of the origin of the issue of the transfer of rights, the author adopted the method of historical analysis to have an objective illustration and analysis about the historical development of this issue, which is believed to be helpful to draw a better understanding of the concept of the legal issue of the transfer of rights. Due to the similarities between the transfer of rights and the transfer of debts as well as the negotiation of notes, and also due to the more developed rules in England and United States concerning the transfer of rights, this article proceeds the discussion through a lot of comparative studies, the purpose is to learn from the developed theories and advanced achievements in those countries and incorporate them into the research and legislative practices in our country in terms of this issue. In consideration of the practice oriented nature of the Maritime law, the author conducted the analysis and discussion of the classical cases concerning the transfer of rights in the international carriage of goods by sea.