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On Shipping Act of U.S.A.

Author: ZuoShiCheng
Tutor: ZhuZuoYe
School: East China University of Politics and Law
Course: International Law
Keywords: International shipping Shipping Act International shipping agreement organization Regulation Antitrust exemption
CLC: D971.2
Type: PhD thesis
Year: 2006
Downloads: 1079
Quote: 3
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America, an economic super power, always plays a pioneer role in the field of shipping law legislation. Therefore, its shipping act has attracted broad attention. For instance, the anti-trust exemption system in the international shipping, which was established by the Shipping Act 1916, is now accepted broadly as a fundamental system. The Shipping Act also has some unique legal mechanisms such as tariff filing, non-vessel-operating common carrier (NVOCC), and controlled carrier. In addition, the Ocean Shipping Reform Act 1998 (OSRA 1998) opened a new page in the area of shipping law reform at the end of last century. The OSRA 1998 pushed forward the deregulation reform in the international shipping field, and created an environment where a more competitive and efficient market system was encouraged while the interference from international shipping agreement organizations in shipping resources was reduced. Therefore, it is of great importance to conduct a comprehensive research on the Shipping Act in order to maintain and develop the Sino-US relationship in the shipping area, and to improve the Chinese shipping legislation and regulatory system.The motive of the Shipping Act is to meet the needs of American international trade and transportation. From Shipping Act 1916 to Shipping Act 1984, and to OSRA 1998, the regulation on the international shipping market by the government is based on the philosophy that the market itself is the basis for shipping resource allocation.American shipping policy tends to treat cargo owners’interest at a higher priority, to balance the conflicts between shippers and carriers, to encourage export, and to restrict foreign competitors. The Shipping Act consists of systems such as anti-trust exemption, tariff filing, ocean transportation intermediary and controlled carrier as well as the implementation procedures.American Federal Maritime Commission (FMC) is an independent implementation agency under the US Congress. With systematical and scientific structure and function, FMC provides a series of regulations and rules to carry out the Shipping Act.Under Chinese system, the shipping competition legislation is still far from satisfying the need of our international shipping market development. The Terminal Handling Charges (THC) dispute, Sino-South Korea Yellow Sea Liner Agreement, and Sino-Japan Container Liner Convention in Qingdao District have challenged our competition laws. Failing to respond to all these challenges, the Regulations of PRC on International Maritime Transportation lack competition rules. We realized the importance and urgency of improving Chinese shipping legislation and regulatory systems in course of further developing our international shipping industry. Based on our own characteristics, the Shipping Law of PRC under consideration shall also take reference to the advanced legislation and regulatory systems in other countries including the USA.As of the Chinese legislation, we shall focus on the following issues: Shall we establish an anti-trust exemption system? What will be included under our international shipping competition rules? Will it be a comprehensive act or a series of separate laws/regulations? Who will be the law-maker? How to deal with the relationship between the upcoming Anti-trust Act of PRC and the Regulations of PRC on International Maritime Transportation?Focusing on the basic systems under the OSRA and its enforcement, this Article made a systematic study on the issues of, inter alias, shipping legislation system in the USA, the interrelation between the policies and laws, the regulatory and functional system, anti-trust exemption, tariff filing, ocean transportation intermediary, controlled carriers, execution systems and regulations. In addition, this Article, by analyzing our country’s international shipping legislation and competition environment, along with the influences on China’s shipping legislation from the Shipping Act, made proposals for perfecting our shipping legislation, which provides a theoretical supporting for the drafting of the Shipping Law of PRC. This Article will take the methods of institutional economics, economic analysis of law and positive analysis.The Article consists of ten chapters.Chapter 1: Introduction. This chapter sums up the previous researches in this field and defines the target and scope.Chapter 2: Essential issues under the Shipping Act. This chapter outlines the issues such as the relationship between the American shipping market and the Shipping Act; the shipping legal system; the relationship between shipping policies and laws, the relationship between the purposes of legislation and administration, and the de-regulation trend.Chapter 3: Anti-trust exemption system of international agreement organizations. The anti-trust exemption system is the core of the Shipping Act. The Article defines and classifies the international shipping agreement organizations, analyses the conditions for such exemption, and underpins the reasonableness of such organizations. In addition, the Article forecasts the future of the exemption system in accordance with the trend occured in EU and Australia.Chapter 4: Tariff regulating. Tariff regulating system includes publishing the tariff and filing service contracts. The Article puts forward the purpose of this system and concludes that the service contract reform is an important means to enhance the competition of the market.Chapter 5: Ocean transportation intermediary. Under the Shipping Act, ocean transportation intermediary includes international freight forwarder and NVOCC. NVOCC is a special term under the Shipping Act, which changed the traditional legislation method in the area of international freight forwarding.Chapter 6: Controlled carrier system. This chapter introduces the unique system of the controlled carrier, analyses its influences on Chinese shipping industry, and summarizes the achievements we have attained to avoid the unfavorable influences from the USA.Chapter 7: Implementation system of the Shipping Act. The Article studies on both the implementation agencies and the procedures, focuses on the procedure of disputes settlement, investigation and hearing as well as the system of information management and administrative penalties.Chapter 8: Influences on Chinese shipping legislation by the Shipping Act. Based on the current situation of Chinese shipping market and legislation, the Article studies in depth on adopting the experience of the Shipping Act.Chapter 9: Perfecting Chinese shipping legislation. In this chapter, it sets forth some detailed suggestion on perfecting Chinese shipping legislation and regulatory system.Chapter 10: Conclusions.The main conclusions are as follows:1. A deep research on the Shipping Act is of great importance for maintaining and developing the Sino-US shipping relationship, and perfecting the Chinese shipping legislation and regulatory system.2. As of the methodology, it is necessary to introduce the methods of institutional economics, economic analysis of law and positive analysis into the research of the Shipping Act in addition to the traditional ways such as value analysis, comparative review and case study.3. American shipping policy has the characteristics of, inter alia, the priority of the cargo owners’interests, the balance between shippers and carriers, the encouragement for the American shipping industry to serve their exporting, and placing restriction on foreign carriers.4. By nature, the Shipping Act is a shipping competition law. Via establishing the anti-trust exemption system, it balances the interests between shippers and carriers.5. The exemption target under the Shipping Act is called“Agreement”. The international shipping agreement organizations include liner conferences, discussion agreements and operational agreements that are agreements among international shipping operators, in respect of capacity, tariff, cargo volume, lines, and schedules.6. In order to implement the Shipping Act, a complete implementation organization structure was set up and detailed implementation rules and procedures were provided. FMC controls the regulatory function of the international shipping. The Maritime Administration (MARAD) under US Department of Transportation carries out the policies and laws to promote American shipping industry. This is a parallel management system separating regulation and promotion. FMC enjoys the advantages such as reasonable organizational structure, clearly defined function and authority, dynamic administration and updated regulations and rules.7. The Regulations of PRC on International Maritime Transportation lack the competition rules. We realized the importance and urgency of improving Chinese shipping legislation and regulatory systems in the course of further developing our international shipping industry.8. The influences of the Shipping Act are shown in two folds: one is the influence on the industries in the Sino-US trade; the other is the shipping legislation in China. The establishment of the system in filing international shipping agreement organizations, tariff filing and NVOCC in China was taking references of the Shipping Act.9. As of the Chinese legislation, we shall emphasize on the following issues: whether we should establish the anti-trust exemption system; the content that will be included under our international shipping competition rules; whether the Law be a comprehensive act or a series of separate laws/regulations; the level of legislation; the relationship between the upcoming Anti-trust Act of PRC and the Regulations of PRC on International Maritime Transportation.10. There are three alternatives in establishing our exemption legislation system. First, set up international shipping agreement organizations exemption system; second, partly set up international shipping agreement organizations exemption system; third, provide that shipping agreement organizations do not enjoy exemption system. Among these three alternatives, the first one shall take priority, followed by the second alternative. The third alternative is the last choice.

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