Maritime
Code of the People's Republic of China
NPC.gov.cn
(Adopted at the 28th Meeting of the
Standing Committee of the Seventh National People's Congress on November 7,
1992 and promulgated by Order No.64 of the President of the People's Republic
of China on November 7, 1992)
Contents
Chapter I
General Provisions
Chapter II Ships
Section
1 Ownership of Ships
Section
2 Mortgage of Ships
Section
3 Maritime Liens
Chapter III Crew
Section
1 Basic Principles
Section
2 The Master
Chapter IV
Contract of Carriage of Goods by Sea
Section
1 Basic Principles
Section
2 Carrier's Responsibilities
Section
3 Shipper's Responsibilities
Section
4 Transport Documents
Section
5 Delivery of Goods
Section
6 Cancellation of Contract
Section
7 Special Provisions Regarding Voyage Charter Party
Section 8
Special Provisions Regarding Multimodal Transport Contract
Chapter V
Contract of Carriage of Passengers by Sea
Chapter VI
Charter Parties
Section
1 Basic Principles
Section
2 Time Charter Party
Section
3 Bareboat Charter Party
Chapter VII
Contract of Sea Towage
Chapter VIII Collision
of Ships
Chapter IX
Salvage at Sea
Chapter X
General Average
Chapter XI
Limitation of Liability for Maritime Claims
Chapter XII
Contract of Marine Insurance
Section
1 Basic Principles
Section 2 Conclusion,
Termination and Assignment of
Contract
Section
3 Obligations of the Insured
Section
4 Liability of the Insurer
Section 5 Loss
of and Damage to the Subject Matter Insured and Abandonment
Section
6 Payment of Indemnity
Chapter XIII
Limitation of Time
Chapter XIV Application of Law in
Relation to Foreign-related Matters
Chapter XV
Supplementary Provisions
Chapter
I General Provisions
Article 1 This
Code is enacted with a view to regulating the relations arising from maritime
transport and those pertaining to ships, to securing
and protecting the legitimate rights and interests of the parties concerned,
and to promoting the development of maritime transport, economy and trade.
Article 2
"Maritime transport" as referred to in this Code means the carriage
of goods and passengers by sea, including the sea-river and river-sea direct
transport.
The
provisions concerning contracts of carriage of goods by sea as contained in
Chapter IV of this Code shall not be applicable to the maritime transport of
goods between the ports of the People's Republic of China.
Article 3
"Ship" as referred to in this Code means sea-going ships and other
mobile units, but does not include ships or craft to be used for military or
public service purposes, nor small ships of less than
20 tons gross tonnage.
The
term "ship" as referred to in the preceding paragraph shall also
include ship's apparel.
Article 4
Maritime transport and towage services between the ports of the People's
Republic of China shall be undertaken by ships flying the national flag of the
People's Republic of China, except as otherwise provided for by laws or
administrative rules and regulations.
No
foreign ships may engage in the maritime transport or towage services between
the ports of the People's Republic of China unless permitted by the competent
authorities of transport and communications under the State Council.
Article 5 Ships
are allowed to sail under the national flag of the People's Republic of China
after being registered, as required by law, and granted the nationality of the
People's Republic of China.
Ships
illegally flying the national flag of the People's Republic of China shall be
prohibited and fined by the authorities concerned.
Article 6 All
matters pertaining to maritime transport shall be administered by the competent
authorities of transport and communications under the State Council. The
specific measures governing such administration shall be worked out by such
authorities and implemented after being submitted to and approved by the State
Council.
Chapter
II Ships
Section
1 Ownership of Ships
Article 7 The
ownership of a ship means the shipowner's rights to
lawfully possess, utilize, profit from and dispose of the ship in his
ownership.
Article 8 With
respect to a State-owned ship operated by an enterprise owned by the whole
people having a legal person status granted by the State, the provisions of
this Code regarding the shipowner shall apply to that
legal person.
Article 9 The
acquisition, transference or extinction of the ownership of a ship shall be
registered at the ship registration authorities; no acquisition, transference
or extinction of the ship's ownership shall act against a third party unless
registered.
The
transference of the ownership of a ship shall be made by a contract in writing.
Article 10 Where
a ship is jointly owned by two or more legal persons or individuals, the joint
ownership thereof shall be registered at the ship registration authorities. The
joint ownership of the ship shall not act against a third party unless
registered.
Section
2 Mortgage of Ships
Article 11 The
right of mortgage with respect to a ship is the right of preferred compensation
enjoyed by the mortgagee of that ship from the proceeds of the auction sale
made in accordance with law where and when the mortgagor fails to pay his debt
to the mortgagee secured by the mortgage of that ship.
Article 12 The
owner of a ship or those authorized thereby may establish the mortgage of the
ship.
The
mortgage of a ship shall be established by a contract in writing.
Article 13 The
mortgage of a ship shall be established by registering the mortgage of the ship
with the ship registration authorities jointly by the mortgagee and the
mortgagor. No mortgage may act against a third party unless registered.
The
main items for the registration of the mortgage of a ship shall be:
(1)
Name or designation and address of the mortgagee and the name or designation
and address of the mortgagor of the ship;
(2)
Name and nationality of the mortgaged ship and the authorities that issued the
certificate of ownership and the certificate number thereof;
(3)
Amount of debt secured, the interest rate and the
period for the repayment of the debt.
Information
about the registration of mortgage of ships shall be accessible to the public
for enquiry.
Article 14 Mortgage
may be established on a ship under construction.
In
registering the mortgage of a ship under construction, the building contract of
the ship shall as well be submitted to the ship registration authorities.
Article 15 The
mortgaged ship shall be insured by the mortgagor unless the contract provides
otherwise. In case the ship is not insured, the mortgagee has the right to
place the ship under insurance coverage and the mortgagor shall pay for the
premium thereof.
Article 16 The
establishment of mortgage by the joint owners of a ship shall, unless otherwise
agreed upon among the joint owners, be subject to the agreement of those joint
owners who have more than two thirds of the shares thereof.
The
mortgage established by the joint owners of a ship shall not be affected by
virtue of the division of ownership thereof.
Article 17 Once
a mortgage is established on a ship, the ownership of the mortgaged ship shall
not be transferred without the consent of the mortgagee.
Article 18 In
case the mortgagee has transferred all or part of his right to debt secured by
the mortgaged ship to another person, the mortgage shall be transferred
accordingly.
Article 19 Two
or more mortgages may be established on the same ship. The ranking of the
mortgages shall be determined according to the dates of their respective
registrations.
In
case two or more mortgages are established, the mortgagees shall be paid out of
the proceeds of the auction sale of the ship in the order of registration of
their respective mortgages. The mortgages registered on the same date shall
rank equally for payment.
Article 20 The
mortgages shall be extinguished when the mortgaged ship is lost. With respect
to the compensation paid from the insurance coverage on account of the loss of
the ship, the mortgagee shall be entitled to enjoy priority in compensation
over other creditors.
Section
3 Maritime Liens
Article 21 A
maritime lien is the right of the claimant, subject to
the provisions of Article 22 of this Code, to take priority in compensation
against shipowners, bareboat charterers or ship
operators with respect to the ship which gave rise to the said claim.
Article 22 The
following maritime claims shall be entitled to maritime liens:
(1)
Payment claims for wages, other remuneration, crew repatriation and social
insurance costs made by the Master, crew members and other members of the
complement in accordance with the relevant labour
laws, administrative rules and regulations or labour
contracts;
(2)
Claims in respect of loss of life or personal injury occurred in the operation
of the ship;
(3)
Payment claims for ship's tonnage dues, pilotage dues, harbour
dues and other port charges;
(4)
Payment claims for salvage payment; and
(5)
Compensation claims for loss of or damage to property resulting from tortious
act in the course of the operation of the ship.
Compensation
claims for oil pollution damage caused by a ship carrying more than 2,000 tons
of oil in bulk as cargo that has a valid certificate attesting that the ship
has oil pollution liability insurance coverage or other appropriate financial
security are not within the scope of sub-paragraph(5) of the preceding
paragraph.
Article 23 The
maritime claims set out in paragraph 1 of Article 22 shall be satisfied in the
order listed. However, any of the maritime claims set out in sub-paragraph(4)
arising later than those under sub-paragraph (1) through (3) shall have
priority over those under sub-paragraph (1) through (3).In case there are more
than two maritime claims under sub-paragraphs (1),(2),(3) or (5) of paragraph 1
of Article 22, they shall be satisfied at the same time regardless of their
respective occurrences; where they could not be paid in full, they shall be
paid in proportion. Should there be more than two maritime claims under
sub-paragraph (4), those arising later shall be
satisfied first.
Article 24 The
legal costs for enforcing the maritime liens, the expenses for preserving and
selling the ship, the expenses for distribution of the proceeds of sale and
other expenses incurred for the common interests of the claimants, shall be
deducted and paid first from the proceeds of the auction sale of the ship.
Article 25 A
maritime lien shall have priority over a possessory
lien, and a possessory lien shall have priority over ship mortgage.
The
possessory lien referred to in the preceding paragraph means the right of the
ship builder or repairer to secure the building or repairing cost of the ship
by means of detaining the ship in his possession when the other party to the
contract fails in the performance thereof. The possessory lien shall be
extinguished when the ship builder or repairer no longer possesses the ship he
has built or repaired.
Article 26 Maritime
liens shall not be extinguished by virtue of the transfer of the ownership of
the ship, except those that have not been enforced within 60 days of a public
notice on the transfer of the ownership of the ship made by a court at the
request of the transferee when the transfer was effected.
Article 27 In
case the maritime claims provided for in Article 22 of this Code are
transferred, the maritime liens attached thereto shall be transferred
accordingly.
Article 28 A
maritime lien shall be enforced by the court by
arresting the ship that gave rise to the said maritime lien.
Article 29 A
maritime lien shall, except as provided for in Article
26 of this Code, be extinguished under one of the following circumstances:
(1)
The maritime claim attached by a maritime lien has not been enforced within one
year of the existence of such maritime lien;
(2)
The ship in question has been the subject of a forced sale by the court; or
(3)
The ship has been lost.
The
period of one year specified in sub-paragraph (1) of the preceding paragraph
shall not be suspended or interrupted.
Article
30 The provisions of this Section shall not affect the
implementation of the limitation of liability for maritime claims provided for
in Chapter Xl of this Code.
Chapter
III Crew
Section
1 Basic Principles
Article 31 The
term "crew" means the entire complement of the ship, including the
Master.
Article 32 The
Master, deck officers, chief engineer, engineers, electrical engineer and radio
operator must be those in possession of appropriate certificates of competency.
Article 33
Chinese "crew" engaged in international voyages must possess Seaman's
Book and other relevant certificates issued by the harbour
superintendency authorities of the People's Republic
of China.
Article 34 In
the absence of specific stipulations in this Code as regards the employment of
the crew as well as their labour-related rights and
obligations, the provisions of the relevant laws and administrative rules and
regulations shall apply.
Section
2 The Master
Article 35 The
Master shall be responsible for the management and navigation of the ship.
Orders
given by the Master within the scope of his functions and powers must be
carried out by other members of the crew, the passengers and all persons on
board.
The
Master shall take necessary measures to protect the ship and all persons on
board, the documents, postal matters, the goods as well as other property
carried.
Article 36 To
ensure the safety of the ship and all persons on board, the Master shall be
entitled to confine or take other necessary measures against those who have
committed crimes or violated laws or regulations on board, and to guard against
their concealment, destruction or forging of evidence.
The
Master, having taken actions as referred to in the preceding paragraph of this
Article, shall make a written report of the case, which shall bear the
signature of the Master himself and those of two or more others on board, and
shall be handed over, together with the offender, to the authorities concerned
for disposition.
Article 37 The
Master shall make entries in the log book of any occurrence of birth or death
on board and shall issue a certificate to that effect in the presence of two
witnesses. The death certificate shall be attached with a list of personal
belongings of the deceased, and attestation shall be given by the Master to the
will, if any, of the deceased. Both the death certificate and the will shall be
taken into safe keeping by the Master and handed over to the family members of
the deceased or the organizations concerned.
Article 38
Where a sea casualty has occurred to a ship and the life and property on board
have thus been threatened, the Master shall, with crew members and other
persons on board under his command, make best efforts to run to the rescue. Should
the foundering and loss of the ship have become inevitable, the Master may
decide to abandon the ship. However, such abandonment
shall be reported to the shipowner for approval
except in case of emergency.
Upon
abandoning the ship, the Master must take all measures first to evacuate the
passengers safely from the ship in an orderly way, then
make arrangements for crew members to evacuate, while the Master shall be the
last to evacuate. Before leaving the ship, the Master shall direct the crew
members to do their utmost to rescue the deck log book, the engine log book,
the oil record book, the radio log book, the charts, documents and papers used
in the current voyage, as well as valuables, postal matters and cash money.
Article 39 The
duty of the Master in the management and navigation of the ship shall not be
absolved even with the presence of a pilot piloting the ship.
Article 40
Should death occur to the Master or the Master be
unable to perform his duties for whatever reason, the deck officer with the
highest rank shall act as the Master; before the ship sails from its next port
of call, the shipowner shall appoint a new Master to
take command.
Chapter IV
Contract of Carriage of Goods by Sea
Section
1 Basic Principles
Article 41 A contract of carriage of goods by sea is a contract under
which the carrier, against payment of freight, undertakes to carry by sea the
goods contracted for shipment by the shipper from one port to another.
Article 42 For
the purposes of this Chapter:
(1)
"Carrier" means the person by whom or in whose name a contract of
carriage of goods by sea has been concluded with a shipper;
(2)
"Actual carrier" means the person to whom the performance of carriage
of goods, or of part of the carriage, has been entrusted by the carrier, and
includes any other person to whom such performance has been entrusted under a
sub-contract;
(3)
"Shipper" means:
a)
The person by whom or in whose name or on whose behalf a contract of carriage
of goods by sea has been concluded with a carrier;
b)
The person by whom or in whose name or on whose behalf the goods have been
delivered to the carrier involved in the contract of carriage of goods by sea;
(4)
"Consignee" means the person who is entitled to take delivery of the
goods;
(5)
"Goods" includes live animals and containers, pallets or similar
articles of transport supplied by the shipper for consolidating the goods.
Article 43 The
carrier or the shipper may demand confirmation of the contract of carriage of
goods by sea in writing. However, voyage charter shall be done in writing.
Telegrams, telexes and telefaxes have the effect of written documents.
Article 44 Any
stipulation in a contract of carriage of goods by sea or a bill of lading or
other similar documents evidencing such contract that derogates from the
provisions of this Chapter shall be null and void. However, such nullity and voidness shall not affect the validity of other provisions
of the contract or the bill of lading or other similar documents. A clause
assigning the benefit of insurance of the goods in favour
of the carrier or any similar clause shall be null and void.
Article 45 The
provisions of Article 44 of this Code shall not prejudice the increase of
duties and obligations by the carrier besides those set out in this Chapter.
Section
2 Carrier's Responsibilities
Article 46 The
responsibilities of the carrier with regard to the goods carried in containers
covers the entire period during which the carrier is in charge of the goods,
starting from the time the carrier has taken over the goods at the port of
loading, until the goods have been delivered at the port of discharge. The
responsibility of the carrier with respect to non-containerized goods covers
the period during which the carrier is in charge of the goods, starting from
the time of loading of the goods onto the ship until the time the goods are
discharged therefrom. During the period the carrier is in charge of the goods,
the carrier shall be liable for the loss of or damage to the goods, except as
otherwise provided for in this Section.
The
provisions of the preceding paragraph shall not prevent the carrier from
entering into any agreement concerning carrier's responsibilities with regard
to non-containerized goods prior to loading onto and after discharging from the
ship.
Article 47 The
carrier shall, before and at the beginning of the voyage, exercise due
diligence to make the ship seaworthy, properly man, equip and supply the ship
and to make the holds, refrigerating and cool chambers and all other parts of the
ship in which goods are carried, fit and safe for their reception, carriage and
preservation.
Article 48 The
carrier shall properly and carefully load, handle, stow, carry, keep, care for
and discharge the goods carried.
Article 49 The
carrier shall carry the goods to the port of discharge on the agreed or
customary or geographically direct route.
Any
deviation in saving or attempting to save life or property at sea or any
reasonable deviation shall not be deemed to be an act deviating from the provisions
of the preceding paragraph.
Article 50 Delay
in delivery occurs when the goods have not been delivered at the designated
port of discharge within the time expressly agreed upon.
The
carrier shall be liable for the loss of or damage to the goods caused by delay
in delivery due to the fault of the carrier, except those arising or resulting
from causes for which the carrier is not liable as provided for in the relevant
Articles of this Chapter.
The
carrier shall be liable for the economic losses caused by delay in delivery of
the goods due to the fault of the carrier, even if no loss of or damage to the
goods had actually occurred, unless such economic losses had occurred from
causes for which the carrier is not liable as provided for in the relevant Articles
of this Chapter.
The
person entitled to make a claim for the loss of goods may treat the goods as
lost when the carrier has not delivered the goods within 60 days from the
expiry of the time for delivery specified in paragraph 1 of this Article.
Article 51 The
carrier shall not be liable for the loss of or damage to the goods occurred
during the period of carrier's responsibility arising or resulting from any of
the following causes:
(1)
Fault of the Master, crew members, pilot or servant of the carrier in the
navigation or management of the ship;
(2)
Fire, unless caused by the actual fault of the carrier;
(3)
Force majeure and perils, dangers and accidents of the sea or other navigable
waters;
(4)
War or armed conflict;
(5)
Act of the government or competent authorities, quarantine restrictions or
seizure under legal process;
(6)
Strikes, stoppages or restraint of labour;
(7)
Saving or attempting to save life or property at sea;
(8)
Act of the shipper, owner of the goods or their agents;
(9)
Nature or inherent vice of the goods;
(10)
Inadequacy of packing or insufficiency or illegibility of marks;
(11)
Latent defect of the ship not discoverable by due diligence; and
(12)
Any other cause arising without the fault of the carrier or his servant or
agent.
The
carrier who is entitled to exoneration from the liability for compensation as
provided for in the preceding paragraph shall, with the exception of the causes
given in sub-paragraph (2), bear the burden of proof.
Article 52 The
carrier shall not be liable for the loss of or damage to the live animals
arising or resulting from the special risks inherent in the carriage thereof.
However, the carrier shall be bound to prove that he has fulfilled the special
requirements of the shipper with regard to the carriage of the live animals and
that under the circumstances of the sea carriage, the loss or damage has
occurred due to the special risks inherent therein.
Article 53 In
case the carrier intends to ship the goods on deck, he shall come into an
agreement with the shipper or comply with the custom of the trade or the
relevant laws or administrative rules and regulations.
When
the goods have been shipped on deck in accordance with the provisions of the
preceding paragraph, the carrier shall not be liable for the loss of or damage
to the goods caused by the special risks involved in such carriage.
If
the carrier, in breach of the provisions of the first paragraph of this
Article, has shipped the goods on deck and the goods have consequently suffered
loss or damage, the carrier shall be liable therefore.
Article 54
Where loss or damage or delay in delivery has occurred from causes from which
the carrier or his servant or agent is not entitled to exoneration from
liability, together with another cause, the carrier shall be liable only to the
extent that the loss, damage or delay in delivery is attributable to the causes
from which the carrier is not entitled to exoneration from liability; however,
the carrier shall bear the burden of proof with respect to the loss, damage or
delay in delivery resulting from the other cause.
Article 55 The
amount of indemnity for the loss of the goods shall be calculated on the basis
of the actual value of the goods so lost, while that for the damage to the
goods shall be calculated on the basis of the difference between the values of
the goods before and after the damage, or on the basis of the expenses for the
repair.
The
actual value shall be the value of the goods at the time of shipment plus
insurance and freight.
From
the actual value referred to in the preceding paragraph, deduction shall be
made, at the time of compensation, of the expenses that had been reduced or
avoided as a result of the loss or damage occurred.
Article 56 The
carrier's liability for the loss of or damage to the goods shall be limited to
an amount equivalent to 666.67 Units of Account per package or other shipping
unit, or 2 Units of Account per kilogramme of the
gross weight of the goods lost or damaged, whichever is the higher, except
where the nature and value of the goods had been declared by the shipper before
shipment and inserted in the bill of lading, or where a higher amount than the
amount of limitation of liability set out in this Article had been agreed upon
between the carrier and the shipper.
Where
a container, pallet or similar article of transport is used to consolidate
goods, the number of packages or other shipping units enumerated in the bill of
lading as packed in such article of transport shall be deemed to be the number
of packages or shipping units. If not so enumerated, the goods in such article
of transport shall be deemed to be one package or one shipping unit.
Where
the article of transport is not owned or furnished by the carrier, such article
of transport shall be deemed to be one package or one shipping unit.
Article 57 The
liability of the carrier for the economic losses resulting from delay in
delivery of the goods shall be limited to an amount equivalent to the freight
payable for the goods so delayed. Where the loss of or damage to the goods has
occurred concurrently with the delay in delivery thereof, the limitation of
liability of the carrier shall be that as provided for in paragraph 1 of
Article 56 of this Code.
Article
58 The defence and limitation of liability provided
for in this Chapter shall apply to any legal action brought against the carrier
with regard to the loss of or damage to or delay in delivery of the goods
covered by the contract of carriage of goods by sea, whether the claimant is a party
to the contract or whether the action is founded in contract or in tort.
The
provisions of the preceding paragraph shall apply if the action referred to in
the preceding paragraph is brought against the carrier's servant or agent, and
the carrier's servant or agent proves that his action was within the scope of
his employment or agency.
Article 59 The
carrier shall not be entitled to the benefit of the limitation of liability
provided for in Article 56 or 57 of this Code if it is proved that the loss,
damage or delay in delivery of the goods resulted from an act or omission of
the carrier done with the intent to cause such loss, damage or delay or
recklessly and with knowledge that such loss, damage or delay would probably
result.
The
servant or agent of the carrier shall not be entitled to the benefit of
limitation of liability provided for in article 56 or 57 of this Code, if it is
proved that the loss, damage or delay in delivery resulted from an act or
omission of the servant or agent of the carrier done with the intent to cause
such loss, damage or delay or recklessly and with knowledge that such loss,
damage or delay would probably result.
Article 60 Where
the performance of the carriage or part thereof has been entrusted to an actual
carrier, the carrier shall nevertheless remain responsible for the entire
carriage according to the provisions of this Chapter. The carrier shall be
responsible, in relation to the carriage performed by the actual carrier, for
the act or omission of the actual carrier and of his servant or agent acting
within the scope of his employment or agency.
Notwithstanding
the provisions of the preceding paragraph, where a contract of carriage by sea
provides explicitly that a specified part of the carriage covered by the said
contract is to be performed by a named actual carrier other than the carrier,
the contract may nevertheless provide that the carrier shall not be liable for
the loss, damage or delay in delivery arising from an occurrence which takes
place while the goods are in the charge of the actual carrier during such part
of the carriage.
Article 61 The
provisions with respect to the responsibility of the carrier contained in this
Chapter shall be applicable to the actual carrier. Where an action is brought
against the servant or agent of the actual carrier, the provisions contained in
paragraph 2 of Article 58 and paragraph 2 of Article 59 of this Code shall
apply.
Article 62 Any
special agreement under which the carrier assumes obligations not provided for
in this Chapter or waives rights conferred by this Chapter shall be binding
upon the actual carrier when the actual carrier has agreed in writing to the
contents thereof. The provisions of such special agreement shall be binding
upon the carrier whether the actual carrier has agreed to the contents or not.
Article 63
Where both the carrier and the actual carrier are liable for compensation, they
shall jointly and severally be liable within the scope of such liability.
Article 64 If
claims for compensation have been separately made against the carrier, the
actual carrier and their servants or agents with regard to the loss of or
damage to the goods, the aggregate amount of compensation shall not be in
excess of the limitation provided for in Article 56 of this Code.
Article 65 The
provisions of Article 60 through 64 of this Code shall not affect the recourse
between the carrier and the actual carrier.
Section
3 Shipper's Responsibilities
Article 66 The
shipper shall have the goods properly packed and shall guarantee the accuracy
of the description, mark, number of packages or pieces, weight or quantity of
the goods at the time of shipment and shall indemnify the carrier against any
loss resulting from inadequacy of packing or inaccuracies in the above-mentioned
information.
The
carrier's right to indemnification as provided for in the preceding paragraph
shall not affect the obligation of the carrier under the contract of carriage
of goods towards those other than the shipper.
Article 67 The
shipper shall perform all necessary procedures at the port, customs,
quarantine, inspection or other competent authorities with respect to the
shipment of the goods and shall furnish to the carrier all relevant documents
concerning the procedures the shipper has gone through. The shipper shall be
liable for any damage to the interest of the carrier resulting from the
inadequacy or inaccuracy or delay in delivery of such documents.
Article 68 At
the time of shipment of dangerous goods, the shipper shall, in compliance with
the regulations governing the carriage of such goods, have them properly
packed, distinctly marked and labelled and notify the
carrier in writing of their proper description, nature and the precautions to
be taken. In case the shipper fails to notify the carrier or notified him
inaccurately, the carrier may have such goods landed
,destroyed or rendered innocuous when and where circumstances so
require, without compensation. The shipper shall be liable to the carrier for
any loss, damage or expense resulting from such shipment.
Notwithstanding
the carrier's knowledge of the nature of the dangerous goods and his consent to
carry, he may still have such goods landed, destroyed or rendered innocuous,
without compensation, when they become an actual danger to the ship, the crew
and other persons on board or to other goods. However, the provisions of this
paragraph shall not prejudice the contribution in general average, if any.
Article 69 The
shipper shall pay the freight to the carrier as agreed.
The
shipper and the carrier may reach an agreement that the freight shall be paid
by the consignee. However, such an agreement shall be noted in the transport
documents.
Article 70 The
shipper shall not be liable for the loss sustained by the carrier or the actual
carrier, or for the damage sustained by the ship, unless such loss or damage
was caused by the fault of the shipper, his servant or agent.
The
servant or agent of the shipper shall not be liable for the loss sustained by
the carrier or the actual carrier, or for the damage sustained by the ship,
unless the loss or damage was caused by the fault of the servant or agent of
the shipper.
Section 4
Transport Documents
Article 71 A bill of lading is a document which serves as an evidence of
the contract of carriage of goods by sea and the taking over or loading of the
goods by the carrier, and based on which the carrier undertakes to deliver the
goods against surrendering the same. A provision in the document stating that
the goods are to be delivered to the order of a named person, or to order, or
to bearer, constitutes such an undertaking.
Article 72 When
the goods have been taken over by the carrier or have been loaded on board, the
carrier shall, on demand of the shipper, issue to the shipper a bill of lading.
The
bill of lading may be signed by a person authorized by the carrier. A bill of
lading signed by the Master of the ship carrying the goods is deemed to have
been signed on behalf of the carrier.
Article 73 A bill of lading shall contain the following particulars:
(1)
Description of the goods, mark, number of packages or pieces, weight or
quantity, and a statement, if applicable, as to the dangerous nature of the
goods;
(2)
Name and principal place of business of the carrier;
(3)
Name of the ship;
(4)
Name of the shipper;
(5)
Name of the consignee;
(6)
Port of loading and the date on which the goods were taken over by the carrier
at the port of loading;
(7)
Port of discharge;
(8)
Place where the goods were taken over and the place where the goods are to be
delivered in case of a multimodal transport bill of lading;
(9)
Date and place of issue of the bill of lading and the number of originals
issued;
(10)
Payment of freight;
(11)
Signature of the carrier or of a person acting on his behalf.
In
a bill of lading, the lack of one or more particulars referred to in the
preceding paragraph does not affect the function of the bill of lading as such,
provided that it nevertheless meets the requirements set forth in Article 71 of
this Code.
Article
74
If the carrier has issued, on demand of the shipper, a received-for-shipment
bill of lading or other similar documents before the goods are loaded on board,
the shipper may surrender the same to the carrier as against a shipped bill of
lading when the goods have been loaded on board. The carrier may
also note on the received-for-shipment bill of lading or other similar
documents with the name of the carrying ship and the date of loading, and, when
so noted, the received-for-shipment bill of lading or other similar documents
shall be deemed to constitute a shipped bill of lading.
Article 75 If
the bill of lading contains particulars concerning the description, mark,
number of packages or pieces, weight or quantity of the goods with respect to
which the carrier or the other person issuing the bill of lading on his behalf
has the knowledge or reasonable grounds to suspect that such particulars do not
accurately represent the goods actually received, or, where a shipped bill of
lading is issued, loaded, or if he has had no reasonable means of checking, the
carrier or such other person may make a note in the bill of lading specifying
those inaccuracies, the grounds for suspicion or the lack of reasonable means
of checking.
Article 76 If
the carrier or the other person issuing the bill of lading on his behalf made
no note in the bill of lading regarding the apparent order and condition of the
goods, the goods shall be deemed to be in apparent good order and condition.
Article 77 Except
for the note made in accordance with the provisions of Article 75 of this Code,
the bill of lading issued by the carrier or the other person acting on his
behalf is prima facie evidence of the taking over or loading by the carrier of
the goods as described therein. Proof to the contrary by the carrier shall not
be admissible if the bill of lading has been transferred to a third party,
including a consignee, who has acted in good faith in reliance on the
description of the goods contained therein.
Article 78 The
relationship between the carrier and the holder of the bill of lading with
respect to their rights and obligations shall be defined by the clauses of the
bill of lading.
Neither
the consignee nor the holder of the bill of lading shall be liable for the
demurrage, dead freight and all other expenses in respect of loading occurred
at the loading port unless the bill of lading clearly states that the aforesaid
demurrage, dead freight and all other expenses shall be borne by the consignee
and the holder of the bill of lading.
Article 79 The
negotiability of a bill of lading shall be governed by the following
provisions:
(1)
A straight bill of lading is not negotiable;
(2)
An order bill of lading may be negotiated with endorsement to order or
endorsement in blank;
(3)
A bearer bill of lading is negotiable without endorsement.
Article 80 Where
a carrier has issued a document other than a bill of lading as an evidence of
the receipt of the goods to be carried, such a document is prima facie evidence
of the conclusion of the contract of carriage of goods by sea and the taking
over by the carrier of the goods as described therein.
Such
documents that are issued by the carrier shall not be negotiable.
Section 5
Delivery of Goods
Article 81
Unless notice of loss or damage is given in writing by the consignee to the
carrier at the time of delivery of the goods by the carrier to the consignee,
such delivery shall be deemed to be prima facie evidence of the delivery of the
goods by the carrier as described in the transport documents and of the
apparent good order and condition of such goods.
Where
the loss of or damage to the goods is not apparent, the provisions of the
preceding paragraph shall apply if the consignee has not given the notice in
writing within 7 consecutive days from the next day of the delivery of the
goods, or, in the case of containerized goods, within 15 days from the next day
of the delivery thereof.
The
notice in writing regarding the loss or damage need not be given if the state
of the goods has, at the time of delivery, been the subject of a joint survey
or inspection by the carrier and the consignee.
Article 82 The
carrier shall not be liable for compensation if no notice on the economic
losses resulting from delay in delivery of the goods has been received from the
consignee within 60 consecutive days from the next day on which the goods had
been delivered by the carrier to the consignee.
Article 83 The
consignee may, before taking delivery of the goods at the port of destination,
and the carrier may, before delivering the goods at the port of destination,
request the cargo inspection agency to have the goods inspected. The party
requesting such inspection shall bear the cost thereof but is entitled to
recover the same from the party causing the damage.
Article 84 The
carrier and the consignee shall mutually provide reasonable facilities for the
survey and inspection stipulated in Articles 81 and 83 of this Code.
Article 85 Where
the goods have been delivered by the actual carrier, the notice in writing
given by the consignee to the actual carrier under Article 81 of this Code
shall have the same effect as that given to the carrier,
and that given to the carrier shall have the same effect as that given to the
actual carrier.
Article 86 If the goods were not taken delivery of at the port of
discharge or if the consignee has delayed or refused the taking delivery of the
goods, the Master may discharge the goods into warehouses or other appropriate
places, and any expenses or risks arising therefrom shall be borne by the
consignee.
Article 87 If
the freight, contribution in general average, demurrage to be paid to the
carrier and other necessary charges paid by the carrier on behalf of the owner
of the goods as well as other charges to be paid to the carrier have not been
paid in full, nor has appropriate security been given, the carrier may have a
lien, to a reasonable extent, on the goods.
Article 88 If
the goods under lien in accordance with the provisions of Article 87 of this
Code have not been taken delivery of within 60 days from the next day of the
ship's arrival at the port of discharge, the carrier may apply to the court for
an order on selling the goods by auction; where the goods are perishable or the
expenses for keeping such goods would exceed their value, the carrier may apply
for an earlier sale by auction.
The
proceeds from the auction sale shall be used to pay off the expenses for the
storage and auction sale of the goods, the freight and other related charges to
be paid to the carrier. If the proceeds fall short of such expenses, the
carrier is entitled to claim the difference from the shipper, whereas any
amount in surplus shall be refunded to the shipper. If there is no way to make
the refund and such surplus amount has not been claimed at the end of one full
year after the auction sale, it shall go to the State Treasury.
Section
6 Cancellation of Contract
Article 89 The
shipper may request the cancellation of the contract of carriage of goods by
sea before the ship sails from the port of loading. However, except as
otherwise provided for in the contract, the shipper shall in this case pay half
of the agreed amount of freight; if the goods have already been loaded on
board, the shipper shall bear the expenses for the loading and discharge and other
related charges.
Article 90 Either
the carrier or the shipper may request the cancellation of the contract and
neither shall be liable to the other if, due to force majeure or other causes
not attributable to the fault of the carrier or the shipper, the contract could
not be performed prior to the ship's sailing from its port of loading. If the
freight has already been paid, it shall be refunded to the shipper, and, if the
goods have already been loaded on board, the loading/discharge expenses shall
be borne by the shipper. If a bill of lading has already been issued, it shall
be returned by the shipper to the carrier.
Article 91 If,
due to force majeure or any other causes not attributable to the fault of the
carrier or the shipper, the ship could not discharge its goods at the port of
destination as provided for in the contract of carriage, unless the contract
provides otherwise, the Master shall be entitled to discharge the goods at a
safe port or place near the port of destination and the contract of carriage
shall be deemed to have been fulfilled.
In
deciding the discharge of the goods, the Master shall inform the shipper or the
consignee and shall take the interests of the shipper or the consignee into
consideration.
Section
7 Special Provisions Regarding Voyage Charter Party
Article 92 A
voyage charter party is a charter party under which the shipowner
charters out and the charterer charters in the whole or part of the ship's
space for the carriage by sea of the intended goods from one port to another
and the charterer pays the agreed amount of freight.
Article 93 A
voyage charter party shall mainly contain, inter alia,
name of the shipowner, name of the charterer, name
and nationality of the ship, its bale or grain capacity, description of the goods
to be loaded, port of loading, port of destination, laydays,
time for loading and discharge, payment of freight, demurrage, dispatch and
other relevant matters.
Article 94 The
provisions in Article 47 and Article 49 of this Code shall apply to the shipowner under voyage charter party.
The
other provisions in this Chapter regarding the rights and obligations of the
parties to the contract shall apply to the shipowner
and the charterer under voyage charter only in the absence of relevant
provisions or in the absence of provisions differing therefrom in the voyage
charter.
Article 95
Where the holder of the bill of lading is not the charterer in the case of a
bill of lading issued under a voyage charter, the rights and obligations of the
carrier and the holder of the bill of lading shall be governed by the clauses
of the bill of lading. However, if the clauses of the voyage charter party are
incorporated into the bill of lading, the relevant clauses of the voyage
charter party shall apply.
Article 96 The shipowner shall provide the intended ship. The intended
ship may be substituted with the consent of the charterer. However, if the ship
substituted does not meet the requirements of the charter party, the charterer
may reject the ship or cancel the charter. Should any damage or loss occur to
the charterer as a result of the shipowner's failure
in providing the intended ship due to his fault, the shipowner
shall be liable for compensation.
Article 97 If the shipowner has failed to
provide the ship within the laydays fixed in the
charter, the charterer is entitled to cancel the charter party. However, if the
shipowner had notified the charterer of the delay of
the ship and the expected date of its arrival at the port of loading, the
charterer shall notify the shipowner whether to
cancel the charter within 48 hours of the receipt of the shipowner's
notification.
Where
the charterer has suffered losses as a result of the delay in providing the
ship due to the fault of the shipowner, the shipowner shall be liable for compensation
.
Article 98 Under
a voyage charter, the time for loading and discharge and the way of calculation
thereof, as well as the rate of demurrage that would incur after the expiration
of the laytime and the rate of dispatch money to be
paid as a result of the completion of loading or discharge ahead of schedule,
shall be fixed by the shipowner and the charterer
upon mutual agreement.
Article 99 The
charterer may sublet the ship he chartered, but the rights and obligations
under the head charter shall not be affected.
Article 100 The
charterer shall provide the intended goods, but he may replace the goods with
the consent of the shipowner. However, if the goods
replaced are detrimental to the interests of the shipowner,
the shipowner shall be entitled to reject such goods
and cancel the charter.
Where
the shipowner has suffered losses as a result of the
failure of the charterer in providing the intended goods, the charterer shall
be liable for compensation.
Article 101 The shipowner shall discharge the goods at the port of
discharge specified in the charter party. Where the charter party contains a
clause allowing the choice of the port of discharge by the charterer, the
Master may choose one from among the agreed picked ports to discharge the
goods, in case the charterer did not, as agreed in the charter, instruct in
time as to the port chosen for discharging the goods. Where the charterer did
not instruct in time as to the chosen port of discharge, as agreed in the
charter, and the shipowner suffered losses thereby,
the charterer shall be liable for compensation; where the charterer has
suffered losses as a result of the shipowner's
arbitrary choice of a port to discharge the goods, in disregard of the
provisions in the relevant charter, the shipowner
shall be liable for compensation.
Section
8 Special Provisions Regarding Multimodal Transport Contract
Article 102 A
multimodal transport contract as referred to in this Code means a contract
under which the multimodal transport operator undertakes to transport the
goods, against the payment of freight for the entire transport, from the place
where the goods were received in his charge to the destination and to deliver
them to the consignee by two or more different modes of transport, one of which
being sea carriage.
The
multimodal transport operator as referred to in the preceding paragraph means
the person who has entered into a multimodal transport contract with the
shipper either by himself or by another person acting on his behalf.
Article 103 The
responsibility of the multimodal transport operator with respect to the goods
under multimodal transport contract covers the period from the time he takes
the goods in his charge to the time of their delivery.
Article 104 The
multimodal transport operator shall be responsible for the performance of the
multimodal transport contract or the procurement of the performance therefore,
and shall be responsible for the entire transport.
The
multimodal transport operator may enter into separate contracts with the
carriers of the different modes defining their responsibilities with regard to
the different sections of the transport under the multimodal transport
contracts. However, such separate contracts shall not affect the responsibility
of the multimodal transport operator with respect to the entire transport.
Article 105 If
loss of or damage to the goods has occurred in a certain section of the
transport, the provisions of the relevant laws and regulations governing that
specific section of the multimodal transport shall be applicable to matters
concerning the liability of the multimodal transport operator and the
limitation thereof.
Article 106 If
the section of transport in which the loss of or damage to the goods occurred
could not be ascertained, the multimodal transport operator shall be liable for
compensation in accordance with the stipulations regarding the carrier's
liability and the limitation thereof as set out in this Chapter.
Chapter
V Contract of Carriage of Passengers by Sea
Article 107 A contract of carriage of passengers by sea is a contract
whereby the carrier undertakes to carry passengers and their luggage by sea
from one port to another by ships suitable for that purpose against payment of
fare by the passengers.
Article 108 For the
purposes of this Chapter:
(1)
"Carrier" means the person by whom or in whose name a contract of
carriage of passengers by sea has been entered into with the passengers;
(2)
"Actual carrier" means the person by whom the whole or part of the
carriage of passengers has been performed as entrusted by the carrier,
including those engaged in such carriage under a sub-contract.
(3)
"Passenger" means a person carried under a contract of carriage of
passengers by sea. With the consent of the carrier, a person supervising the
carriage of goods aboard a ship covered by a contract of carriage of goods is
regarded as a passenger;
(4)
"Luggage" means any article or vehicle shipped by the carrier under
the contract of carriage of passengers by sea, with the exception of live
animals.
(5)
"Cabin luggage" means the luggage which the passenger has in his
cabin or is otherwise in his possession, custody or control.
Article 109 The
provisions regarding the responsibilities of the carrier as contained in this
Chapter shall be applicable to the actual carrier, and
the provisions regarding the responsibilities of the servant or agent of the
carrier as contained in this Chapter shall be applicable to the servant or
agent of the actual carrier.
Article 110 The
passage ticket serves as an evidence that a contract
of carriage of passengers by sea has been entered into.
Article 111 The
period of carriage for the carriage of passengers by sea commences from the
time of embarkation of the passengers and terminates at the time of their
disembarkation, including the period during which the passengers are
transported by water from land to the ship or vice versa ,
if such cost of transport is included in the fare. However, the period of
carriage does not include the time when the passengers are at a marine terminal
or station or on a quay or in or on any other port installations.
The
period of carriage for the cabin luggage of the passengers shall be the same as
that stipulated in the preceding paragraph. The period of carriage for luggage
other than the cabin luggage commences from the time when the carrier or his
servant or agent receives it into his charge and terminates at the time when
the carrier or his servant or agent redelivers it to the passengers.
Article 112 A passenger travelling without a ticket or taking a higher
class berth than booked or going beyond the distance paid for shall pay for the
fare or the excess fare as required by relevant regulations, and the carrier
may, according to the relevant regulations, charge additional fare. Should any
passenger refuse to pay, the Master is entitled to order him to disembark at a
suitable place and the carrier has the right of recourse against him.
Article 113 No
passenger may take on board or pack in their luggage contraband goods or any
article of an inflammable, explosive, poisonous, corrosive or radioactive
nature or other dangerous goods that would endanger the safety of life and
property on board.
The
carrier may have the contraband or dangerous goods brought on board by the
passenger or packed in his luggage in breach of the provisions of the preceding
paragraph discharged, destroyed or rendered innocuous at any time and at any
place or sent over to the appropriate authorities, without being liable for
compensation.
The
passenger shall be liable for compensation if any loss or damage occurs as a
result of his breach of the provisions of paragraph 1 of this Article.
Article 114 During
the period of carriage of the passengers and their luggage as provided for in
Article 111 of this Code, the carrier shall be liable for the death of or
personal injury to passengers or the loss of or damage to their luggage
resulting from accidents caused by the fault of the carrier or his servant or
agent committed within the scope of his employment or agency.
The
claimant shall bear the burden of proof regarding the fault of the carrier or
his servant or agent, with the exception, however, of the circumstances
specified in paragraphs 3 and 4 of this Article.
If
the death of or personal injury to the passengers or loss of or damage to the
passengers' cabin luggage occurred as a result of shipwreck, collision,
stranding, explosion, ire or the defect of the ship, it shall be presumed that
the carrier or his servant or agent has committed a fault, unless proof to the
contrary has been given by the carrier or his servant or agent.
As
to any loss of or damage to the luggage other than the passenger's cabin
luggage, unless the carrier or his servant or agent proves to the contrary, it
shall be presumed that the carrier or his servant or agent has committed a
fault, no matter how the loss or damage was caused.
Article 115 If
it is proved by the carrier that the death of or personal injury to the
passenger or the loss of or damage to his luggage was caused by the fault of
the passenger himself or the faults of the carrier and the passenger combined,
the carrier's liability may be exonerated or appropriately mitigated.
If
it is proved by the carrier that the death of or personal injury to the passenger
or the loss of or damage to the passenger's luggage was intentionally caused by
the passenger himself, or the death or personal injury was due to the health
condition of his, the carrier shall not be liable therefore.
Article 116 The
carrier shall not be liable for any loss of or damage to the monies, gold,
silver, jewellery, negotiable securities or other
valuables of the passengers.
If
the passenger has entrusted the above-mentioned valuables to the safe-keeping
of the carrier under an agreement for that purpose, the carrier shall be liable
for compensation in accordance with the provisions of Article 117 of this Code.
Where the limitation of liability agreed upon between the carrier and the
passenger in writing is higher than that set out in Article 117 of this Code,
the carrier shall make the compensation in accordance with that higher amount.
Article 117 Except
the circumstances specified in paragraph 4 of this Article, the limitation of
liability of the carrier under each carriage of passengers by sea shall be
governed by the following:
(1)
For death of or personal injury to the passenger: not exceeding 46,666 Units of
Account per passenger;
(2)
For loss of or damage to the passengers' cabin luggage: not exceeding 833 Units
of Account per passenger;
(3)
For loss of or damage to the passengers' vehicles including the luggage carried
therein: not exceeding 3,333 Units of Account per vehicle;
(4)
For loss of or damage to luggage other than those described in sub-paragraphs
(2) and (3) above: not exceeding 1,200 Units of Account per passenger.
An
agreement may be reached between the carrier and the passengers with respect to
the deductibles applicable to the compensation for loss of or damage to the
passengers' vehicles and luggage other than their vehicles. However, the
deductible with respect to the loss of or damage to the passengers' vehicles
shall not exceed 117 Units of Account per vehicle, whereas the deductible for
the loss of or damage to the luggage other than the vehicle shall not exceed 13
Units of Account per piece of luggage per passenger. In calculating the amount
of compensation for the loss of or damage to the passenger's vehicle or the
luggage other than the vehicle, deduction shall be made of the agreed
deductibles the carrier is entitled to.
A
higher limitation of liability than that set out in sub-paragraph (1) above may
be agreed upon between the carrier and the passenger in writing.
The
limitation of liability of the carrier with respect to the carriage of
passengers by sea between the ports of the People's Republic of China shall be
fixed by the competent authorities of transport and communications under the
State Council and implemented after its being submitted to and approved by the
State Council.
Article 118 If it
is proved that the death of or personal injury to the passenger or the loss of
or damage to the passenger's luggage resulted from an act or omission of the
carrier done with the intent to cause such loss or damage or recklessly and
with knowledge that such death or personal injury or such loss or damage would
probably result ,the carrier shall not invoke the
provisions regarding the limitation of liability contained in Articles 116 and
117 of this Code.
If
it is proved that the death of or personal injury to the passenger or the loss
of or damage to the passenger's luggage resulted from an act or omission of the
servant or agent of the carrier done with the intent to cause such loss or
damage or recklessly and with knowledge that such death or personal injury or such
loss or damage would probably result, the servant or agent of the carrier shall
not invoke the provisions regarding the limitation of liability contained in
Articles 116 and 117 of this Code.
Article 119 In
case of apparent damage to the luggage, the passenger shall notify the carrier
or his servant or agent in writing according to the following:
(1)
Notice with respect to cabin luggage shall be made before or at the time of his
embarkation;
(2)
Notice regarding luggage other than cabin luggage shall be made before or at
the time of redelivery thereof.
If
the damage to the luggage is not apparent and it is difficult for the passenger
to discover such damage at the time of his disembarkation or of the redelivery
of the luggage, or if the luggage has been lost, the passenger shall notify the
carrier or his servant or agent in writing within 15 days from the next day of
disembarkation of the passenger or of the redelivery of the luggage.
If
the passenger fails to send in the notice in writing in time in accordance with
the provisions of sub-paragraphs (1) and (2) of this Article, it shall be
presumed that the luggage has been received undamaged, unless proof to the
contrary is made.
Where
the luggage has been jointly surveyed or inspected by the passenger and the
carrier at the time of redelivery thereof, the above-mentioned notice need not
be given.
Article 120 With
regard to the claims made to the carrier's servant or agent, such servant or
agent shall be entitled to invoke the provisions regarding defence
and limitation of liability contained in Articles 115,116 and 117 of this Code
if such servant or agent proves that his act or omission was within the scope
of his employment or agency.
Article 121 Where
the performance of the carriage of passengers or part thereof has been
entrusted by the carrier to an actual carrier, the carrier shall, as stipulated
in this Chapter, remain liable for the entire carriage. Where the carriage is
performed by the actual carrier, the carrier shall be liable for the act or
omission of the actual carrier or the act or omission of his servant or agent
within the scope of his employment or agency.
Article 122 Any
special agreement under which the carrier assumes obligations not provided for
in this Chapter or waives the rights conferred by this Chapter shall be binding
upon the actual carrier where the actual carrier has expressly agreed in
writing to the contents thereof. Such a special agreement shall be binding upon
the carrier whether the actual carrier has agreed to its contents or not.
Article 123 Where
both the carrier and the actual carrier are liable for compensation, they shall
be liable jointly and severally within the scope of such liability.
Article 124 Where
separate claims have been brought against the carrier, the actual carrier and
their servants or agents with respect to the death of or personal injury to the
passengers or the loss of or damage to their luggage, the aggregate amount of
compensation shall not be in excess of the limitation prescribed in Article 117
of this Code.
Article 125 The
provisions of Articles 121 through 124 of this Code shall not affect the right
of recourse between the carrier and the actual carrier.
Article 126 Any
of the following clauses contained in a contract of carriage of passengers by
sea shall be null and void:
(1)
Any clause that exonerates the statutory responsibility of the carrier in
respect of the passenger;
(2)
Any clause that reduces the limitation of liability of the carrier as contained
in this Chapter;
(3)
Any clause that contains provisions contrary to those of this Chapter
concerning burden of proof; and
(4)
Any clause that restricts the right of claim of the passenger.
The
nullity and voidness of the clauses set out in the
preceding paragraph shall not prejudice the validity of the other clauses of
the contract.
Chapter
VI Charter Parties
Section
1 Basic Principles
Article 127 The
provisions concerning the rights and obligations of the shipowner
and the charterer in this Chapter shall apply only when there are no
stipulations or no different stipulations in this regard in the charter party.
Article 128 Charter
parties including time charter parties and bareboat charter parties shall be
concluded in writing.
Section
2 Time Charter Party
Article 129 A time
charter party is a contract under which the shipowner
provides a designated manned ship to the charterer, and the charterer employs
the ship during the contractual period for the agreed service against payment
of hire.
Article 130 A
time charter party mainly contains the name of the shipowner,
the name of the charterer; the name, nationality, class, tonnage, capacity,
speed and fuel consumption of the ship; the trading area; the agreed service,
the contractual period, the time, place and conditions of delivery and
redelivery of the ship; the hire and the way of its payment and other relevant
matters.
Article 131 The shipowner shall deliver the ship within the time agreed
upon in the charter party.
Where
the shipowner acts against the provisions of the
preceding paragraph, the charterer is entitled to cancel the charter. However,
if the shipowner has notified the charterer of the
anticipated delay in delivery and has given an estimated time of arrival of the
ship at the port of delivery, the charterer shall notify the shipowner, within 48 hours of the receipt of such notice
from the shipowner, of his decision whether to cancel
the charter or not.
The
shipowner shall be liable for the charterer's loss
resulting from the delay in delivery of the ship due to the shipowner's
fault.
Article 132 At
the time of delivery, the shipowner shall exercise
due diligence to make the ship seaworthy. The ship delivered shall be fit for
the intended service.
Where
the shipowner acts against the provisions in the
preceding paragraph, the charterer shall be entitled to cancel the charter and
claim any losses resulting therefrom.
Article 133
During the charter period, if the ship is found at variance with the
seaworthiness or the other conditions agreed upon in the charter, the shipowner shall take all reasonable measures to have them
restored as soon as possible.
Where
the ship has not been operated normally for 24 consecutive hours due to its
failure to maintain the seaworthiness or the other conditions as agreed upon, the
charterer shall not pay the hire for the operating time so lost, unless such
failure was caused by the charterer.
Article 134 The
charterer shall guarantee that the ship shall be employed in the agreed
maritime transport between the safe ports or places within the trading area
agreed upon.
If
the charterer acts against the provisions of the preceding paragraph, the shipowner is entitled to cancel the charter and claim any
losses resulting therefrom.
Article 135 The
charterer shall guarantee that the ship shall be employed to carry the lawful
merchandise agreed.
Where
the ship is to be employed by the charterer to carry live animals or dangerous
goods, a prior consent of the shipowner is required.
The
charterer shall be liable for any loss of the shipowner
resulting from the charterer's violation of the provisions of paragraph 1 or
paragraph 2 of this Article.
Article 136 The
charterer shall be entitled to give the Master instructions with respect to the
operation of the ship. However, such instructions shall not be inconsistent
with the stipulations of the time charter.
Article 137 The
charterer may sublet the ship under charter, but he shall notify the shipowner of the sublet in time. The rights and obligations
agreed upon in the head charter shall not be affected by the sub-charter.
Article 138
Where the ownership of the ship under charter has been transferred by the shipowner, the rights and obligations agreed upon under the
original charter shall not be affected. However, the shipowner
shall inform the charterer thereof in time. After such transfer, the transferee
and the charterer shall continue to perform the original charter.
Article 139 Should
the ship be engaged in salvage operations during the charter period, the
charterer shall be entitled to half of the amount of the payment for salvage
operations after deducting therefrom the salvage expenses, compensation for
damage, the portion due to crew members and other relevant costs.
Article 140 The
charterer shall pay the hire as agreed upon in the charter. Where the charterer
fails to pay the hire as agreed upon, the shipowner
shall be entitled to cancel the charter party and claim any losses resulting
therefrom.
Article 141 In
case the charterer fails to pay the hire or other sums of money as agreed upon
in the charter, the shipowner shall have a lien on
the charterer's goods, other property on board and earnings from the
sub-charter.
Article 142 When
the charterer redelivers the ship to the shipowner,
the ship shall be in the same good order and condition as it was at the time of
delivery, fair wear and tear excepted.
Where,
upon redelivery, the ship fails to remain in the same good order and condition
as it was at the time of delivery, the charterer shall be responsible for
rehabilitation or for compensation.
Article 143 If,
on the basis of a reasonable calculation, a ship may be able to complete its
last voyage at around the time of redelivery specified in the charter and
probably thereafter, the charterer is entitled to continue to use the ship in
order to complete that voyage even if its time of redelivery will be overdue.
During the extended period, the charterer shall pay the hire at the rate fixed
by the charter, and, if the current market rate of hire is higher than that
specified in the charter, the charterer shall pay the hire at the current
market rate.
Section
3 Bareboat Charter Party
Article 144 A
bareboat charter party is a charter party under which
the shipowner provides the charterer with an unmanned
ship which the charterer shall possess, employ and operate within an agreed
period and for which the charterer shall pay the shipowner
the hire.
Article 145 A
bareboat charter party mainly contains the name of the shipowner
and the name of the charterer; the name, nationality, class, tonnage and
capacity of the ship; the trading area, the employment of the ship and the
charter period; the time, place and condition of delivery and redelivery; the
survey, maintenance and repair of the ship; the hire and its payment; the
insurance of the ship; the time and condition for the termination of the
charter and other relevant matters.
Article 146 The shipowner shall deliver the ship and its certificates to
the charterer at the port or place and time as stipulated in the charter party.
At the time of delivery, the shipowner shall exercise
due diligence to make the ship seaworthy. The ship delivered shall be fit for
the agreed service.
Where
the shipowner acts against the provisions of the
preceding paragraph, the charterer shall be entitled to cancel the charter and
claim any losses resulting therefrom.
Article 147 The
charterer shall be responsible for the maintenance and repair of the ship
during the bareboat charter period.
Article 148
During the bareboat charter period, the ship shall be insured, at the value
agreed upon in the charter and in the way consented to by the shipowner, by the charterer at his expense.
Article 149 During
the bareboat charter period, if the charterer's possession, employment or
operation of the ship has affected the interests of the shipowner
or caused any losses thereto, the charterer shall be liable for eliminating the
harmful effect or compensating for the losses.
Should
the ship be arrested due to any disputes over its ownership or debts owed by
the shipowner, the shipowner
shall guarantee that the interest of the charterer is not affected. The shipowner shall be liable for compensation for any losses
suffered by the charterer thereby.
Article 150 During
the bareboat charter period, the charterer shall not assign the rights and
obligations stipulated in the charter or sublet the ship under bareboat charter
without the shipowners's consent in writing.
Article 151 The shipowner shall not establish any mortgage of the ship
during the bareboat charter period without the prior consent in writing by the
charterer.
Where
the shipowner acts against the provisions of the
preceding paragraph and thereby causes losses to the charterer, the shipowner shall be liable for compensation.
Article 152 The
charterer shall pay the hire as stipulated in the charter. In default of
payment by the charterer for seven consecutive days or more after the time as
agreed in the charter for such payment, the shipowner
is entitled to cancel the charter without prejudice to any claim for the loss
arising from the charterer's default.
Should
the ship be lost or missing, payment of hire shall cease from the day when the
ship was lost or last heard of. Any hire paid in advance shall be refunded in
proportion.
Article 153 The
provisions of Article 134, paragraph 1 of Article 135, Article 142 and Article
143 of this Code shall be applicable to bareboat charter parties.
Article 154 The
ownership of a ship under bareboat charter containing a lease-purchase clause
shall be transferred to the charterer when the charterer has paid off the
lease-purchase price to the shipowner as stipulated
in the charter.
Chapter
VII Contract of Sea Towage
Article 155 A contract of sea towage is a contract whereby the tugowner undertakes to tow an object by sea with a tug from
one place to another and the tow party pays the towage.
The
provisions of this Chapter shall not be applicable to the towage service
rendered to ships within the port area.
Article 156 A contract of sea towage shall be made in writing. Its
contents shall mainly include name and address of the tugowner,
name and address of the tow party, name and main particulars of the tug and
name and main particulars of the object to be towed, horse power of the tug,
place of commencement of the towage and the destination, the date of
commencement of the towage, towage price and the way of payment thereof, as
well as other relevant matters.
Article 157 The tugowner shall, before and at the beginning of the towage,
exercise due diligence to make the tug seaworthy and towworthy
and to properly man the tug and equip it with gears and tow lines and to
provide all other necessary supplies and appliances for the intended voyage.
The
tow party shall, before and at the beginning of the towage, make all necessary preparations
therefore and shall exercise due diligence to make the object to be towed towworthy and shall give a true account of the object to be
towed and provide the certificate of towworthiness
and other documents issued by the relevant survey and inspection organizations.
Article
158
If before the commencement of the towage service, due to force majeure or other
causes not attributable to the fault of either party, the towage contract could
not be performed, either party may cancel the contract and neither shall be
liable to the other. In such event, the towage price that
had already been paid shall be returned to the tow party by the tugowner, unless otherwise agreed upon in the towage
contract.
Article
159
If after the commencement of the towage service, due to force majeure or other
causes not attributable to the fault of either party, the towage contract could
not be performed, either party may cancel the towage contract and neither shall
be liable to the other.
Article 160
Where the object towed could not reach its destination due to force majeure or
other causes not attributable to the fault of either party, unless the towage
contract provides otherwise, the tugowner may deliver
the object towed to the tow party or its agent at a place near the destination
or at a safe port or an anchorage chosen by the Master of the tug, and the
contract of towage shall be deemed to have been fulfilled.
Article 161 Where
the tow party fails to pay the towage price or other reasonable expenses as
agreed, the tugowner shall have a lien on the object
towed.
Article 162 In
the course of the sea towage, if the damage suffered by the tugowner
or the tow party was caused by the fault of one of the parties, the party in
fault shall be liable for compensation. If the damage was caused by the faults
of both parties, both parties shall be liable for compensation in proportion to
the extent of their respective faults.
Notwithstanding
the provisions of the preceding paragraph, the tugowner
shall not be liable if he proves that the damage suffered by the tow party is
due to one of the following causes:
(1)
Fault of the Master or other crew members of the tug or the pilot or other
servants or agents of the tugowner in the navigation
and management of the tug;
(2)
Fault of the tug in saving or attempting to save life or property at sea.
The
provisions of this Article shall only apply if and when there are no provisions
or no different provisions in this regard in the sea towage contract.
Article 163 If
death of or personal injury to a third party or damage to property thereof has
occurred during the sea towage due to the fault of the tugowner
or the tow party, the tugowner and the tow party
shall be liable jointly and severally to that third party. Except as otherwise
provided for in the towage contract, the party that has jointly and severally
paid a compensation in an amount exceeding the
proportion for which it is liable shall have the right of recourse against the
other party.
Article 164
Where a tugowner towing a barge owned or operated by
him to transport goods by sea from one port to another, it shall be deemed as
an act of carriage of goods by sea.
Chapter
VIII Collision of Ships
Article 165
Collision of ships means an accident arising from the touching of ships at sea
or in other navigable waters adjacent thereto.
Ships
referred to in the preceding paragraph shall include those non-military or
public service ships or craft that collide with the ships mentioned in Article
3 of this Code.
Article 166
After a collision, the Master of each of the ships in collision is bound, so
far as he can do so without serious danger to his ship and persons on board to
render assistance to the other ship and persons on board.
The
Masters of each of the ships in collision is likewise bound so far as possible
to make known to the other ship the name of his ship, its port of registry,
port of departure and port of destination.
Article 167
Neither of the parties shall be liable to the other if the collision is caused
by force majeure or other causes not attributable to the fault of either party
or if the cause thereof is left in doubt.
Article 168 If
the collision is caused by the fault of one of the ships, the one in fault
shall be liable therefore.
Article 169 If
the colliding ships are all in fault, each ship shall be liable in proportion
to the extent of its fault; if the respective faults are equal in proportion or
it is impossible to determine the extent of the proportion of the respective
faults, the liability of the colliding ships shall be apportioned equally.
The
ships in fault shall be liable for the damage to the ship, the goods and other
property on board pursuant to the proportions prescribed in the preceding
paragraph. Where damage is caused to the property of a third party, the
liability for compensation of any of the colliding ships shall not exceed the
proportion it shall bear.
If
the ships in fault have caused loss of life or personal injury to a third
party, they shall be jointly and severally liable therefore. If a ship has paid
an amount of compensation in excess of the proportion prescribed in paragraph 1
of this Article, it shall have the right of recourse against the other ship(s)
in fault.
Article 170 Where
a ship has caused damage to another ship and persons, goods or other property
on board that ship, either by the execution or non-execution of a maneuvre or by the non-observance of navigation
regulations, even if no collision has actually occurred, the provisions of this
Chapter shall apply.
Chapter
IX Salvage at Sea
Article 171 The
provisions of this Chapter shall apply to salvage operations rendered at sea or
any other navigable waters adjacent thereto to ships and other property in
distress.
Article 172 For
the purposes of this Chapter:
(1)"Ship"
means any ship referred to in Article 3 of this Code and any other
non-military, public service ship or craft that has been involved in a salvage
operation therewith;
(2)"Property"
means any property not permanently and intentionally attached to the shoreline
and includes freight at risk;
(3)
"Payment" means any reward, remuneration or compensation for salvage
operations to be paid by the salved party to the salvor
pursuant to the provisions of this Chapter.
Article 173 The
provisions of this Chapter shall not apply to fixed or floating platforms or
mobile offshore drilling units when such platforms or units are on location
engaged in the exploration, exploitation or production of sea-bed mineral
resources.
Article 174 Every
Master is bound, so far as he can do so without serious danger to his ship and
persons on board, to render assistance to any person in danger of being lost at
sea.
Article 175 A contract for salvage operations at sea is concluded when an
agreement has been reached between the salvor and the
salved party regarding the salvage operations to be undertaken.
The
Master of the ship in distress shall have the authority to conclude a contract
for salvage operations on behalf of the shipowner.
The Master of the ship in distress or its owner shall have the authority to
conclude a contract for salvage operations on behalf of the owner of the
property on board.
Article 176 The
salvage contract may be modified by a judgment of the court which has
entertained the suit brought by either party, or modified by an award of the
arbitration organization to which the dispute has been submitted for
arbitration upon the agreement of the parties, under any of the following
circumstances:
(1)
The contract has been entered into under undue influence or the influence of
danger and its terms are obviously inequitable;
(2)
The payment under the contract is in an excessive degree too large or too small
for the services actually rendered.
Article 177 During
the salvage operation, the salvor shall owe a duty to
the salved party to:
(1)
carry out the salvage operation with due care;
(2)
exercise due care to prevent or minimize the pollution
damage to the environment;
(3)
seek the assistance of other salvors where reasonably
necessary;
(4)
accept the reasonable request of the salved party to
seek the participation in the salvage operation of other salvors.
However, if the request is not well-founded, the amount of payment due to the
original salvor shall not be affected.
Article 178
During the salvage operation, the party salved is under an obligation to the salvor to:
(1)
cooperate fully with the salvor;
(2)
exercise due care to prevent or minimize the pollution
damage to the environment;
(3)
promptly accept the request of the salvor
to take delivery of the ship or property salved when such ship or property has
been brought to a place of safety.
Article 179
Where the salvage operations rendered to the distressed ship and other property
have had a useful result, the salvor shall be
entitled to a reward. Except as otherwise provided for by
Article 182 of this Code or by other laws or the salvage contract, the salvor shall not be entitled to the payment if the salvage
operations have had no useful result.
Article 180 The
reward shall be fixed with a view to encouraging salvage operations, taking
into full account the following criteria:
(1)
Value of the ship and other property salved;
(2)
Skill and efforts of the salvors in preventing or
minimizing the pollution damage to the environment;
(3)
Measure of success obtained by the salvors;
(4)
Nature and extent of the danger;
(5)
Skill and efforts of the salvors in salving the ship,
other property and life;
(6)
Time used and expenses and losses incurred by the salvors;
(7)
Risk of liability and other risks run by the salvors
or their equipment;
(8)
Promptness of the salvage services rendered by the salvors;
(9)
Availability and use of ships or other equipment intended for salvage
operations;
(10)
State of readiness and efficiency of the salvor's
equipment and the value thereof.
The
reward shall not exceed the value of the ship and other property salved.
Article 181 The
salved value of the ship and other property means the assessed value of the
ship and other property salved or the proceeds of the sale thereof, after
deduction of the relevant taxes and customs dues, quarantine expenses,
inspection charges as well as expenses incurred in connection with the
discharge, storage, assessment of the value and the sale thereof.
The
value prescribed in the preceding paragraph does not include the value of the
salved personal belongings of the crew and that of the cabin luggage of the
passengers.
Article 182 If
the salvor has carried out the salvage operations in
respect of a ship which by itself or its goods threatened pollution damage to
the environment and has failed to earn a reward under Article 180 of this Code
at least equivalent to the special compensation assessable in accordance with
this Article, he shall be entitled to special compensation from the owner of
that ship equivalent to his expenses as herein defined.
If
the salvor has carried out the salvage operations
prescribed in the preceding paragraph and has prevented or minimized pollution
damage to the environment, the special compensation payable by the owner to the
salvor under paragraph 1 of this Article may be
increased by an amount up to a maximum of 30% of the expenses incurred by the salvor. The court which has entertained the suit or the
arbitration organization may, if it deems fair and just and taking into
consideration the provisions of paragraph 1 of Article 180 of this Code, render
a judgment or an award further increasing the amount of such special
compensation, but in no event shall the total increase be more than 100% of the
expenses incurred by the salvor.
The
salvor's expenses referred to in this Article means
the salvor's out-of-pocket expenses reasonably
incurred in the salvage operation and the reasonable expenses for the equipment
and personnel actually used in the salvage operation. In determining the salvor's expenses, the provisions of sub-paragraphs (8),
(9) and (10) of paragraph 1 of Article 180 of this Code shall be taken into
consideration.
Under
all circumstances, the total special compensation provided for in this Article
shall be paid only if such compensation is greater than the reward recoverable
by the salvor under Article 180 of this Code, and the
amount to be paid shall be the difference between the special compensation and
the reward.
If
the salvor has been negligent and has thereby failed
to prevent or minimize the pollution damage to the environment, the salvor may be totally or partly deprived of the right to
the special compensation.
Nothing
in this Article shall affect the right of recourse on the part of the shipowner against any other parties salved.
Article 183 The
salvage reward shall be paid by the owners of the salved ship and other
property in accordance with the respective proportions which the salved values
of the ship and other property bear to the total salved value.
Article 184 The
distribution of salvage reward among the salvors
taking part in the same salvage operation shall be made by agreement among such
salvors on the basis of the criteria set out in
Article 180 of this Code; failing such agreement, the matter may be brought
before the court hearing the case for judgment, or, upon the agreement of the
parties, submitted to the arbitration organization for an award.
Article 185 The salvors of human life may not demand any remuneration from
those whose lives are saved. However, salvors of
human life are entitled to a fair share of the payment awarded to the salvor for salving the ship or other property or for
preventing or minimizing the pollution damage to the environment.
Article 186 The
following salvage operations shall not be entitled to remuneration:
(1)
The salvage operation is carried out as a duty to normally perform a towage
contract or other service contract, with the exception, however, of providing
special services beyond the performance of the above said duty.
(2)
The salvage operation is carried out in spite of the express and reasonable
prohibition on the part of the Master of the ship in distress, the owner of the
ship in question and the owner of the other property.
Article 187 Where
the salvage operations have become necessary or more difficult due to the fault
of the salvor or where the salvor
has committed fraud or other dishonest conduct, the salvor
shall be deprived of the whole or part of the payment payable to him.
Article 188 After
the completion of the salvage operation, the party salved shall, at the request
of the salvor, provide satisfactory security for
salvage reward and other charges.
Without
prejudice to the provisions of the preceding paragraph, the owner of the ship
salved shall, before the release of the goods, make best endeavours
to cause the owners of the property salved to provide satisfactory security for
the share of the payment that they ought to bear.
Without
the consent of the salvor, the ship or other property
salved shall not be removed from the port or place at which they first arrived
after the completion of the salvage operation, until satisfactory security has
been provided with respect to the ship or other property salved, as demanded by
the salvor.
Article 189 The
court or the arbitration organization handling the salvor's
claim for payment may, in light of the specific circumstances and under fair
and just terms, decide or make an award ordering the party salved to pay on
account an appropriate amount to the salvor.
On
the basis of the payment on account made by the party salved in accordance with
the provisions of the preceding paragraph, the security provided under Article
188 of this Code shall be reduced accordingly.
Article 190 If
the party salved has neither made the payment nor provided satisfactory
security for the ship and other property salved after 90 days of the salvage,
the salvor may apply to the court for an order on
forced sale by auction. With respect to the ship or the property salved that
cannot be kept or cannot be properly kept, or the storage charge to be incurred
may exceed its value, the salvor may apply for an
earlier forced sale by auction.
The
proceeds of the sale shall, after deduction of the expenses incurred for the
storage and sale, be used for the payment in accordance with the provisions of
this Code. The remainder, if any, shall be returned to the party salved, and,
if there is no way to return the remainder or if the remainder has not been
claimed after one year of the forced sale, it shall go to the State treasury.
In case of any deficiency, the salvor has the right
of recourse against the party salved.
Article 191 The
provisions of this Chapter shall apply to the salvor's
right to the payment for the salvage operations carried out between the ships
of the same owner.
Article 192 With
respect to the salvage operations performed or controlled by the relevant
competent authorities of the State, the salvors shall
be entitled to avail themselves of the rights and remedies provided for in this
Chapter in respect of salvage operations.
Chapter
X General Average
Article 193 General average means the extraordinary sacrifice or
expenditure intentionally and reasonably made or incurred for the common safety
for the purpose of preserving from peril the ship, goods or other property
involved in a common maritime adventure.
Loss
or damage sustained by the ship or goods through delay, whether on the voyage
or subsequently, such as demurrage and loss of market as well as other indirect
losses, shall not be admitted as general average.
Article 194 When
a ship, after having been damaged in consequence of accident, sacrifice or
other extraordinary circumstances, shall have entered a port or place of refuge
or returned to its port or place of loading to effect repairs which are
necessary for the safe prosecution of the voyage, then the port charges paid,
the wages and maintenance of the crew incurred and the fuel and stores consumed
during the extra period of detention in such port or place, as well as the loss
or damage and charges arising from the discharge, storage, reloading and
handling of the goods, fuel, stores and other property on board in order to
have the repairs done shall be allowed as general average.
Article 195 Any
extra expense incurred in place of another expense which would have been
allowed as general average shall be deemed to be general average and so
allowed, but the amount of such expense incurred shall not be in excess of the
general average expense avoided.
Article 196 The
onus of proof shall be upon the party claiming in general average to show that
the loss or expense claimed is properly allowable as general average.
Article 197
Rights to contribution in general average shall not be affected, though the
event which gave rise to the sacrifice or expenditure may have been due to the
fault of one of the parties to the adventure. However, this shall not prejudice
any remedies or defences which may be open against or
to that party in respect of such fault.
Article 198 The
amounts of sacrifice of the ship, the goods and the freight shall be
respectively determined as follows:
(1)
The amount of sacrifice of the ship shall be calculated on the basis of the
repair cost of the ship actually paid, from which any reasonable deduction in
respect of "new for old" being made. Where the ship has not been
repaired after the sacrifice, the amount of sacrifice thereof shall be
calculated on the basis of the reasonable reduced value of ship after the
general average sacrifice. Such amount shall not exceed the estimated cost of
repair.
Where
the ship is an actual total loss or where the cost of repair would exceed the
value of the ship after the repair, the amount of sacrifice of the ship shall
be calculated on the basis of the estimated sound value of the ship, less the
estimated cost of repair not allowable as general average, as well as the value
of the ship after the damage.
(2)
The amount of sacrifice of the goods already lost shall be calculated on the
basis of the value of the goods at the time of shipment plus insurance and
freight, from which the freight that need not be paid due to the sacrifice made
being deducted. For the damaged goods that had already been sold before an
agreement was reached on the extent of the damage sustained, the amount of
sacrifice thereof shall be calculated on the basis of the difference between
the value of the goods at the time of shipment plus insurance and freight, and
the net proceeds of the goods so sold.
(3)
The amount of sacrifice of the freight shall be calculated on the basis of the
amount of loss of freight on account of the sacrifice of the goods, from which
the operating expenses that ought to be paid in order to earn such freight but
need not be paid because of the sacrifice shall be deducted.
Article 199 The
contribution in general average shall be made in proportion to the contributory
values of the respective beneficiaries.
The
contributory value in general average by the ship, goods and freight shall be
determined as follows:
(1)
The contributory value of the ship shall be calculated on the basis of the
sound value of the ship at the place where the voyage ends, from which any
damage that does not come under general average sacrifice being deducted;
alternately, the actual value of the ship at the place where the voyage ends,
plus the amount of general average sacrifice.
(2)
The contributory value of the goods shall be calculated on the basis of the
value of the goods at the time of shipment plus insurance and freight, from which
the damage that does not come under the general average sacrifice and the
carrier's freight at risk being deducted. Where the goods had been sold before
its arrival at the port of destination, its value for contribution shall be the
net proceeds plus the amount of general average sacrifice.
Passenger's
luggage and personal belongings shall not be included in the value for
contribution.
(3)
The Contributory value of freight shall be calculated on the basis of the
amount of freight at the risk of the carrier and which the carrier is entitled
to collect at the end of the voyage, less any expense incurred for the
prosecution of the voyage after the general average, in order to earn the
freight, plus the amount of general average sacrifice.
Article 200 Goods
undeclared or wrongfully declared shall be liable for the contribution to
general average, but the special sacrifice sustained by such goods shall not be
allowed as general average.
Where
the value of the goods has been improperly declared at a value below its actual
value, the contribution to general average shall be made on the basis of their
actual value and, where a general average sacrifice has occurred, the amount of
sacrifice shall be calculated on the basis of the declared value.
Article 201 Interest
shall be allowed on general average sacrifice and general average expenses paid
on account. A commission shall be allowed for the general average expenses paid
on account, except those for the wages and maintenance of the crew and fuel and
store consumed.
Article 202 The
contributing parties shall provide security for general average contribution at
the request of the parties that have an interest therein.
Where
the security has been provided in the form of cash deposits, such deposits
shall be put in a bank by an average adjuster in the name of a trustee.
The
provision, use and refund of the deposits shall be without prejudice to the
ultimate liability of the contributing parties.
Article 203 The
adjustment of general average shall be governed by the average adjustment rules
agreed upon in the relevant contract. In the absence of such an agreement in
the contract, the relevant provisions contained in this Chapter shall apply.
Chapter
XI Limitation of Liability for Maritime Claims
Article 204 Shipowners and salvors may limit
their liability in accordance with the provisions of this Chapter for claims
set out in Article 207 of this Code.
The
shipowners referred to in the preceding paragraph
shall include the charterer and the operator of a ship.
Article 205 If
the claims set out in Article 207 of this Code are not made against shipowners or salvors themselves
but against persons for whose act, neglect or default the shipowners
or salvors are responsible, such persons may limit
their liability in accordance with the provisions of this Chapter.
Article 206 Where
the assured may limit his liability in accordance with the provisions of this
Chapter, the insurer liable for the maritime claims shall be entitled to the
limitation of liability under this Chapter to the same extent as the assured.
Article 207 Except
as provided otherwise in Articles 208 and 209 of this Code, with respect to the
following maritime claims, the person liable may limit his liability in
accordance with the provisions of this Chapter, whatever the basis of liability
may be:
(1)
Claims in respect of loss of life or personal injury or loss of or damage to
property including damage to harbour works, basins
and waterways and aids to navigation occurring on board or in direct connection
with the operation of the ship or with salvage operations, as well as
consequential damages resulting therefrom;
(2)
Claims in respect of loss resulting from delay in delivery in the carriage of
goods by sea or from delay in the arrival of passengers or their luggage;
(3)
Claims in respect of other loss resulting from infringement of rights other
than contractual rights occurring in direct connection with the operation of
the ship or salvage operations;
(4)
Claims of a person other than the person liable in respect of measures taken to
avert or minimize loss for which the person liable may limit his liability in
accordance with the provisions of this Chapter, and further loss caused by such
measures.
All
the claims set out in the preceding paragraph, whatever the way they are
lodged, may be entitled to limitation of liability. However, with respect to
the remuneration set out in sub-paragraph (4) for which the person liable pays
as agreed upon in the contract, in relation to the obligation for payment, the
person liable may not invoke the provisions on limitation of liability of this
Article.
Article 208 The
provisions of this Chapter shall not be applicable to the following claims:
(1)
Claims for salvage payment or contribution in general average;
(2)
Claims for oil pollution damage under the International Convention on Civil
Liability for Oil Pollution Damage to which the People's Republic of China is a
party;
(3)
Claims for nuclear damage under the International Convention on Limitation of
Liability for Nuclear Damage to which the People's Republic of China is a
party;
(4)
Claims against the shipowner of a nuclear ship for
nuclear damage;
(5)
Claims by the servants of the shipowner or salvor, if under the law governing the contract of
employment, the shipowner or salvor
is not entitled to limit his liability or if he is by such law only permitted
to limit his liability to an amount greater than that provided for in this
Chapter.
Article 209 A person liable shall not be entitled to limit his liability
in accordance with the provisions of this Chapter, if it is proved that the
loss resulted from his act or omission done with the intent to cause such loss
or recklessly and with knowledge that such loss would probably result.
Article 210 The
limitation of liability for maritime claims, except as otherwise provided for
in Article 211 of this Code, shall be calculated as follows:
(1)
In respect of claims for loss of life or personal injury:
a)
333,000 Units of Account for a ship with a gross tonnage ranging from 300 to
500 tons;
b)
For a ship with a gross tonnage in excess of 500 tons, the limitation under a)
above shall be applicable to the first 500 tons and the following amounts in
addition to that set out under a) shall be applicable to the gross tonnage in
excess of 500 tons:
For
each ton from 501 to 3,000 tons: 500 Units of Account;
For
each ton from 3,001 to 30,000 tons: 333 Units of Account;
For
each ton from 30,001 to 70,000 tons: 250 Units of Account;
For
each ton in excess of 70,000 tons: 167 Units of Account;
(2)
In respect of claims other than that for loss of life or personal injury:
a)
167,000 Units of Account for a ship with a gross tonnage ranging from 300 to
500 tons;
b)
For a ship with a gross tonnage in excess of 500 tons, the limitation under a)
above shall be applicable to the first 500 tons, and the following amounts in
addition to that under a) shall be applicable to the part in excess of 500
tons:
For
each ton from 501 to 30,000 tons: 167 Units of Account;
For
each ton from 30,001 to 70,000 tons: 125 Units of Account;
For each ton in excess of 70,000 tons:
83 Units of Account.
(3)
Where the amount calculated in accordance with sub-paragraph (1) above is
insufficient for payment of claims for loss of life or personal injury set out
therein in full, the amount calculated in accordance with sub-paragraph (2)
shall be available for payment of the unpaid balance of claims under
sub-paragraph (1), and such unpaid balance shall rank rateably
with claims set out under sub-paragraph (2).
(4)
However, without prejudice to the right of claims for loss of life or personal
injury under sub-paragraph (3), claims in respect of damage to harbour works, basins and waterways and aids to navigation
shall have priority over other claims under sub-paragraph (2).
(5)
The limitation of liability for any salvor not
operating from any ship or for any salvor operating
solely on the ship to, or in respect of which, he is rendering salvage
services, shall be calculated according to a gross tonnage of 1,500 tons.
The
limitation of liability for ships with a gross tonnage not exceeding 300 tons
and those engaging in transport services between the ports of the People's
Republic of China as well as those for other coastal works shall be worked out
by the competent authorities of transport and communications under the State
Council and implemented after its being submitted to and approved by the State
Council.
Article 211 In
respect of claims for loss of life or personal injury to passengers carried by sea,
the limitation of liability of the shipowner thereof
shall be an amount of 46,666 Units of Account multiplied by the number of
passengers which the ship is authorized to carry according to the ship's
relevant certificate, but the maximum amount of compensation shall not exceed
25,000,000 Units of Account.
The
limitation of liability for claims for loss of life or personal injury to
passengers carried by sea between the ports of the People's Republic of China
shall be worked out by the competent authorities of transport and
communications under the State Council and implemented after its being
submitted to and approved by the State Council.
Article 212 The
limitation of liability under Articles 210 and 211 of this Code shall apply to
the aggregate of all claims that may arise on any given occasion against shipowners and salvors
themselves, and any person for whose act, neglect or fault the shipowners and the salvors are
responsible.
Article 213 Any
person liable claiming the limitation of liability under this Code may
constitute a limitation fund with a court having jurisdiction. The fund shall
be constituted in the sum of such an amount set out respectively in Articles
210 and 211, together with the interest thereon from the date of the occurrence
giving rise to the liability until the date of the constitution of the fund.
Article 214 Where
a limitation fund has been constituted by a person liable, any person having
made a claim against the person liable may not exercise any right against any
assets of the person liable. Where any ship or other property belonging to the
person constituting the fund has been arrested or attached, or, where a
security has been provided by such person, the court shall order without delay
the release of the ship arrested or the property attached or the return of the
security provided.
Article 215 Where
a person entitled to limitation of liability under the provisions of this
Chapter has a counter-claim against the claimant arising out of the same
occurrence, their respective claims shall be set off against each other and the
provisions of this Chapter shall only apply to the balance, if any.
Chapter
XII Contract of Marine Insurance
Section
1 Basic Principles
Article 216 A contract of marine insurance is a contract whereby the
insurer undertakes, as agreed, to indemnify the loss to the subject matter
insured and the liability of the insured caused by perils covered by the
insurance against the payment of an insurance premium by the insured.
The
covered perils referred to in the preceding paragraph mean any maritime perils
agreed upon between the insurer and the insured, including perils occurring in
inland rivers or on land which is related to a maritime adventure.
Article 217 A contract of marine insurance mainly includes:
(1)
Name of the insurer;
(2)
Name of the insured;
(3)
Subject matter insured;
(4)
Insured value;
(5)
Insured amount;
(6)
Perils insured against and perils excepted;
(7)
Duration of insurance coverage;
(8)
Insurance premium.
Article 218 The
following items may come under the subject matter of marine insurance:
(1)Ship;
(2)
Cargo;
(3)
Income from the operation of the ship including freight, charter hire and
passenger's fare;
(4)
Expected profit on cargo;
(5)
Crew's wages and other remuneration;
(6)
Liabilities to a third person;
(7)
Other property which may sustain loss from a maritime peril and the liability
and expenses arising therefrom.
The
insurer may reinsure the insurance of the subject matter enumerated in the
preceding paragraph. Unless otherwise agreed in the contract, the original
insured shall not be entitled to the benefit of the reinsurance.
Article 219 The
insurable value of the subject matter insured shall be agreed upon between the
insurer and the insured.
Where
no insurable value has been agreed upon between the insurer and the insured,
the insurable value shall be calculated as follows:
(1)
The insurable value of the ship shall be the value of the ship at the time when
the insurance liability commences, being the total value of the ship's hull,
machinery, equipment, fuel, stores, gear, provisions and fresh water on board
as well as the insurance premium;
(2)
The insurable value of the cargo shall be the aggregate of the invoice value of
the cargo or the actual value of the non-trade commodity at the place of
shipment, plus freight and insurance premium when the insurance liability
commences;
(3)
The insurable value of the freight shall be the aggregate of the total amount
of freight payable to the carrier and the insurance premium when the insurance
liability commences;
(4)
The insurable value of other subject matter insured shall be the aggregate of
the actual value of the subject matter insured and the insurance premium when
the insurance liability commences.
Article 220 The
insured amount shall be agreed upon between the insurer and the insured. The
insured amount shall not exceed the insured value. Where the insured amount
exceeds the insured value, the portion in excess shall be null and void.
Section
2 Conclusion, Termination and Assignment of Contract
Article 221 A contract of marine insurance comes into being after the
insured puts forth a proposal for insurance and the insurer agrees to accept
the proposal and the insurer and the insured agree on the terms and conditions
of the insurance. The insurer shall issue to the insured an insurance policy or
other certificate of insurance in time, and the contents of the contract shall
be contained therein.
Article 222
Before the contract is concluded, the insured shall truthfully inform the
insurer of the material circumstances which the insured has knowledge of or
ought to have knowledge of in his ordinary business practice and which may have
a bearing on the insurer in deciding the premium or whether be agrees to insure
or not.
The
insured need not inform the insurer of the facts which the insurer has known of
or the insurer ought to have knowledge of in his ordinary business practice if
about which the insurer made no inquiry.
Article 223 Upon
failure of the insured to truthfully inform the insurer of the material
circumstances set forth in paragraph 1 of Article 222 of this Code due to his
intentional act, the insurer has the right to terminate the contract without
refunding the premium. The insurer shall not be liable for any loss arising
from the perils insured against before the contract is terminated.
If,
not due to the insured's intentional act, the insured did not truthfully inform
the insurer of the material circumstances set out in paragraph 1 of Article 222
of this Code, the insurer has the right to terminate the contract or to demand
a corresponding increase in the premium. In case the contract is terminated by
the insurer, the insurer shall be liable for the loss arising from the perils
insured against which occurred prior to the termination of the contract, except
where the material circumstances uninformed or wrongly informed of have an
impact on the occurrence of such perils.
Article 224
Where the insured was aware or ought to be aware that the subject matter
insured had suffered a loss due to the incidence of a peril insured against
when the contract was concluded, the insurer shall not be liable for
indemnification but shall have the right to the premium. Where the insurer was
aware or ought to be aware that the occurrence of a loss to the subject matter
insured due to a peril insured against was impossible, the insured shall have
the right to recover the premium paid.
Article 225
Where the insured concludes contracts with several insurers for the same subject
matter insured and against the same risk, and the insured amount of the said
subject matter insured thereby exceeds the insured value, then, unless
otherwise agreed in the contract, the insured may demand indemnification from
any of the insurers and the aggregate amount to be indemnified shall not exceed
the loss value of the subject matter insured. The liability of each insurer
shall be in proportion to that which the amount he insured bears to the total
of the amounts insured by all insurers. Any insurer who has paid an
indemnification in an amount greater than that for
which he is liable, shall have the right of recourse against those who have not
paid their indemnification in the amounts for which they are liable.
Article 226
Prior to the commencement of the insurance liability, the insured may demand
the termination of the insurance contract but shall pay the handling fees to
the insurer, and the insurer shall refund the premium.
Article 227 Unless
otherwise agreed in the contract, neither the insurer nor the insured may
terminate the contract after the commencement of the insurance liability.
Where
the insurance contract provides that the contract may be terminated after the
commencement of the liability, and the insured demands the termination of the
contract, the insurer shall have the right to the premium payable from the day
of the commencement of the insurance liability to the day of termination of the
contract and refund the remaining portion. If it is the insurer who demands the
termination of the contract, the unexpired premium from the day of the
termination of the contract to the day of the expiration of the period of
insurance shall be refunded to the insured.
Article 228
Notwithstanding the stipulations in Article 227 of this Code, the insured may
not demand termination of the contract for cargo insurance and voyage insurance
on ship after the commencement of the insurance liability.
Article 229 A contract of marine insurance for the carriage of goods by
sea may be assigned by the insured by endorsement or otherwise, and the rights
and obligations under the contract are assigned accordingly. The insured and
the assignee shall be jointly and severally liable for the payment of the
premium if such premium remains unpaid up to the time of the assignment of the
contract.
Article 230 The
consent of the insurer shall be obtained where the insurance contract is
assigned in consequence of the transfer of the ownership of the ship insured.
In the absence of such consent, the contract shall be terminated from the time
of the transfer of the ownership of the ship. Where the transfer takes place
during the voyage, the contract shall be terminated when the voyage ends.
Upon
termination of the contract, the insurer shall refund the unexpired premium to
the insured calculated from the day of the termination of the contract to the
day of its expiration.
Article 231 The
insured may conclude an open cover with the insurer for the goods to be shipped
or received in batches within a given period. The open cover shall be evidenced
by an open policy to be issued by the insurer.
Article 232 The
insurer shall, at the request of the insured, issue insurance certificates
separately for the cargo shipped in batches according to the open cover.
Where
the contents of the insurance certificates issued by the insurer separately
differ from those of the open policy, the insurance certificates issued
separately shall prevail.
Article 233 The
insured shall notify the insurer immediately on learning that the cargo insured
under the open cover has been shipped or has arrived. The items to be notified
of shall include the name of the carrying ship, the voyage, the value of the
cargo and the insured amount.
Section
3 Obligation of the Insured
Article 234 Unless
otherwise agreed in the insurance contract, the insured shall pay the premium
immediately upon conclusion of the contract. The insurer may refuse to issue
the insurance policy or other insurance certificate before the premium is paid
by the insured.
Article 235 The
insured shall notify the insurer in writing immediately where the insured has
not complied with the warranties under the contract. The insurer may, upon
receipt of the notice, terminate the contract or demand an amendment to the
terms and conditions of the insurance coverage or an increase in the premium.
Article 236 Upon
the occurrence of the peril insured against, the insured shall notify the
insurer immediately and shall take necessary and reasonable measures to avoid
or minimize the loss. Where special instructions for the adoption of reasonable
measures to avoid or minimize the loss are received from the insurer, the
insured shall act according to such instructions.
The
insurer shall not be liable for the extended loss caused by the insured's breach
of the provisions of the preceding paragraph.
Section
4 Liability of the Insurer
Article 237 The
insurer shall indemnify the insured promptly after the loss from a peril
insured against has occurred.
Article 238 The
insurer's indemnification for the loss from the peril insured against shall be
limited to the insured amount. Where the insured amount is lower than the
insured value, the insurer shall indemnify in the proportion that the insured
amount bears to the insured value.
Article 239 The
insurer shall be liable for the loss to the subject matter insured arising from
several perils insured against during the period of the insurance even though
the aggregate of the amounts of loss exceeds the insured amount. However, the
insurer shall only be liable for the total loss where the total loss occurs
after the partial loss which has not been repaired.
Article 240 The
insurer shall pay, in addition to the indemnification to be paid with regard to
the subject matter insured, the necessary and reasonable expenses incurred by
the insured for avoiding or minimizing the loss recoverable under the contract,
the reasonable expenses for survey and assessment of the value for the purpose
of ascertaining the nature and extent of the peril insured against and the expenses
incurred for acting on the special instructions of the insurer.
The
payment by the insurer of the expenses referred to in the preceding paragraph
shall be limited to that equivalent to the insured amount.
Where
the insured amount is lower than the insured value, the insurer shall be liable
for the expenses referred to in this Article in the proportion that the insured
amount bears to the insured value, unless the contract provides otherwise.
Article 241
Where the insured amount is lower than the value for contribution under the
general average, the insurer shall be liable for the general average
contribution in the proportion that the insured amount bears to the value for
contribution.
Article 242 The
insurer shall not be liable for the loss caused by the intentional act of the
insured.
Article 243 Unless
otherwise agreed in the insurance contract, the insurer shall not be liable for
the loss of or damage to the insured cargo arising from any of the following
causes:
(1)
Delay in the voyage or in the delivery of cargo or change of market price;
(2)
Fair wear and tear, inherent vice or nature of the cargo; and
(3)
Improper packing.
Article
244 Unless otherwise agreed in the insurance contract,
the insurer shall not be liable for the loss of or damage to the insured ship
arising from any of the following causes:
(1)
Unseaworthiness of the ship at the time of the
commencement of the voyage, unless where under a time policy the insured has no
knowledge thereof;
(2)
Wear and tear or corrosion of the ship.
The
provisions of this Article shall apply " mutatis
mutandis" to the insurance of freight.
Section
5 Loss of or Damage to the Subject Matter Insured and Abandonment
Article 245
Where after the occurrence of a peril insured against the subject matter
insured is lost or is so seriously damaged that it is completely deprived of
its original structure and usage or the insured is deprived of the possession
thereof, it shall constitute an actual total loss.
Article 246 Where
a ship's total loss is considered to be unavoidable after the occurrence of a
peril insured against or the expenses necessary for avoiding the occurrence of
an actual total loss would exceed the insured value, it shall constitute a
constructive total loss.
Where
an actual total loss is considered to be unavoidable after the cargo has
suffered a peril insured against, or the expenses to be incurred for avoiding
the total actual loss plus that for forwarding the cargo to its destination
would exceed its insured value, it shall constitute a constructive total loss.
Article 247 Any
loss other than an actual total loss or a constructive total loss is a partial
loss.
Article 248
Where a ship fails to arrive at its destination within a reasonable time from
the place where it was last heard of, unless the contract provides otherwise,
if it remains unheard of upon the expiry of two months, it shall constitute
missing. Such missing shall be deemed to be an actual total loss.
Article 249 Where
the subject matter insured has become a constructive total loss and the insured
demands indemnification from the insurer on the basis of a total loss, the
subject matter insured shall be abandoned to the insurer. The insurer may
accept the abandonment or choose not to, but shall inform the insured of his
decision whether to accept the abandonment within a reasonable time.
The
abandonment shall not be attached with any conditions. Once the abandonment is
accepted by the insurer, it shall not be withdrawn.
Article 250 Where
the insurer has accepted the abandonment, all rights and obligations relating
to the property abandoned are transferred to the insurer.
Section
6 Payment of Indemnity
Article 251 After
the occurrence of a peril insured against and before the payment of indemnity,
the insurer may demand that the insured submit evidence and materials related
to the ascertainment of the nature of the peril and the extent of the loss.
Article 252 Where
the loss of or damage to the subject matter insured within the insurance
coverage is caused by a third person, the right of the insured to demand
compensation from the third person shall be subrogated to the insurer from the
time the indemnity is paid.
The
insured shall furnish the insurer with necessary documents and information that
should come to his knowledge and shall endeavour to
assist the insurer in pursuing recovery from the third person.
Article 253
Where the insured waives his right of claim against the third person without
the consent of the insurer or the insurer is unable to exercise the right of
recourse due to the fault of the insured, the insurer
may make a corresponding reduction from the amount of indemnity.
Article 254 In
effecting payment of indemnity to the insured, the insurer may make a
corresponding reduction therefrom of the amount already paid by a third person
to the insured.
Where
the compensation obtained by the insurer from the third person exceeds the
amount of indemnity paid by the insurer, the part in excess shall be returned
to the insured.
Article 255 After
the occurrence of a peril insured against, the insurer is entitled to waive his
right to the subject matter insured and pay the insured the amount in full to
relieve himself of the obligations under the contract.
In
exercising the right prescribed in the preceding paragraph, the insurer shall
notify the insured thereof within seven days from the day of the receipt of the
notice from the insured regarding the indemnity. The insurer shall remain
liable for the necessary and reasonable expenses paid by the insured for avoiding
or minimizing the loss prior to his receipt of the said notice.
Article 256 Except
as stipulated in Article 255 of this Code, where a total loss occurs to the
subject matter insured and the full insured amount is paid, the insurer shall
acquire the full right to the subject matter insured. In the case of
under-insurance, the insurer shall acquire the right to the subject matter
insured in the proportion that the insured amount bears to the insured value.
Chapter
XIII Limitation of Time
Article 257 The
limitation period for claims against the carrier with regard to the carriage of
goods by sea is one year, counting from the day on which the goods were
delivered or should have been delivered by the carrier. Within the limitation
period or after the expiration thereof, if the person allegedly liable has
brought up a claim of recourse against a third person, that claim is
time-barred at the expiration of 90 days, counting from the day on which the
person claiming for the recourse settled the claim, or was served with a copy
of the process by the court handling the claim against him.
The
limitation period for claims against the carrier with regard to voyage charter
party is two years, counting from the day on which the claimant knew or should
have known that his right had been infringed.
Article 258 The
limitation period for claims against the carrier with regard to the carriage of
passengers by sea is two years, counting respectively as follows:
(1)
Claims for personal injury: Counting from the day on which the passenger
disembarked or should have disembarked;
(2)
Claims for death of passengers that occurred during the period of carriage:
Counting from the day on which the passenger should have disembarked; whereas
those for the death of passengers that occurred after the disembarkation but
resulted from an injury during the period of carriage by sea, counting from the
day of the death of the passenger concerned, provided that this period does not
exceed three years from the time of disembarkation.
(3)
Claims for loss of or damage to the luggage: Counting from the day of
disembarkation or the day on which the passenger should have disembarked.
Article 259 The
limitation period for claims with regard to charter parties is two years,
counting from the day on which the claimant knew or should have known that his
right had been infringed.
Article 260 The
limitation period for claims with regard to sea towage is one year, counting
from the day on which the claimant knew or should have known that his right had
been infringed.
Article 261 The
limitation period for claims with regard to collision of ships is two years,
counting from the day on which the collision occurred. The limitation period
for claims with regard to the right of recourse as provided for in paragraph 3
of Article 169 of this Code is one year, counting from the day on which the
parties concerned jointly and severally paid the amount of compensation for the
damage occurred.
Article 262 The
limitation period for claims with regard to salvage at sea is two years,
counting from the day on which the salvage operation was completed.
Article 263 The
limitation period for claims with regard to contribution in general average is
one year, counting from the day on which the adjustment was finished.
Article 264 The
limitation period for claims with regard to contracts of marine insurance is
two years, counting from the day on which the peril insured against occurred.
Article 265 The
limitation period for claims with regard to compensation for oil pollution
damage from ships is three years, counting from the day on which the pollution
damage occurred. However, in no case shall the limitation period exceed six
years, counting from the day on which the accident causing the pollution
occurred.
Article 266 Within
the last six months of the limitation period if, on account of force majeure or
other causes preventing the claims from being made, the limitation period shall
be suspended. The counting of the limitation period shall be resumed when the
cause of suspension no longer exists.
Article 267 The
limitation of time shall be discontinued as a result of bringing an action or
submitting the case for arbitration by the claimant or the admission to fulfill
obligations by the person against whom the claim was brought up. However, the
limitation of time shall not be discontinued if the claimant withdraws his
action or his submission for arbitration, or his action has been rejected by a
decision of the court.
Where
the claimant makes a claim for the arrest of a ship, the limitation of time
shall be discontinued from the day on which the claim is made.
The
limitation period shall be counted anew from the time of discontinuance.
Chapter
XIV Application of Law in Relation to Foreign-related Matters
Article 268 If
any international treaty concluded or acceded to by the People's Republic of
China contains provisions differing from those contained in this Code, the
provisions of the relevant international treaty shall apply, unless the
provisions are those on which the People's Republic of China has announced
reservations.
International
practice may be applied to matters for which neither the relevant laws of the
People's Republic of China nor any international treaty concluded or acceded to
by the People's Republic of China contain any relevant provisions
Article 269 The
parties to a contract may choose the law applicable to such contract, unless
the law provides otherwise. Where the parties to a contract have not made a
choice, the law of the country having the closest connection with the contract
shall apply.
Article 270 The
law of the flag State of the ship shall apply to the acquisition, transfer and
extinction of the ownership of the ship.
Article 271 The
law of the flag State of the ship shall apply to the mortgage of the ship.
The
law of the original country of registry of a ship shall apply to the mortgage
of the ship if its mortgage is established before or during its bareboat
charter period.
Article 272 The
law of the place where the court hearing the case is located shall apply to
matters pertaining to maritime liens.
Article 273 The
law of the place where the infringing act is committed shall apply to claims
for damages arising from collision of ships.
The
law of the place where the court hearing the case is located shall apply to
claims for damages arising from collision of ships on the high sea .
If
the colliding ships belong to the same country, no matter where the collision
occurs, the law of the flag State shall apply to claims against one another for
damages arising from such collision.
Article 274 The
law where the adjustment of general average is made shall apply to the
adjustment of general average.
Article 275 The
law of the place where the court hearing the case is located shall apply to the
limitation of liability for maritime claims.
Article 276 The
application of foreign laws or international practices pursuant to the
provisions of this Chapter shall not jeopardize the public interests of the
People's Republic of China.
Chapter
XV Supplementary Provisions
Article 277 The
Unit of Account referred to in this Code is the Special Drawing Right as
defined by the International Monetary Fund; the amount of the Chinese currency
(RMB) in terms of the Special Drawing Right shall be that computed on the basis
of the method of conversion established by the authorities in charge of foreign
exchange control of this country on the date of the judgment by the court or
the date of the award by the arbitration organization or the date mutually
agreed upon by the parties.
Article 278 This
Code shall come into force as of July 1, 1993.