✍ Scribed by Liang Zhao, Lianjun Li
No coin nor oath required. For personal study only.
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
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