Development of Maritime Law in China Within the Last Five Years: Maritime Legislation, Cases and Jurisdiction
Humanities and Social Sciences
Volume 7, Issue 3, May 2019, Pages: 89-99
Received: Jan. 29, 2019;
Accepted: Jun. 5, 2019;
Published: Jun. 26, 2019
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Ma Deyi, International Law School, East China University of Political Science and Law (ECUPL), Shanghai, China
Zhou Mingyuan, International Law School, East China University of Political Science and Law (ECUPL), Shanghai, China
This paper examines the development of maritime law in China within the last five years, from the perspective of China's maritime legislations, cases and jurisdiction of the court, in light of the latest national strategies, such as building China into a maritime power, implementing the "Belt and Road" initiative and building China into an international shipping hub. Chinese maritime law is anticipating a reform. China has implemented various maritime-related laws and regulations in recent years, including the 2014 Waterway Law. Besides, the 12th National People's Congress Standing Committee has formally ratified the International Labour Organization's 2006 Maritime Labor Convention at its 16th meeting on August 29th, 2015. The Supreme People's Court has released ten maritime model cases in the conference celebrating the 30th anniversary of establishing maritime court in China. These model cases offer valuable guidance to maritime trials in the future. To improve the maritime adjudication and to turn China into a judicial hub for international maritime matters, China has undertaken reform to confer maritime court with jurisdiction to hold criminal hearings. Ningbo Maritime Court held a public court hearing over the case of "Catalina". It was the first criminal hearing in the maritime court of China. New elements of reform on criminal jurisdiction were also demonstrated in the trial of the case. Another important measure taken to perfect the admiralty jurisdiction in China is the regular publication of White Papers on maritime issues. These White Papers have summarized and highlighted some of the important maritime trials by the Maritime Courts in recent years. Meanwhile, the Supreme People's Court has issued the Notice of the Supreme People's Court on Issuing the Provisions on Case Guidance, which has made specific provisions on the guiding cases. Amongst the guiding cases released, some of them are relate to maritime matter.
Development of Maritime Law in China Within the Last Five Years: Maritime Legislation, Cases and Jurisdiction, Humanities and Social Sciences.
Vol. 7, No. 3,
2019, pp. 89-99.
See Lei CHEN, "The Historical Development of the Civil Law Tradition in China: A Private Law Perspective," (2010) 78 The Legal History Review159.
Lihong ZHANG, "The Latest Developments in the Codification of Chinese Civil Law" (2008) 83 Tulane Law Review 999, 1007.
Shiyuan HAN, "Civil Law Codification in China: Its Characteristics, Social Functions and Future" in Wang Wen-Yeu, Codification in East Asia: Selected Papers from 2nd IACL Thematic Conference (2014 Springer)
See Maritime Law of the People's Republic of China.
Robert Grime, Shipping Law (2ndedn, Sweet & Maxwell 1978) 2.
According to UNCITRAL, up to 22nd March 2018, 25 countries have signed the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules). Among the signatories, Cameroon, Congo, Spain and Togo have ratified the Rules. UNCITRAL, "Status - United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" (New York 2008) accessed 22nd March 2018.
See Maritime Law of the People's Republic of China, supra, art. 257.
YU Guo, Haishangfa de Jingshen, Peking University Press 2005, 83.
Provisions of the Supreme People's Court on the Judicial Interpretation Work, art. 5.
Deyi MA, "The Richness and System of Maritime Law as Supplementary Civil Law", 8 Social Science Front 202, 202-203.
Ibid 206. Also, as Robert Hillman speculates, "Contract law includes a rich combination of normative approaches and theories of obligation. It is divided by special rules for distinct kinds of contracts and is subject to many exceptions and counter-principles. Despite its many dimensions, contract law is a credible, if not flawless, reflection of the values of the surrounding society. A highly abstract unitary theory illuminates contract law, but it cannot explain the entire sphere." Robert A. Hillman, The Richness of Contract Law: An Analysis and Critique of Contemporary Theories of Contract Law (Springer 2012), 6.
Zhengliang HU and Siqi SUN, "The Basic Issues and Main Proposals for the Revision of the Chinese Maritime Code" (2017) 4 Chinese Revision of International Law 53, 53-54.
Eckart J. Broedermann, "China and Admiralty-An Introduction to Chinese Maritime Law and U. S-Chinese Shipping Relations" (1985) 16, Journal of Maritime Law & Commerce 65, 65-68.
See Leon E. Trakman The Law Merchant: The Evolution of Commercial Law. Fred B. Rothman& Co. Littleton 1983, 27-36.
Zhengliang HU, Shicheng YU &BingguiJiaRotterdam Rules: Consequences and Countermeasures. Peking University Press 2014, 445-449.
In an attempt to prevent further fragmentation, a new international initiative was launched. The Convention, "The Rotterdam Rules", has been drafted and opened for signature from 23 September 2009. See John F. Wilson, Carriage of Goods by Sea (7thedn Longman 2010), 230.
N. J. J. Gaskell, C. Debattista and R. J. Swatton, Chorley & Giles, Shipping Law, Pitman Publishing 1987, 109-110.
Paragraph 3 of Article 28 of Waterway Law has been amended according to "Decision of the Standing Committee of the National People's Congress on Amending Six Laws including the Energy Conservation Law of the People's Republic of China (including the Water Law of the People's Republic of China, the Law of the People's Republic of China on Flood Control, the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases, the Waterway Law of the People's Republic of China and the Law of the People's Republic of China on Environmental Impact Assessment" on 2nd July 2016. The Decision provides that "Paragraph 3 of Article 28 is amended to read: "The construction entity shall not commence construction if the impact of waterway navigation conditions is not assessed or if the examination department deems upon examination that the construction project fails to comply with the provisions of this Law. If a government investment project fails to undergo waterway navigation condition impact assessment or the examination department deems upon examination that the construction project fails to comply with the provisions of this Law, the department responsible for the approval of the construction project shall not grant approval."
Robert Grime, supra, 41-42.
N. J. J. Gaskell, C. Debattista and R. J. Swatton, supra, 115.
Regulation on the Administration of Domestic Water Transport.
Provisions on the Administration of Domestic Water Transport.
Provisions on the Administration of the Ancillary Business for Domestic Water Transport.
Notice of the Ministry of Transport on Effectively Conducting the Work concerning the Delegation of Approval of Domestic Waterway Transport by Foreign-Funded Enterprises to Lower Levels.
See Provisions of the People's Republic of China on the Conditions for Maritime Administrative Licensing Amendment, 2016.
See Provisions of the People's Republic of China on Inland-Water-Related Maritime Administrative Penalties.
See Announcement of the Ministry of Transport on Policies for the Pilot Programs of Maritime Transportation in National Free Trade Zones.
As scholars have observed, there are four types of cases being released. Type 1 cases restate the law which the facts in the cases fall neatly under the law. Type 2 cases provide literal interpretation of the law. Type 3 cases remedy the mischief of law. Type 4 cases demonstrate the application and interpretation of law when the law is ambiguous which a simple literal interpretation fails to resolve the uncertainty in the law. http://www.iolaw.org.cn/showNews.asp?id=31664> accessed 22 March 2018.
Ibid, DONG Hao, et al., 99.
See Supreme People's Court, Ten Model Cases in Maritime Trial, 3rd September, 2014.
See Provisions of the Supreme People's Court on Several Issues concerning the Application of Law during the Trial of Cases about Delivery of Goods without an Original Bill of Lading, Article 11, "The holder of an original bill of lading may require a carrier delivering goods without the original bill of lading and the person taking delivery of goods without the original bill of lading to bear the joint and several liability."
See Provisions Concerning the Limitation of Liability for Maritime Claims for Ships With a Gross Tonnage Not Exceeding 300 Tons and Those Engaging in Coastal Transport Services As Well As Those for Other Coastal Operations.
Ibid, Article 2, "These Provisions shall apply to the ships with a gross tonnage exceeding 20 tons and not exceeding 300 tons, and those with a gross tonnage exceeding 300 tons engaging in transport services between the ports of the People's Republic of China as well as those for other coastal operations."
"Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place;"
"If the tribunal is to consist of three arbitrators: (e) after the appointment of the third arbitrator decisions, orders or awards shall be made by all or a majority of the arbitrators."
See "The Judgment of the 2nd Mate of M/V Catalina, Allan Mendoza Tablate" accessed 14 September 2017.
"Three in one" mode of trial of is the conferment of criminal, civil and administrative jurisdiction to the Maritime Court. Since Maritime Court Judges have expertise in the "maritime elements" of the maritime criminal cases, instead of having criminal trials take place in general courts, the reform improves the efficacy and efficiency of maritime criminal trials. See also, (2017) "On Sea Law" ( accessed on 22nd March 2018
Senior Courts Act 1981 Article 6 (2).
Thomas J. Schoenbaum and A. M. N. Yiannpoulos Admiralty and Maritime Law, The Michie Company Law Publishers 2004, 3.
In 2010 the Supreme People's Court issued Notice of the Supreme People's Court on Issuing the Some Advice on Implementing the Criminal Policy of Combining Leniency with Rigidity. The Notice aimed to provide guidelines to courts at all levels for criminal adjudication.
Supreme People's Court, "China's Maritime Adjudication (1984-2014)" (26 October 2016) accessed 14April 2018.
See Provisions of the Supreme People's Court on the Judicial Interpretation Work.
The first cover of a marine policy is perils of the sea. Rule 7 of the Rules for the Construction of the Policy states that the term "perils of the seas" refers only to "fortuitous accidents or casualties of the seas." It does not refer to the "ordinary action of the wind and waves." See Robert Grime, supra, 244.