Maritime Law Perspectives Old and New, Volume I

Name: Maritime Law Perspectives Old and New, Volume I
Brand: Nova
Price: 303.99 EUR
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K. Mukherjee Proshanto(Herausgeber*in)

Nova (Verlag)

Erschienen am 31. August 2023

346 Seiten

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Beschreibung

Maritime law is a subject of ancient vintage which is both evolutionary and revolutionary in the context of the current milieu. It is still evolving as new areas of law are emerging mainly through international conventions and the technological revolution that is rapidly changing or modifying established principles and practices in the maritime field. The book Maritime Law Perspectives Old and New is the brainchild of the lead editor Proshanto K. Mukherjee, the proverbial &quote;ancient mariner&quote;, and is produced by the editorial triumvirate comprising him, Jingjing Xu and Maximo Q. Mejia who have collaborated on several past occasions. They are assisted by upwardly mobile maritime law academics Huiru Liu and Minna Yu. The book is special in many ways, not the least of which is the conglomeration of authors hailing from some 20 countries around the world covering both common and civil law jurisdictions and the fact that the contributing authors are inter-generational. A unique feature of the book which appears in two volumes is that the first volume consists entirely of Chinese authors most of whom are relatively young newcomers embarking on their academic voyages. This will hopefully inspire others of their kind in China to write and publish in English which is officially recognized by the International Maritime Organization as the global language of the maritime world. The second volume consists of the writings of seasoned maritime law authors some of whom are distinguished scholars with enviable track records in maritime law academia. Other notable features of the book include the vast array of subject matters addressed in the chapters of both volumes ranging from traditional public and private law topics such as international law of the sea, ship-source pollution, regulatory maritime law like ship safety and aids to navigation to emerging hi-tech oriented topics like blockchain applications in shipping, comparative legal commonalities between maritime and aviation law and contemporary legal endeavour such as the convention on recognition of judicial sales of ships and interjurisdictional issues and disputes in transboundary waterways. It is anticipated that the book will inure to the benefit of readers and researchers who are involved in pursuing maritime law and are keenly interested in its perpetuity from perspectives old and new.

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Inhalt

Intro
Contents
Foreword
Preface
Acknowledgments
Chapter 1
Marine Environmental Public Interest Litigation in China: A Critical Review
Abstract
1. Introduction: Concept of EPIL
2. Identification of MEPIL
3. Entities Entitled to Initiate MEPIL
4. Order of Priority of Entities
Conclusion
Bibliography
Chapter 2
Management of Aids to Navigation in China: An Overview of Relevant Legislation
Abstract
1. Introduction
2. Historical Evolution to Present Chinese AtoN Management
3. AtoN Management Mode and Legal Regime in China
3.1. The Administrative Law
3.2. Laws and Regulations on AtoN Management
3.2.1. Laws on AtoN in China
3.2.2. Administrative Regulations on AtoN
3.3. Regulations of Relevant AtoN Departments
3.3.1. Administrative Measures for AtoN in Maritime Areas
3.3.2. Measures for the Administration of Coastal AtoN
3.3.3. People's Republic of China on Maritime Administrative Penalties
3.3.4. Maritime Administrative Licensing Conditions of the People's Republic of China
4. Normative Documents Related to AtoN
4.1. Administrative Measures for Dynamic Notification of AtoN in Maritime Areas
4.2. Measures for Emergency Response Management of Maritime AtoN
4.3. Operational Management Measures of Sea Test Quality Management System of Maritime Administration of MOT (Trial)
4.4. Measures for the Administration of Periodic Evaluation of the Effectiveness of Coastal AtoN (Trial)
5. AtoN Management under the Framework of the New Maritime Traffic Safety Law
5.1. Management of Public AtoN
5.2. Management of Special AtoN
5.3. Management of Temporary AtoN
6. Other Legal Guarantees and Relevant Technical Standards for the Administration of China's Coastal AtoN
6.1. Construction and Maintenance of AtoN to Meet the Requirements of Relevant Mandatory Standards and Technical Specifications
6.2. AtoN Maintenance and Inspection
6.3. AtoN Maintenance Department or Owner of a Special AtoN to Restore It in Time When AtoN Is Displaced, Damaged or Lost
Conclusion
Bibliography
Chapter 3
International Cooperation for the Prevention and Control of Ship-Source Pollution in the Arctic
Abstract
1. Introduction
2. Purpose and Structure
3. Overview of Ship-Source Pollution Conventions
3.1. UNCLOS
3.2. Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention 1969)
3.3. MARPOL
3.4. London Convention on Dumping of Wastes at Sea (London Convention)
3.5. Oil Pollution Preparedness, Response and Co-Operation Convention (OPRC 90)
3.6. Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention)
4. Special International Conventions and Agreements for the Arctic Region
4.1. Arctic Environmental Protection Strategy (AEPS)
4.2. Arctic Council
4.3. Polar Code
5. Measures to Enhance International Cooperation
5.1. Enhancing Cooperation between the Arctic Council and the IMO
5.2. Strengthening the Arctic Council
5.3. National and International Cooperation
Conclusion
Bibliography
Chapter 4
Warranty Clauses in Marine Insurance Contracts: A Comparative Analysis from English and Chinese Law Perspectives
Abstract
1. Introduction
2. Warranties Under Common Law and Chinese Law: Basic Legal Issues
2.1. Definitions and Concept of Warranties in the Common Law: From Tradition to Reform
2.2. Types of Warranties in the Common Law
2.3. The Absence of Warranty and Potential Reform in Chinese Law
3. Difficulties with Application and Interpretation of Warranty Clauses
3.1. Application and Interpretation of Warranty Clauses in the Common Law
3.2. Application and Interpretation of Warranty Clauses in Chinese Law
4. Critical Comments
Conclusion
Bibliography
Chapter 5
The Limitation of Action for Claims in Multimodal Transport Contracts: A Chinese Law Perspective
Abstract
1. Introduction
2. Background
3. Limitation of Action for Claims in Multimodal Transport Contracts: Judicial Practice in China
4. Variance in Opinions within Chinese Academia
5. Legislative Options
5.1. Reduce Differences between Multimodal and Unimodal Transport Regimes
5.2. Correspond with the Network Liability System of Multimodal Transport Operators
6. Comments and Suggestions Regarding the CMC Currently under Revision
Conclusion
Bibliography
Chapter 6
China's Bilateral Cooperation in Fisheries: A Viable Primer
Abstract
1. Introduction
2. Bilaterial Agreements Concluded by China on Fisheries Cooperation
2.1. List of State-to-State Agreements
2.2. Authority Level Cooperation
2.3. Observations
3. Cooperation with Neighboring Countries: Special Attention to Japan, ROK and Vietnam
3.1. China-Japan Cooperation
3.2. China-South Korea (ROK) Cooperation
3.3. China-Vietnam Cooperation
Conclusion
Bibliography
Chapter 7
The UNCITRAL Draft Convention on Judicial Sales of Ships and Possible Law Reform in China
Abstract
1. Introduction
2. Sources of Law Governing China's Extraterritorial Service of Process
2.1. Domestic Legal Sources
2.2. Applicable International Convention and Bilateral Treaties
3. Compatibility with the UNCITRAL Draft Convention
3.1. Notification Mechanism under UNCITRAL Draft Convention
3.2. Comparison of Provisions on Notice of Judicial Sale
4. Exterritorial Electronic Service as an Available Option
4.1. Efficiency Analysis Based on Data from Ningbo Maritime Court
4.2. Analysis on the Feasibility of Extraterritorial Electronic Service
4.2.1. Electronic Repository under the UNCITRAL Draft Convention
4.2.2. "Give Way" Clause in Article 25 of the Service Convention
4.2.3. Amendment of China's Special Maritime Procedure Law
4.3. Considerations on the Amendment of the Special Maritime Procedure Law
4.3.1. Electronic Means which Provide Confirmation of Receipt
4.3.2. Consent of the Person to be Served or the State of such Person
4.3.3. Relationship between Electronic Methods and other Methods of Service
Conclusion
Acknowledgment
Bibliography
Chapter 8
The Strengthening and Improvement of Planning Strategy to Better Serve China's Transportation Sector Including Shipping
Abstract
1. Introduction
2. Scope of Transportation Planning
3. Evolution of Transportation Planning Since the Founding of the People's Republic of China
4. Proposals for Strengthening and Improving Transportation Planning
Conclusion
Bibliography
Chapter 9
The Limitation of Liability of Sea and Air Carriers in the Carriage of Goods: An Analytical Appraisal
Abstract
1. Introduction
2. Liability and Limitation of Liability: Legal Theory
2.1. Liability and Responsibility
2.1.1. Pre-Convention Fault-Based Liability
2.1.2. Strict and Absolute Liability
2.2. Theory of Limitation
3. Limitation of Liability in Carriage of Goods by Sea
3.1. Preliminary Remarks
3.2. Historical Evolution of Limitation of Liability
3.3. Global Limitation: LLMC and Its Predecessor Regimes
3.4. Specific Convention Limitation Regimes
3.4.1. Convention on Passenger Claims
3.4.2. Sea Carriage of Goods Conventions
3.4.3. Ship-Source Pollution Conventions
3.5. Conduct Barring Limitation
4. Limitation of Liability: Carriage of Goods in Aviation Law
4.1. Warsaw-System Conventions and the Montreal Convention 1999
4.2. Liability Basis
4.3. Air Carrier's Limitation of Liability
4.4. Breaking Limits
5. Comparative Analysis
5.1. Basis of Liability
5.2. Carrier's Defences
5.3. Liability Limits
Conclusion
Acknowledgment
Bibliography
Chapter 10
The Bill of Lading Then and Now: Changing Perspectives in International Practice
Abstract
1. Introduction
2. Bill of Lading Fortified through Convention Law
3. The Functions of the Bill of Lading and Its Purpose
3.1. Bill of Lading as a Chose in Action and a Negotiable Instrument
3.2. The Seaway Bill or Straight Bill: Comparison with Bill of Lading
4. Bill of Lading under Hague, Hague-Visby, Hamburg and Rotterdam Rules
4.1. Contents of the Bill of Lading
4.2. Carrier Liability
4.3. Correlations between Bills of Lading and Charter Parties
5. Downsides of the Bill of Lading
5.1. Delivery without Original Bill of Lading
5.2. Claims Relating to Cargo Loss and Damage
6. Technological Development and Future of the Bill of Lading
6.1. Digitization of the Bill of Lading
6.2. Impact of Block Chain Technology on the Bill of Lading
Conclusion
Bibliography
Chapter 11
The Utilization of Online Platforms for Judicial Sales of Ships: A Chinese Law Perspective
Abstract
1. Introduction
2. Conceptualisation of Online Judicial Auctions of Ships
2.1. Judicial Auctions and Ship Auctions
2.2. Auctions, Judicial Auctions and Online Judicial Auctions
2.3. Concluding Remarks
3. Practice of Online Judicial Auction
3.1. Preconditions to a Judicial Auction
3.2. Preparations for Auction
3.3. Auction
3.4. Observations
Conclusion
Bibliography
Chapter 12
The Legal Authentication of Electronic Evidence of Blockchain in Shipping: A Chinese Law Perspective
Abstract
1 Introduction
1.1. Background
1.2. Purpose and Structure
2. Legal Authentication of Electronic Evidence under Chinese Law
2.1. Identification of Electronic Evidence
2.2. Problems with Identification of Electronic Evidence
2.2.1. Authentication of Electronic Evidence
2.2.2. Judicial Procedure for Authenticating Electronic Evidence
3. Electronic Evidence in Maritime Trials
3.1. Application of Electronic Evidence in Maritime Trials
3.2. Problems of Application of Electronic Bills of Lading in Maritime Trials
4. Blockchain Technology in Authenticating the Validity of Electronic Evidence in Shipping
4.1. Changes to the Authentication of Origin
4.2. Improvements to Recognition of Authenticity of Electronic Evidence
4.3. Improvements to the Authentication of Relevancy of Electronic Evidence
4.4. Improvements to Authentication of the Legality of Electronic Evidence
5. China's Solution: Law and Jurisdiction Perspective
5.1. Improving Evidence Authentication of Blockchain Bills of Lading
5.1.1. Improving Standards and Principles of Evidence Authentication
5.1.2. Legislation for Authenticating Electronic Evidence in Maritime Proceedings
5.1.3. Standards for the Notary in Blockchain Electronic Evidence
5.2. Choice of Judicial Direction for Blockchain Bills of Lading
5.2.1. Introduction of Blockchain Devices to the Maritime Judicial System
5.2.2. Establishment of Maritime Litigation Blockchain
Conclusion
Bibliography
Chapter 13
International Labour Dispute Resolution in China's Belt and Road Initiative: Procedural Challenges for Implementation
Abstract
1. Introduction
2. Labour Dispute Resolution Problems in China
2.1. Overview of Labour Dispute Resolution Problems in China
2.2. The Legal Vacuum Problems in China's Transnational Mechanism
2.3. Problems of Conflicting Decisions
3. Established International Practice of Transnational Labour Dispute Resolution
3.1. Analytical Overview of Labour Dispute Resolution System
3.2. Established Practice of Transnational Labour Dispute Resolution in Europe
3.2.1. Preemptive and Harmonization Mechanism of EU
3.2.2. Substantive Part of EU FTA Mechanism
3.2.3. Procedural Part of EU Trade Agreements
3.3. Established International Practice for Transnational Labour Dispute Resolution in North America
3.3.1. Overview of U.S. FTAs
3.3.2. Substantive Part of U.S. FTAs
3.3.3. Procedural Part of U.S. FTAs
4. Challenges for China to Implement International Practice
4.1. Challenges in Respect of Implementation of EU Practice in the BRI
4.2. The Domestic Challenges of Implementing U.S. Practice in China's BRI
4.3. Procedural Nature of the Challenges
5. The Maritime Labour Dimension
Conclusion
Bibliography
Chapter 14
Regulation of Marine Plastics Litter: IMO Efforts to Resolve the Crisis
Abstract
1. Introduction
2. Problem of Marine Plastics Pollution
3. Marine Plastic Litter Addressed in International Instruments
3.1. Preliminary Remarks
3.2. The Law of the Sea and UNCLOS
3.3. IMO Conventions
3.3.1. MARPOL Annex V
3.3.2. London Convention on Dumping, 1972 and its 1996 Protocol (LC-LP)
3.3.3. Hong Kong Convention on Recycling of Ships (SRC)
3.4. Para Droit Generated by IMO
3.4.1. Preliminary Remarks
3.4.2. IMO Guidelines
3.4.3. Guidelines Issued by Other Organizations
4. The Role of IMO and Its Instruments: Assessments and Potentials
Conclusion
Bibliography
Chapter 15
The Principle of State Consent Revisited: An UNCLOS Jurisprudence Perspective
Abstract
1. Introduction
2. Importance of State Consent
3. State Consent and Jurisdiction of UNCLOS Annex VII Arbitral Tribunals
3.1. Role of Annex VII Arbitration in the UNCLOS Dispute Settlement Mechanism
3.2. Expanding Jurisdiction of UNCLOS Annex VII Arbitral Tribunal
3.2.1. Lowering the Pre-Conditions of Section I
3.2.2. Expanding Jurisdiction Ratione Materiae
4. State Consent and Advisory Jurisdiction of ITLOS as a Full Tribunal
4.1. Expanding Tendency of Advisory Jurisdiction: From PCIJ to ITLOS
4.2. Conflict between State Consent and Advisory Jurisdiction
Conclusion
Bibliography
Chapter 16
The Insurable Interest in the Stoppage in Transit under English and Chinese Marine Insurance Law: A Comparative Analysis
Abstract
1. Introduction
2. Hypothetical Scenario Setting the Stage
3. Preliminary Observations Pertinent to the Substantive Discussions
4. Fundamental Precepts
4.1. International Carriage of Goods by Sea
4.2. Insurable Interest
4.3. Stoppage in Transit
4.4. Contract Terms
4.4.1. Cost, Insurance and Freight (CIF)
4.4.2. Free on Board (FOB)
4.4.3. Cost and Freight (CFR)
5. Insurable Interest under English and Chinese Law
5.1. English Law
5.2. Chinese Law
5.3. When Must Insurable Interest be Demonstrated?
5.3.1. English Law
5.3.2. Chinese Law
5.4. Who Has Insurable Interest?
5.4.1. English Law
5.4.1.1. Passing of Property
5.4.1.1.1. CIF
5.4.1.1.2. FOB
5.4.1.2. Passing of Risk
5.4.1.2.1. CIF
5.4.1.2.2. FOB
5.4.2. Chinese Law
5.4.2.1. Passing of Property
5.4.2.1.1. CIF
5.4.2.1.2. FOB and CFR
5.4.2.2. Passing of Risk
5.5. From the Legalistic to the Pecuniary Interest Approach
6. Insurable Interest in the Context of Stoppage in Transit
6.1. Position in English Law
6.2. Chinese Law Position
7. Goods damaged or Lost when Unpaid Seller Stops Delivery to Buyer
7.1. English Law
7.1.1. CIF
7.1.2. FOB
7.2. Chinese Law
7.3. Comparative Analysis
Conclusion
Bibliography
Chapter 17
The New Maritime Traffic Safety Law in China: A Comparative Analysis and Future Perspectives
Abstract
1. Introduction and Background
2. Holistic Review of the New MTS Law
2.1. General Overview
2.2. Features of the New MTS Law
2.3. Major Changes in the Revised MTS Law
3. Comparative Analysis
3.1. Structural Comparison
3.2. Comparison Re Punitive Measures
3.2.1. New Changes in Penalty Types
3.2.2. New Changes in the Subject of Punishment
3.2.3. New Changes in Penalty Amount
4. Case Study: Selected Unlawful Acts
4.1. Invalid Certification
4.1.1. Watch Keeping Duties
4.1.2. Aids to Navigation (AtoN)
4.1.3. Maritime Radio Communication
4.1.4. Pilotage
5. Key Management Issues Regarding New MTS Law and its future Prospects
5.1. Management of Ship and Crew to be Effectively Strengthened
5.2. Maritime Support System to be Enhanced
5.3. Maritime Safety Supervision to be Reinforced
5.4. Mechanisms for SAR Emergency Response, Accident Investigation and Handling System to be Improved
Conclusion
Bibliography
Chapter 18
The Delocalisation of Maritime Dispute Resolution: Changes, Challenges and New Initiatives Affecting Access to Justice
Abstract
1. Introduction
2. Essentialities of Methodology Employed in Context
2.1. Rationale and Methodology of this Research
2.2. Justice in Relation to Commercial Reality, Fairness and Procedure
2.3. Maritime Disputes and Maritime Arbitration
2.4. Seat of Arbitration and Its Legal Implications for Access to Justice of the Parties
3. Role of Arbitration in the Development of General Maritime Law
3.1. Standard Form Contracts in Arbitration and Shipping Industry Practices
3.2. Standard Arbitration Clauses
3.3. Influence of English Law on Shipping Law and Maritime Arbitration
3.3.1. London Arbitration
3.3.2. London-Based Arbitral Bodies, Specializing in Maritime Arbitration
4. Delocalization of Maritime Dispute Resolution: Recent Changes and Present Challenges
4.1. Delocalization and Denationalization of Maritime Dispute Resolution
4.2. Pros and Cons of Maritime Arbitration under LMAA Terms
4.2.1. Problems with Appointment of Arbitrators from Countries of the Parties and LMAA Membership
4.2.2. Flexibility under LMAA Arbitration and Access to Justice of Parties
4.2.3. Key Roles and Procedures
5. Delocalization and Justice: Pros and Cons of the LMAA Rules
5.1. Cost-Saving Approaches in Maritime Arbitration
5.1.1. Documents-Only Arbitration to Reduce Costs
5.1.2. Two-Arbitrator Tribunal: Simplification of Procedure and Cost Reduction Measure
5.1.3. LMAA Arbitration Rules in Practice
5.2. Denationalization of Arbitration: Lessons Learned from Chinese Parties in London Maritime Arbitration
5.2.1. Responses from Chinese Parties
5.2.2. Response from the LMAA
6. Downsides of Delocalization and Solutions
Conclusion
Bibliography
Index
About the Editor
About the Authors
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