Maritime law and practice in China / by Liang Zhao and Lianjun Li.
2017
KNQ970 .Z4734 2017 (Map It)
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Details
Title
Maritime law and practice in China / by Liang Zhao and Lianjun Li.
Published
Abingdon, Oxon ; New York, NY : Informa Law from Routledge, 2017.
Call Number
KNQ970 .Z4734 2017
Former Call Number
Ch.P 620 Z614 2017
ISBN
9781138639959 (hbk)
1138639958 (hbk)
9781315636917 (ebk)
1138639958 (hbk)
9781315636917 (ebk)
Description
lxiv, 464 pages ; 26 cm.
System Control No.
(OCoLC)958351674
Note
Includes legislations.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
Acknowledgements
xvii
Foreword
xix
Preface
xxi
Table of cases
xxiii
Table of legislation
xliii
Table of other authorities
lix
Part I Substantive Maritime Law
ch. 1
Introduction To Chinese Maritime Law
3
Chinese maritime law
3
Chinese maritime courts and practice
5
Inconsistency in adjudication and guiding cases
5
ch. 2
Ships
7
ship
7
Ownership of a ship
8
Ship registration
11
Registration of ownership of ships
12
Amendment and cancellation of registration
13
Nationality of ships
13
Ship mortgage
15
Establishment of ship mortgage
16
Registration of ship mortgage
17
Registration of bareboat charter
19
ch. 3
Master And Seamen
22
Master
22
Seamen
25
Registration and qualifications of seamen
26
Registration
26
Competency certificate
27
Seaman's passport
27
Guarantee of profession for seamen
28
Benefits
28
Repatriation
29
Maritime Labour Convention 2006
30
ch. 4
Charterparties
31
Voyage charter
32
Compulsory provisions
33
Rights and obligations
35
Time charter
38
Delivery and redelivery of ship
39
Shipowner's rights and obligations
41
Charterer's rights and obligations
42
Bareboat charter
43
Delivery and redelivery of ship
44
Shipowner's rights and obligations
44
Charterer's rights and obligations
45
Financial lease of ship
48
ch. 5
Bill Of Lading: Functions
50
Evidence of contract
50
Receipt of goods
52
Document of title
56
Bill of lading and property right
59
Delivery of goods without bill of lading
61
Letter of indemnity
63
ch. 6
Bill Of Lading: Parties
66
carrier
66
actual carrier
67
common carrier
69
shipper
70
Right of control of the shipper
71
Consignee and bill of lading holder
73
consignee
73
Bill of lading holder
74
Incorporation of charterparty into bill of lading
74
Incorporation of law and arbitration clause
75
Incorporation of time charters
77
ch. 7
Bill Of Lading: Obligations, Liabilities And Limitation
78
Obligations of carrier
78
Period of responsibility
78
Obligations
79
Liabilities, exemptions and limitation of liability of carrier
80
Liability for loss, damage and delay
80
Liability for live animal and deck cargo
81
Assessment of liability
81
Exemptions
83
Limitation of liability
84
Loss of liability limitation
85
Delivery of goods
86
Notice for delivery
86
Notice for damage
87
Non-delivery of goods
88
Obligations and liabilities of shipper
90
Information and formalities
90
Dangerous goods
90
Freight
91
Fault and liability
92
ch. 8
Freight Forwarding And Multimodal Transport
93
Freight forwarding
93
Freight forwarding services
93
Freight forwarder
94
Disputes over ocean freight forwarder
95
Freight forwarding contract
96
Freight forwarder as carrier
97
Delivery of shipping documents
98
Obligations and liability
99
Sub-commission
100
Rescission of contract
101
NVOCC
101
Non-vessel-operating services and NVOCC
101
Freight forwarder or NVOCC?
102
Multimodal transport
103
Multimodal transport in the CMC 1992
103
Responsibility period
105
Liability and limitation
106
ch. 9
Carriage Of Passengers By Sea
107
Athens Convention
107
Definitions
108
Invalid clauses
108
Carrier and the actual carrier
109
Passenger ticket
109
Carriage period
110
Liability of passenger
110
Liability of carrier
111
Liability and immunity
111
Liability for valuables
111
Burden of proof
112
Notice for damage to luggage
112
Damages and compensation
112
Limitation of liability of carrier
113
Limitation of liability for coastal carriage
114
Loss of limitation of liability
115
ch. 10
Sea Towage Contracts
116
Third parties to sea towage contracts
116
Seaworthiness of tug and tow
118
Force majeure in sea towage contract
118
Towage fee and duress
119
Liabilities and immunities
119
ch. 11
Collision Of Ships
121
Ships in collision
122
Liabilities in collision
122
General principles
122
Proportion of liability
123
Causation in tort
125
Compensation for damages
126
Compensation in general
126
Compensation for damage to property
127
Compensation for personal injury
128
Liable persons
129
Burden of proof and evidence
130
ch. 12
Salvage At Sea
134
Concepts and application
134
Salvage contract and performance
135
Salvage contract
135
Salvage operations
136
State-controlled salvage
137
Performance of salvage
138
Annulment and modification of contracts
138
Rights of salvors
139
No cure no pay
139
Salvage reward
139
Salved value and apportionment
140
Special compensation
142
No entitlement of remuneration
142
Apportionment between salvors
143
Salvage of persons
143
Claims and actions
143
Duty to provide security
143
Auction sale of salved ship and property
143
Interim payment
144
Interest
144
Publication of arbitral awards
144
ch. 13
General Average
145
Scope of general average
145
General average in claim
146
amount of sacrifice and contribution
147
General average adjustment
148
ch. 14
Limitation Of Liability For Maritime Claims
151
Scope of application
151
Ships
151
Persons entitled to limit liability
152
Maritime claims
152
Claims subject to limitation
152
Claims excepted from limitation
154
Limits of liability
155
general limits
155
special limits
156
limits for passenger claims
157
Aggregation of claims
157
Loss of limitation of liability
158
Limitation fund
159
ch. 15
Marine Insurance
160
Marine insurance contract
161
Perils
161
Insurable value and insured amount
162
Freight
162
Double insurance
163
Open cover
164
Assignment of insurance contract
165
Termination of insurance contract
165
Interpretation of contract clauses
166
Literal rule
166
Contra proferentem rule
167
Exemption clause
168
All risks
168
Insurable interest
170
Disclosure of material circumstances
172
Warranties of the assured
174
Loss and abandonment
175
Indemnity from insurer
176
Liability of indemnity
176
Amount of indemnity
177
Exemption of liability
178
Subrogation
179
ch. 16
Marine Pollution
182
International regime
182
Concepts and applications
183
Concepts
183
Applications
184
Damage and compensation
185
Claimants
185
Pollution damage
185
Liability and proportion
187
Liability under the conventions
187
Joint and several liabilities
188
Liability not under the conventions
189
Evidence and burden of proof
190
Limitation of liability
190
Insurance and financial guarantee
192
ch. 17
Applicable Law And Time Limits
195
Applicable law
195
Party autonomy and closest connection
195
Intention of the parties
196
International law and public policy
197
Statutory applicable law
198
Time limits for maritime claims
198
Time limits for carriage of goods claims
198
Time limits for carriage of passengers' claims
205
Time limits for marine insurance claims
206
Time limits for other claims
207
Suspension and discontinuation
208
Part II Maritime Procedure Law
ch. 18
Introduction To Chinese Maritime Procedure Law And The Chinese Maritime Court System
215
Introduction
215
Chinese court system
215
developments of the Chinese maritime courts system
215
development of Chinese maritime procedural law
216
brief review of the Special Maritime Procedure Law
217
General principles
217
Jurisdiction
217
Preservation of maritime claims
218
Ship arrests
219
Arrest of ships and sister ships
219
Second arrests
219
"Live" arrests
220
duration of arrests
220
Auction of ships
220
Attachment and auction of cargo carried by ships
221
Maritime injunctions
221
Preservation of maritime evidence
221
Maritime security
222
Service
222
Special trial procedures
223
Trial of ship collision cases
223
Trial of general average cases
223
Exercising rights of subrogation by marine insurers
224
Limitation fund for maritime claims
224
Procedure of registration and repayment of debt
225
Procedure for exigence of maritime liens
225
Other sources of law for maritime actions
226
court fees
227
ch. 19
Maritime Jurisdictions
229
Introduction
229
Jurisdiction of maritime courts
230
Maritime territorial jurisdiction
237
Hierarchical jurisdiction
242
Agreed jurisdiction and exclusive jurisdiction
242
Disputes about maritime jurisdiction
244
ch. 20
Preservation Of Maritime Claims
246
Introduction
246
Procedures and requirements for applying preservation of maritime claims
246
Jurisdiction
246
Application form
247
Evidence
247
Security
248
Order of preservation and discharge of the preservation
248
Liability for wrongful application
250
Arrest of ships
251
General introduction to ship arrest
251
"Fixed arrest" and "live arrest"
251
Conditions for ship arrest
252
Re-arrest and multiple arrest
254
Compulsory auction of ship
254
Conditions for compulsory auction of ships
255
Procedure of compulsory auction of ships
256
Attachment of cargo on board the ship
260
Compulsory auction of cargoes
261
ch. 21
Maritime Injunction
262
Introduction
262
general nature of the remedy
262
Application for a maritime injunction
263
Before or during the arbitration/litigation
263
court
263
Making the application
264
Security
264
Conditions for granting a maritime injunction
265
Review and issue of a maritime injunction order
266
Execution
266
Reconsideration and objection
267
Maritime injunctions wrongfully obtained
267
Comparison with a Mareva injunction
268
ch. 22
Preservation Of Maritime Evidence
269
Introduction
269
general nature of the remedy
269
Application for preservation of maritime evidence
271
Before or during the arbitration/litigation
271
court
271
Making the application
272
Security
272
Conditions for obtaining an order to preserve maritime evidence
273
Qualifications of subject - a claimant is a party concerned of a maritime claim
273
Standards of evidence - evidence to be preserved on claims must have evidential effect on a maritime claim
274
Requirements for targets - a person against whom the claim is made is relevant to the evidence to be preserved on claims
274
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
275
Review and issue an order to preserve the evidence
276
Execution
276
Reconsideration and objection
276
Wrongfully obtained order for preservation of maritime evidence
277
ch. 23
Maritime Security
278
Introduction
278
Security put up by a defendant in proceedings involving a maritime claim
279
Amount of security
279
Claimant's liability for requirement of an excessive amount of security
279
Reduction, alteration and cancellation of security
281
Claimant's liability for wrongful request of security
281
Type of security
282
Return of security
285
Counter security put up by claimant
286
Counter security in ship arrest
286
Amount of counter security
286
Alteration and reduction of counter security
286
Type of counter security
287
Return of counter security
288
Counter security in the proceedings of the attachment of other types of property
288
Counter security in the proceedings of maritime injunctions and the preservation of maritime evidence
289
Counter security in applications for the preservation of evidence
290
Security involved in the constitution of a limitation fund and advanced payment prior to judgment
291
ch. 24
Procedures For Trial, Constitution Of Limitation Fund For Maritime Claim, Recognition And Payment Of Debts, Exigence Of Maritime Lien
292
Introduction
292
General trial procedure
292
first instance trial procedure
292
second instance trial procedure
295
Special rules on the trial of the collision of ships
296
collision of ships that is governed by the Chinese Maritime Code (the "CMC") and the SMPL
296
Investigation form for maritime accident
297
Completion of production of factual evidence
298
investigation materials by the Maritime Safety Administration
298
Requirement of inspection of a ship and appraisal of a ship's value
299
time period of the trial of collision of ships
300
Special rules on the trial of general average
300
Jurisdiction of general average cases
300
General average adjustment report
300
Claim for non-general average losses
302
Special rules on the trial of marine insurer's subrogation claim
302
Summary procedure, procedure for urging payment of debt and procedure for public notice of exigence of claim
304
Summary procedure
304
Small claim procedure
305
Procedure for urging payment of debt
305
Procedure for public notice of exigency of claim
306
Procedure for constitution of liability limitation fund for maritime claims
307
Parties who can apply for constitution of limitation fund
307
Jurisdiction of the maritime court
307
Application for constitution of limitation fund and examination of application by court
308
Constitution of the limitation fund
309
Court's dealing with property preservation
310
Registration of claims and distribution of limitation fund among creditors
310
Procedure for the registration of claims in auction of a ship and distribution of the proceeds from the auction
311
Procedure for exigence of maritime lien
313
ch. 25
Conflict Of Laws
314
Introduction
314
General principles
315
Supremacy of the international treaty
315
Lex voluntatis
315
Ascertainment of foreign law
316
Reservation of public order and the application of mandatory provisions
317
Nature of disputes and application of laws
318
Contract
318
Ownership and mortgage
321
Maritime lien
322
Collision
323
Salvage
324
General average
325
Limitation of liability for maritime claims
326
Jurisdiction of Chinese court in foreign-related disputes
327
ch. 26
Maritime Arbitration, Conciliation And Recognition And Enforcement Of Foreign Arbitration Awards And Foreign Judgments
330
Introduction
330
Review of the Arbitration Law of People's Republic of China (the "Arbitration Law")
331
Types of arbitration
331
Arbitration Law and its judicial interpretation
331
Valid arbitration agreement
331
Arbitration proceedings
334
Arbitrators and arbitration tribunal
335
Hearings
335
Enforcement and setting aside of domestic arbitration award
337
Maritime arbitration and the CMAC
338
CMAC and the arbitration rules of CMAC
338
special issue for maritime arbitration - the validity of an arbitration clause in the bill of lading
340
Conciliation/mediation
343
Conciliation by court
343
Conciliation in arbitration
344
Conciliation by government
345
Recognition and enforcement of foreign arbitration award
346
Procedures for recognition and enforcement of foreign maritime arbitral awards in China
346
Reasons for refusing the recognition and enforcement of foreign arbitral awards
347
Recognition and enforcement of Hong Kong arbitration awards
349
Recognition and enforcement of Taiwan arbitration awards
349
Recognition and enforcement of foreign judgments in China
351
General procedure
351
Basis on which the application can be approved
352
Enforcement of court judgments of Hong Kong, Macau and Taiwan
353
Annex I Maritime Code Of The People's Republic Of China
355
Annex II Special Maritime Procedure Law Of The People's Republic Of China
428
Index
459