HONG KONG SAR, CHINA Law and Practice Contributed by: Christopher Andrew Potts, Crump & Co
3.4 Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties (1969) (VCLT) only applies as a relevant interpretive aid when construing international treaty-derived regimes, instead of as a treaty. The VCLT is listed in the Hong Kong Department of Justice’s official list of treaties as one of the multilateral agreements in force and applicable to Hong Kong. Although Hong Kong can - not independently accede as a separate treaty party, since China acceded to the VCLT in 1997, China’s treaties can apply to the Hong Kong Special Admin - istrative Region (HKSAR) after consulting the Hong Kong government under Article 153 of the Basic Law. 3.5 Procedure and Requirements for Establishing a Limitation Fund The Merchant Shipping Ordinance (Chapter 434) gov - erns the process of establishment of a limitation fund. The right to constitute a fund is available to ship-own - ers, charterers, managers, operators and salvors. The fund’s value is based on the ship’s limitation tonnage (or cargo tonnage for specific claims), plus interest. The party claiming entitlement to limit starts a limita - tion action, often by issuing a writ in the court of first instance against potential claimants. The court issues a limitation decree, staying other proceedings and set - ting a deadline for claims. Payment into court (con - stituting the fund) is required, acting as the deposit to cover potential liabilities up to the limit. Competing claimants must file their claims within the set period against the fund. 3.6 Seafarers’ Safety and Owners’ Liability Applicable Domestic Legislation The requirements of the MLC, 2006, were implement - ed in Hong Kong in 2018. The primary legislation that incorporates the requirements of the MLC into local law is the Merchant Shipping (Seafarers) Ordinance (Chapter 478) and its associated subsidiary legisla - tion. The requirements include: • those regarding seafarers’ working and living conditions, such as minimum age, employment agreements, hours of rest, accommodation, food and catering, and repatriation; • ensuring seafarers hold valid medical fitness certifi - cates; and
• ensuring general health and safety protection and accident prevention on board ships, in compliance with relevant accommodation standards. 4. Cargo Claims 4.1 Bills of Lading Applicable conventions and laws in Hong Kong include: • Carriage of Goods by Sea Ordinance (Chapter 462) – this ordinance incorporates the Hague-Visby Rules into Hong Kong law, governing carrier liabili - ties and immunities for goods shipped from Hong Kong or under bills of lading; and • Bills of Lading and Analogous Shipping Documents Ordinance (Chapter 440) – this statute governs the transfer of rights and title to sue on bills of lading. The Rotterdam Rules have not been ratified or imple - mented in Hong Kong. 4.2 Title to Sue on a Bill of Lading The lawful holder of a bill of lading has the title to sue the carrier, as established by the Bills of Lading and Analogous Shipping Documents Ordinance (Chapter 440). Hong Kong recognises the transfer of this right through assignment, allowing a party to transfer their right to sue to another. However, the assignee steps into the assignor’s shoes, meaning any limitations (like time bars) remain. A lawful holder includes the consignee named in the bill of lading, any endorsee to whom the bill has been transferred, and any person who becomes the lawful holder through possession and endorsement. Assignment of Title to Sue Hong Kong recognises that sea waybills and ship’s delivery orders confer contractual rights to the person entitled to delivery under Chapter 440. When rights are assigned, the assignee (new holder) can sue in their own name, but they cannot be in a better position than the original holder (assignor). Hong Kong does not recognise a mere bare con - tractual assignment of rights under a bill of lading as
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