Presentation on theme: "LOGO Professor MA Deyi A Study on Diversity, Autonomy, and Nature of Model Law in Existing Conventions on International Carriage of Goods by Sea."— Presentation transcript:
LOGO Professor MA Deyi A Study on Diversity, Autonomy, and Nature of Model Law in Existing Conventions on International Carriage of Goods by Sea
LOGO Ⅰ． The “Chinese issue” under the Laws of Carriage of Goods by Sea It is no doubt that, over the past decade, development in the laws of carriage of goods by sea, which include some maritime conventions, such as Harter Act(1893), Hague Rules(1924),Hague-Visby Rule(1968), and especially Rotterdam Rules(2008) are attracting people to study. In my opion, it is the critical and suitable time for China to go through periodic review of academic thinking and outlook for the laws and regulations concerning maritime transportation. Page 2
LOGO This is because, to some extend, the changes of laws of carriage of goods by sea are very closely relate to the following topics ： First, revise of Chinese Maritime Code(hereinafter referred to as CMC). Second, whether China should ratify and accede to the Rotterdam Rules or not. Page 3
LOGO However, the said conventions are not perfect. Therefore, investigating the law of carriage of goods by sea in such problem domains, providing response from various perspective to deal with the confusion we faced now, and utilizing the law of carriage of goods by sea to contribute to the changeable practice of international trade becomes more reasonable than before. Page 4
LOGO Ⅱ． The Mandatory Regime of Maritime Transportation Law and its diversity Ａ． The Mandatory Regime under the Law of Carriage of Goods by Sea Mandatory regime of the law of carriage of goods by sea was originated from Harter act.,1893,in the United States.As the domestic law, based on the assimilating principles and ideas founded with a diversity of relevant precedents in the mid-19th century, Harter act launched the first attack to the British carrier who occupied the overlords of the shipping industry at that time. Page 5
LOGO However, some conventions, such as UNIFORM RULES FOR A COMBINED TRANSPORT DOCUMENT, 1973 、 UNITED NATIONS CONVENTION ON INTERNATIONAL MULTIMODAL TRANSPORTOFGOODS ， 1980 、 CMI RULES FOR ELECTRONIC BILLS OF LADING ， 1990 also are very important. Some of conventions has not entered into force, or forgotten and neglected. However, when we carefully study these important international maritime rules, we increasingly perceive that these resources help us to acquaint with the changing rules and trend of the law of carriage of goods by sea. Page 6
LOGO Ｂ.Description of Diversity under Law of Carriage of Goods by Sea (1) "fragmentation" It’s quite a farfetched saying that the law of carriage of goods by sea is described as a state of “fragmentation”. Because the “fragmentation” of international law is not aimed at conventions conflicts in the field of law of carriage of goods by sea. Page 7
LOGO Nevertheless, the area of Law of Carriage of Goods by Sea has an intensified tendency of “Regional fragmentation”. Owing to the range of application enlarged for some international maritime conventions, conflicts and coordination problems with other transport conventions will inevitably arise.
LOGO Some scholars have complained that the maritime transport law has been in a fragmented state, filled with over-diversification provisions of international conventions and domestic law as well as general trading terms constitute a very vague, predictability poor specification system. If only examine the current number of international maritime rules, then the "fragmented" to describe the maritime transport of goods by sea both state law seems to have a certain rationality.
LOGO (2) Serious conflicts among several conventions There is no doubt that Rotterdam Rules,is a significant milestone in international maritime conventions. The clause of“landing”in Rotterdam rules not only conflicts with the three maritime conventions in force, but also differentiates from other conventions which adjust the single transportation in the same adjustment object,such as Convention For The Unification Of Certain Rules For International Carriage By Air ； Convention on the Contract for the International Carriage of Goods by Road,CMR ；
LOGO Uniform Rules concerning the Contract for International Carriage of Goods by Rail, CIM ； Budapest Convention on the Contract for the Carriage of Goods by Inland Waterways, CMI. In terms of different modes of transportation, there is a certain degree of conflicts of these conventions, but, lacking of empirical analysis is exaggerated for its actual effect and degree of conflicts.
LOGO As some people mentioned, the Rotterdam Rules may well fare better than the Hamburg Rules-if a sufficient number of shipping nations are persuaded that ratification is in their best interest. But they could also fare worse –and become a mere footnote in the history of transport law. Different modes of transport is concerned, there is indeed a conflict to some extent, but this view is too exaggerated, in terms of its practical effect and extent of the conflict, the lack of adequate empirical analysis.
LOGO (3) The Diversity of Laws of Carriage of Goods by Sea Obviously it is an exaggeration that the transport laws are fragmentized; furthermore, it’s a mechanical expression for the "fragmentation" of international law. From this point of view, when we broaden our horizons on the law of carriage of goods by sea to as large as possible in comprehensive study of various legislation, it really makes people feel indecipherable.
LOGO To think in that way, it may be that using the terms of "severe conflicts" and " fragmented " to describe the law of carriage of goods by sea is questionable; based on the consideration above, of course,that law of carriage of goods by sea possesses the characteristic of "diversity". Using “diversity” to replace “fragmentation” and “conflict” describing the law of carriage of goods by sea is relatively and quite reasonabl.
LOGO Ⅲ． Modern Lex, Autonomy and the Laws of Carriage of Goods by Sea A. the Laws of Carriage of Goods by Sea and Modern Lex : perspective of autonomy From striking historical similarities, the Laws of Carriage of Goods by Sea seems to inherit the historical origins, rules of evolution, legal effect of the Modern businessman law.Seemingly, the Laws of Carriage of Goods by Sea is an integral part or a certification of mechanism and regular pattern of Modern businessman law. Page 15
LOGO From the point of view of academic rigor, the laws of carriage of goods by sea cannot completely belong to the Modern businessman law, while the jurisprudence and practice of Modern business law can be completely applied to it. However, there is highly flexibility between the both. Especially, the autonomy of Modern businessman law have several correspondence points with the characteristic of the laws of carriage of goods by sea. Dose it also possess autonomy or not? Page 16
LOGO B. The Autonomy of the Laws of Carriage of Goods by Sea It is evident that we can divide the value of the mandatory system of the laws under this problem into two categories or levels: causal inevitability and logical relationship of the theory of “binary value structure” of the laws. They are indispensable to the complete understanding of the theory, and they jointly build the structure of the theory. The first level expounds form the sight of causal inevitability, as the sight of the theory of cause. Page 17
LOGO For example, as some scholars point out, the value target which the law pursues; some people also call it the value of the law, includes justice, freedom, equality, security, efficiency, etc. The second level expounds form the sight of logical inevitability. The maritime carriage law has a long history; it has value in a deeper level, apart from the value of the mandatory system. Page 18
LOGO It is the self-sufficiency system of the mandatory of the law, as the theory of value under the meaning of the internal logical system. The causal inevitability and logical inevitability mentioned above jointly build the binary value structure of the mandatory value of the maritime transport law. Page 19
LOGO The category of the maritime law culture should be understood from the view of culture, using the theory and method of cultural study to grasp the phenomenon of the maritime law. To understand the exact connotation of the maritime law culture, we should firstly have a good grasp to the theory and method of cultural study. Page 20
LOGO The maritime law culture, as a kind of cultural existence, means the universal and stable intention existing and hiding in the maritime law, such as attitudes, thoughts and ideas. The feature of the maritime law culture’s structure abides by the basic feature of common law culture: integrity and stability. Page 21
LOGO The maritime transport law has a tradition to inherit the essence of the maritime law culture. The mandatory regime firmly maintains and expands during its long history: since Liverpool & Great Steam, the classic case which established the mandatory of the maritime law, to Harter act 1983, Hague Rule 1924, Hamburg Rule 1978, and the contemporary maritime judicial practice. Page 22
LOGO While the binary value structure of the theory of the mandatory value cannot solve all the problems included by the mandatory of the maritime transport law, at least, it can provide a valuable attempt for the related issues. The change from Harter act to Rotterdam Rule highlights the trend of the development of the maritime law, with the mandatory system permanent existing. The internal logical system of the mandatory system of the maritime transport law plays an important role in annotating the development of the maritime transport law.
LOGO Ⅳ The Hierarchical Attribute Concerning the Laws of Carriage of Goods by Sea A. "Iideal" and "reality" of Maritime Transportation Conventions: Interpretation of the Rotterdam Rules Rotterdam Rule is a synthesis of international maritime rules. In other words, Rotterdam Rule includes many international maritime rules which appertain to the folk rules. It is a kind of superposition, or integration, which involves different maritime rules existing in different historical periods. From this perspective, Rotterdam Rule once becomes a synthesis of international maritime conventions and usage,and forms its hierarchical properties. Page 24
LOGO Personally Author think the Rotterdam Rules is essentially a superposition of different historical stages of different types of maritime rules, integration or synthesis, which encompasses many belong to civil rule international shipping rules. From this perspective, the Rotterdam Rules became ever "synthetic" material non- governmental international maritime conventions and rules, formed its hierarchical property. Page 25
LOGO B. The hierarchical attribute of Maritime Transportation Law and the legal essential of transportation The legal order of international maritime transport of goods is a compromise in the fight which determines the contents of the orders between conflicting interest groups. The legal order of international maritime transport of goods is original law, which is helpful to highlight the difference between the centralization domestic law and the decentralization international law. Page 26
LOGO The order also reveals the backwardness and disadvantages of the legal order of maritime transport. These differences are generally because of the differences between the institutions themselves and the methods and notions to integrate and coordinate the maritime transport law. Then we can draw a further conclusion that confrontation and conflict of interest exist between different legislative bodies formulating the maritime transport law. It essentially strengthens our understanding of the stratified governance of maritime transport law. Page 27
LOGO Legal order of international maritime cargo transport conflicting interest groups in determining the order of the contents of a compromise against the tendency of. International maritime law and order is the original law, which helps different points in international maritime transport between the prominent legal order of centralization and decentralization domestic law order, and more effective to reveal backwardness and disadvantages of international transport legal order. Page 28
LOGO The main difference between these different agencies are themselves on the harmonization and coordination of ways and ideas, thereby further concluded that: between different system of law institutions also possible that there are benefits confrontation and conflict. This essentially enhances our understanding of agency level governance motivation. Page 29
LOGO C. The ambiguity of system of laws of carriage of goods by sea and the outlook of China’s accession to Rotterdam Rule There are two different views on the issue of China's accessing to Rotterdam Rule. Some people highly evaluat Rotterdam Rule advocate that China should ratify and sign it and regard as the beginning of the Rotterdam era. Meanwhile, a considerable number of scholars think that we should be calm to the issue. When probe the issue that whether China should access to Rotterdam Rule, the key issue is considered as trend of Modern Commercial law and hierarchical attribute of maritime transport law. Page 30
LOGO There is synchronization between the economic growth and the strength of maritime trade and transport. It’s related to the development of UK, USA and Japan, and also has its unique feature. The rapid growth of China's economy has changed the world seaborne pattern which has been established for several centuries, and plays an increasingly important role in seaborne trade services. It’s urgent for China to improve the policy of maritime strategy, and find a benign way to develop the maritime industry. It would be more important for China to upgrade soft power like maritime transport law, so as to be a maritime power. Page 31
LOGO Ⅴ. Nature of Model Law of the Maritime Transportation Convention Behind a great code, not someone great politician, or someone of outstanding legislative officials or academics, but this code upon which the socio- economic and historical and cultural traditions generated. In a sense, the diversity, autonomy and attributes of model law of the maritime transportation conventions are not only a key issue to the codification of Chinese Civil Law, but also a decisive factor for ratification and accession to Rotterdam Rules. Page 32
LOGO We should have a restrictive interpretation to the diversity, autonomy, and model law in the laws of carriage of goods by sea under the relationship between maritime transport law and civil law system. We can say, a reasonable interpretation to the diversity, autonomy, and nature of model law of the laws of conventions provides reasonable theoretical interpretation for the revise of maritime law and respond the issue that whether China should access to Rotterdam Rule. Page 33
LOGO Conclusion: the Coordination and Unification of Law of Carriage of Goods by Sea In my view, the diversity running, autonomy, and nature of model law in the laws of carriage of goods by sea declare the richness of the maritime law system. It’s reasonable and feasible that the hierarichical property of maritime transport law should have coordination and harmonization, rather than simply pursuit of unity, by carding and screening the category of maritime transport law. Page 34
LOGO Under the mechanism of coordination and harmonization, a schematic diagram which includes the current international convention on the carriage of goods by sea shall be made. The harmonization includes revising Hague - Visby Rule and absorbing the reasonable and pragmatic part in Hamburg Rule and Rotterdam Rule, while coordination includes the controversial design in Hamburg Rule and Rotterdam Rule. Page 35
LOGO For half-century, as a trade power and maritime carrier power, China has accumulated lavish practice and theory on maritime transport law. We have rich resources and ability to express our demand on maritime interests. Before the compilation of civil code, relating the diversity running, autonomy, and model law in the laws of carriage of goods by sea, I think we should modify the maritime law in small amplitude by lead the reasonable system in Hamburg Rule and Rotterdam Rule into the Maritime Law. Square up the grand system of Rotterdam Rule, I think it’s rational and wise that China should not access to Rotterdam Rule. Page 36
LOGO We have a wealth of resources and the ability to express our country's maritime interest demands. The revision of CMC should follow the "standby and watching" and "small change" principle, by carefully introducing Rotterdam rules and the Hamburg rules reasonable system to be perfect our Maritime Code. It is a good choice that China shall not ratified the Rotterdam Rule. Page 37