Maritime Law Extended to Inland River Transport Constructive to High Quality Development of Shipping

Chen Lu

Towards the end of 2018, the Ministry of Transport issued the Maritime Law of the People's Republic of China(Revised Draft for Comments) and its Revision Explanation, soliciting opinions from all walks of life. What people are most concerned about regarding the Revised Draft for Comments is the incorporation of domestic waterway freight transport into the adjustment scope of the Maritime Law, and the applicable provisions of the Law for ownership of ships under construction,mortgage of ships under construction and lien of ship. Among them, whether inland river shipping should be included in the revision of the Maritime Law is still the focus of debate in the industry.

In 2018, the maritime legal circles held on several occasions seminars and revision forums on the“Maritime Law”for extensive discussions for related legal issues of inland water transport and inland waterway vessels. Some experts held that it is necessary to extend the scope of application of the Maritime Law to inland river transport in order to solve the problem of legal application in judicial practice and promote the healthy and orderly development of inland navigation. Some experts were“definitely and resolutely opposed”,arguing that the amendments to the Maritime Law do not have a relatively strong rationale for bringing inland waterways and inland watercraft into the Law, and that the proposed inclusion will cause “disruption” to the existing legal system. At the Ninth International Symposium on Maritime Law, Hou Wei,director of research at Wuhan Maritime Court, pointed out that at present, the most controversial point about the revision of the Maritime Law is whether the Maritime Law can be applied to inland waterways. “Just like a ‘trouble maker’, it is a tangled issue.”

With no statutes to apply, prompt changes urged?

China did not make separate legislation on inland waterway shipping,and the scope of application of the Maritime Law did not include coastal transport and inland river transport. In order to standardize and unify the legal application of domestic waterway freight transport, the Supreme People's Court formulated the guiding opinions on legal issues concerning domestic waterborne cargo transport disputes in 2012, clearly stipulating that the people's court shall apply the General Rules of Civil Law and the Contract Law in the trial of disputes over domestic waterway freight transport and may refer to the relevant provisions of the Domestic Regulations on Waterway Cargo Transport adopted in 2000.

However, the Domestic Regulations on Waterway Cargo Transport were abolished in May 2016, which led to the lack of special laws and regulations governing domestic inland waterway transport and coastal transport, and the application of inland goods transport laws has become increasingly prominent.Some insiders put forward at the exchange meeting that it is far from enough to apply the General Rules of Civil Law and the Contract Law to adjust inland waterway shipping, not only lack of professionalism,but also unable to cope with many details.For example, it is difficult to find the corresponding provisions in the Contract Law for special matters relating to water transport such dangerous goods, deck cargo, reasonable deviation, etc. The good legal system for marine transport established for many years can not be applied in inland river and coastal transport, which brings great trouble and confusion to judicial trial and business practice. “Therefore, the application of China's Maritime Law should be extended to inland river transport,” Hou Wei said.

In addition to the lack of relevant regulatory literature, the rising status of inland navigation and the increasing complexity of the situation have also become the focus of attention. China is a large country in maritime transport and inland waterway shipping. Inland river shipping is an important part of China's comprehensive transport system.On the one hand, in order to improve navigation efficiency and reduce logistics costs, China has actively promoted the development mode of multimodal transport such as river-sea direct transport, road,railway and water combined transport,this means that inland river shipping will play a more important role in China's domestic transport network in the future.On the other hand, the Yangtze River is the world's largest shipping waterway for inland river freight. At present, the country is actively advocating the Yangtze River economic belt strategy,greatly promoting regional economy development of the Yangtze River water system. In view of this, the advocators believe that, in the Chinese current judicial practice, the gap between the rapid development of inland waterway shipping and coastal transport and the relevant national legislature and jurisdiction has become more and more prominent. The dilemma of no statues to follow must be overcome as soon as possible. “An increasing number of ocean-going vessels can sail on inland rivers, but inland vessels cannot sail in the ocean, which raises many questions -is the Maritime Law applicable? When an oceangoing ship and inland river vessel collide with each other in the inland river basin, the ocean-going vessel enjoys the limitation of liability for maritime claims,but the inland river vessel bears full civil liability. How is the fair rule of law reflected?” Hou Wei noted.

Moreover, the advocators represented by Hou Wei also believe that transport is an undertaking developed for the public good, and the public good brought by inland river transport should not be ignored. “It is because the transport industry is an industry for public services and public facilities that the law provides preferential policies. If the legal profession actively encourages shipping, it should also encourage inland water transport.” He said, therefore,when considering the development of inland water shipping and the preparation of relevant laws and regulations, it is necessary to look at problems from the perspective of development and to face squarely changes in the environment caused by the development of inland waterways. Modern issues cannot be explained with traditional theories and traditional thinking. “It's time to change,” an insider of the maritime legal profession remarked.

Right time for inclusion in the system?

The position of inland waterway shipping is increasingly improving,but adjusting the regulations governing inland river transport remains “blank”.The industry sources have put forward a variety of improvement schemes, among which, the industry call on using the revision opportunity of the Maritime Law for improvement is the loudest and also the most controversial. Because of the limited legislative resources in China,it is difficult to legislate separately in a short period of time. Therefore,advocators propose extending the application of the Maritime Law to inland waterway transport when revising the Maritime Law.

Many scholars agree with this view. They believe that because of the extremely tight legislative resources in China, it seems that it will not be feasible in the short term to establish a separate law to regulate the transport of coastal inland waterways. In addition,the current amendment of the Maritime Law has already entered the legislative plan of the National People's Congress.This will be the best opportunity for solution to domestic coastal and inland river cargo transport. Yang Yuntao,vice director of the Communications and Logistics Division of the China Merchants Group, noted that domestic waterway transport not included in the adjustment of the Maritime Law at that time was not because the risks of inland waterway shipping and coastal transport were small. It was largely due to the fact that domestic waterway transport at that time was subject to the adjustment of the planned economy, with not strong marketization and contract orientation,completely different from carriage of goods by sea with high degree of marketization and closely in line with the international practice. At present,with the overall opening of the domestic market, China urgently needs to use a unified normative system to manage and guide the two markets to gradually form a unified and complete operation system.Furthermore, it is difficult to consider the special arrangement of inland river and coastal transport in the future civil code legislation, and it is also difficult to replace civil legislation with administrative legislation even if domestic water transport legislation is considered in the future. “So the revision of the Maritime Law to bring inland and coastal transport into the scope of adjustment is a golden opportunity that must be seized," he added.

There have also been some objections to the idea that inland water vessels and inland waterways should be included in the regulation of the Maritime Law. Some scholars think that “The saying that inland water transport has no statues to be followed is a pseudoproposition”, “The proposal to be incorporated is more like ‘making a mess’”; ocean navigation has a higher risk, so the Maritime Law must maintain its particularity and cannot be applied to inland river vessels. In response, Hou Wei said that with the progress of science and technology and the continuous development of the shipbuilding industry,the ship's resistance to risks has been greatly improved, and safety has also been improved. Extending the application of the Maritime Law to inland rivers will solve some practical contradictions and will inevitably lead to new contradictions and new problems. But sometimes we need to solve the old contradictions with new contradictions and solve the old problems with new problems, this is also fully in line with the law of the movement and development of things. As long as we make joint efforts and give full play to collective wisdom, I believe we can overcome these difficulties.

In addition, Hou Wei specially stressed that in promoting the healthy and orderly development of inland water navigation, it is not possible to solve the problem by applying the Maritime Law to inland river transport alone, legal perfection is only a necessary condition,and we have to set up the thinking and concept of system governance. According to the actual situation, it is necessary to consider establishing a threshold for market access in line with the long-term development goal of inland waterway shipping in China, further strengthen the law enforcement and supervision of inland waterway maritime affairs,vigorously train and attract highquality inland water shipping personnel,establish a more scientific and perfect inland waterway shipping insurance system, develop and popularize the standard contract of inland waterway shipping in time, and cultivate the spirit of contract and the sense of good faith and so on.

“In the age of globalization,domestic and international rules can also be unified.” Zhu Guangxin, a researcher at the Research Institute of Law of the Chinese Academy of Social Sciences, said at the First Round Table on the Rule of Maritime Law held earlier that if the rules of inland river transport system were to be incorporated into the “Maritime Law”,it is necessary to consider whether the general provisions of the Maritime Law can regulate the contract for the carriage of goods in inland rivers, e.g.,whether principle and general provisions of general provisions, crew, ship, ship collision, salvage at sea, general average and time limitation, etc. can be equally applied to the contract for the carriage of inland river cargo. If the answer is in the affirmative, the inclusion is certainly possible; otherwise, it’s another story. Up to now, such discussions have been extensive and sufficient as whether the scope of application of the Maritime Law should be extended to inland water vessels and transport and these achievements will become the cornerstone of the legal construction of inland water navigation in China in a bid to help China's shipbuilding and shipping industries to achieve higher quality development.