Research On The Carrier’s Seaworthiness Obligation In Rotterdam Rules And The Influence To The China Maritime Law

On December11,2008the United Nations General Assembly adopted theConvention on Contracts for the International Carriage of Goods Wholly or Partly bySea. As the signing ceremony was held in Rotterdam, it was also known as the"Rotterdam Rules ".The Convention makes some new rules for the carrier’s obligationof seaworthiness, for example, in Article14, it is the first time to make the carrier’sseaworthiness obligation for a persistent and integrated obligation. The changesreflect the trend of development that the legislation of international carriage of goodshas gradually increased the obligations and responsibilities of the carriers, and thechanges also reflect the objective requirements that the international convention needsto balance the cargo interests of both sides, which will bring great impact tointernational maritime transport of goods. China should pay adequate attention to thepossible impact of Rotterdam Rules towards the strong power countries ofinternational shipping and trading, as well as think out some correspondingcountermeasures in a positive attitude to perfect the legislation and practice ofmaritime transport of goods, and to promote the development of internationalshipping.Under the Rotterdam rules, the obligation of the carrier to make the shipseaworthy with due diligence is merely no longer "before sailing, sailing at that time",but has extended to the "whole voyage". Article14of Rotterdam rules makesprinciple provision of subjective and objective requirements of carrier’s seaworthinessobligation. In the performing of the seaworthiness obligation, the question thatwhether the carrier has exercised due diligence can only be determined by the judgethrough discretional evaluation of evidence according to the specific facts of the case,to determine whether the ship is seaworthy or not. In the allocation of burden of proof,Rotterdam rules tilt to the carrier to some extent. Compared with the Hague-VisbyRules making the carrier to prove the seaworthiness substantially, Rotterdam rules provided the claimant to prove the unseaworthiness substantially and to prove thecausal relationship preliminarily. The persistent seaworthiness in Rotterdam Ruleswill have a certain effect on exoneration from liability by navigation fault,contribution in general average, marine insurance system and payment of freight.At present, the research of Chinese academic circles on Rotterdam Rules is stillnot sufficient, and the research of shipping practice is even less. Despite somecountries including the United States have signed the Rotterdam rules, the time ofRotterdam Rules obtaining the general identity of international society is still notknown. Only after the inspection of shipping practice, when the advantages anddisadvantages of Rotterdam Rules are obvious, it is the right time to modify the ChinaMaritime Law. The time of the modification of China Maritime Law is immature, itshouldn’t be modified in blindness.