CHINA Trends and Developments Contributed by: Chen Leiming, Yuan Yuan and Tingxin Yu, Kangda Law Firm
lowing conditions: they must be capable of being retained and accessible for subsequent reference; their contents must remain complete and unaltered; the issuer must be identifiable; and the method of verifying the holder’s identity must be reliable. Nego - tiable electronic transport records must also include the information required for negotiability and the pro - cedures for their transfer. Conversion between elec - tronic transport records and transport documents is permitted. The above provisions are specified in Articles 82 to 86. Enhancement of systems for marine ecological and environmental protection In alignment with relevant international conventions to which China is a party, a new chapter titled “Liability for Oil Pollution Damage from Ships” (Chapter XII) has been added to the revised Maritime Code. It clarifies the scope of compensation for oil pollution damage caused by ships under Article 225, and Article 226 stipulates that liability for oil pollution damage shall be borne by the ship-owner of the vessel from which the oil escaped. Article 229 establishes a compulsory liability insurance system for ship-source oil pollution damage and provides for the improvement and imple - mentation of a ship-source oil pollution compensation fund system under existing law. Separate sections have been specifically dedicated to regulating liability for pollution damage caused by the carriage of persistent oil by sea (Section 2) and liability for pollution damage caused by a ship’s bunker oil (Section 3). Simultaneously, pursuant to Articles 37 and 40, the duties of the master in preventing and reducing marine environmental pollution are clarified. Moreover, Article 180 states that neither the salvor nor the salved party may contractually exempt themselves from their statutory obligations to prevent or mitigate environmental damage. Improvement of rules on the application of law in foreign-related matters First, Article 295 explicitly states that the provisions of Chapter IV, “Contract of Carriage of Goods by Sea”, of the revised Maritime Code shall apply mandatorily to international contracts of carriage where the port of loading or the port of discharge is located in the
People’s Republic of China. Second, supplementary refinements have been made to the rules governing the application of law in certain important foreign- related relationships. Examples of these improve - ments include the following. • Under Articles 296 and 297, it is additionally provided that the law of the state of registration shall apply to the ownership and mortgage of ships under construction that are registered, while the law of the place of construction shall apply to those not registered. • The law of the place where the ship is detained shall apply to a possessory lien on a ship, based on Article 299. • In accordance with Article 300, the priority of satis - faction among maritime liens, possessory liens on the ship, and ship mortgages shall be governed by the law of the forum where the action is brought. • Under Article 302, the parties may agree to choose the law applicable to claims for general average contribution; in the absence of such an agreement, the law of the place where the common maritime adventure terminated shall apply. • Pursuant to Article 303, limitation of liability shall be governed by the law of the forum where the action is brought. • Liability for oil pollution damage from ships shall be governed by the law of the place where the pollu - tion damage occurred, as stipulated in Article 304. Other significant revisions Limitation period Pursuant to Article 284, the commencement point of the one-year limitation period for claims arising from the carriage of goods by sea is determined differently depending on the party against whom the claim is made. For claims against the carrier or the actual car - rier, the period shall be calculated from the date the goods were delivered or should have been delivered. However, for claims against the shipper, consignee, or holder of the transport document, the period shall be calculated from the date the obligee knew or ought to have known that its right was infringed. Regarding claims for general average contribution, in accordance with Article 290, the one-year limitation period shall be counted from the day on which the
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