Developing a scheme that governs the transfer of rights through the bill of lading under Chinese law: a comparison with the Anglo-American experience and the international approach.
This thesis aims to establish a legal scheme under Chinese law for dealing with transfer of rights through bill of lading in maritime trade. Although the current Chinese Maritime Code (CMC 1992) attempts to address such a transfer of rights, the rules in it are oversimplified and ambiguous, giving rise to confusion and uncertainty in practice. To reform current Chinese law in this regard, the thesis examines the existing solutions to the transfer of rights issues provided by English law, American law, and the Rotterdam Rules and its travaux preparatoires. Through comparing the aforesaid foreign solutions and analysing the coherence and compatibility ot these solutions with China's economic , commercial and legal environment, this thesis suggests ways in which an effective and comprehensive legal scheme that governs transfer of rights through the bill of lading could be established under Chinese law. This thesis starts with a historical review on how such a legal scheme has been developed in Anglo-American law and the international convention on seaborne cargo transportation (the Rotterdam rules and its travaux preparatoires). Based on the implications of the historical review, thisa thesis revisits the CMC 1992 and uncovers two underlying deficiencies in it in terms of transfer of rights through the bilol mof lading. These are: the lack of a connection with the commercial trading of goods, and disharmony with China's civil law heritage. To address the deficiences, this thesis sets out three key elements worthy of consideration, which are, the balance of interest between the carrier and the cargo interests, facilitation of paperless trading, and localization of foreign rules. The aforesaid elements are examined when discussing the specific issues regarding the transfer of rights through the bill of lading in order to understand to what extent those foreign approaches can be accommodated neatly in Chinese law. Based on this. the thesis argues that under a future Chinese maritime law, similar to English law and American law, the rights that can be conveyed through the bill of lading should include the right to sue the carrier and the right to claim delivery of goods, whilst at the same time, the acquisition of the real right of goods covered by the bill should be addressed by the property law, and this should provide for a presumable effect of passing rel rights of goods when the bill is duly negotiated. For the right of control suggested by the Rotterdam Rules, in a future Chinese law, to a large extent it should continue to be subject to the freedom of contract although, similar to the American law, the notion of 'control' should be adopted and re-defined in terms of securing the singularity and exclusivity of the access to the electronic bill of lading in paperless trading. In addition, as to the legal manner in which those rights can be conveyed through the bill of lading, this thesis suggests that a future Chines maritime law should follow the American approach, partially modelling the law governing the negotiable instruments, and incorporate the good faith purchaser rule into the bill of lading law and practice so as to vest the bill of lading with a certain degree of negoriability. In this way, the commercial value of the bill of lading as a reliable and tradeable document to secure its holder's interest in shipping and trading practice would be enhanced. Also in order to secure a balance between the paerties that participate in cargo shipping and trading, this thesis argues that in some extraordinary situations the right of suit and the real rights of goods should not be locked into a bill of lading. Rather they should be transferred between cargo interests by virtue of trade-related factors such as the assumption of cargo loss or damage and the intention of relevant cargo interests. In brief, to thoroughly solve the problems arising from transfer of rights through the bill of lading in Chinese law, this thesis suggests that the legal scheme governing such a transfer should not only be established under the maritime law but also be supported by the property law. In this way, such a legal scheme would properly reflect the impartible connection between the carriage of goods and the commercial transaction of goods, optimizing its value in balancing interests between carrier and cargo interests, accommodating the use of the electronic bill of trading, and harmonizing the maritimen law with other legislations in China.
|Award date||Jan 2017|