A Study on the Updating of the Law on Carriage of Goods by Sea in China

• Author: James Zhengliang Hu - Siqi Sun
• Position: Ph.D., Professor of Law, Director of Institute of Maritime Law, Shanghai Maritime University; Lawyer & Partner, Shanghai Wintell & Co Law Firm. Email: james.hu@wintell.cn - PhD candidate in maritime law, Shanghai Maritime University. Email: 461413517@qq.com
• Pages: 114-124

(2016) 30 ANZ Mar LJ

114

A STUDY ON THE UPDATING OF THE LAW ON CARRIAGE OF GOODS BY

SEA IN CHINA

Jame s Zheng liang Hu* a nd Siqi Sun**

1 Introduction

Unlike in the common law countries such as the UK which has its COGSA 1971, China does not have a statute

solely regulating the carriage of goods by sea. The law on carriage of goods by sea is mainly embodied in Chapter

IV ‘Contract of Carriage of Goods by Sea’ in the Maritime Code of the People’s Republic of China1 (hereinafter

referred to as ‘the Maritime Code’) was adopted in 1992 and came into force as of 1 July 1993. 23 years have

passed since its adoption and it is commonly recognized in China that the Maritime Code need be updated by way

of revision.2 Chapter IV of the Maritime Code does not apply to domestic carriage of goods by sea. Besides, the

Rotterdam Rules, i.e. United Nations Convention on Contracts for the International Carriage of Goods Wholly or

Partly b y Sea was adopted, which may be deemed as indicating the international te nden cy of the law on the

carriage of goods by sea.

In this paper, based upon an introduction to the current law on carriage of goods by sea in China, the authors

analyse the necessity for the updating of the law on the carriage of goods by sea in China, discuss the main contents

required for the updating especially from the perspective of the Rotterdam Rules based upon an anal ysis of the

China’s basic attitude towards the Rules. Anticipation of the revision of the Maritime Code including its Chapter

IV is also made in this paper.

2 What is the Law on Carriag e of Goods by Se a in China?

2.1 Source s of the Law

The law on carriage of goods by sea is embodied in: (a) Chapter IV of the Maritime Code whic h is ap plicable in

the international carriage of go ods by sea only;3 (b) Chapter XVII ‘Contract of Carriage’ of the Contract Law

which is applicable in every kind of carriage of goods; (c) the judicial interpretations promulgated by the Supreme

People’s Courts, e.g. the Provisions Relating Certain Issues of Application of Law in the Trial of Cases of Delivery

of Goods without Original Bill of Lading, 2009 and the Provisions Relating Certain Issues in the Trial of Cases

of Disputes over Freight Forwarding, 2012.4

2.2 The Hybrid Reg ime Contained in Chapter IV of the Maritime Code

China is not a party to the Hague Rules, the Hague-Visby Rules or the Hamburg Rules. A hybrid regime has been

adopted in Chapter IV of the Maritime Code which consists of: (a) the provision s of the car rier’s liability regi me

including the obligations, liability and exemptions, limits of liability which are based upon the Hague -Visby Rules

as amended by t he 1979 SDR Protocol; (b) the definitions of carrier, shipper and act ual carrier contained in the

Hamburg Rules and the provisions thereof regarding the obligations and liabilities of the shipper and actual carrier,

non-contractual claims, transport documents etc.; (c) some unique provisions different from either Rules regarding

the period of responsibility of the carrier, definition of delay in delivery and measures of in demnity etc.

* Ph.D., Professor of Law, Director of Institute of Maritime Law, Shanghai Maritime University; Lawyer & Partner, Shanghai Wintell & Co

Law Firm. Email: james.hu@wintell.cn.

** PhD candidate in maritime law, Shanghai Maritime University. Email: 461413517@qq.com.

1 In this paper, “the People’s Republic of China” or “China” refers to the Mainland China unless otherwise expressly indicated.

2 Revision of the Maritime Code is necessitated by the facts including that the maritime shipping and trading situation in China and in the

world, the contents of the principles followed in the making of the Maritime Code and the relevant domestic basic laws have undergone a

significant development, that the Maritime Code does not apply to domestic carriage of goods by sea and lacks legal regime governing

compensation for marine pollution damage from ships and that the admiralty judicial practice has demonstrated the existence of ambiguities,

uncertainties and gaps in some aspects in the Maritime Code. See James Zhengliang Hu, ‘The Chinese Maritime Code need to be

modernized’ (2015) 107 Maritime China 67.

3 The carriage between or among the Mainland China, Taiwan, Hong Kong and Macau is in the nature of domestic carriage, but is currently

treated as international carriage as they are of different jurisdictions in law.

4 The domestic coastal carriage of goods and the carriage of goods in inland navigation were mainly regulated by the Regulations Governing

Carriage of Goods by Waterways promulgated by the former Ministry of Communications in 2000 (known as ‘2000 Cargo Regulations’).

However, the 2000 Cargo Regulations were recently abolished on 30 May 2016.