2018 Vol. 1, Issue 2


Release date:2019-07-21
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Jürgen Basedow, Hamburg*



ABSTRACT: In 2015, the central government of the People’s Republic of China transferred administrative powers with regards to a maritime area of 85 square kilometres. The exercise of these powers by the Macau SAR government involves some issues of international law, including sovereignty of coastal States and flag States laid down in UNCLOS and to many international conventions dealing with activities in Macau’s sea. This paper discusses the issues related to specific types of tort liability in private relations.


KEYWORDS: maritime torts; international law; China; Macau.



I.   Introduction

By a decree of 20 December 2015, the Council of State of the People’s Republic of China has established a maritime area of 85 square kilometers that is subject to the administrative powers of Macau. It is meant to serve the permanent and stable socio-economic development of Macau.[1] It will be referred to as Macau’s sea in this paper. The legal framework that will govern the conduct of private and public actors in this maritime zone is currently being set up. It will consist of public law, but private law will by necessity play a role in the exploitation of maritime resources.

Sea water covers the major part of the surface of the Earth. In search for a broader basis of its own subsistence and compelled by the fast growth of the global population mankind has therefore increasingly made use of marine resources. Next to the traditional use of the seas for shipping, fishing and the production of salt new forms of exploitation have emerged: bathing, boating and other touristic activities; landfills and the subsequent use for agriculture or construction; the dumping of waste, silt and mud extracted from rivers and estuaries; aquaculture; mining; the cooling-down of nuclear power plants; oil and gas drilling; energy production by off-shore wind parks; the transmission of energy and telephone signals by submarine cables and pipelines; the construction of artificial islands as well as tunnels and bridges under and on the seabed…

It goes without saying that the various uses may infringe the natural environment and also get into conflict with each other. A vessel may hit a pier, fishing gear may destroy a pipeline or submarine cable, a leak in a nuclear power plant may contaminate the fishing stock in the nearby sea and infringe upon the income source of fishermen; an oil spill may damage an aquaculture, a dam may divert a sea current and cause the sanding-up of a port basin etc. Regulation by appropriate provisions therefore is indispensable.

It is primarily a matter of administrative law to establish the rights to use the marine resources. However, even the most refined regulation cannot avoid conflicts between the various sea-borne activities. Where they are not resolved by contract, it is up to tort law to assign liabilities. The remedies available under tort law, in particular the claim for damages, also have the potential of influencing the defendant’s behavior and are thus part of the legal regime that is meant to guide the conduct of parties in Macau’s sea. But which tort law? Given the use of the seas by actors originating in multiple jurisdictions it is not easy to establish the applicable law.

The following paper will shed some light on a number of international conventions that have unified the law for several types of maritime torts (below III). To the extent that uniform law does not cover specific situations the conflict rules of private international law will designate the applicable law (below IV). We shall however start with a closer look at the ordering of maritime jurisdiction in public international law and the significance of the recent extension of Macau’s sea by the central government of China.


II.    Maritime Jurisdiction Under Public International Law

The United Nations Convention on the Law of the Sea (UNCLOS), to which China is a party, has codified the pre-existing law on the maritime jurisdiction of States.[2] This jurisdiction flows from a detailed and graduated system: the closer the sea area at issue is located to the coast line the more comprehensive are the sovereign rights of the coastal State.

Beyond the land territory and the internal waters where sovereignty is complete, the territorial sea extends to a belt of 12 nautical miles (22,2 km) to be measured from the low-water coastal line. Here, the sovereignty of the coastal State appears to be equally comprehensive according to art. 2 UNCLOS, but there are some restrictions. Ships of all States enjoy the right of innocent passage under art. 17 UNCLOS which includes the call at a port of the coastal State. The meaning of innocent passage is defined in several provisions; more in particular, the exercise of civil jurisdiction over persons on board or over the vessel is subject to certain limitations, art. 29 UNCLOS. The sovereignty of the coastal State is also restricted with regards to the exercise of criminal jurisdiction over persons for acts committed on board a vessel passing through the territorial sea, art. 28 UNCLOS. Moreover, the coastal State has to take measures for the preservation of the marine environment with regards to all segments of maritime jurisdiction including the territorial sea, art. 192 et seq. UNCLOS. It is understood but except for the high seas (art. 92 UNCLOS) not explicitly stated that the flag State has jurisdiction over the vessels flying its flag. At least the major part of the sea area assigned to Macau’s administration is part of China’s territorial sea; the limitations set forth in UNCLOS will have to be taken into account by the authorities of Macau.

Beyond the territorial sea a further regime of reduced sovereignty is that of the continental shelf. It extends from the outer border of the territorial sea through the natural prolongation of the land territory to the outer edge of the continental margin, art. 76 UNCLOS. The unrestricted and exclusive sovereign rights of the coastal State in this zone concern only the sea-bed and the subsoil of the submarine areas, but do not affect the legal status of the superjacent waters, art. 78 UNCLOS. That status depends on another regime, see below. The sovereign rights over the sea-bed and the subsoil imply, however, that the coastal State can regulate and coordinate all kinds of activities that require a connection with the sea-bed, in particular drilling or artificial islands and installations, arts. 80 and 81 UNCLOS. While all States have the right to lay cables or pipelines on the continental shelf the delineation of their course is subject to the coastal State’s consent, art. 79 UNCLOS. Depending on the base line which this author is unable to draw parts of Macau’s sea may extend beyond China’s territorial sea; but even those parts belong to the continental shelf.

The legal regime of the waters above the sea-bed and located outside the territorial sea is the exclusive economic zone (EEZ) the maximum extension of which is 200 nautical miles (370,4 km) from the low-water coastal line. In the EEZ the coastal State has far reaching sovereign rights of use and exploitation, subject only to rights of navigation of other States, arts. 56 – 58 UNCLOS. China has explicitly stated that it enjoys the rights of the EEZ of 200 nautical miles.[3] To the extent that the transfer of administrative power to Macau affects waters belonging to China’s EEZ the EEZ regime of UNCLOS therefore also becomes binding on Macau’s administrative decisions.

Finally, the remainder of the maritime surface of the Earth is called the high seas where all States enjoy the freedom of the high seas including inter alia the freedom of fishing and the freedom of navigation, see arts. 86 seq. UNCLOS. The maritime area of Macau does not appear to overlap with the high seas.

It is noteworthy that the provisions of UNCLOS, while referring to the jurisdiction of the coastal State and its exercise do not touch upon the issue of the law to be applied by the authorities and courts of the coastal State in the exercise of that jurisdiction. In matters of public law this will invariably be the law of the coastal State. However, the law of other countries may be applicable when it comes to disputes between private persons. It is up to private international law to determine the applicable law.


III. Uniform Law Conventions on Maritime Torts

A.  Survey

Private international law is usually restricted to a single method of solving cross-border legal disputes, i.e. the nationalization of a legal relation with international dimension. It is helpful in respect of many land-based activities, since it assigns a transnational tort to a single legal system. This allows recourse to a comprehensive legal framework, i.e. the national law of torts of that jurisdiction, which has evolved in a large number of purely national tort cases and thereby has reached a degree of stability and clarity that equally increases legal certainty for transnational torts. In maritime torts, the nationalisation brought about by conflict rules is, however, of limited use. Maritime activities give rise to tort cases much more seldom, they are predominantly international, nationalisation is disturbing. In most countries there is no abundant body of case law and legal literature that has grown in purely domestic maritime cases and could serve as guidance for the decision of international disputes. 

This is reflected by the idea prevailing over centuries that there is a general maritime law which is not linked to the legislative authority of a single State.[4] However, national sovereigns began codifying maritime law at the national level in the late 17th century;[5] that movement culminated in the 19th century.[6] This nationalization was in clear contrast to the needs of the maritime community for a general, transnational maritime law. It is not surprising, therefore, that the efforts made by the international community for the unification of law by means of treaties were especially successful in the field of maritime commerce. The conventions usually establish uniform substantive rules, not conflict-of-laws rules, both for contractual and for non-contractual relations. An assessment of the choice-of-law rules has to take account of these conventions.

There is no international convention that deals with non-contractual liability in maritime matters in a comprehensive way. However, several conventions cover single types of torts and aspects of such liability. In particular, the Collisions Convention of 1910,[7] the Oil Pollution Civil Liability Convention of 1969 (CLC)[8]  as replaced by the 1992 Protocol,[9] the Nuclear Liability Convention of 1971,[10] and the Bunker Oil Convention of 2001[11] have taken effect for a considerable number of States. China including Macau is bound by the Collisions Convention of 1910,[12] the 1992 Protocol to the Oil Pollution Civil Liability Convention[13] and the Bunker Oil Convention.[14] The liability for the spills of certain chemicals has been dealt with by the HNS Convention of 1996[15] which however has not entered into force.

Other conventions deal with contractual matters such as salvage or the carriage of passengers or goods by sea. However, some of them impact on liability in tort insofar as they put a cap on claims against the carrier, regardless of the basis of its liability. The 1974 Athens Convention on the carriage of passengers and their luggage by sea which is also in force for Macau[16] even states its own exclusive character; according to its art. 14 “no action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention.”[17]

A characteristic feature of maritime law is the limitation of liability, both contractual and delictual, of persons involved in a maritime venture. Several international instruments limit the liability of ship-owners for a great variety of claims including those sounding in tort. The 1957 Convention on the limitation of liability of owners of sea-going vessels[18] had been extended to Macau by Portugal, and China declared that this Convention would continue to apply to Macau in 1999.[19]


B.  Specific conventions on maritime torts

The Collisions Convention of 1910 applies to collisions between sea-going vessels or between sea-going vessels and vessels of inland navigation when all the vessels concerned belong to Contracting States, see Arts. 1 and 12. The Convention basically provides for liability for fault. It has been ratified by more than 80 States worldwide; thus, many collisions will be covered.

Recourse to national law is necessary, however, if for example an Indonesian or Vietnamese ship is involved; neither country is a Contracting State. In conformity with Art. 12 of the Convention some Contracting States have extended its rules to collisions involving vessels from non-Contracting States.[20] It is submitted, however, that such extension by single Contracting States is a matter of national law which is only applicable when referred to by the conflict rules of the forum State. The situation is analogous where solid installations such as piers, off-shore windmills, underwater cables or drilling rigs are involved; non-contractual liability arising from collisions with such installations is entirely a matter of national law as designated by choice-of-law rules.

While many countries have given direct effect to the Collisions Convention, others, like Germany, have implemented it into their national legislation. It is important to establish whether a provision governing a case is based upon the Convention or on the will of the national legislature. In the latter case national methods of interpretation apply, in the former the interpretation is governed by arts. 31-33 of the Vienna Convention on the Law of Treaties;[21] in particular, the purpose of legal unification requires a “comparative interpretation” in the light of the application of the convention in other Contracting States.[22]

The Convention on civil liability for oil pollution damage of 1969 (CLC) deals with the spills by tankers of oil carried as cargo that have become very spectacular occurrences over the last 50 years. In response to several grave incidents the international community has established a multi-layered system of compensation. Its foundation is the CLC 1969 which has been amended by a Protocol of 1992; both are in force for Macau.[23] Subject to certain monetary limits, these instruments establish the non-fault liability of the owner of a ship from which cargo oil has escaped or been discharged. The Convention applies to pollution damage caused in the territory, the territorial sea and in the exclusive economic zone of a Contracting State. In the States Party to the Convention, the CLC will apply irrespective of any choice of law considerations.

Another source of oil pollution is bunker oil which is more persistent and therefore more liable to causing damage to the environment in small quantities. In 2001 the Bunker Oil Convention or Convention on civil liability for bunker oil pollution damage was adopted under the auspices of the International Maritime Organization.[24] The Convention establishes the non-fault or strict liability of the owner, bareboat charterer, manager and operator of a ship, but leaves the limitation of liability to other regimes applicable in the forum State. In Macau this reference would relate to the 1957 Convention on the limitation of liability of owners of sea-going ships.[25] The liability rules of the Bunkers Convention apply to pollution damage caused in the territory, the territorial sea and in the exclusive economic zone of a State Party.


C.  Remaining significance of choice of law

The conventions outlined above only cover part of the disputes that may arise from activities carried out at Macau’s sea. In each case the rules governing the scope of a convention have to be checked to find out whether and to what extent an issue is actually governed by a convention. Thus a collision between vessels flying the flags, respectively, of China and Vietnam would not be covered by the Collisions Convention. Similarly, the CLC 1969 would not apply to an oil spill resulting from a leak in a pipeline on the bottom of Macau’s sea. In both cases claims for compensation would therefore be subject to some national law; but which one?

It should further be borne in mind that no uniform law convention contains a complete regulation of all issues that may arise in the case of its application. Gaps are inevitable. They should be filled by general principles underlying the respective convention. While this is explicitly stated in Art. 7 (2) of the Convention on the international sale of goods of 1980,[26] the same interpretive rule would also follow from general principles of treaty interpretation.[27] Where no general principles underlying the respective convention can be traced, recourse must be had to the national law designated by private international law.


IV. Choice of law

A.  The basic conflict rule of the Macau Civil Code

The conflict rules of private international law that determine the applicable law are not international; outside the scope of some conventions, in particular those of the Hague Conference on Private International Law, they differ from jurisdiction to jurisdiction. Every court applies the conflict rules of the forum. The following remarks are based on the assumption that a court in Macau has jurisdiction to decide on a dispute involving non-contractual liability. The court will apply the choice rules as codified in the Civil Code of Macao.[28] The relevant provision dealing with the law applicable to torts is art. 44:

1.   Non-contractual liability resulting from a tort, putting others at risk or from any lawful conduct shall be governed by the law of the place where the principal conduct causing the injury occurred; if the liability is due to an omission, the law of the place where the liable person should have acted shall apply. 

2.   If the injurious party is held liable under the law of the place where the injury was inflicted but not under the law of the place where the conduct causing the damage occurred, the former law shall apply, provided the injurious party should have foreseen that his or her act or omission could cause injury at a place subject to that law. 

3.   However, if the injurious party and the injured person have the same habitual residence and are by chance abroad, the law of the common residence shall apply, subject to the provisions of the legal order designated as applicable by the preceding paragraphs that shall apply without distinction to all persons.

The basic principle thus is the application of the lex loci actus, the law of the place of conduct. Where the place of conduct and the place of harm are in different jurisdictions, this may come as a surprise to the injured party and/or its insurer. They will be compensated under a law that they did not expect to apply. That law may be more beneficial to the victim, but may also provide less compensation. Only where the law of the place of conduct does not hold the tortfeasor liable at all an exception is made in para. 2 that provides for the application of the law of the place of harm; the exception does not appear to apply where the law of the place of conduct holds the tortfeasor liable but restricts, as compared with the law of the place of harm, the remedies available to the victim, e.g. by a shorter prescription period, a heavier burden of proof or lower liability limits.  Under para. 3 both the place of conduct and the place of harm are irrelevant where the parties have their habitual residence within the same jurisdiction.

It is noteworthy that the basic preference for the law of the place of conduct contrasts with solutions adopted in other jurisdictions. While the European Union[29] and Japan[30] have taken the opposite approach and designate the place of harm as the main connecting factor for non-contractual obligations, Chinese private international law refers to the lex loci delicti,[31] thereby leaving the issue unresolved and to the discretion of the judge.[32] Hong Kong follows the traditional double actionability doctrine of the common law requiring the application of both the law of the forum and the law of the place where the tort was committed.[33] It should be noted that both Macau and Hong Kong maintain conflict rules that have been abrogated in their respective countries of origin, i.e. in Portugal and the United Kingdom where the EU Rome II Regulation is in force. The variety of conflict rules invites each party to choose the court that provides for the most favorable solution.


B.Localization in maritime cases

All conflict rules cited above require the localization of a tort, of the wrongful conduct and/or the occurrence of the resulting harm. In maritime cases the localization may give rise to two types of problems:

(1)            Where is the locus delicti, if the relevant conduct occurs, or the harm is suffered on a vessel, in particular on a moving ship?

(2)            Can a locus delicti situated in a maritime area off the shores of a State be treated as a place located in the coastal State?

a) Internal and external torts. – The first question appears to receive an explicit answer by art. 23 of the Macao Civil Code:

1.   Acts performed on board vessels or aircraft outside a port or aerodrome shall be governed by the law of the place of their registration, whenever the territorial law is applicable.

2.   Military vessels and aircraft shall be deemed to be part of the territory of the country or Territory to which they belong.

Thus, the country of registration of a vessel appears to be the relevant connecting factor for determining the law applicable to the acts committed on board which are subject to the territorial connection of art. 44. Suppose a tanker carrying chemicals as cargo and flying the flag of the Marshall Islands crosses the Macau sea on its way to one of the Chinese ports on the Pearl River. Suppose further that a crew member by negligence opens a valve, thereby discharging part of the poisonous cargo into the sea and destroying the seafood raised in a nearby aquaculture. Should the liability of the shipowner be assessed under the law of the Marshall Islands? This would appear to follow from the combined reading of arts. 23 para. 1 and 44 para. 1 of the Civil Code.

But such interpretation is of doubtful validity. Maritime torts have a double character, depending on the circumstances. They may be classified as either external torts or internal torts depending on the circumstances.[34] The effects of internal torts are limited to the maritime venture. Thus, the deliberate destruction of cargo by a member of the crew should be subject to the same legal regime of liability, regardless of whether it happens on the high seas or in the territorial waters of a coastal State. The same is true for the liability of the owner of a cruise ship for the injury suffered by a passenger falling down a steep and insecure staircase.

With regards to such internal torts art. 23 declares the place of the vessel’s registration to be the relevant territorial connection of a tort; it thus ensures the immutability of the law governing compensation throughout the whole voyage. This has the practical advantage that the injured person is released from the burden of proof with regards to the localization of the tort. On the other side the shipowner can calculate the liability risks more easily.

Other considerations apply with regards to external torts. In the case of the chemical spill the owner of the acquaculture runs his business in accordance with the laws of the coastal State. He relies on those laws with regards to the ecological, safety and food regulations, and he also takes out insurance in accordance with these laws; the insurer will equally bargain on the basis of the risks as they present themselves under the local laws, including the subrogation to potential claims of the policyholder against third persons.

The expectations of these businesses are protected by a territorial connection as established by art. 44. On the other hand the shipowner and the persons connected to the maritime venture cannot assert a reliance interest in the immutability of liability vis-à-vis the inhabitants of the coastal States when plying through waters subject to different legal regimes. It follows that art. 23 should be confined to internal torts of a vessel, while the territorial connection under art. 44 prevails with regards to external torts.

b) Attribution of maritime zones to the coastal State. – The answer to the second question is not self-evident either. Is a tort committed at Macau’s sea to be treated like a tort committed in Macau? One might envisage a differentiated solution and consider for instance the territorial sea as equivalent to the territory, but look for alternative connecting factors for all torts committed outside the territorial sea. The sovereign rights accorded to a State under public international law do not necessarily entail the need for that State to make use of them in private international law. The case law of the Court of Justice of the European Union provides useful assistance. The following example refers to a labor dispute, not to a tort; but it illustrates the problems of localization of maritime events.

In Weber v. Ogden the German plaintiff had been employed as a cook by the defendant on mining installations and vessels flying the Dutch flag and operating mainly on the waters above the Dutch part of the continental shelf. However, he had also worked for the same employer for three months on board a floating crane deployed in Danish territorial waters for the construction of a bridge over the Great Belt. The Court was asked by the Dutch Supreme Court (Hoge Raad) whether work carried out in the North Sea above the Dutch part of the continental shelf was equivalent to work carried out in the Netherlands; such finding was necessary for establishing the jurisdiction of the Dutch courts in accordance with the Brussels Convention.[35]

The Court of Justice pointed out that the relevant provision of the Brussels Convention requires that the individual contract of employment under which the employee carries out his work has a connection with the territory of at least one Contracting State.[36] For answering the question whether work carried out on the continental shelf was performed in the coastal state, the Court referred to art. 29 of the Vienna Convention on the Law of Treaties[37] and to the 1958 Geneva Convention on the Continental Shelf, the predecessor of some provisions of UNCLOS.[38] Since arts. 2 and 5 of that Convention extend the jurisdiction of the coastal state to the continental shelf as far as the exploration and exploitation of natural resources is concerned (now: art. 77 UNCLOS), the Court held that work carried out in that context is to be regarded as work carried out in the territory of the coastal state for the purposes of the Brussels Convention.[39]

At first sight this judgment might be interpreted as prescribing a general equivalence of the continental shelf and the territory of a coastal state. However, the court narrows its own statement by implication, in particular by pointing to the focus of the plaintiff’s work in the mining business. This allows the inference that the jurisdiction of the courts of the coastal State does not necessarily extend to maritime activities unrelated to the exploration or exploitation of natural resources. In this respect the opinion of Advocate General Jacobs makes clear that “the situation might … be different in the case, for example, of a vessel flying the flag of another State and sailing on the high seas over the continental shelf. Under the Convention on the High Seas, … the flag State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag (Art. 5 (1)) and such ships are subject to its exclusive jurisdiction on the high seas (Art. 6 (1))”.[40]


C. Conclusions on choice of law

The following propositions can be inferred from these considerations:

(1)   Internal torts occurring on board a ship passing through Macau’s sea are subject to the law of the flag State.

(2)   External torts occurring on board a ship passing through Macau’s sea and affecting persons or property located in Macau or its sea are subject to the law of Macau.

(3)   Other torts occurring in China’s and Macau’s territorial sea are governed by the law of Macau.

(4)   Torts occurring outside China’s territorial sea but within Macau’s sea and related to the exploration or exploitation of the sea-bed or its sub-soil are governed by the law of Macau.

(5)   There are some torts not covered by the rules above, e.g. collisions not covered by the Collisions Convention occurring outside the territorial sea; the law applicable to such torts is far from being settled.


V. General Conclusion

The transfer, by the central government of China, of administrative powers with regards to Macau’s sea is an internal affair of the People’s Republic of China. But the exercise of these powers by the SAR government of Macau involves some issues of international law. They relate to the spheres of sovereignty of coastal States and flag States laid down in UNCLOS and to many international conventions dealing with activities in Macau’s sea; those concerning specific types of tort liability in private relations have been outlined in this paper. Since they cover only some of the activities and disputes arising therefrom national law as designated by the conflict rules of private international law will play an important role as well. The overall picture is far from simple and a challenge to the lawyers of Macau.



Basedow, Jürgen. “Uniform Private Law Conventions and the Law of Treaties”. Unif. L. Rev. (2006) 731-747.

_____. “International Economic Law and Commercial Contracts: Promoting  Cross-Border Trade by Uniform Law Conventions”. Unif. L. Rev. (2018).

_____. “Uniform Law Conventions and the UNIDROIT Principles of International Commercial Contracts”. Unif. L. Rev. (2000) 129.

Basedow, Jürgen, Rühl, Giesela, Ferrari, Franco & Asensio, Pedro de Miguel (eds.). Encyclopedia of Private International Law. Vol. 4. (Cheltenham: 2017) 3463 – 3472.

George, Martin P. “Choice of Law in Maritime Torts”. J. PIL 3 (2007) 137-172. 

Guoyong Zou. “The Latest Developments in China’s Conflicts Law for Non-Contractual Obligations”. In Basedow, Jürgen & Pissler, Knut (eds.). Private International Law in Mainland China, Taiwan and Europe (Tübingen: 2014) 223 – 240.

Gruber, Urs Peter. Methoden des internationalen Einheitsrechts (Tübingen: 2004).

Kropholler, Jan. Internationales Einheitsrecht (Tübingen :1975).

Ling Zhu. Compulsory Insurance and Compensation for Bunker Oil Pollution Damage (Heidelberg: 2007)

Manca, Plinio. Commento alle convenzioni internazionali marittime. Vol. I-III (Milano : 1974).

Paulsen, Gordon W. “Historical Overview of the Development of Uniformity in International Maritime Law”. Tul. L. Rev. 57 (1983) 1065 (1068-1073).

Rodière, René. Traité général de droit maritime, Introduction. (Paris: L’armement, 1976).

Wagner, Rudolf. Handbuch des Seerechts. 2nd ed. (Leipzig: 1906).



* Prof. Dr. Dr.h.c.mult. Jürgen Basedow, LL.M. (Harvard Univ.), Director emeritus of the Max Planck Institute for Comparative and International Private Law and Professor of Law at the University of Hamburg; Member of the Institut de droit international.

[1] Boletím oficial da região administrativa especial de Macau, 1a série, of 20 December 2015, p. 17.

[2] United Nations Convention on the Law of the Sea, concluded at Montego Bay on 10 December 1982, 1833 UNTS 396 (UNCLOS).

[3] See the declaration made by the People’s Republic of China in connection with the ratification of UNCLOS, 1927 UNTS 575.

[4] Compare Gordon W. Paulsen, Historical Overview of the Development of Uniformity in International Maritime Law: Tul. L. Rev. 57 (1983) 1065 (1068-1073); Martin P. George, Choice of Law in Maritime Torts: J. PIL 3 (2007) 137-172  at 154 seq.; Rudolf Wagner, Handbuch des Seerechts, 2nd ed. Leipzig 1906, p. 67-71.

[5] Ordonnance de la marine d’août 1681, reprinted in: Collection De Lois Maritimes Antérieures au XVIII. Siècle, ed. by Jean Marie Pardessus IV (Paris 1837) 325 seq.

[6] Compare Wagner, above at fn. 4, p. 78-99; René Rodière, Traité général de droit maritime, Introduction, L’armement, Paris 1976, p. 55-70; Plinio Manca, Commento alle convenzioni internazionali marittime, vol. I-III, Milano 1974; Paulsen, above at fn. 4, p. 1073.

[7] International Convention for the unification of certain rules of law relating to collisions between vessels, done at Brussels on 23 September 1910, reprinted in: University of Southampton Institute of Maritime Law (ed.), The ratification of maritime conventions (Loose-leaf; London 1990) No. II.3.200 (hereinafter RMC).

[8] International Convention on Civil liability for Oil Pollution Damage (CLC 1969), done at Brussels on 29 November 1969, 973 UNTS 3; Protocol to the International Convention on Civil Liability for Oil Pollution Damage (CLC PROT 1976), done at London on 19 November 1976, 1225 UNTS 356; Protocol of 1984 to the International Convention on Civil liability for Oil Pollution Damage (CLC PROT 1984), done at London on 25 May 1984, 23 Int. Leg. Mat. 177.

[9] Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage (CLC PROT 1992), done at London on 27 November 1992, reprinted in: RMC (supra fn. 8) at No. II.7.51. While most Contracting States of the 1992 Protocol have denounced CLC 1969 in accordance with Art. 31 of the 1992 Protocol amending the 1971 Fund Convention (reprinted in: RMC (supra fn. 8) at No. II.7.111), CLC 1969 continues to be effective for them as amended under Art. 16 (4) of the 1992 Protocol.

[10] Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (NUCLEAR 1971), done at Brussels on 17 December 1971, 974 UNTS 255.II.

[11] International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKER 2001), done at London on 23 March 2001, reprinted in: RMC (supra n. 8) at No. II.7.130.

[12] Comité Maritime International, CMI Yearbook 2016, p. 368.

[13] CMI Yearbook 2016 (previous fn.), p. 425, 428.

[14] See CMI Yearbook 2016 (above at fn. 13), p. 470 f.

[15] International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea, done at London on 3 May 1996, 35 Int. Leg. Mat. 1406.

[16] See CMI Yearbook 2016 (above at fn. 13) p. 447 with fn. 3.

[17] Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea (PAL 1974), done at Athens on 13.12.1974, 1463 UNTS 20.

[18] International Convention Relating to the Limitation of Liability of Owners of Sea-Going Ships, concluded at Brussels on 10 October 1957, 1412 UNTS 80.

[19] See CMI Yearbook 2016 (above at fn. 13), p. 401 with the fn. on p. 402 and the detailed reference to China’s declaration on p. 403.

[20] See for Germany § 734 of the Handelsgesetzbuch (HGB, Commercial Code).

[21] Done at Vienna on 23.5.1969, 1155 UNTS 331; see Jürgen Basedow, Uniform Private Law Conventions and the Law of Treaties: Unif. L. Rev. 2006, 731-747 (741 seq.). China is a Contracting Party to this Convention.

[22] See Jan Kropholler, Internationales Einheitsrecht (Tübingen 1975) 278 seq.; Urs Peter Gruber, Methoden des internationalen Einheitsrechts (Tübingen 2004) 188 seq. It follows from the need to achieve a uniform interpretation and application of such conventions, see e.g. the dictum of Lord Wilberforce in Buchanan v. Babco, [1977] 3 All E.R. 1048, 1053 H.L.: “We should of course try to harmonise interpretation ...“ At p. 1060 of that judgment Lord Salmon points out: “If a corpus of law had grown up overseas which laid down the meaning of Art. 23, our courts would no doubt follow it for the sake of uniformity which it is the object of the convention to establish.“

[23] See above at fn. 10; for Macau see CMI Yearbook 2016 (above at fn. 13), p. 425 at 428 fn. 4.

[24] See above fn. 12 and 15; on this instrument see Ling Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution Damage (Heidelberg 2007).

[25] See above fn. 19 and 20.

[26] United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11.4.1980, 1489 UNTS 3.

[27] Cf. Jürgen Basedow, Uniform Law Conventions and the UNIDROIT Principles of International Commercial Contracts: Unif. L. Rev. 2000, 129 (133 seq.); id., International Economic Law and Commercial Contracts: Promoting  Cross-Border Trade by Uniform Law Conventions: Unif. L. Rev. 2018, 1 (9 seq.) with further references.


[28] The Code was initially promulgated in Portuguese; an English translation prepared by António Marques dos Santos is published in Jürgen Basedow/Giesela Rühl/Franco Ferrari/Pedro de Miguel Asensio, eds., Encyclopedia of Private International Law, vol. 4, Cheltenham 2017, p. 3463 – 3472; on the private international law of Macao see Guangjian Tu, Macao, SAR of China, in Encyclopedia, vol. 3,  p. 2305 – 2315, especially 2311.

[29] Art. 4 para. 1 of the Regulation (EC) no. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ 2007 L 199/40.

[30] Art. 17 of the Act no. 17/2006 on the General Rules of Application of Laws, English translation by several authors in Encyclopedia, above at fn. 28, vol. 4, p. 3344 – 3357.

[31] Art. 44 of the Law of 28 October 2010 on the Application of Laws to Civil Relationships Involving a Foreign Element of the People’s Republic of China, English translation prepared by Weizuo Chen and Kevin Moore in Encyclopedia, above at fn. 28, vol. 4, p. 3069 – 3072.

[32] Guoyong Zou, The Latest Developments in China’s Conflicts Law for Non-Contractual Obligations, in Jürgen Basedow/Knut Pissler, eds., Private International Law in Mainland China, Taiwan and Europe, Tübingen 2014, p. 223 – 240 (237 seq.) who points to the law prior to 2010 and a judicial interpretation adopted by the Supreme People’s Court; see also the open-ended discussion in Zheng Sophia Tang/Yongping Xiao/Zhengxin Huo, Conflict of Laws in the People’s Republic of China, Cheltenham 2016, paras. 9.17 – 9.22.


[33] See Lutz-Christian Wolff, Hong Kong, SAR of China, in Encyclopedia, above at fn. 28, vol. 2129 – 2138 (2136).

[34] In substance, the same distinction is made by Martin P. George, Choice of Law in Maritime Torts: J. PIL 3 (2007) 137-172 who distinguishes “liability within the same vessel“ (138 seq., 160 seq.) from “liability as between two vessels“ (154 seq., 161 seq.); but the latter category is of course not limited to activities affecting other vessels.

[35] CJEU 27 February 2002, case C-37/00, (Herbert Weber v. Universal Ogden Services Ltd.), ECLI:EU:C:2002:122, para 26. The jurisdiction of the Dutch courts was governed by the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, for the original version see Bull. EC 1969, Supplement no. 2, p. 7-14.

[36] CJEU, previous fn., paras. 27 seq.

[37] See above at fn. 21.

[38] Convention on the Continental Shelf, done at Geneva on 29. 4.1958, 499 UNTS 311; UNCLOS was not applicable to that case since the Netherlands acceded to UNCLOS only two years after the proceedings were initiated. However, the findings regarding the 1958 Geneva Convention on the Continental Shelf equally apply to UNCLOS, compare Advocate General Jacobs, opinion in Herbert Weber v. Universal Ogden Services Ltd. (supra n. 35) delivered on 18 October 2001, ECLI:EU:C:2001:554, para. 18.

[39] CJEU, above at fn. 35, paras. 29, 30, 32 and 35.

[40] Advocate General Jacobs, above at fn. 38, para. 30.