Study On The Control Of Goods In Carriage Of Goods By Sea

The right of control of goods refers to the right for the shipper to arrange the transportation of goods during the carriage of goods by sea.Article 308 Chinese Contract Law has not rules for control and presents the shipper under the transportation method to control the rights of the goods,but normally transport law system cannot adapt to the specific situation under the maritime law and ignores the function of tile of documents in relation to B/L under carriage of goods by sea which has led to the conflict of interests of the obligee,the obligee and other consignee and has overridden the system of bill of lading.As a result,this rule is not significant in practice and it is necessary to improve the control mechanism,to achieve the equilibrium of the interests of cargo.This article refers to the Chapter 10 of the Rotterdam Rules,and demonstrates that the control of goods as a right under a contract of carriage does not have the nature and dominance,not the property rights,and does not have the nature of the claim.Since the control of the goods has a unilateral characteristic,the carrier cannot resist.In addition,because the nature of the right to form causes the carrier to refuse,which increases the carrier's burden and risk,it imposes restrictions on the exercise of the right to form to rationally distribute trade and transportation risks.In addition,in the Rotterdam Rules,there are some flaws in the identification rules of the subject of control rights that lead to internal system inconsistency.The most serious problem is that the protection of the actual shipper under the FOB is not enough,resulting in an increase in risk.The actual shipper gives appropriate protection.In addition,with respect to the rights transfer system,the rules have been deemed to enhance the obligations for non-trade parties such as banks,and the“third-party interest theory” in the transferable of bill of lading rights should be applied to reduce the bank's control as a cargo.The standard of obligation for the right holders,at the same time,that China introduces more detailed provisions on the effective requirements of the transfer when introducing control of the goods.The experience of the Rotterdam Rules has special significance on China's future construction of the control mechanism.However,considering China's national conditions,it should be on the premise of conservation of the complete bill of lading system and the protection of the interests of the actual shipper under FOB.This paper comprises four chapters.Firstly,the dissertation specifies t the dilemma faced by Chinese law.The immature legislation in the Contract Law has shaken the fundamentals of the bill of lading system,resulting in the unreasonable distribution of risks and obligations of the ship's cargo side and potential conflicts of law of application in the Maritime Law Code and the Contract Law.Secondly,the dissertation starts with the Rotterdam Rules and answers the nature of the control of the goods.By analyzing the records of various scholars and the drafting meeting of the Rotterdam Rules,control is a form of right,and then from the legal consequences of the right to form,explore how to control the rights to balance rights and obligations.Thirdly,the dissertation analyzes the rights subject and transfer system under the Rotterdam Rules,finds the problems,focuses on the actual shipper under the FOB,and analyzes whether China should focus on protecting its interests in the control legislation.Then,analyze the legal transfer of the rights transfer system and seek tounderstand how the rights of transfer is reconciled with our theoretical and practical practices.The final part of the dissertation is about the way to establish control legislation for China.A detailed control mechanism should be constructed in the Maritime Law Code,and the legislative principles and specific legislative views are given.