Cecca Newsletter November 2017

Issue Five November 2017
CECCA NEWSLETTER cecca.org.uk 1
CONTENTS
1.Special Observer
1.1 Comments on the Results of the 19th
Communist Party
of China National Congress…………….…………………………2-5
1.2 One Trick to Make Big Money in The Next Few
Decades ………………….…………………………………………………6
2.Financial Report
After the SDR: The Retrospect and Prospect of the
Internationalization of the Renminbi ………………………7-10
3. Knowledge Bank: Chinese Law
Chinese Legislation Relating to Bills of Lading and
Charterparties…………………………………………………….…11-13
4. Transport Law
Carriers Beware! – Circumstances in Which Navigation
Addresses Conflicting Liability Regimes (2) …………...14-19
5. Event: Call for Papers
CECCA
NEWSLETTER
Publisher: CECCA Editorial Department Publishing Director: Shengnan Jia, Dr. Lijun Zhao
Executive Editors: Haiyang Yu, Xiangyi Zhang
CECCA
China-Europe Commercial
Collaboration Association
Professional Consultancy on
Legal, Trade, Finance and Policy
Matters.
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The Ninth Maritime Law And Policy International Postgraduate Research Conference
2018……………………20

1. Special Observer
1.1 Comments on the Results of the 19th
Communist Party of China
National Congress
Authored by Haiyang Yu LL.M.1
The 19th
Communist Party of China (CPC) National Congress concluded on 24th
October, and Xi
Jinping addressed the report of the congress at the closing session, which provided us with the clear
picture of the intended plan of the Party for China’s next five years. One day later, as the result of
election, the new CPC Central Committee, as the new leadership for the Party and the country, was
born in Beijing and Xi Jinping was elected as the General Secretary of the CPC Central Committee
for the next five years. So, for maritime people and lawyers, what are those points you might want to
have a look at?
Fact 1: More People with Legal Education Background in the New Leadership
The new leadership of CPC was elected for the next 5 years, and the Standing Committee of the 19th
CPC Central Committee Political Bureau, with Xi Jinping holding the chair, is the group of 7 leaders
who will take the power of the party and the country for the upcoming 5 years.
1
Comments written by editor Haiyang Yu, LL.M. (Erasmus University Rotterdam)

2
3
2
Picture taken from Xinhua, < http://www.xinhuanet.com/politics/19cpcnc/index.htm> accessed on 17
November 2017
3
Picture taken from Xinhua, <http://news.xinhuanet.com/english/2017-10/25/c_136705714.htm>Accessed on
9th
November 2017

What is interesting to notice is that three out of those 7 people who have the most power in China
have legal education backgrounds, namely Xi Jinping having a Doctor of Law (Tsinghua Uni), Li
Keqiang with a LL.B. (Peking Uni) and Wang Huningwith a Master of Laws (FudanUni). This never
happened before the Era of Xi. For example, Hu Jintao, the former Chairman of China, has a degree
in hydraulic engineering.
Education has a vital influence on peoples’ values and their decision-making processes. Now that
more leaders of China have a legal education background, it shows the needs of the Party and the
whole country’s development. For example, from Xi Jinping’s report at the 19th
CPC national congress,
the Party believes that in the past five years, China has made major achievements and breakthroughs
in economic development, developing democracy and the rule of law.4
As for the plan for the
upcoming five years, the party will continue to improve the political system and develop so called
‘Socialist Democracy’, in which part the report says the party shall uphold the running of country of
people and law-based governance. Even though those leaders with legal education background were
not technically legal people – none of them were lawyers or judges before, and two of their legal
degrees were awarded on the basis of programs in political science – this does show the current needs
of reform in China’s political system and legal system.
Fact 2: ‘Rule of Law’ in Xi’s Report5
The expression ‘Rule of Law’ appears in Xi’s Report several times. In the report, the ‘Rule of Law’ has
close connection with ‘developing democracy’ and ‘advancing law-based governance’. The plan for
the next five years includes ‘Rule of Law’ and ‘Advancing Law-based governance’. 6
The party
apparently has realized the importance of the Constitution and the Law. Further measures include
building a ‘rule of law’ government, and carrying out ‘comprehensive and integrated reform of
judicial system and enforce judicial accountability in all respects’. The report also mentions that the
party shall ‘redouble efforts’ to raise public awareness of the law, and develop a socialist culture of
rule of law and emphasize the principle rule of law that the Constitution and the law is above
everything and the equality for everyone before the law.7
4
Xi Jinping, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive
for the Great Success of Socialism with Chinese Characteristics for a New Era’, Report at the 19th National
Congress of the Communist Party of China, on 18 October 2017 (Xi Jinping’s
Report)p.1<http://news.xinhuanet.com/english/special/2017-11/03/c_136725942.htm> Accessed on 9th
November 2017
5
Xi Jinping’s Report p.16
6
Ibid.p.34
7
Ibid.p.34

Fact 3: ‘A Community with Shared Future for Mankind’ -- Take ‘Belt and Road’ Initiative for
Example
In Part III of the report which is about the thought on Socialism with Chinese Characteristics and
the Basis Policy of the Party, it is made clear that, as far as the major diplomacy is concerned, the
Party will aim to foster a new type of international relations and build a community with a shared
future for mankind.8
The report points out that the ‘Belt and Road Initiative’ does contribute to achievements in economic
development, and it plays an important role in China’s Diplomacy. Furthermore, China will adhere
to the fundamental policy of opening up, and China will promote cooperation through the ‘Belt and
Road Initiative’.
9
8
Ibid. P.17
9
Pictures taken from website <https://eng.yidaiyilu.gov.cn/ztindex.htm> accessed on 9th
November 2017

In doing so, China aims to promote peaceful development and create platforms and bonds among
countries with common interests, and ‘to achieve policy, infrastructure, trade, financial, and people-
to-people connectivity’.10
Fact 4: ‘Build China into a Strong Maritime Country’ 11
Concerning the maritime part, on one hand the report addresses the policy in development of the
Yangtze Economic Belt, ‘by promoting well-coordinated environmental conservation and avoiding
excessive development’. 12
On the other hand, the Party will speed things up concerning the
development in the border areas, which definitely includes maritime borders, as well as the stability
and security of those areas. It was made clear that the Party will make efforts to build China into a
strong maritime country.
10
Xi Jinping’s Reportp.54
11
Ibid.P.29
12
Ibid.p.29

1.2 One Trick to Make Big Money in The Next Few Decades
Authored by Haiyang Yu LL.M.13
253.5 Billion US dollars, that was the latest total amount
of agreements on economic and trade cooperation
among companies from U.S. and China, within two days
after the ‘US-China Business Exchange’, which both
President Trump and President Xi attended, was held on
9th
November.
Trump brought with him some surprises to China, and
those American Businessmen were just one of them.
During his meeting with Xi, Trump showed a video, in which Trump’s cute granddaughter Arabella
performed her amazing speaking Chinese for 2 and half minutes, including singing two Chinese
songs and reciting Chinese ancient poetry. President Xi was amazed by Arabella’s Chinese, and he
was very happy when Arabella called him Grandpa Xi at the beginning of the video.14
He even invited
Arabella to visit China right after the video.
It can be seen that the
Americans have already used
Chinese as an efficient trick in
diplomacy. On the other side of
the world, along with more
trading opportunities with
China, speaking Chinese has
already become a big plus for
British graduates to find a well-
paid job. According to some
English media, the average
annual salary for graduates who majored in Chinese is normally 31k or higher pounds. It may take
13
Comments written by editor Haiyang Yu, LL.M. (Erasmus University Rotterdam)
14
According to the Chinese culture, even if two persons have no blood or legal relation, a kid may call an old
person “grandfather” to show her respect.

you twice the amount of time to graduate, but once you graduated, it would be all worth it. So
question is, will you take the challenge?

2. Financial Report
After the SDR: The Retrospect and Prospect of the Internationalization
of the Renminbi
Authored by Dr. Chi Zhang & Miss Shihui Yin15
1. From Impossibility to Success: The Opening-up Policies of RMB Market
As China’s official currency, the Renminbi (RMB) was officially added to the special drawing rights
basket (SDR) by the International Monetary Fund (IMF) in October 2016. Currently, whilst the US
dollar, euro and yen (so-called ‘G3’) still dominate the international financial system, the RMB has
been slowly catching up as the sixth primary payment currency in global markets and also the third
main funding currency in exchange markets of the world. The internationalization of the RMB has
been increasingly influential for the international economy, especially for neighbouring countries of
China since the ‘Belt & Road Initiative (B&RI)’. In this issue of CECCA newsletter, we review the
development of the RMB in the global market during recent years and its challenges, which may also
be useful for our readers in evaluating prospects for the internationalization of the RMB.
As early as the second half of the year 2009, the State Council of China took the lead to accelerate
the internationalization of RMB. Prior to this, Chinese economists and scholars also have carried out
a series of research on developing the RMB as an alternative payment currency, reserve currency as
15
Dr. Chi Zhang is a director of the financial report at the CECCA Editorial Department and a lecturer of law
at China University of Mining and Technology (Beijing); Miss Shihui Yin is a Member of the CECCA Editorial
Department and Chatham House, and an MA student at City, University of London specializing in diplomacy
and foreign policy.

well as a possible means of international transactions in international trade markets. Although such
a conception seems to be quite promising, in reality most practitioners did not believe that RMB can
be widely used as payment currency in cross-border markets, as the public credit of the Chinese
authorities is not sufficient enough for investors, and it also faces huge challenges from the
liberalisation of currencies in the international financial system.
Such a challenge for the RMB market has been changing after Xi Jinping took the presidential office
in late 2012. China Development Bank loaned 12 million yuan to Agricultural Bank of Kyrgyzstan,
which was the first pilot program of cross-border payment of RMB in financial market practice. As a
response, China is more open to foreign currencies in cross-border trading than ever before. For
example, the Chinese regulator has approved that some specified international goods sales can be
directly paid in cash by foreign currencies, and some international traders from western Asian
countries, such as Tajikistan Republic are allowed to use their own currencies for all kinds of goods
sales imported from China. The internationalization of the RMB during recent years facilitates
peoples’ daily lives and travels in neighbouring countries as well. Nowadays, most south-eastern
Asian countries like Vietnam and Thailand, have accepted RMB as their payment currencies in tourist
markets, which may advance economic cooperation in tourist industries between China and those
countries.
In the area of financial investment, RMB internationalization will be widely favoured by both the
Chinese government and global market participants. China stands as the world’s second largest
economy and its more than $3.9 trillion in foreign exchange reserves could greatly leverage China’s
monetary power. Along with the China-led Asian Infrastructure Investment Bank (AIIB), expecting
to have 85 members by end-2017, this provides China with a massive potential to demonstrate its

expansion of state capitalism and industrial production capacity to promote currency autonomy.
With the deepening of the institutional reform of Chinese financial markets, the importance of RMB
as one of reserve money will be continuously promoted. More than twenty countries have agreed to
establish offshore financial centres of RMB; these are strongly supported and encouraged by the
People’s Bank of China (PBOC). International investors and financial institutions are able to use and
trade RMB in those offshore centers. In order to decrease transaction costs of using RMB in the global
markets, China International Payment System (CIPS) was successfully launched by the PBOC in 2015,
by which the data of clearance, settlement and payment markets of RMB are shared in a real-time
manner. According to statistics from The Society for Worldwide Interbank Financial
Telecommunication (SWIFT), up to the end of June 2017 RMB has developed as the third primary
trade financing currency and the sixth primary payment currency in the world economy. It is widely
believed that the RMB is becoming the most important international currency in both the trading
and financial markets, and will be a very strong competitor to other primary currencies such as USD,
Euro and GBP.
2. A Promising Prospect for RMB in the Global Markets
In recent years, the RMB has cumulatively appreciated more than 6% against the USD. It can be
predicted that the continuous appreciation of RMB will firmly attract cross-border investors to hold
RMB as one of their payment currencies. In particular, the B&RI -related commercial activities will
definitely promote the internationalization of RMB and benefit China and the B&RI neighboring
countries.
The remaining question is whether RMB internationalisation will undermine the value of the US
dollar or cause conflicts between the current dominant currencies. IMF researchers (Maziad,
Farahmand, Wang, Segal and Ahmed, 2011) and Chinese scholars from Tsinghua University (Li and

Yi, 2010) suggest that the key determinants of currency internationalization are economic size,
macroeconomic stability, deeper financial markets and macroeconomic and structural policy
support. Also a large share of a country’s GDP to the world GDP, with large scale of domestic financial
market, large official reserves, continued appreciation of the currency for a certain period of time,
and convertibility of the currency. Therefore, what really challenges the US dollar is its own
unsustainable debt and weak economy. Further, the Chinese authorities have attempted to adopt a
gradual approach of currency liberalisation to internationalize RMB, with the lessons drawn from
the Asian financial crisis, and seek for their own currency autonomy and demand for a multicurrency
world monetary system within a growing multipolar world economy.
It was emphasized at the Fifth National
Conference of Financial Reform that China
promises to build up the financial infrastructure
for the B&RI initiative for the purpose of further
facilitating infrastructure construction and trade
settlement in Asian and middle-central European
countries. The economic co-operation within the
B&RI area will encourage more and more
countries to use RMB in commercial activities, which can effectively hedge the impact of exchange
rate of RMB and USD. From a global strategic perspective, the acceptance of RMB will be particularly
favored by those central and eastern European countries who are not members of the European
Union (EU), as the friendly economic cooperation with China will, to some extent, release their
pressure from the neighboring EU member states.
It is foreseeable that the member states of the Association of Southeast Asian Nations (ASEAN) will
be another community benefiting from the internationalization of RMB. It has been predicted that
there is no less than USD 110-180 billion demand for infrastructure construction in ASEAN member
states. Chinese enterprises have made commitments on more than a half of the above projects in
ASEAN countries, which motivate ASEAN members to reserve and hold more RMB as their
currencies for enhancing their co-operation with China.
Reference:
Li, D.K. and X.Z.Yi. (2010). Research on New International Monetary System and Post Financial Crisis.
Finance Research . No.2. 2010, Issue 356, 31 - 43.

Maziad S, P. Farahmand, S. Wang, S. Segal, and F. Ahmed. (2011). Internationalization of Emerging
Market Currencies: A Balance between Risks and Rewards, IMF Staff Discussion Note, SDN/11/17, Oct.
19, 2011

3. Knowledge Bank: Chinese Law
Chinese Legislation Relating to Bills of Lading and Charterparties.
Authored by Shengnan Jia16
1. The Maritime Code.
In the Chinese legal system, the Maritime Code
should be the only legislation dealing with commercial
maritime law issues17
. In the Code, Chapter 4, bearing
the title “Carriage of goods by sea” mainly deals with
legal issues on bills of lading and in essence
incorporates the Hague/Visby Rules and the Hamburg
Rules. The consequence of this situation is that where
international conventions stipulate explicit provisions
and interpretations to legal issues, the Maritime Code
provides for them adequately. But where issues are not
addressed by conventions and need to be dealt with by
domestic law, the Maritime Code is silent.
There are two chapters in the Maritime Code
involving charterparties. Chapter 4, as mentioned
above, bears the title "Contract of Carriage of Goods by
16
Shengnan Jia, qualified in P.R. China; Co-Founding Director of the CECCA; Doctoral Researcher, at City,
University of London; Member of Professional Committee of Maritime Law of Beijing Municipal Lawyers
Association; Member of China Centre Maritime, Southampton Solent University
17
It should be noted that there are some interpretations relating to bills of lading issued by the Supreme Court.
An example is the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of
Law during the Trial of Cases about the Delivery of Goods Without the Original Bill of Lading. China is a civil
law country dependent on statute law. But in practice, statute law cannot be amended according to the latest
situation. Therefore, the judicial interpretation of the Supreme Court becomes a source of law. However, there
is a general view questioning the legality of such an interpretation because Article 42 of the Legislation Law of
the People’s Republic of China provides that the power to interpret a national law shall be vested in the
Standing Committee of the National People’s Congress. The Supreme Court is not entitled to interpret law.
However, the opposite opinion is that the Standing Committee of the National People’s Congress has the
authority to interpret vague and ambiguous provisions, whereas the Supreme Court has the power to interpret
the application of the provisions. Regardless of which opinion is correct in China, judicial interpretation of the
Supreme Court is regarded to be valid at all times. In addition, there is no interpretation governing
charterparties.

Sea” provides one Section (Section 7) named “Special Provisions Regarding Voyage Charterparties”
stating the provisions of voyage charterparties in accordance with general principles issued by voyage
charterparty standard forms. However, such statutory provisions are not mandatory. In accordance
with Article 94 of the Maritime Code, only in the absence of agreed provisions or in the absence of
agreed provisions different from them, in voyage charterparties, such statutory provisions in the
Maritime Code can be applied18
. To be clear, in the Maritime Code, the freedom of contract pertaining
to a voyage charterparty is recognized and the validity of the agreed provisions in the voyage
charterparty has priority over the statutory provisions in the Maritime Code.
Chapter 6 in the Maritime Code has the
title “Charterparties” pertaining to two
types of charterparties, namely, time and
demise, but does not include voyage
charterparties. The time and demise
charterparties are subject to the principle
of freedom of contract in accordance
with Article 127 of the Maritime Code19
.
Only when the agreed provisions of
charterparties are silent on certain legal
issues, can the Maritime Code be applied.
Chinese academics contend that the structure of the Maritime Code is attributable to the theoretical
view that a voyage charterparty is similar to carriage under a bill of lading in that it is a contract for
carriage of goods by sea. In contrast, time and demise charterparties are distinctively different; they
are not carriage contracts as such. Some commentators claim that whereas the voyage charterparty
as a contract belongs to the genre of carriage of goods, the time and demise charterparties are
agreements relating to leases of property20
.
18
Article 94 of the Maritime Code provides that ”The other provisons in this Chapter (Carriage of Goods by
Sea) regarding the rights and obligations of the parties to a contract shall apply to the shipowner and the
charterer under a voyage charterparty only in the absence of the relevant provisions or in the absence of the
provisions different therefrom in the voyage charterparty”.
19
Article 127 of the Maritime Code provides that ” [T]he provisions concerning the rights and obligations of the
shipowner and the charterer in this Chapter (Charterparties) shall apply only when there are no provisions or
no different provisions in this regard in the charterparty (the time or demise charterparty)”.
20
Y. GUO, Maritime Law, Beijing, 2012, p. 167; see also, Z.X. ZHU, “Study on the Nature of a Time Charterparty”,
in Y.Z. SI, Z.W. LI, Study on the Theories of Chinese Maritime Law, Beijing, 2009, p. 381. In terms of the

2 Application of the Maritime Code.
As explained above, the Maritime Code suffers from
gaps and defects because international conventions
transplanted into the Maritime Code are not accurately
depicted. Sometimes maritime disputes need to be
resolved by other ways. One such way is to find relevant
provisions or general principles in the civil commercial
law domain, the rationale being that the Maritime Code
is a specific law under a civil commercial law system21
. It
is therefore natural for it to be subject to other civil
commercial legislation.
In legal practice, judges frequently refer to civil laws or
other commercial laws, such as the Contract Law. It is
submitted however, that the nature of maritime law is
such that it is not conducive to application of non-
maritime legislation for reaching the desired level of commercial justice. One reason is that the civil
commercial law in China is incomplete which leads to difficulties in finding the relevant rules to
match the maritime law. In addition to that, the maritime law contains special legal principles which
the general civil commercial law does not accommodate. As an example, there is no integrated
system to protect a third party in the Chinese civil legal system, unlike, for example, the Contracts
(Rights of Third Parties) Act 1999 of the UK and the Contracts (Privity) Act 1982 of New Zealand,
among others. Where the terms of a charterparty are incorporated into a bill of lading, and a third
party holds the bill, the privity of contract is broken. At issue is whether the right of the bona fide
third party is protected as a priority, or the particularity of the maritime regime should be considered
prior to the rights of the third party; in other words, whether the function of improving the transfer
contention in this part, it is elaborated in the author’s other article. If possible, it would be published at the
CECCA’s newsletter in the near future.
21
In China, the Civil Code and the Commercial Code continue to suffer from having gaps and lacunae. In the
academic literature some hold that China should adopt the legal system of uniformity in both the civil law and
the commercial law, whereas others think that the civil law and the commercial law should be independent.
Without considering the different opinions in theory; in practice, where a specific law in the civil commercial
regime is short of legal principles to resolve issues, the principles under the general law will be applicable. For
example, the Contract Law, as opposed to the Maritime Code, is a general law.

of the bill of lading should prevail over protecting the bill of lading holder. Such an issue is outside
the scope of any general law. Consequently, the general law cannot apply to all maritime issues.
Where the general law cannot remedy maritime issues, the judicial interpretation and the direction
of judges will play a crucial role. In order to explain this point, it is necessary to understand the
Chinese legal system. Because China is a civil law jurisdiction, the Code is the single source of law
and judges are not vested with the power to make law or interpret legislation. In theory, judges are
largely dependent on the statute law. Where statute law provides the relevant principles and the
approach to a legal issue, it is comparatively straightforward to make a judicial decision, but not
otherwise.
However, in practice the situation is quite complicated. The incomplete maritime legislation with
few legal principles has left stronger discretionary powers in the hands of judges causing multiple
judgments and interpretations in relation to incorporating arbitration clauses. Where there are
insufficient provisions or legal rules to follow, some judges might make a decision, according to their
own discretion. In recent years, in order to avoid multiple and separate judgments in judicial
decisions, Supreme Court judges have articulated several principles through responses to individual
cases. These are treated as “case guidance” or instructions to courts in future cases even though
judges of lower courts can still make decisions according to their discretion.

4. Transport Law
Carriers Beware! – Circumstances in Which Navigation Addresses
Conflicting Liability Regimes (2)
Authored by Dr. Lijun Zhao22
3. INTERNATIONAL CONVENTIONS GOVERNING DIFFERENT TYPES OF NAVIGATION -
ARTICLE 82 OF THE ROTTERDAM RULES.
Headed by the statement that “Nothing in this
Convention [RR] affects the application of any
of the following international conventions ...”,
Article 82 shows that the RR employ the
network-liability approach to deal with
potential conflicts between carriage
conventions. This Article is part of Chapter 17
of the RR (“Matters not governed by this
Convention”), which implies that the
circumstances described within Article 82 are
outside the scope of application of the RR (Berlingieri, 2009; Sturley et al., 2010).
The RR Article 82 (a) deals with the relationship between marine and air navigation in terms of
liability. Subparagraph (a) aims to prevent the RR from prevailing over any convention on the
carriage of goods by air (e.g. the Montreal Conventions) “to the
22
Dr Lijun Zhao is Lecturer in Law at Middlesex University School of Law, Co-Founding Director of the China-
Europe Commercial Collaboration Association (CECCA). Before joining academia, she was called to the Bar of
P.R. China. She also serves as a Qualified Fellow of the British Higher Education Association. This article is
originally published in Journal of Navigation, volume 68, issue 04, pp.784-790. The first two sections have been
published on Issue Four, CECCA NEWSLETTER.

extent that such convention according to its terms applies to any part of the contract of carriage”.
Even though the Montreal Convention (UN, 1999) does not govern any period of “carriage by land,
by sea or by inland waterway outside an airport”, two exceptions fall within the Montreal
Convention’s coverage (under Articles 38 and 18·4). First, if air navigation takes place “in the
performance of a contract for carriage by air, for the purpose of loading, delivery or trans-shipment,
any damage is presumed, subject to proof to the contrary, to have been the result of an event which
took place during air transport”. Second, if a contract of carriage stipulates that goods would be
carried by air, and a carrier arbitrarily changes to another transport mode (e.g. by sea) without the
consent of the consignor. Thus, under these two circumstances, the Montreal Convention on air
transport can regulate marine navigation; navigators need to be aware that their liability is regulated
by the air carriage convention rather than a marine convention.
Regardless of the fact that the RR are not applicable in the two cases mentioned above, Article 82 (a)
does not suffice to harmonise other conflicts with air transport conventions, if the mode of navigation
causing damages cannot be proved. For in- stance, suppose there is a multimodal-transport contract,
including (international) air and marine navigation; some goods are carried by the modes agreed by
the carrier and the consignee (not the second circumstance mentioned above), and the goods are
damaged; however, the mode of transport resulting in damages is not identified (if the mode is
known, it is the first circumstance mentioned above) (Diamond, 2009; De Wit, 2010). Since the

navigation mode causing damages is unknown, it is debatable whether a maritime convention (e.g.
the RR) applies or not.
Similarly, Article 82’s subparagraphs
(b), (c) and (d) prevent the RR to a
limited extent from conflicting with
any existing convention which applies
for the types of navigation governing
carriage by road, rail and inland
waterways. Potential conflicts would
arise between the RR and a broad range
of sea-and-road transport instruments
(Thermo Engineers v Ferrymasters
Ltd); the CMR is one of these and
applies compulsorily. Under
Subparagraph (b), the RR merely scratch the surface of the problem of conflicting rules between the
sea and the road navigation (e.g. the CMR Article 2) for a roll-on and roll-off (ro-ro) carriage, in which
the goods carried “remain loaded on a road cargo vehicle carried on board a ship”. Therefore, Article
82 (b) will prevent the RR from prevailing over the CMR, if only “goods ... remain loaded on a road
cargo vehicle carried on board a ship”. That is, in the event of a ro-ro contract of carriage, the RR
would not conflict with the CMR which apply to the whole carriage. Nevertheless, other potential
conflicts still remain under this subparagraph as to carriage by road and sea.
Likewise, the same problem also applies to the RR Article 82 subparagraphs (c) and (d). Under
Subparagraph (c), the RR come into play as the “supplement to the carriage by rail”, without a clear
definition of “supplement” (Sturley et al, 2010). Under Subparagraph (d) on inland waterways
carriage, the RR are prevailed over in the very limited case of carriage “without trans-shipment both
by inland waterways and sea”; however, in this case, the Budapest Convention (CMNI Article 2.2)
may not be applicable. Consequently, there is a possibility that an inland waterway carriage without
trans-shipment both by inland waterways and sea is governed by neither the RR nor the Budapest
Convention.
Therefore, Article 82 has not addressed very well conflicts between conventions on different modes
of transport in cases of multimodal carriage. These problematic provisions cause legal uncertainties
for navigators. To address the conflicts which arise from litigation over allocated (because
unprovable) damage or loss, there are two options: first, to admit that both the RR and a potential

conflicting carriage convention are applicable, so that either puts Article 82 within another chapter
(rather than the current Chapter 17 “matters not governed by this Convention [RR]”), or maintain
that Article 82 be part of Chapter 17 of the RR, amending the title of Chapter 17 (e.g. to “Matters
suspending the Convention’s application”); second, to clearly state which convention prevails over
the others, or to set out a uniform level of liability in the event of unallocated damage, loss or delay
(Si and Guo, 2008).
4. LIMITED NETWORK APPROACH FOR CONFLICTING LIABILITY OF NAVIGATORS. RR Article
26 aims to establish a limited network system on carriers’ liability with regard to maritime-plus
multimodal transport, in order to reduce the conflicts between the RR and other international
instruments. For the application of this Article, it must be proved which navigation mode is liable
for damages through the proof of the place where damages occurred (Rasmussen, 2010). However, if
it cannot be proved where the event (loss, damage, or delay caused) occurred, or if the damage was
caused during one leg and continued during following legs, Article 26 is not applicable (De Wit,
2010). Thus, if a case falls outside this Article’s ambit, Article 26 itself cannot avoid the conflicts
between compulsory rules of different modes of transport (Diamond, 2009).
Moreover, Article 26 has not dealt with the relationships between the RR and mandatory national
laws which conflict with the RR. This is because the words “international instruments” (Article 26)
do not cover national laws, so Article 26 does not apply.
Furthermore, the use of the words “international instrument” in Article 26 implies regulation of
regional economic organisations, and thus they have a broader connotation than the word
“convention” (between nations) in Article 82 (Rasmussen, 2010). It is worth noting that Article 26
does not circumscribe the international instruments like those “in force at the time this Convention

[i.e. the RR] comes into force” (Article 82); rather it embraces instruments activated “at the time of
such loss, damage or event or circumstance causing delay” (van der Ziel, 2009). As we have seen, the
RR might be overridden by certain future international instruments. Thus it must be borne in mind
that an uncertain number of potential instruments could lead to lack of predictability on a worldwide
level, and increasing legal risks.
Therefore, in the three categories of circumstances mentioned above, it is difficult to predict how
potential conflicts among different transport modes can be resolved. These conflicts could also
promote legal uncertainty concerning similar cargo litigation in different jurisdictions, and
accompanying increased legal costs. In order to handle the conflicts between the RR and related
national laws, the wording “international instrument, at the time of such loss, damage or ... delay”
needs to be replaced and ensure that merely “international conventions” “in force at the time this
Convention [i.e. the RR] comes into force” prevailing over the RR. This new extension within Article
26 will regulate the relationships between the RR and national instruments. (Namely, the RR could
prevail over the national instruments).
5. CONCLUSION.
In short, the Rotterdam Rules include scope for maritime-plus coverage, applying to all modes of
transport. However, they have not sufficiently dealt with the conflicts between various rules for
different kinds of transportation and navigation. As regards multimodal transport containing a
seaborne leg, the RR could potentially conflict with a considerable number of international
conventions, instruments and national laws, which govern air, land and marine navigation. Indeed,

the conflicts become more difficult to harmonise when these rules apply compulsorily on air or land,
or inland waterway legs.
To avoid such conflicts, Articles 82 and 26 of the RR should cater for certain conflicts among various
legs in order to achieve a uniform sea cargo regime, but, as mentioned above, they only apply to a
limited number of circumstances from a wide possible range of conflicting events. Owing to this,
unaddressed conflicts will contribute to a considerable degree of uncertainty.
This issue of legal uncertainty is of importance from at least two perspectives. On the one hand, a
party would have difficulty in ascertaining its legal rights and liability when it enters a contract of
carriage. Article 26 itself has not addressed the issue that in some circumstances a contracting state
under the RR and another international convention may face incompatible obligations (Sturley at
al., 2010). Additionally, when a particular issue arises within a jurisdiction, it is likely to face
considerable legal costs to ensure compliance with related instruments and national laws. On the
other hand, from the perspective of a group of contracting states with similar problems, despite the
omission of any provision allowing the contracting state to embrace its national law in Article 26, it
is very difficult for a court to take account of both the Convention itself and of national laws (Bell,
2010). This is because the national law regarding the damages and loss may be governed by foreign
law, but a court usually has difficulty in identifying appropriate applicable laws, and also in dealing
with the conflicts between different mandatory rules of the international carriage conventions which
themselves are already very complex.
A comprehensive safeguard may address the problems of conflicts caused by Articles 82 and 26. An
earlier draft of the RR stated that “nothing contained in this Convention (the RR) prevents a

Contracting State from applying any other international instrument which is already in force at the
date of this Convention and that applies mandatorily to contracts of carriage of goods primarily by a
mode of transport other than carriage by sea” (RR Draft Article 89).

5. Event: Call for Papers
[LUMLPG] The Ninth Maritime Law And Policy International
Postgraduate Research Conference 2018
The London Universities Maritime Law and Policy Group and the International Commercial and
Transport Law Group [LUMLPG] is pleased to announce that the ninth maritime law and policy
international postgraduate research conference 2018 will be held at City, University of London on 20
April 2018. Now the organizer invites all researchers and postgraduate students wishing to present
their research to a friendly and supportive environment to join us at this conference. Submissions in
all areas of Maritime Law and Policy, including relevant interdisciplinary work, are very welcome.
Intending speakers should prepare an abstract (250 words) in Word and send it to
Shengnan.Jia@city.ac.uk. All submissions must include your institution, a contact address, an email
address and a contact phone number. Each speaker will present their research ideas or papers for 15
minutes and a 10-minute discussion will follow. Abstracts are invited from academics, industry
professionals and students (Masters or PhD) alike. The deadline for the submission is on 16th
February 2018.
To register your interest or to book a place at the Maritime Conference, please contact Ms. Shengnan
Jia at Shengnan.Jia@city.ac.uk. An online payment facility is available on our website at
https://www.city.ac.uk/events/2018/april/ninth-maritime-law-and-policy-conference.

Cecca Newsletter November 2017

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Cecca Newsletter November 2017