Chinese legislative reform for wet multimodal transportation of goods:What shall we learn from the Rotterdam Rules and what hold us back in the way of joining the Rules as a contracting state?

• 作者: WANG Yang
• 来源期刊: 海大法律评论
• 学科: 政治法律
• 关键词: WET multimodal transportation CHINESE Maritime Code ROTTERDAM Rules localized and unlocalized damage or loss CONTRACTUAL approach GAP-FILLING provision
• 年，卷（期）: hdflpl_2017,（1）
• 页码范围: 149-177
• 页数: 29页
• 分类号: D922.294

摘要

This article purports to shed light on some thoughts on China’s legislative reform in respect of rules pertaining to regulate the multimodal transportation involving a sea leg. While the section of multimodal transportation in the Chinese Maritime Code has not been much challenged in the legal practice, the recent Rotterdam Rules that deals with contracts of carriage of goods wholly or partly by sea certainly probes the area with new solutions. These new solutions have enlightened the debates among the scholars and practitioners over the routes for the reform of the wet multimodal transport provisions in the Code. In this article, the author attempts to assess the Rotterdam Rules solutions in connection with the characteristics of Chinese import and export trades that involve multimodal transportation as well as the relevant domestic legislation and international treaties to which China has entered into as member state that regulate transport of goods by modes other than sea. Based on the analysis, it finds out that some of the former solutions may give rise to unexpected results that hinder their adoption in the future Code : it could narrow the existing scope of application of the Chinese Maritime Code and would let the multimodal transport operators escape the mandatory regime of the Code.And if provision like the Art.26 of the Rotterdam Rules is adopted in the Code, a great market difference might be created as between the fragmented transportation under various contracts and the multimodal transportation under a single contract. However,certain rules are positive so that can be adopted in the future Code: the hypothetical contract approach adopted in the Art. 26 of the Rotterdam, Rules and the gap-filling approach adopted in the Arts. 26 and 82 of the Rules may provide better certainties in respect of issues such as time for suit, liability for delay, transport documents.Moreover, Chinese legislators may consider to extend the multimodal liability regime to the independent contractors or subcontractors of