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