法学电子教案合集（参考资料）_中美海事法近来的发展

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VII.A Arrest of property by the maritime courts VII.B Arbitration agreement VII.C Compensated losses for wrongful arrest VII.D Auction of the arrested vessel VIII Conclusion Notes I Introduction In the last decade or two, the range of inquiry and the kinds of approaches used in the academic research circles of maritime law have broadened astonishingly. However, comparative longitudinal research concerning ship arrest laws is engaged in relatively infrequently. One reason may be that maritime law researchers in academic circles are attracted to the study of legal phenomena that are conveniently and quickly accessible through the existing literature. As the two most powerful maritime nations in the international trade arena, the US and China have become popular forums for ship arrest proceedings. This article argues that, the international admiralty communities would benefit from a comparative longitudinal study of these countries’ court practices concerning ship arrest. The aim of this article is twofold: (I) to provide an overview of the developments in ship arrest law in today’s US and China, and (ii) to contribute to the comparative study of the different approaches adopted in Chinese and US ship arrest laws by filling a gap in the existing literature in this area. Commercial lending in the maritime field is frequently based on a creditor’s ability to enforce unpaid debts by applying for a ship arrest order from a maritime court.[3] In fact, ship arrest is often the only way of wiping out accumulated debts and returning the vessel to the creditors who lent the money to buy the ship in the first place. It is not uncommon for maritime lenders to engage in “jurisdiction shopping” to their advantage. The dominant role the US and China play in global trade inevitably puts them on the top of the shopping list. In the US, maritime imports accounted for 43 percent of all imports in 2004. The table below shows the dominant position of US sea logistics: Table 1: Import value by mode of transportation Mode Import value Sea USD 600 billion Air USD 364 billion

Truck USD 252 billion Rail USD77 billion FTZ USD 83 billion Other USD 37 billion Source: Import Trade Trends: FY 2004 Year End Report (October 2003-September 2004), US Department of Homeland Security, January 2005, p. 25(available http://www.customs.ustreas.gov/linkhandler/cgov/toolbox/about/accomplish/ trade trends fy04. ctt/trade trends fy04. pdf) In China, total container trade rose to 65 million TEUs(twenty-foot equivalent units) in 2003 with more than two-thirds being handled in mainland China ports. [4]The container volume exported is expected to reach 100 million TEUs by 2010, according to Zhang Chunxian, China's Minister of Communications, speaking at the New York-New Jersey Port Industry conference Zhang also predicted that total trade of tonnage will jump from I billion tons 2004 to 3.5 billion tons by 2010.5] The tremendous volume of shipping activities taking place in the US and in China makes the two countries popular forums for ship arrest proceedings In this article it is argued that ship arrest law is a part of maritime law and that the historical development of a country's maritime courts has a strong bearing on its approaches to rules of interpretation and construction. Hence, first a historical analysis of the maritime court systems of the two countries will be presented. Secondly, it is argued that a country' s admiralty jurisdiction will have a strong correlation with its national policy on maritime development the context in which its ship arrest law operates. Thus, the different approaches taken by the US and China to promote a uniform system of maritime law will be examined. Thirdly, the scope of ship arrest is Died by analyzing its definition. China has been shifting away from the absolute immunity doctrine that most socialist countries still insist on. The section examining the conflicts of law relating to ship arrest contains a comparative analysis of the different approaches the US and China take in using the law of the flag as a solution. Using the law of the flag as a solution allows maritime creditors to know in advance which order of priorities applies to their maritime liens. In this section, a description will be given of the current developments in the different ways in which the two countries take on such practices. After a comparison of the Chinese and US approaches to maritime liens and their ranking with mortgage, the Chinese and US approaches to in personam and in rem actions are examined. Next, the different approaches adopted by the two countries to extending ship arrest power to new rights are explored, namely the container leasers'right to arrest

Truck USD 252 billion Rail USD77 billion FTZ USD 83 billion Other USD 37 billion Source: Import Trade Trends: FY 2004 Year End Report (October 2003 – September 2004), US Department of Homeland Security, January 2005, p. 25 (available at http://www.customs.ustreas.gov/linkhandler/cgov/toolbox/about/accomplish/ trade_trends_fy04.ctt/trade_trends_fy04.pdf). In China, total container trade rose to 65 million TEUs (twenty-foot equivalent units) in 2003, with more than two-thirds being handled in mainland China ports.[4] The container volume exported is expected to reach 100 million TEUs by 2010, according to Zhang Chunxian, China’s Minister of Communications, speaking at the New York–New Jersey Port Industry conference. Zhang also predicted that total ocean trade in terms of tonnage will jump from 1 billion tons in 2004 to 3.5 billion tons by 2010.[5] The tremendous volume of shipping activities taking place in the US and in China makes the two countries popular forums for ship arrest proceedings. In this article it is argued that ship arrest law is a part of maritime law and that the historical development of a country’s maritime courts has a strong bearing on its approaches to rules of interpretation and construction. Hence, first a historical analysis of the maritime court systems of the two countries will be presented. Secondly, it is argued that a country’s admiralty jurisdiction will have a strong correlation with its national policy on maritime development, the context in which its ship arrest law operates. Thus, the different approaches taken by the US and China to promote a uniform system of maritime law will be examined. Thirdly, the scope of ship arrest is studied by analyzing its definition. China has been shifting away from the absolute immunity doctrine that most socialist countries still insist on. The section examining the conflicts of law relating to ship arrest contains a comparative analysis of the different approaches the US and China take in using the law of the flag as a solution. Using the law of the flag as a solution allows maritime creditors to know in advance which order of priorities applies to their maritime liens. In this section, a description will be given of the current developments in the different ways in which the two countries take on such practices. After a comparison of the Chinese and US approaches to maritime liens and their ranking with mortgage, the Chinese and US approaches to in personam and in rem actions are examined. Next, the different approaches adopted by the two countries to extending ship arrest power to new rights are explored, namely the container leasers’ right to arrest

a vessel and the treatment of freights as the subject of maritime arrest. The last section is devoted to a review of the 2003 New Practice Direction on Chinese maritime procedural law, issued by the Supreme People's Court. As there are ten maritime courts in China, different interpretations of the ambiguous maritime statutes by these maritime courts are inevitable. The discussion will focus on the approaches to ship arrest laws that were reviewed in the 2003 New Practice Direction II Historical development of courts, jurisdiction, and approaches IL.A Maritime courts In this section it is argued that, since ship arrest law is a part of the general maritime law system its rules of interpretation can best be understood by making a historical analysis of a countrys maritime courts. Generally speaking, the common-law method of statutory interpretation tends to be more "restrictive" than that of the civil law.[6 IL.A I The establishment of the uS maritime courts The roots of the US admiralty court development can be traced back to the reign of Richard I and his Laws of Oleron. [7 It was regarded as the most important sea code in the Anglo-American heritage. [8 Although it cannot now be known with absolute certainty what originally was the nature of the admiralty, 9] it rests on the original jurisdiction of the courts of common law. [10 It was generally agreed that the maritime courts of England and of all other powers in Europe were formed upon the same common model -the consular courts of the Mediterranean. [11] These courts are described in the Consolato del Mare as having jurisdiction over all maritime controversies. 12 he maritime systems originating from the Laws of Oleron adopted the English common-law approach [13 Starting with the surge of British overseas shipping in the 1500s, the english admiralty courts handled an increasing volume of cases. [14] Having once been a colony of the British Empire, the US had followed the British approach; for example, the US had inherited the British tradition of a separate system of admiralty court with specific rules relating to the arrest of vessels. The US admiralty courts also followed the custom of common-law England which required no juries. [151 In line with the very nature of its common-law origin, the US statutory construction is such that the role of maritime statutes function as a corrective to the gaps or defects in the common law. In short, the common-law statutory construction is restrictive in approach; it tends to focus on the usual meaning of the words of the enactment, with a view to ascertain and to give effect to the intention of the lawgiver as expressed in the text, and to admit few, if any, external aids to interpretation [16]

a vessel and the treatment of freights as the subject of maritime arrest. The last section is devoted to a review of the 2003 New Practice Direction on Chinese maritime procedural law, issued by the Supreme People’s Court. As there are ten maritime courts in China, different interpretations of the ambiguous maritime statutes by these maritime courts are inevitable. The discussion will focus on the approaches to ship arrest laws that were reviewed in the 2003 New Practice Direction. II Historical development of courts, jurisdiction, and approaches II.A Maritime courts In this section it is argued that, since ship arrest law is a part of the general maritime law system, its rules of interpretation can best be understood by making a historical analysis of a country’s maritime courts. Generally speaking, the common-law method of statutory interpretation tends to be more “restrictive” than that of the civil law.[6] II.A.1 The establishment of the US maritime courts The roots of the US admiralty court development can be traced back to the reign of Richard I and his Laws of Oléron.[7] It was regarded as the most important sea code in the Anglo-American heritage.[8] Although it cannot now be known with absolute certainty what originally was the nature of the admiralty,[9] it rests on the original jurisdiction of the courts of common law.[10] It was generally agreed that the maritime courts of England and of all other powers in Europe were formed upon the same common model – the consular courts of the Mediterranean.[11] These courts are described in the Consolato del Mare as having jurisdiction over all maritime controversies.[12] The maritime systems originating from the Laws of Oléron adopted the English common-law approach.[13] Starting with the surge of British overseas shipping in the 1500s, the English admiralty courts handled an increasing volume of cases.[14] Having once been a colony of the British Empire, the US had followed the British approach; for example, the US had inherited the British tradition of a separate system of admiralty court with specific rules relating to the arrest of vessels. The US admiralty courts also followed the custom of common-law England which required no juries.[15] In line with the very nature of its common-law origin, the US statutory construction is such that the role of maritime statutes function as a corrective to the gaps or defects in the common law. In short, the common-law statutory construction is restrictive in approach; it tends to focus on the usual meaning of the words of the enactment, with a view to ascertain and to give effect to the intention of the lawgiver as expressed in the text, and to admit few, if any, external aids to interpretation.[16]

Some minority states in the US, such as Louisiana, developed a mixed legal system where the Romano-Germanic tradition had become suffused to some degree with Anglo-American law.[171 In those states, the courts follow the civil-law tradition of constructing codes whilst interpreting the statutes in the common -law manner ILA. 2 The establishment of the chinese maritime courts In contrast, the Chinese maritime court system is a modern establishment. As a result of the rapid development of Chinas shipping and foreign trade during the early 1980s, maritime courts were established in the principal port cities of China in 1984, in accordance with the decision made by the Standing Committee of the National Peoples Congress(hereafter"NPC ).18 From a historical point of view, Chinas maritime courts, having been set up at a later stage of the development of uniform international laws, have had the opportunity to adopt the best uniform laws and practice concerning ship arrest. Although the prospect of creating a uniform body of domestic laws that can match international ship arrest practice is daunting, it has been the principal objective of the Chinese maritime legislators over the past decades. The Chinese maritime law drafters have spent much time and effort on standardizing the procedures for ship arrest, bringing them in line with the international practice, as can substantial incorporation of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships[ 19)(hereafter"1952 Arrest Convention") into its domestic law. The 1952 Arrest Convention was aimed at creating a set of binding procedures on international ship arrest. [20 China did not ratify the 1952 Arrest Convention; still the Convention has affected China in two indirect ways. First, China has traditionally leaned towards Hong Kongs legal system in enacting its foreign economic law, and Hong Kong adopted the 1952 Arrest Convention more than twenty years before its return to China. Second, China has allowed the 1952 Arrest Convention to be applied continuously to Hong Kong after the 1997 handover[21 and to Macau after 1998.22] Taking a look at the 1991 China Civil Procedural law and the 1999 China Maritime Procedural law, it can be seen that China followed the approach of the 1952 Arrest Convention in almost all areas of its ship arrest law, the only exceptions being bottomry and time-or voyage-chartered vessel arrest. [23] The 1969 Vienna Convention on the Law of Treaties(hereafter"1969 Vienna Convention)(24]is an international document that lays down the basic rules of treaty interpretation. It codifies the approaches of customary international law in respect of treaty interpretation. China ratified the Vienna Convention on September 3, 1997. From then onward, Chinese maritime judges have to consider the vienna Convention when they decide international ship arrest cases. In addition to the Convention, as a civil-law jurisdiction in origin China tends to construe international treaties in a more"liberal"manner, which may be justified under Article 31, paragraphs (3)and(4)] rticle 31 3)allows the construction be taken into account, together with the context, the subsequent agreement and practice between the parties regarding the treatys interpretation Article 31(4)states that the courts may give a special meaning to a term if it has been established that the parties so intended

Some minority states in the US, such as Louisiana, developed a mixed legal system where the Romano-Germanic tradition had become suffused to some degree with Anglo-American law.[17] In those states, the courts follow the civil-law tradition of constructing codes whilst interpreting the statutes in the common-law manner. II.A.2 The establishment of the Chinese maritime courts In contrast, the Chinese maritime court system is a modern establishment. As a result of the rapid development of China’s shipping and foreign trade during the early 1980s, maritime courts were established in the principal port cities of China in 1984, in accordance with the decision made by the Standing Committee of the National People’s Congress (hereafter “NPC”).[18] From a historical point of view, China’s maritime courts, having been set up at a later stage of the development of uniform international laws, have had the opportunity to adopt the best uniform laws and practice concerning ship arrest. Although the prospect of creating a uniform body of domestic laws that can match international ship arrest practice is daunting, it has been the principal objective of the Chinese maritime legislators over the past decades. The Chinese maritime law drafters have spent much time and effort on standardizing the procedures for ship arrest, bringing them in line with the international practice, as can be seen from China’s substantial incorporation of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships[19] (hereafter “1952 Arrest Convention”) into its domestic law. The 1952 Arrest Convention was aimed at creating a set of binding procedures on international ship arrest.[20] China did not ratify the 1952 Arrest Convention; still the Convention has affected China in two indirect ways. First, China has traditionally leaned towards Hong Kong’s legal system in enacting its foreign economic law, and Hong Kong adopted the 1952 Arrest Convention more than twenty years before its return to China. Second, China has allowed the 1952 Arrest Convention to be applied continuously to Hong Kong after the 1997 handover[21] and to Macau after 1998.[22] Taking a look at the 1991 China Civil Procedural law and the 1999 China Maritime Procedural law, it can be seen that China followed the approach of the 1952 Arrest Convention in almost all areas of its ship arrest law, the only exceptions being bottomry and time- or voyage-chartered vessel arrest.[23] The 1969 Vienna Convention on the Law of Treaties (hereafter “1969 Vienna Convention”)[24] is an international document that lays down the basic rules of treaty interpretation. It codifies the approaches of customary international law in respect of treaty interpretation. China ratified the Vienna Convention on September 3, 1997. From then onward, Chinese maritime judges have to consider the Vienna Convention when they decide international ship arrest cases. In addition to the Convention, as a civil-law jurisdiction in origin China tends to construe international treaties in a more “liberal” manner, which may be justified under Article 31, paragraphs (3) and (4).[25] Article 31(3) allows the construction be taken into account, together with the context, the subsequent agreement and practice between the parties regarding the treaty’s interpretation. Article 31(4) states that the courts may give a special meaning to a term if it has been established that the parties so intended

One point the Chinese and US maritime regimes have in common is that the Vienna Convention is highly respected in both countries. Although the US never ratified 1969 Vienna Convention, the American courts have cited the Convention as"a compendium of international norms applicable to various questions of treaty law. 26 ILB M diction Il. B. 1 Jurisdiction of the US Congress in maritime industry A countrys national policy on maritime development has a strong correlation with its admiralty jurisdiction, a context in which its ship arrest law operates. A country tends to adopt an approach to organizing its admiralty jurisdiction that serves maintaining a uniform maritime law best. In the US, the jurisdiction of the maritime courts is laid down in the US Constitution. Pursuant to Article Ill Section 2 of the US Constitution, the judicial power of the federal courts extends to"all Cases of admiralty and maritime Jurisdiction. [27] Moreover, the jurisdiction of the US maritime courts is exclusive in its very nature, as Congress has provided for exclusive federal jurisdiction over all such cases. [28] The US Supreme Court forcefully repeated the principle that Congress retains the power"to alter, qualify or supplement (admiralty and maritime law] as changing conditions might require. 291 From the early days of the US as a nation, the US Congress maintained a national policy to build an adequate domestic merchant marine on the rationale that it was essential to the defense and commercial welfare of the country. The British Colonies in America were the world's leading shipbuilders, owing primarily to the proximity of suitable timber to major port cities. Although the US became a maritime power before it became a nation, the British exercised substantial control over the colonial maritime operations. [30]Since the Revolutionary War, US maritime industry had prospered because Congress skillfully maintained the status of the Us vessels as neutral ships during the late-eighteenth- and early-nineteenth-century European wars. [31] The D. C. Circuit Court, in Marine Carriers Corporation v. Fowler, 32] summed up the national policy adopted by the US Congress It has long been recognized that an adequate merchant marine, with U.S. -flag ships and trained American sailors, is vital to both the national defense and the commercial welfare of our country. We require a sound merchant marine to protect foreign trade and to provide support for the armed forces in times of war or national emergency. We also require a modern, efficient shipbuilding industry capable of providing military vessels in times of stress. [33] When maritime conditions changed, the Us Congress was expected to exercise its federal legislative power to improve maritime industry. In the mid-nineteenth century, clipper ships were gradually being replaced by steamships, the Us began to lose its comparative advantage in shipbuilding, and the US merchant marine began to decline. [34 After passage of the US Constitution in 1789, the First Congress promptly exercised its sovereign powers to protect the US

One point the Chinese and US maritime regimes have in common is that the Vienna Convention is highly respected in both countries. Although the US never ratified 1969 Vienna Convention, the American courts have cited the Convention as “a compendium of international norms applicable to various questions of treaty law.”[26] II.B Maritime jurisdiction II.B.1 Jurisdiction of the US Congress in maritime industry A country’s national policy on maritime development has a strong correlation with its admiralty jurisdiction, a context in which its ship arrest law operates. A country tends to adopt an approach to organizing its admiralty jurisdiction that serves maintaining a uniform maritime law best. In the US, the jurisdiction of the maritime courts is laid down in the US Constitution. Pursuant to Article III, Section 2 of the US Constitution, the judicial power of the federal courts extends to “all Cases of admiralty and maritime Jurisdiction.”[27] Moreover, the jurisdiction of the US maritime courts is exclusive in its very nature, as Congress has provided for exclusive federal jurisdiction over all such cases.[28] The US Supreme Court forcefully repeated the principle that Congress retains the power “to alter, qualify or supplement [admiralty and maritime law] as changing conditions might require.”[29] From the early days of the US as a nation, the US Congress maintained a national policy to build an adequate domestic merchant marine on the rationale that it was essential to the defense and commercial welfare of the country. The British Colonies in America were the world’s leading shipbuilders, owing primarily to the proximity of suitable timber to major port cities. Although the US became a maritime power before it became a nation, the British exercised substantial control over the colonial maritime operations.[30] Since the Revolutionary War, US maritime industry had prospered because Congress skillfully maintained the status of the US vessels as neutral ships during the late-eighteenth- and early-nineteenth-century European wars.[31] The D.C. Circuit Court, in Marine Carriers Corporation v. Fowler,[32] summed up the national policy adopted by the US Congress: It has long been recognized that an adequate merchant marine, with U.S.-flag ships and trained American sailors, is vital to both the national defense and the commercial welfare of our country. We require a sound merchant marine to protect foreign trade and to provide support for the armed forces in times of war or national emergency. We also require a modern, efficient shipbuilding industry capable of providing military vessels in times of stress.[33] When maritime conditions changed, the US Congress was expected to exercise its federal legislative power to improve maritime industry. In the mid-nineteenth century, clipper ships were gradually being replaced by steamships, the US began to lose its comparative advantage in shipbuilding, and the US merchant marine began to decline.[34] After passage of the US Constitution in 1789, the First Congress promptly exercised its sovereign powers to protect the US

merchant marine fleet from foreign flag competition in its domestic maritime trades. The third law passed by the new Congress imposed a tax on foreign vessels operating in the domestic trades at a rate that, as a practical matter, precluded them from competing with the domestic merchant marine in those trades. [35] In 1817, Congress expressly prohibited foreign vessels from operating in the coastwise trades. [36] A historical analysis of the American shipping policy demonstrated that Congress maintained legislative activist approach toward the maritime field From 1817 to 1866, the US Congress enacted laws that prohibited the transportation of merchandise"from one port of the US to another port of the US in a vessel belonging wholly or in part to a subject of any foreign power. 37] In 1866, when Congress was alerted concerning the possibility of Us law being evaded by transshipping cargo at nearby Canadian ports, it broadened the coverage of the Act. [38] Furthermore, Congresss legislative activism has shown no hesitation about tolerating opposite common-law decisions. In United States v. Two Hundred and Fifty Kegs of Nails, 39 a hardware merchant tested the limits of the US law by shipping kegs of nails from New York City to Antwerp on a Belgian flag vessel, discharging the cargo at Antwerp and promptly reloading it onto a British flag vessel bound for California. When the cargo arrived in California, the Collector of Customs arrested the vessel and brought a forfeiture action against the cargo owner. The court of appeal found the prohibitions were not applicable to the situation at issue. [40] The US Congress then amended the laws in 1893 by prohibiting foreign flag transportation between two US ports directly or indirectly"via a foreign port. [41] The 1893 amendments were adopted without revision when the Jones Act was passed in 1920 and remain unchanged to date. [421 The US Congress could even legislate to change the cost structures of the maritime industry. Fe example, during the 1980s, when the US merchant marine was not competitive in the world market due to relatively high wages and stringent safety standards in every aspect of the industry, from shipbuilding to vessel operations to insurance, [43] the US Congress feared that the American shipping industry, if left to its own resources, would have all of its ships built abroad, registered under foreign flags, and manned by foreign seamen. [44 To promote a national policy of maintaining an adequate merchant marine in spite of its non-competitive cost structure, the Us Congress attempted to equalize foreign and domestic cost structures by granting various offsetting subsidies to US shipbuilders and vessel operators competing in foreign trades. [45] ILB. 2 Jurisdiction of the uS federal courts in maritime cases Despite the broad scope of legislative power of the US Congress, the Supreme Court imposed two limitations on Congress's power, in order to maintain a uniform system of maritime law, which is recognized by all federal courts One is that there are boundaries to the maritime law and admiralty jurisdiction which inhere in those subjects and cannot be altered by legislation, as by excluding a thing falling clearly within them or including a thing falling clearly without. Another is that the spirit and purpose of the

merchant marine fleet from foreign flag competition in its domestic maritime trades. The third law passed by the new Congress imposed a tax on foreign vessels operating in the domestic trades at a rate that, as a practical matter, precluded them from competing with the domestic merchant marine in those trades.[35] In 1817, Congress expressly prohibited foreign vessels from operating in the coastwise trades.[36] A historical analysis of the American shipping policy demonstrated that Congress maintained a legislative activist approach toward the maritime field. From 1817 to 1866, the US Congress enacted laws that prohibited the transportation of merchandise “from one port of the US to another port of the US in a vessel belonging wholly or in part to a subject of any foreign power.”[37] In 1866, when Congress was alerted concerning the possibility of US law being evaded by transshipping cargo at nearby Canadian ports, it broadened the coverage of the Act.[38] Furthermore, Congress’s legislative activism has shown no hesitation about tolerating opposite common-law decisions. In United States v. Two Hundred and Fifty Kegs of Nails,[39] a hardware merchant tested the limits of the US law by shipping kegs of nails from New York City to Antwerp on a Belgian flag vessel, discharging the cargo at Antwerp and promptly reloading it onto a British flag vessel bound for California. When the cargo arrived in California, the Collector of Customs arrested the vessel and brought a forfeiture action against the cargo owner. The court of appeals found the prohibitions were not applicable to the situation at issue.[40] The US Congress then amended the laws in 1893 by prohibiting foreign flag transportation between two US ports directly or indirectly “via a foreign port.”[41] The 1893 amendments were adopted without revision when the Jones Act was passed in 1920 and remain unchanged to date.[42] The US Congress could even legislate to change the cost structures of the maritime industry. For example, during the 1980s, when the US merchant marine was not competitive in the world market due to relatively high wages and stringent safety standards in every aspect of the industry, from shipbuilding to vessel operations to insurance,[43] the US Congress feared that the American shipping industry, if left to its own resources, would have all of its ships built abroad, registered under foreign flags, and manned by foreign seamen.[44] To promote a national policy of maintaining an adequate merchant marine in spite of its non-competitive cost structure, the US Congress attempted to equalize foreign and domestic cost structures by granting various offsetting subsidies to US shipbuilders and vessel operators competing in foreign trades.[45] II.B.2 Jurisdiction of the US federal courts in maritime cases Despite the broad scope of legislative power of the US Congress, the Supreme Court imposed two limitations on Congress’s power, in order to maintain a uniform system of maritime law, which is recognized by all federal courts: One is that there are boundaries to the maritime law and admiralty jurisdiction which inhere in those subjects and cannot be altered by legislation, as by excluding a thing falling clearly within them or including a thing falling clearly without. Another is that the spirit and purpose of the

constitutional provision require that the enactments.. shall be co-extensive with and operate uniformly in the whole of the US [46] In other words, although the US Congress is free to arrange and rearrange substantive maritime remedies, its legislative power should be consistent with the basic approach that it"cannot expand or contract admiralty jurisdiction, nor can it leave admiralty law non-uniform. [47] IL B 3 Jurisdiction of the Chinese maritime courts In contrast, China adopted a three-step approach to maintain the stability and uniformity of its maritime court system The first step was that the Standing Committee of the NPC was allowed to play a role in enacting maritime-related laws. The legal implications of this are quite significant because the Constitution of the People's Republic of China(hereafter"PRC Constitution), promulgated by the NPC on December 4, 1982, lays down a checks-and-balances system for the NPC and its Standing Committee. Article 62(11) specifies that the NPC is empowered to"amend or annul"inappropriate decisions of the Standing Committee. Although Article 67(7) merely provides the Standin Committee with the power to"annul" laws enacted by the npc that are inconsistent with the Constitution, Article 67(1)confers upon the Standing Committee the important power to construe the Constitution. In one sense, the Chinese drafters of the law intended to maintain uniformity of maritime law by allowing the Standing Committee, the state organ that has the official power to construe the Constitution, to set up the maritime court system. 48 The second step was that this legislative design allowed the Supreme People's Court to decide on the organization of the Chinese maritime courts and their administrative offices. [49] In China, the stability of the maritime courts is preserved in two ways. First, their alteration and abolition is to be decided by the Supreme People's Court only. [ 50] Second, such a legislative design makes it very difficult to remove the chief judge of a maritime court, as the proposal for removal must be initiated by the chairman of the Standing Committee. 511 The third step was aimed at ensuring specialization. The maritime court was made a part of the national judicial organ rather than one of provincial nature, and the maritime court is at the same level as the intermediate people's court [52] In other words, the maritime courts have jurisdiction over maritime cases in the first instance, and they are not to handle criminal cases or other civil cases.[53] The higher people's court in the locality where a maritime court is located has jurisdiction over appeals against the judgments and orders of the maritime court. [54] In other words, no maritime cases go to the intermediate people's court, neither in the first instance nor on Il. C Chinese and US approaches to maritime court jurisdiction

constitutional provision require that the enactments … shall be co-extensive with and operate uniformly in the whole of the US.[46] In other words, although the US Congress is free to arrange and rearrange substantive maritime remedies, its legislative power should be consistent with the basic approach that it “cannot expand or contract admiralty jurisdiction, nor can it leave admiralty law non-uniform.”[47] II.B.3 Jurisdiction of the Chinese maritime courts In contrast, China adopted a three-step approach to maintain the stability and uniformity of its maritime court system. The first step was that the Standing Committee of the NPC was allowed to play a role in enacting maritime-related laws. The legal implications of this are quite significant because the Constitution of the People’s Republic of China (hereafter “PRC Constitution”), promulgated by the NPC on December 4, 1982, lays down a checks-and-balances system for the NPC and its Standing Committee. Article 62(11) specifies that the NPC is empowered to “amend or annul” inappropriate decisions of the Standing Committee. Although Article 67(7) merely provides the Standing Committee with the power to “annul” laws enacted by the NPC that are inconsistent with the Constitution, Article 67(1) confers upon the Standing Committee the important power to construe the Constitution. In one sense, the Chinese drafters of the law intended to maintain uniformity of maritime law by allowing the Standing Committee, the state organ that has the official power to construe the Constitution, to set up the maritime court system.[48] The second step was that this legislative design allowed the Supreme People’s Court to decide on the organization of the Chinese maritime courts and their administrative offices.[49] In China, the stability of the maritime courts is preserved in two ways. First, their alteration and abolition is to be decided by the Supreme People’s Court only.[50] Second, such a legislative design makes it very difficult to remove the chief judge of a maritime court, as the proposal for removal must be initiated by the chairman of the Standing Committee.[51] The third step was aimed at ensuring specialization. The maritime court was made a part of the national judicial organ rather than one of provincial nature, and the maritime court is at the same level as the intermediate people’s court.[52] In other words, the maritime courts have jurisdiction over maritime cases in the first instance, and they are not to handle criminal cases or other civil cases.[53] The higher people’s court in the locality where a maritime court is located has jurisdiction over appeals against the judgments and orders of the maritime court.[54] In other words, no maritime cases go to the intermediate people’s court, neither in the first instance nor on appeal. II.C Chinese and US approaches to maritime court jurisdiction

Both the US and China aim to promote the uniformity of maritime law, but they took two very different approaches. Unlike China, which chose to promote uniformity merely through the gislative power of the Standing Committee, the Us opted to achieve the goal through a process of gradual transfer of power, through court decisions, from state government level to federal government level. The two landmark cases are Southern Pacific Co. v Jensen[55])and Chelentis v Luckenbach S.S. Co [56] In Jensen, the US Supreme Court held that state legislation may not interfere with the uniformity of general maritime law. In that court case, the New York Court of Appeals affirmed an award of compensation under a New York statute to the widow of a stevedore who had been killed while unloading a vessel upon navigable waters. Southern Pacific Company appealed on the ground that the New York statute conflicted with"the general maritime law, which constitutes an integral part of the Federal law under art 3, $2, of the Constitution, and to that extent is invalid. [57]Mr Justice McReynolds found that"in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction. [58] He therefore held that the New York statute was invalid The process of power transfer from state legislation to its federal counterpart was not a smooth one. Mr Justice Holmes, the influential Judge in US Supreme Court, dissented on the ground that except for a"very limited body of customs and ordinances of the sea, "there was no general maritime law. Mr Justice Pitney also dissented, claiming that where the law of the sea established ubstantive rights, it was paramount, but in situations where there was no maritime law, the common law might supplement the maritime law, whether in the courts of admiralty or in the common-law courts. [59 However, Mr. Justice Pitney also believed there was no compulsion on the common-law courts to accept maritime law, and vice versa; each court was free to use either law as a source for the rights of the parties. [60] Indeed, the Jensen Court took a limited approach to such power transfer because it invalidated nly the state legislation that interfered with the proper harmony and uniformity of an Act of Congress that governed international and interstate relations. [61 Logically, therefore, the opportunity still existed to argue that the common-law courts could create rights in maritime causes when no federal legislation or general maritime principle furnished affirmative relief [62] Next, the US Supreme Court took the opportunity presented in Chelentis v. Luckenbach SS Co [63] to consolidate federal maritime power. In Chelentis, a wave had swept over a vessel at sea, breaking the leg of a seaman on duty on the deck. The seaman brought an action against the owner of the vessel in a New York state court, alleging that his injury was the result of an order of the master. He claimed that the defendant, under the common-law doctrine of respondeat superior, case was removed on the ground of diversity of citizenship, directed a verdict for the defendant The Court of Appeals for the Second Circuit Court affirmed the judgment of the District Court Before the s preserve common-law right to full indemnity. In a Six-to-three majority opinion [64 Mr. Justice

Both the US and China aim to promote the uniformity of maritime law, but they took two very different approaches. Unlike China, which chose to promote uniformity merely through the legislative power of the Standing Committee, the US opted to achieve the goal through a process of gradual transfer of power, through court decisions, from state government level to federal government level. The two landmark cases are Southern Pacific Co. v. Jensen[55] and Chelentis v. Luckenbach S.S. Co.[56] In Jensen, the US Supreme Court held that state legislation may not interfere with the uniformity of general maritime law. In that court case, the New York Court of Appeals affirmed an award of compensation under a New York statute to the widow of a stevedore who had been killed while unloading a vessel upon navigable waters. Southern Pacific Company appealed on the ground that the New York statute conflicted with “the general maritime law, which constitutes an integral part of the Federal law under art. 3, §2, of the Constitution, and to that extent is invalid.”[57] Mr. Justice McReynolds found that “in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction.”[58] He therefore held that the New York statute was invalid. The process of power transfer from state legislation to its federal counterpart was not a smooth one. Mr. Justice Holmes, the influential Judge in US Supreme Court, dissented on the ground that except for a “very limited body of customs and ordinances of the sea,” there was no general maritime law. Mr. Justice Pitney also dissented, claiming that where the law of the sea established substantive rights, it was paramount, but in situations where there was no maritime law, the common law might supplement the maritime law, whether in the courts of admiralty or in the common-law courts.[59]However, Mr. Justice Pitney also believed there was no compulsion on the common-law courts to accept maritime law, and vice versa; each court was free to use either law as a source for the rights of the parties.[60] Indeed, the Jensen Court took a limited approach to such power transfer because it invalidated only the state legislation that interfered with the proper harmony and uniformity of an Act of Congress that governed international and interstate relations.[61] Logically, therefore, the opportunity still existed to argue that the common-law courts could create rights in maritime causes when no federal legislation or general maritime principle furnished affirmative relief.[62] Next, the US Supreme Court took the opportunity presented in Chelentis v. Luckenbach S.S. Co.[63] to consolidate federal maritime power. In Chelentis, a wave had swept over a vessel at sea, breaking the leg of a seaman on duty on the deck. The seaman brought an action against the owner of the vessel in a New York state court, alleging that his injury was the result of an order of the master. He claimed that the defendant, under the common-law doctrine of respondeat superior, must indemnify him fully for the damage he had suffered. The federal district court, to which the case was removed on the ground of diversity of citizenship, directed a verdict for the defendant. The Court of Appeals for the Second Circuit Court affirmed the judgment of the District Court. Before the Supreme Court, the seaman claimed that the “saving clause” preserved his common-law right to full indemnity. In a six-to-three majority opinion,[64] Mr. Justice

McReynolds found that the common-law court had no power to supplement the maritime law by giving a right of indemnity to the petitioner. He also reasoned, however, that a right arising out of the maritime law, the""saving clause, did not empower the common-law courts to create new rights. Thus, the Jensen and Chelentis cases together established a complete requirement of uniformity in the maritime law not only within the federal system of admiralty courts, but also in the common-law courts, state or federal, when such courts provided a remedy under the"saving clause. 65 The process then took many years to complete in practice. In theory, for the sake of uniformity, the US federal courts would invalidate all state laws that could materially prejudice the general maritime law. In practice, however, state activity in the maritime field was permitted if it was "local in character. 66 This motivated the states to legislate in maritime areas where the federal law did not cover [67] Thus, through the US Supreme Court decisions in Jensen and Chelentis, uniformity of the maritime law was achieved as the state courts would follow federal law in its application Although the Chinese approach is not as time consuming as that of the US, the statutory approach does not offer the Chinese courts the flexibility to deal with emergency situations, such as maritime pollution. The statute[68] created for specialization unintentionally forms a legal loophole in subject-matter jurisdiction, which minimizes China's ability to deal with maritime pollution crises in a timely manner. Article 7 of the Maritime Procedural Law provides that the following situations are under the exclusive jurisdiction of the maritime courts: [691 If there is an action in a dispute over the operations of a coastal port, then the maritime court of the place where the port is located shall have exclusive jurisdiction to hear the case [70] If there is an action arising from pollution damage to sea areas caused by the discharge, spill,or dumping of oil or other hazardous substances from ships, production or operation at sea, or ship demolition or repair, then the following maritime courts have exclusive jurisdiction to hear the case, [71] that is, the maritime court in the area where the pollution occurred, where the harmful consequences existed, or where pollution prevention measures were taken. The very attempt to maintain specialization obviously compromises the Chinese maritime law systems flexibility to deal with environmental emergencies. Unlike the US law that allows all federal district courts to hear maritime cases in the first instance, China currently has only ten maritime courts to cover the whole nation This, together with the exclusive nature of the jurisdiction of the courts as required under the Maritime Procedural Law, makes China quite incapable of handli of maritime pollution Procedurally, it makes it very difficult for the plaintiff in a maritime pollution case to classify the pollution as an industrial tort so as to by-pass the Maritime Procedural Law. Under such a scenario, the defendant would simply present the case as a controversy arising between a local court and a maritime court over jurisdiction, then the case would go through a process of consultation between the two courts. [72 In a case where consultation between the two courts fails, the matter is then to be submitted to their common superior court for final determination of jurisdiction. [ 73] By the time the proper court reaches its

McReynolds found that the common-law court had no power to supplement the maritime law by giving a right of indemnity to the petitioner. He also reasoned, however, that a right arising out of the maritime law, the “saving clause,” did not empower the common-law courts to create new rights. Thus, the Jensen and Chelentis cases together established a complete requirement of uniformity in the maritime law, not only within the federal system of admiralty courts, but also in the common-law courts, state or federal, when such courts provided a remedy under the “saving clause.”[65] The process then took many years to complete in practice. In theory, for the sake of uniformity, the US federal courts would invalidate all state laws that could materially prejudice the general maritime law. In practice, however, state activity in the maritime field was permitted if it was “local in character.”[66] This motivated the states to legislate in maritime areas where the federal law did not cover.[67] Thus, through the US Supreme Court decisions in Jensen and Chelentis, uniformity of the maritime law was achieved as the state courts would follow federal law in its application. Although the Chinese approach is not as time consuming as that of the US, the statutory approach does not offer the Chinese courts the flexibility to deal with emergency situations, such as maritime pollution. The statute[68] created for specialization unintentionally forms a legal loophole in subject-matter jurisdiction, which minimizes China’s ability to deal with maritime pollution crises in a timely manner. Article 7 of the Maritime Procedural Law provides that the following situations are under the exclusive jurisdiction of the maritime courts:[69] If there is an action in a dispute over the operations of a coastal port, then the maritime court of the place where the port is located shall have exclusive jurisdiction to hear the case.[70] If there is an action arising from pollution damage to sea areas caused by the discharge, spill, or dumping of oil or other hazardous substances from ships, production or operation at sea, or ship demolition or repair, then the following maritime courts have exclusive jurisdiction to hear the case,[71] that is, the maritime court in the area where the pollution occurred, where the harmful consequences existed, or where pollution prevention measures were taken. The very attempt to maintain specialization obviously compromises the Chinese maritime law system’s flexibility to deal with environmental emergencies. Unlike the US law that allows all federal district courts to hear maritime cases in the first instance, China currently has only ten maritime courts to cover the whole nation. This, together with the exclusive nature of the jurisdiction of the courts as required under the Maritime Procedural Law, makes China quite incapable of handling cases of maritime pollution. Procedurally, it makes it very difficult for the plaintiff in a maritime pollution case to classify the pollution as an industrial tort so as to by-pass the Maritime Procedural Law. Under such a scenario, the defendant would simply present the case as a controversy arising between a local court and a maritime court over jurisdiction, then the case would go through a process of consultation between the two courts.[72] In a case where consultation between the two courts fails, the matter is then to be submitted to their common superior court for final determination of jurisdiction.[73] By the time the proper court reaches its

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法学电子教案合集（参考资料）_中美海事法近来的发展