1. Cohen, Jerome Alan, ”Chinese law: at the crossroads,” The China Quarterly (CQ) No. 53 (1973), p. 138Google Scholar;

2. Neither the Party Constitution of 1969 nor the Draft Constitution which was circulated in China in 1970 fall into the category of legislation in the ordinary sense. Cohen (ibid. pp. 138–39) was given to understand by his hosts in China in mid-1972 that new laws would be enacted to meet new needs after the convening of the Fourth National People's Congress.

3. Chung-hua jen-min kung-ho-kuo chiao-t'ung-pu shui-lu huo-wu yiin-shu kueitse (Regulations for the Carriage of Goods by Water of the Ministry of Communications of the People's Republic of China) (Peking: People's Communications Press, 1972)Google Scholar;

4. Ibid. pp. 1–14. In addition to the Regulations, the pamphlet contains 12 statutory forms and tables relating to the operation of the Regulations (pp. 15–31) and the Notice of the Ministry of Communications of the People's Republic of China regarding the Repeal of Previously Issued Regulations on the Carriage of Goods by Water (28 December 1971, p. 32). The Notice deals with the repeal and saving of earlier legislation after the entry into force of the Regulations on 1 April 1972.

5. According to the colophon, the pamphlet was printed in a first edition of 40,700 copies. This may be compared with an edition of 28,000 for the first volume of the main statutory series, Chung-hua jen-min kung-ho-kuo fa-kuei hui-pien (Collected Laws and Regulations of the People's Republic of China), (henceforward FKHP), which contained the 1954 Constitution and its associated documents. Only 9,000 copies of the thirteenth volume of FKHP were printed.

6. One handbook which must have been required by a wide range of officials in the shipping industry as well as by shippers, Chung-hua jen-min kung-ho-kuo chiao-t'ung-pu shui-yün yün-chia hui-pien (Collected Shipping Freight Tables of the Ministry of Communications of the People's Republic of China) (Peking: People's Communications Press, 1956)Google Scholar appeared in an edition of only 3,000 copies.

7. “Reform of regulations and systems with materialist dialectics,” Jen-min jih-pao, 3 March 1966; trans, inSelections from the China Mainland Press, No. 3660 (1966), p. 9Google Scholar;

8. Ibid. p. 10.

9. Ibid. Some of the older regulations were said to be slavish imitations of foreign models, or survivals from Nationalist days.

10. Ibid. p. 10.

11. Ibid. p. 10.

12. Ibid. p. 15.

13. For general accounts of the disturbances on the railways during the Cultural Revolution, seeJones, P. H. M., “Trains in trouble,” Far Eastern Economic Review (FEER) 21 12 1967Google Scholar;McDougall, Colina, “Roll on, revolution!” FEER, 13 06 1968Google Scholar; and “Off the rails again?,” FEER, 20 February 1969.

14. Translated fromShui-yun (Water Transport), No. 1, 01 1966Google Scholar; inTranslations from Communist China's Transportation and Communications, No. 26 (Joint Publications Research Service of the U.S. Government, No. 35,766, 31 05 1966) pp. 17–23Google Scholar;

15. Joint Circular of the Ministry of Railways and the Ministry of Communications of the People's Republic of China regarding Further Clarification of the Regulations for Combined Carriage by Land and Water, 20 September 1958;T'ieh-lu shang-wu chuang-k'an (Railways Commercial Gazette), No. 11 (1958), P. 4Google Scholar;

16. Graphic illustrations of the causal relationship between the removal of ossified regulations and the release of human creativity are to be found in the experiences of the Hsiao-Ch'ing-Ho Shipping Bureau (supra, n. 4) and in the copious literature on the achievements of individuals and enterprises in many spheres which have been published in recent years.

17. E.g. “Canton harbour bureau simplifies shipping procedures,” Kuang-chou jih-pao, 13 June 1957. Many similar examples could be cited.

18. E.g. Article 1 of the Experimental Rules for the Implementation of Monthly Plans in the Carriage of Goods by Water, 1 November 1955;Chunghua jen-min kung-ho-kuo fa-kuei hsien-chi (Selected Laws and Regulations of the People's Republic of China) (Peking: Legal Press, 1956), p. 717Google Scholar: “These Regulations are made with the object of strengthening co-operation in the work of carriers and shippers, improving the accuracy of transport planning and the efficient employment of tonnage, and ensuring the accomplishment of the State Transport Plan”

19. I.e. that they were not intended to create specific legal obligations.

20. A similar technique was used to reduce the number of provisions in the Draft Constitution of 1970. The text may be found inChung-kung yen-chiu (Research into Chinese Communist Affairs), No. 47, 11 1970, pp. 117–19Google Scholar;

21. Discussed below, p. 80–2.

22. Arts. 2 and 3.

23. “Reform of regulations,” pp. 9–10.

24. Art. 16 (summing-up experience and promoting safe working methods among stevedores); art. 17 (stowage); art. 41 (statistical analysis of shipping casualties and cargo losses).

25. Fu-tse, an expression which often connotes the imposition of civil liability. In the present instance it is assumed that it means no more than moral responsibility, though elsewhere, e.g. in art. 38, it is used in the stricter sense. It is possible, however, that the evident ambiguity is intentional.

26. De minimis curat lex. However good a service they may in fact provide, few western shipping companies would trouble to insert special terms in favour of the individual; the tendency is to cater more and more for large units of cargo.

27. Carriage of baggage and small packets on passenger vessels is covered by other regulations.

28. For example the absence of information as to the current status of the 1954 Constitution appears to be as complete in China as elsewhere.

29. E.g. theRegulations for the Control of Trademarks (30 12 1963), FKHP, No. 13, p. 162Google Scholar; which are known to be in regular use.

30. See above, n. 4.

31. Para. 3. The exact extent of the repeal raises difficult questions which are beyond the scope of this article.

32. Provisional Rules for Foreign Capitalist Vessels under Time-charter engaging in Internal or Coastal Carriage of Goods (27 September 1967). The existence of these Rules was not previously known outside China, and no text is at present available to the writer.

33. The Rules (see above, n. 32) are mentioned as bearing the serial number 36 of 1967, suggesting an average output by the Department of four decrees of some kind per month during that year; not all would necessarily have been of a legislative character.

34. See above, p. 68. I have been told by a well-placed source that there were no changes in the ownership system as regards shipping during the Cultural Revolution period.

35. Arts. 10, 15 and 19.

36. Art. 19.

37. See above, p. 67.

38. “Local Revolutionary Committees at each level” were provided for by art. 22 of the Draft Constitution of 1970; see above, n. 20.

39. Art. 2.

40. Combined, or through, transport involves trans-shipment of the cargo from one vessel or vehicle to another; it requires particularly careful co-ordination if a pile-up of goods at the trans-shipment port is to be avoided. SeeDicks, A. R., “Recent developments in the contract for carriage of goods with special reference to the domestic shipping industry” (Paper contributed to the Conference on Civil Law and Administration in the Chinese Economy held at the School of Law, University of California, Berkeley, 27–2908 1973), pp. 9–14Google Scholar; This paper, which it is hoped will be published with the other conference materials in due course, deals with the technical aspects of the Regulations and the legislation which they replace in greater detail than is warranted by the present discussion.

41. Art. 2.

42. E.g. arts. 6 and 10 of the Experimental Rules (see above, n. 18).

43. The first step towards decentralization of shipping administration was theDecision of the State Council on the Transfer of Shipping on the Pearl River to the Direct Control of the Two Provinces of Kwangtung and Kwangsi (6 02 1957), FKHP, No. 5, p. 207Google Scholar;

44. See above, “General Provisions.”

45. E.g. the Contract for the Carriage of Goods by Sea (18 April 1953);Chunghua jen-min kung-ho-kuo min-fa ts'ai-liao hui-pien (Collection of Materials on the Civil Law of the People's Republic of China) (Peking: People's University, 1954), Vol. II, p. 80Google Scholar; This document, although only a form of contract, was described as “an important piece of legislation”; seeMu, Jui, “The development of our country's civil legislation since the foundation of the People's Republic of China,” Cheng-fa yen-chiu (Political and Legal Research), No. 5 (11 1955), p. 18Google Scholar; also in Jen-min shou-ts'e (The People's Handbook) (1955), p. 334.

46. E.g. the Carriage Clauses which appear, undated, inChung-hua jen-min kung-ho-kuo min-fa ts'an-k'ao ts'ai-liao (Reference Materials on the Civil Law of the People's Republic of China) (Peking: People's University, 1956), Vol. II, p. 428Google Scholar;

47. See art. 26 (Oil in bulk), art. 27 (Towage), art. 28 (Heavy or bulky goods), art. 29 (Perishable goods, livestock and plants), art. 30 (Goods which affect international relations or require secrecy), art. 32 (Special booking of tonnage), art. 33 (Loading or discharge at enterprises' own wharves), and art. 34 (Carriage in chartered vessels).

48. Pfeffer, Richard M., “The institution of contracts in the Chinese People's Republic” (Second part), CQ, No. 15 (1963), p. 115CrossRefGoogle Scholar;

49. Art. 35.

50. See above, p. 65.

51. Experimental Rules (see above, n. 18).

52. E.g. ibid.

53. Different rules apply to combined carriage. See above, n. 40.

54. Experimental Rules (see above, n. 18).

55. See above, n. 14.

56. Arts. 2 and 3;Dicks, , “Contract for carriage of goods,” pp. 15–16Google Scholar;

57. They might, of course, be gradually reintroduced by way of the local regulations and detailed rules which individual shipping units may make under the General Provisions.

58. In a contract where the shipper takes the responsibility for providing cargo, a certain period is allotted for loading and discharging (lay time). Where the shipper exceeds this time limit, the compensation payable to the ship for its detention is called “demurrage,” and is usually calculated at a daily or hourly rate. Where the shipper finishes loading or discharging before the lay time expires, he is usually rewarded by being paid “despatch money” also at a pre-arranged rate. Where the shipper furnishes less cargo than the contract stipulates (freight being earned on the tonnage carried) the ship's loss is compensated for by payment of “deadfreight” at a fixed rate. All of these forms of payment have appeared in pre-1966 Chinese contracts or regulations.

59. A discussion of the penalty system appears inChung-hua jen-min kung-hokuo min-fa chi-pen wen-t'i (Peking: Legal Press, 1958), pp. 183–86 and 240–41Google Scholar; This work is translated as Basic Problems of the Civil Law of the People's Republic of China (Joint Publications Research Service, No. 4879); see pp. 185–88 and 241–42.

60. Anson's Law of Contract, 23rd ed., by Guest, A. C. (Oxford: Clarendon Press, 1969), p. 524Google Scholar; The expression “penalty” has a somewhat pejorative meaning in English legal parlance, being reserved for unreasonably extravagant examples of the species. No such meaning attaches to the translation of fa-k'uan as “penalty” in the present context.

61. The absence of a market does not always make the conventional rules for measurement of damages in western systems impossible to apply; art 39 of the Regulations lays down criteria for assessing cargo claims similar to those used elsewhere.

62. See, e.g. Wei-chung, Li, “Further progress to strive for greater fulfilment of the sea transportation production task,” transl. from Shui-yun, No. 1 (01 1966)Google Scholar in Translations on Communist China's Transportation and Communications, No. 26.

63. They would probably have to be based on a hypothetical calculation of lost daily or hourly freight earnings.

64. See above, n. 59.

65. Ibid. p. 241; JPRS transl., p. 242.

66. On this topic the reader is referred in particular toLi, Victor H., “The role of law in Communist China,” CQ, No. 44 (1970), p. 66CrossRefGoogle Scholar; also toLubman, Stanley, “Mao and mediation; politics and dispute resolution in Communist China,” 55 California Law Review (1967), p. 1284Google Scholar; which contains copious references to earlier literature.

67. Art. 35–43.

68. Dicks, , “Contract for carriage of goods,” pp. 23–27Google Scholar;

69. Li, , “Law in Communist China,” pp. 82–83, 87–90 and 94–104Google Scholar; Lubman, “ Mao and mediation.”

70. Cohen, , “Chinese law,” pp. 141–43Google Scholar; Lubman, Stanley, “A divorce trial, Peking style,” Wall Street Journal, 5 06 1973Google Scholar;

71. “Law in Communist China,” esp. pp. 99–104.

72. Dicks, , “Contract for carriage of goods,” pp. 22–27Google Scholar;

73. For a nineteenth-century example, seeMorse, H. B., The Gilds of China (London: Longmans Green & Co., 1909), pp. 55–56Google Scholar;

74. Li, , “Law in Communist China,” pp. 82Google Scholaret seq. It is arguable, though, that the “external” characteristics of the sort of legislation that the Ministry of Communications enacts result not merely from the age or cultural background of the Ministry's draftsmen, but from the nature of its task; the modernizing and standardizing activities of the Ministry seem to commit it ex hypothesi to the external model of law.

75. See above, p. 80.

76. There is a special significance to this question in China, where the profits of enterprises directly under Ministries (shipping companies among them) appear to be one of the few direct sources of revenue available to the central government. SeeDonnithorne, Audrey: Chinds Economic System (London: Allen & Unwin, 1967), Chap. 14, esp. pp. 393–400Google Scholar;

77. See above, n. 14.

78. It is not made clear whether this affected the Bureau's relations with the various local representatives of the supply system.