B/L requests the carrier to bear the civil liability for delivery of goods without the
original bill of lading, the people’s court shall not uphold such request(Article 9);
4. Where a carrier issues an original B/L in multiple copies, after the carrier delivers
the goods to the person who first submits the original B/L, if other persons who
hold the same original B/L request the carrier to bear the civil liability for delivery
of goods without the original B/L, the people’s court shall not uphold such
request (Article 10).
7 Conclusion
In summary, to a certain extent, there remain several unresolved questions in the
CMC, relevant legal provisions and judicial interpretation. The authors are of the
view that in the field of the scope of compensation for cargo loss or damage in
international maritime transportation, the CMC should be appropriately amended to
adopt the “principle of the price of destination” and definitively state the relationship
between Article 55 of the CMC and Article 113 of the Contract Law and other
relevant legislation.
On November 2, 2018, the Ministry of Transport published the new Draft
Chinese Maritime Code for consultation, changing the method to calculate the
value of goods in the circumstance of loss of or damage to goods. It provides that
the value of the goods shall be the value of the goods at the place of delivery or at the
time they should be delivered. The value shall be ascertained according to the
Commodity Exchange price; where there is no Commodity Exchange price, it
shall be determined according to the market price. Where there is no Commodity
Exchange price or market price, it shall be determined by reference to the usual value
of goods of the same kind and quality, which adopts the “principle of the price of
destination”.
In the case of delivery of goods without presentation of the original bill of lading,
more thorough research is required on relevant innovative provisions, such as under
the Rotterdam Rules,
28 and determine whether to transplant the new provisions into
existing Chinese legislation or adopt new legislation. The maritime transport industry is perhaps the most internationalized industry. Thus, relevant provisions dealing
with contracts of carriage of goods by sea under the CMC should be modified to
make them consistent and compatible with relevant international conventions. This
will help to reduce conflicts in international shipping and overcome commercial
obstacles. Reasonable and rational choices should be made by reference to relevant
and useful international conventions on maritime transportation, always giving due
regard to China’s national interests in shipping, trade and commerce.
28 Rotterdam Rules 2008 Art. 45–47. Articles 45, 46 and 47 stipulate the delivery of goods under
non-negotiable transport documents and negotiable transport documents.
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L. Han and S. Cai
original bill of lading, the people’s court shall not uphold such request(Article 9);
4. Where a carrier issues an original B/L in multiple copies, after the carrier delivers
the goods to the person who first submits the original B/L, if other persons who
hold the same original B/L request the carrier to bear the civil liability for delivery
of goods without the original B/L, the people’s court shall not uphold such
request (Article 10).
7 Conclusion
In summary, to a certain extent, there remain several unresolved questions in the
CMC, relevant legal provisions and judicial interpretation. The authors are of the
view that in the field of the scope of compensation for cargo loss or damage in
international maritime transportation, the CMC should be appropriately amended to
adopt the “principle of the price of destination” and definitively state the relationship
between Article 55 of the CMC and Article 113 of the Contract Law and other
relevant legislation.
On November 2, 2018, the Ministry of Transport published the new Draft
Chinese Maritime Code for consultation, changing the method to calculate the
value of goods in the circumstance of loss of or damage to goods. It provides that
the value of the goods shall be the value of the goods at the place of delivery or at the
time they should be delivered. The value shall be ascertained according to the
Commodity Exchange price; where there is no Commodity Exchange price, it
shall be determined according to the market price. Where there is no Commodity
Exchange price or market price, it shall be determined by reference to the usual value
of goods of the same kind and quality, which adopts the “principle of the price of
destination”.
In the case of delivery of goods without presentation of the original bill of lading,
more thorough research is required on relevant innovative provisions, such as under
the Rotterdam Rules,
28 and determine whether to transplant the new provisions into
existing Chinese legislation or adopt new legislation. The maritime transport industry is perhaps the most internationalized industry. Thus, relevant provisions dealing
with contracts of carriage of goods by sea under the CMC should be modified to
make them consistent and compatible with relevant international conventions. This
will help to reduce conflicts in international shipping and overcome commercial
obstacles. Reasonable and rational choices should be made by reference to relevant
and useful international conventions on maritime transportation, always giving due
regard to China’s national interests in shipping, trade and commerce.
28 Rotterdam Rules 2008 Art. 45–47. Articles 45, 46 and 47 stipulate the delivery of goods under
non-negotiable transport documents and negotiable transport documents.
224
L. Han and S. Cai