Recent Developments of Maritime Law in China. James Hu Shanghai Maritime University Shanghai Wintell & Co Law Firm

Transcription

1 Recent Developments of Maritime Law in China James Hu Shanghai Maritime University Shanghai Wintell & Co Law Firm

2 I. Introduction Sources of maritime law: domestic laws, regulations and provisions; international treaties international shipping customs and usages Supreme Court s six judicial interpretations in the area of maritime law to act as supplements to the laws not a case-law country, but judgements especially those issued by Supreme Court may have effect for reference

3 Recent development of maritime law in China since 2006: 1 international convention 1 regulations 1 provisions 4 judicial interpretations

4 2. Carriage of goods by sea: Judicial Interpretation on Delivery of Goods without Bill of Lading Background: delivery of goods without bill of lading is illegal under Chinese law 30%, 50% and 70% in carriage of general goods, containerized goods and liquefied goods in bulk about 500 cases every year, i.e. about 5% of the total cases

5 Main contents: bill of lading holder s right to claim carrier s liability in case of delivery against a forged bill of lading amount of indemnity to be CIF price and nonavailability of package or kilo limitation of liability

6 exemptions of liability: goods are delivered to the customs or port authority as required by law goods were taken and sold by customs in case of no customs declaration, or carrier exercised lien on goods and goods were sold by auction

7 as demanded by the shipper, goods were delivered to named consignee or other person under a named bill or returned back to shipper goods were delivered to consignee who produced one earlier or earliest in case two or more bills were issued

8 joint and several liability of carrier and the person who took delivery FOB seller s right to claim, even if not indicated as the shipper in the bill 1 year time-bar

9 3. Collisions at Sea: Judicial Interpretation on Collisions Background many cases; 1910 Collision Convention and The Maritime Code prove to be too simple; judicial interpretations: old new 2008

10 Main contents: liability to be borne by shipowners or bareboat charterer; claim for loss or damage to goods against carrying ship in proportion to its degree of fault in both-to-blame collision where liability not exempted; joint liability of colliding ships where ratio of liability not proved by ships;

11 4. Pollution from ships: Pollution Prevention Regulations & 2001 Bunker Convention Background: one of the biggest crude oil import countries nearly 200 tankers sailing in Chinese coastal waters every day many accidents involving escape of large or small quantity of bunker oils disasters such as Prestige and Hebei Spirit give warning to the Chinese government 1992 CLC, 2001 Bunker Convention, 1992 Fund*

12 Pollution Prevention Regulations administrative issues: powers and obligations of the Ministry of Transport, the Maritime Safety Administration (MSA) and local governments general provisions regarding prevention and control of pollution: ship s technical matters, safety management system, and emergency response plans, port s pollutants receiving facilities etc.

13 discharge and receipt of pollutants prevention and control of pollution from shiprelated activities emergency disposal of ship s pollution incidents investigation into ship s pollution incidents disciplinary sanctions due to breach

14 compensation for damages: liability and exemptions: similar to 1992 CLC, 2001 Bunker Convention limitation of liability: costal tankers subject to 1992 CLC, others subject to The Maritime Code same as 1976 LLMC compulsory liability insurance or other financial security, except ships of less than 1,000 GT carrying cargo other than oil, and certificate of insurance or other financial security

15 compensation for clean-up costs with priority within limitation fund domestic oil pollution compensation fund to be set up

16 2001 Bunker Convention and its implementation in China came into force in China as of 9 March 2009 any ship other than CLC ship exceeding 1,000 GT shall obtain a Certificate of Insurance or Other Financial Security

17 5. Limitation of liability for maritime claims: Judicial Interpretation on Limitation of Liability Background The Maritime Code: same as 1976 LLMC, and 50% for costal ships Special Maritime Procedure Law complicated issues esp. limitation fund lex fori

18 Main contents jurisdiction and transfer of cases litigation for confirming claims after registration effect of constitution of limitation fund: Art.214 of The Maritime Code, except claims not subject to limitation effect of non-constitution of limitation fund: right to limit not prejudiced except for oil pollution

19 claims for wreck removal not subject to limitation of liability unseaworthiness and loss of right to limit currency in RMB, amount and interests of limitation fund: principal amount of limitation interest from accident to constitution interest for period when fund remains in case of LOU: unfixed, Zoorik case

20 6. Marine Insurance: Judicial Interpretation on Marine Insurance Main contents application of law: The Maritime Code with priority over The Insurance Law Insurer cannot terminate contract based upon non-disclosure, if he knew non-disclosure,but still collected premium or paid insurance indemnity

21 If premium not paid, insurer may terminate insurance contract before insurance liability starts and insurance policy not issued breach of warranty: insurance contract is terminated from the date of breach if insured failed to inform not to terminate contract if insurer paid insurance indemnity after receipt of the insured s notice

22 right of subrogation: submit to court of law the proof of actual payment of insurance indemnity only try legal relations between third party and insured with respect to insurance accident insurer may assert that discontinuation of time-bar and avail of benefit of security acquired by insured

23 loss of or damage to cargo due to delivery without bill of lading not within scope of insurance, unless otherwise agreed

24 7. Conclusions In the recent years, the legislation in the area of maritime law in China was not significantly changed, but China has resumed the drafting of The Shipping Law and possibly The Maritime Code and The Maritime Traffic Safety Law will be revised in the years to come;

25 Since 2006, the Supreme Court has promulgated four judicial interpretations dealing with judicial issues in the admiralty practice, which prove basically successful in acting as supplements to the legislations in the area of maritime law.

26 Significant progress has been made in improving the statutory provisions with respect to prevention of and compensation for oil pollution damage from ships: 2001 Bunker Convention, new Pollution Prevention Regulations and the Supreme Court will promulgate a judicial interpretation at the end this year.

27 Thank you very much!