At 7:30 pm on November 1, 2008, 2008 National Doctoral Academic Forum, of which Si Yuzhuo’s Academic Report was held in the 120 Academic Report Hall of Wuhan University Law School, who is the professor of the Dalian Maritime University and the doctoral supervisor. The theme of the report was “Comment on the main issues of the United Nations Draft Convention on Transport Law". The report was hosted by Zhang Xianglan, a senior professor at Wuhan University Law School. She first introduced the achievements of Professor Si Yuzhen in academic research. Then the report officially began. Professor Si Yuzhuo participated in the drafting of the draft convention on transport law of the United Nations. The convention is fully called Draft Convention on the Carriage of Goods(wholly or partly). It will be voted at the UN General Assembly in December this year and signing ceremony will be held in Rotterdam, the Netherlands next year.
Professor Si Yuzhuo's report mainly covers the following aspects:
- The scope of application of the Convention. The original intention of the convention was to "balance interests, pursue unity, conform to the times, and promote development." Since the existing conventions can no longer meet the needs of the development of the times, and the new conventions are largely in conflict with the existing conventions, the application of the conventions has established the rules of “compulsory application of maritime transport, land transport, etc.”. Article 5 of the Convention stipulates dual international principle applies to the Convention which states the “consignment and place of delivery are in different countries, the port of loading and the port of discharge are also in different countries” and the “five connecting points” (The Convention may be applied if any of the carriers’ residence, the place of acceptance, the place of delivery, the place of loading and the place of unloading is located in contracting parties). Article 7 of the Convention states: even if there is no document connection between the carrier, the consignee and the holder, the convention can also be applied. Article 80 of the Convention stipulates that the “Volume Contract” applies the Convention, which is original. These provisions of the Convention reflect the principle of maximizing the application of the Convention. The Convention also stipulates that “responsibility is the minimum mesh application”, and the purpose is also trying to make the relevant parties apply the Convention as much as possible.
- The basis of the responsibility of the Convention. The basis of the responsibility of the Convention is to use the burden of proof. Article 17, paragraphs 1 and 2 of the Convention stipulates that “the carrier shall be liable for the loss of the goods and the damage shall be proved; if the evidence cannot be presented, the carrier is presumed to be at fault” (referred to as “the first presumption”). Article 17, paragraphs 3 and 4 stipulates the carrier’s fifteen exemption reasons. “In the scope of the fifteen exemptions, the claimant shall provide evidence; if the evidence cannot be obtained, the carrier shall be presumed to be without fault” (referred to as "second presumption"). Article 17, paragraph 5, is a special provision on airworthiness obligations. “The claimant initially provided evidence that the damage was caused by non-airworthiness; then the carrier proved that it had exercised its duty of care and that the ship was airworthy”. It can be said that the responsibility of the Convention is based on the Hague Rules and the Hamburg Rules, which is closer to the Hamburg Rules.
- Shipping performance party. The provisions of the first paragraph of Article 1 of the Convention clarify the scope of the maritime performing party, and Article 19 of the Convention stipulates that the maritime performing party’s rights and obligations are equivalent to the carrier.
- Liability insurance. The limits of liability under the Convention have been raised from 835 to 875 on the basis of the Visby Rules.
- Volume Contract. Article 1, paragraph 2, of the Convention defines the meaning of a volume contract. In previous conventions (the Hague Rules and the Visby Rules), volume contracts were excluded from application, but the application of volume contracts was specified in the Convention. Volume contracts can be applied to the Convention, but they are given greater freedom and are not mandatory.
- Delivery of goods without production of bill of lading. The delivery of goods without bills of lading is an important issue in practice. Although the terms of the delivery of goods without bills of lading have been approved, they lack practical operability.
- Control right. In order to protect the interests of the seller, the Convention was formulated to transplant the “intermediate suspension right” in the field of trade law to the transportation law, forming a “control right”. The Convention stipulates that “for a straight bill of lading, the controlling person in the course of the carriage of the goods is the shipper; for the negotiable bill of lading, the controller is the holder of the bill of lading.”
- Transfer of rights. The substance of the transfer of rights protects the buyer (document holder) in the contract of sale, the content is “when the document is transferred, the rights embodied in the document are also transferred.” We should pay attention to one issue, when the document is transferred, the rights are simultaneously transferred, but the obligation is not transferred at the same time. The obligation is only transferred when the holder of the document exercises his rights. Such regulations are conducive to the protection of the circulation of documents.
- Jurisdiction. The core issue in jurisdiction is that the claimant can choose the court to benefit the claimant. The exclusive jurisdiction clause is to bind the parties of volume contract. If it is binding on a third party, it must be conditional on the third party and the third party location law recognizes the validity of the exclusive jurisdiction.
- Arbitration. It is mainly related to the choice of arbitration place. For the carriage of goods outside the volume contract, the place of arbitration may be selected to be the residence of carriers, the place of acceptance, the place of delivery, the place of loading and the place of unloading, and the place of arbitration specified in the arbitration clause. Pay attention to a principle that "the choice of arbitration is incompatible with that of litigation."
Next, the classmates asked questions about Professor Si Yuxi's report. The first is a question from the students of Huazhong Normal University. He proposed that the failure of the Hamburg Rules was a heavy one, because the rule was only developed by underdeveloped countries and developing countries, which violated the original intention of rulemaking. Has the draft transport law been drafted to take into account the lessons of the Hamburg rules? The development of maritime law has always focused more on the theory instead of practice, how do we recognize this situation and problems? Professor Si answered, the shipping developed countries do not participate in the Hamburg Rules because they are not operational. In the process of drafting the draft transport law, the lessons of the Hamburg Rules were fully absorbed, which greatly enhanced its own operability. Maritime law is a practical science, and many maritime law rules come from practice. In the process of studying the maritime law, it is necessary to make full use of the research methods of the civil law system and the Anglo-American law system to conduct theoretical and practical study on the maritime law. Then, some students gave a question on how to make corresponding amendments to the maritime law of China according to the draft convention on transport law and they also asked about the legislative technical issues of the draft transport convention, and why the convention provides for the rights and duties of shippers in a specific chapter. Professor Si Yuzhuo answered them one by one. Finally, the host Professor Zhang Xianglan summed up the report of Professor Si Yuzhuo and announced that the report would be successfully concluded.
