The adoption of the Hague Rules was significantly influenced by the U.S.Harter Act of 1893 enacted to prevent the U.K.carriers from misuse of freedom of contract by stipulating a large number of exemptions of liability in bills of lading.Remarkably,the Hague Rules have three features:first,the limited regulating scope,i.e.appli-cation to contracts of carriage covered by bills of lading or any similar documents of title only,limited contents of the Hague Rules and exclusion of three situations from application;secondly,the mandatory application,i.e.stipu-lating the carrier's minimum obligations and liabilities and maximum rights and exemptions of ability and rendering the provisions of contracts of carriage or bills of lading relieving the stipulated carrier's liability invalid;thirdly,the specificity of provisions,especially the catalog of carrier's exemptions of liability.The implementation of the Hague Rules achieved basic internationalization of the law of carriage of goods by sea at least in the 1960s,and is still playing a fundamental role in such internationalization.The successful experience of the Hague Rules proves that an international maritime treaty needs to have the above three features in order to serve the purpose of interna-tional uniformity of the legal rules in a particular area.The carrier's liability regime adopted by the Hamburg Rules and the Rotterdam Rules respectively which is deemed as beyond the actual commercial need,together with the de-fects of the Hamburg Rules in the specificity of provisions,or the defects of the Rotterdam Rules in the limited regu-lating scope and the mandatory application,can be deemed as the main reasons of the failure of the two rules in a-chieving internationalization under the background that most developed shipping countries hold the understanding that the current carrier's liability regime based upon the Hague-Visby Rules remains appropriate and no significant change is required.The international treaties on the carriage of goods by sea and domestic laws have the commonali-ty of establishing legal regime in this regard.However,the contents of a treaty are subject to the achievement of in-ternational community's consensus or majority views and therefore don't pursue the integrity of the regime.A do-mestic law is based on the overall economic interests of the country and pursues the integrity of the regime either by transforming or incorporating a treaty ratified or acceded to into domestic law,or by absorbing or reference to a trea-ty neither ratified nor acceded to.Based upon the correct understandings of the relations,legislative commonalities and differences between international treaties and domestic laws,and in consideration of that ratification of the Rot-terdam Rules is not favorable to the overall interests of China and that the Rotterdam Rules have the above defects,China's cautious attitude towards ratification of the Rotterdam Rules is appropriate.However,the revision of the Chinese Maritime Code for improving the hybrid regime adopted in Chapter Ⅳ needs to actively make reference to or absorb the reasonable and mature contents of the Rotterdam Rules,inter alia,Chapter 3"Electronic transport re-cords"and Chapter 8"Transport documents and electronic transport records"for the purpose of establishing elec-tronic transport record regime,Article 37"Identity of the carrier",the provision of receipt and delivery of goods in Article 13"Specific obligations"to improve the carrier's obligation of care for the goods,the approach of combi-ning carrier's exemptions and burden of proof in cargo claims in Article 17"Basis of liability",Article 27"Deliv-ery for carriage",Article 29"Shipper's obligation to provide information,instructions and documents",Article 43"Obligation to accept delivery",Article 44"Obligation to acknowledge receipt"and Article 48"Goods remaining undelivered",Chapter 10"Rights of the controlling party"and Chapter 11"Transfer of rights".
Hague Rulesinternationalization of lawinternational treatyhybrid regimerevision of the Chinese Maritime Code
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