Maritime Law and Practice in China

Cover
Half Title
Title
Copyright
CONTENTS
Acknowledgements
Foreword
Preface
Table of cases
Table of legislation
Table of other authorities
PART I SUBSTANTIVE MARITIME LAW
	CHAPTER 1 INTRODUCTION TO CHINESE MARITIME LAW
		Chinese maritime law
		Chinese maritime courts and practice
		Inconsistency in adjudication and guiding cases
	CHAPTER 2 SHIPS
		The ship
		Ownership of a ship
		Ship registration
			Registration of ownership of ships
			Amendment and cancellation of registration
			Nationality of ships
		Ship mortgage
			Establishment of ship mortgage
			Registration of ship mortgage
		Registration of bareboat charter
	CHAPTER 3 MASTER AND SEAMEN
		Master
		Seamen
		Registration and qualifi cations of seamen
			Registration
			Competency certifi cate
			Seaman’s passport
		Guarantee of profession for seamen
			Benefits
			Repatriation
		Maritime Labour Convention 2006
	CHAPTER 4 CHARTERPARTIES
		Voyage charter
			Compulsory provisions
			Rights and obligations
		Time charter
			Delivery and redelivery of ship
			Shipowner’s rights and obligations
			Charterer’s rights and obligations
		Bareboat charter
			Delivery and redelivery of ship
			Shipowner’s rights and obligations
			Charterer’s rights and obligations
			Financial lease of ship
	CHAPTER 5 BILL OF LADING: FUNCTIONS
		Evidence of contract
		Receipt of goods
		Document of title
		Bill of lading and property right
		Delivery of goods without bill of lading
		Letter of indemnity
	CHAPTER 6 BILL OF LADING: PARTIES
		The carrier
		The actual carrier
		The common carrier
		The shipper
		Right of control of the shipper
		Consignee and bill of lading holder
			The consignee
			Bill of lading holder
		Incorporation of charterparty into bill of lading
			Incorporation of law and arbitration clause
			Incorporation of time charters
	CHAPTER 7 BILL OF LADING: OBLIGATIONS, LIABILITIES AND LIMITATION
		Obligations of carrier
			Period of responsibility
			Obligations
		Liabilities, exemptions and limitation of liability of carrier
			Liability for loss, damage and delay
			Liability for live animal and deck cargo
			Assessment of liability
			Exemptions
			Limitation of liability
			Loss of liability limitation
		Delivery of goods
			Notice for delivery
			Notice for damage
			Non-delivery of goods
		Obligations and liabilities of shipper
			Information and formalities
			Dangerous goods
			Freight
			Fault and liability
	CHAPTER 8 FREIGHT FORWARDING AND MULTIMODAL TRANSPORT
		Freight forwarding
			Freight forwarding services
			Freight forwarder
			Disputes over ocean freight forwarder
			Freight forwarding contract
			Freight forwarder as carrier
			Delivery of shipping documents
			Obligations and liability
			Sub-commission
			Rescission of contract
		NVOCC
			Non-vessel-operating services and NVOCC
			Freight forwarder or NVOCC?
		Multimodal transport
			Multimodal transport in the CMC 1992
			Responsibility period
			Liability and limitation
	CHAPTER 9 CARRIAGE OF PASSENGERS BY SEA
		Athens Convention
		Definitions
		Invalid clauses
		Carrier and the actual carrier
		Passenger ticket
		Carriage period
		Liability of passenger
		Liability of carrier
			Liability and immunity
			Liability for valuables
			Burden of proof
			Notice for damage to luggage
			Damages and compensation
		Limitation of liability of carrier
			Limitation of liability for coastal carriage
			Loss of limitation of liability
	CHAPTER 10 SEA TOWAGE CONTRACTS
		Third parties to sea towage contracts
		Seaworthiness of tug and tow
		Force majeure in sea towage contract
		Towage fee and duress
		Liabilities and immunities
	CHAPTER 11 COLLISION OF SHIPS
		Ships in collision
		Liabilities in collision
			General principles
			Proportion of liability
			Causation in tort
		Compensation for damages
			Compensation in general
			Compensation for damage to property
			Compensation for personal injury
		Liable persons
		Burden of proof and evidence
	CHAPTER 12 SALVAGE AT SEA
		Concepts and application
		Salvage contract and performance
			Salvage contract
			Salvage operations
			State-controlled salvage
			Performance of salvage
			Annulment and modifi cation of contracts
		Rights of salvors
			No cure no pay
			Salvage reward
			Salved value and apportionment
			Special compensation
			No entitlement of remuneration
			Apportionment between salvors
			Salvage of persons
		Claims and actions
			Duty to provide security
			Auction sale of salved ship and property
			Interim payment
			Interest
			Publication of arbitral awards
	CHAPTER 13 GENERAL AVERAGE
		Scope of general average
		General average in claim
		The amount of sacrifi ce and contribution
		General average adjustment
	CHAPTER 14 LIMITATION OF LIABILITY FOR MARITIME CLAIMS
		Scope of application
			Ships
			Persons entitled to limit liability
		Maritime claims
			Claims subject to limitation
			Claims excepted from limitation
		Limits of liability
			The general limits
			The special limits
			The limits for passenger claims
			Aggregation of claims
		Loss of limitation of liability
		Limitation fund
	CHAPTER 15 MARINE INSURANCE
		Marine insurance contract
			Perils
			Insurable value and insured amount
			Freight
			Double insurance
			Open cover
			Assignment of insurance contract
			Termination of insurance contract
		Interpretation of contract clauses
			Literal rule
			Contra proferentem rule
			Exemption clause
			All risks
		Insurable interest
		Disclosure of material circumstances
		Warranties of the assured
		Loss and abandonment
		Indemnity from insurer
			Liability of indemnity
			Amount of indemnity
			Exemption of liability
		Subrogation
	CHAPTER 16 MARINE POLLUTION
		International regime
		Concepts and applications
			Concepts
			Applications
		Damage and compensation
			Claimants
			Pollution damage
		Liability and proportion
			Liability under the conventions
			Joint and several liabilities
			Liability not under the conventions
			Evidence and burden of proof
		Limitation of liability
		Insurance and financial guarantee
	CHAPTER 17 APPLICABLE LAW AND TIME LIMITS
		Applicable law
			Party autonomy and closest connection
			Intention of the parties
			International law and public policy
			Statutory applicable law
		Time limits for maritime claims
			Time limits for carriage of goods claims
			Time limits for carriage of passengers’ claims
			Time limits for marine insurance claims
			Time limits for other claims
			Suspension and discontinuation
PART II MARITIME PROCEDURE LAW
	CHAPTER 18 INTRODUCTION TO CHINESE MARITIME PROCEDURE LAW AND THE CHINESE MARITIME COURT SYSTEM
		Introduction
		The Chinese court system
		The developments of the Chinese maritime courts system
		The development of Chinese maritime procedural law
		A brief review of the Special Maritime Procedure Law
			General principles
			Jurisdiction
			Preservation of maritime claims
			Ship arrests
			Arrest of ships and sister ships
			Second arrests
			“Live” arrests
			The duration of arrests
			Auction of ships
			Attachment and auction of cargo carried by ships
			Maritime injunctions
			Preservation of maritime evidence
			Maritime security
			Service
			Special trial procedures
			Trial of ship collision cases
			Trial of general average cases
			Exercising rights of subrogation by marine insurers
			Limitation fund for maritime claims
			Procedure of registration and repayment of debt
			Procedure for exigence of maritime liens
		Other sources of law for maritime actions
		The court fees
	CHAPTER 19 MARITIME JURISDICTIONS
		Introduction
		Jurisdiction of maritime courts
		Maritime territorial jurisdiction
		Hierarchical jurisdiction
		Agreed jurisdiction and exclusive jurisdiction
		Disputes about maritime jurisdiction
	CHAPTER 20 PRESERVATION OF MARITIME CLAIMS
		Introduction
		Procedures and requirements for applying preservation of maritime claims
			Jurisdiction
			Application form
			Evidence
			Security
			Order of preservation and discharge of the preservation
			Liability for wrongful application
		Arrest of ships
			General introduction to ship arrest
			“Fixed arrest” and “live arrest”
			Conditions for ship arrest
			Re-arrest and multiple arrest
		Compulsory auction of ship
			Conditions for compulsory auction of ships
			Procedure of compulsory auction of ships
		Attachment of cargo on board the ship
		Compulsory auction of cargoes
	CHAPTER 21 MARITIME INJUNCTION
		Introduction
		The general nature of the remedy
		Application for a maritime injunction
			Before or during the arbitration/litigation
			The court
			Making the application
			Security
		Conditions for granting a maritime injunction
		Review and issue of a maritime injunction order
		Execution
		Reconsideration and objection
		Maritime injunctions wrongfully obtained
		Comparison with a Mareva injunction
	CHAPTER 22 PRESERVATION OF MARITIME EVIDENCE
		Introduction
		The general nature of the remedy
		Application for preservation of maritime evidence
			Before or during the arbitration/litigation
			The court
			Making the application
			Security
		Conditions for obtaining an order to preserve maritime evidence
			Qualifications of subject – a claimant is a party concerned of a maritime claim
			Standards of evidence – evidence to be preserved on claims must have evidential effect on a maritime claim
			Requirements for targets – a person against whom the claim is made is relevant to the evidence to be preserved on claims
			Applicable situations – an urgent situation where no immediate steps to preserve evidence taken will lead to the loss of evidence or difficulty in obtaining evidence
		Review and issue an order to preserve the evidence
		Execution
		Reconsideration and objection
		Wrongfully obtained order for preservation of maritime evidence
	CHAPTER 23 MARITIME SECURITY
		Introduction
		Security put up by a defendant in proceedings involving a maritime claim
			Amount of security
			Claimant’s liability for requirement of an excessive amount of security
			Reduction, alteration and cancellation of security
			Claimant’s liability for wrongful request of security
			Type of security
			Return of security
		Counter security put up by claimant
			Counter security in ship arrest
			Amount of counter security
			Alteration and reduction of counter security
			Type of counter security
			Return of counter security
			Counter security in the proceedings of the attachment of other types of property
			Counter security in the proceedings of maritime injunctions and the preservation of maritime evidence
			Counter security in applications for the preservation of evidence
			Security involved in the constitution of a limitation fund and advanced payment prior to judgment
	CHAPTER 24 PROCEDURES FOR TRIAL, CONSTITUTION OF LIMITATION FUND FOR MARITIME CLAIM, RECOGNITION AND PAYMENT OF DEBTS, EXIGENCE OF MARITIME LIEN
		Introduction
		General trial procedure
			The first instance trial procedure
			The second instance trial procedure
		Special rules on the trial of the collision of ships
			The collision of ships that is governed by the Chinese Maritime Code (the “CMC”) and the SMPL
			Investigation form for maritime accident
			Completion of production of factual evidence
			The investigation materials by the Maritime Safety Administration
			Requirement of inspection of a ship and appraisal of a ship’s value
			The time period of the trial of collision of ships
		Special rules on the trial of general average
			Jurisdiction of general average cases
			General average adjustment report
			Claim for non-general average losses
		Special rules on the trial of marine insurer’s subrogation claim
		Summary procedure, procedure for urging payment of debt and procedure for public notice of exigence of claim
			Summary procedure
			Small claim procedure
			Procedure for urging payment of debt
			Procedure for public notice of exigency of claim
		Procedure for constitution of liability limitation fund for maritime claims
			Parties who can apply for constitution of limitation fund
			Jurisdiction of the maritime court
			Application for constitution of limitation fund and examination of application by court
			Constitution of the limitation fund
			Court’s dealing with property preservation
			Registration of claims and distribution of limitation fund among creditors
		Procedure for the registration of claims in auction of a ship and distribution of the proceeds from the auction
		Procedure for exigence of maritime lien
	CHAPTER 25 CONFLICT OF LAWS
		Introduction
		General principles
			Supremacy of the international treaty
				Lex voluntatis
			Ascertainment of foreign law
			Reservation of public order and the application of mandatory provisions
		Nature of disputes and application of laws
			Contract
			Ownership and mortgage
			Maritime lien
			Collision
			Salvage
			General average
			Limitation of liability for maritime claims
		Jurisdiction of Chinese court in foreign-related disputes
	CHAPTER 26 MARITIME ARBITRATION, CONCILIATION AND RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRATION AWARDS AND FOREIGN JUDGMENTS
		Introduction
		Review of the Arbitration Law of People’s Republic of China (the “Arbitration Law”)
			Types of arbitration
			The Arbitration Law and its judicial interpretation
			Valid arbitration agreement
			Arbitration proceedings
			Arbitrators and arbitration tribunal
			Hearings
			Enforcement and setting aside of domestic arbitration award
		Maritime arbitration and the CMAC
			The CMAC and the arbitration rules of CMAC
			A special issue for maritime arbitration – the validity of an arbitration clause in the bill of lading
		Conciliation/mediation
			Conciliation by court
			Conciliation in arbitration
			Conciliation by government
		Recognition and enforcement of foreign arbitration award
			Procedures for recognition and enforcement of foreign maritime arbitral awards in China
			Reasons for refusing the recognition and enforcement of foreign arbitral awards
		Recognition and enforcement of Hong Kong arbitration awards
		Recognition and enforcement of Taiwan arbitration awards
		Recognition and enforcement of foreign judgments in China
			General procedure
			Basis on which the application can be approved
		Enforcement of court judgments of Hong Kong, Macau and Taiwan
ANNEX I MARITIME CODE OF THE PEOPLE’S REPUBLIC OF CHINA
ANNEX II SPECIAL MARITIME PROCEDURE LAW OF THE PEOPLE’S REPUBLIC OF CHINA
Index