I. China, an active role on the drafting of Rotterdam Rules
From the preparation in later 1990s to the final convention, China was active in the whole process of the drafting. Experts joined the working group under CMI, government delegations had been sent to all the UNCITRAL assemblies and heat discussions had been continuing in China. Even before each attendance of the assemblies, meetings among scholars, maritime professionals and government officials were held in order to make deep researches on the proposed drafts and submit Chinese proposals. Around 2007, two research projects on the impacts of Rotterdam Rules were launched by Shanghai Maritime University and Dalian Maritime University under the auspices of the Ministry of Transport China. As well, some international and domestic conferences had also been held on this Convention .

However, the arguments on Rotterdam Rules continue in China

II. Comments on Rotterdam Rules in China
During its drafting, Rotterdam Rules has always drawn attention from Chinese scholars. At the very beginning, most of the analyses were focused on the deep interpretation of the innovation introduced by the Drafts and most of them were positive. But with the adoption of the final draft and the nearing of the signing date, shipping industries are paying more attention to the Convention, and the comprehensive analysis and examination of the whole system of the convention are increasing in addition to the specific analyses. At the same time, more criticizes arose,

I.1 General Evaluation
Among these analyses, viewpoints are diverse.
Some scholars appreciated the advanced features of the Rotterdam Rules and supported that the Rules would enjoy great vitality . They believed that the Rotterdam Rules would balance the interests between the shipowner and cargo side, will harmonize the laws applicable to carriage of goods, and will promote the development in the international trade and shipping . 
Although realizing some defects of the Convention, one is pro viewpoint.
The authors called on that China ‘shall be active towards the signature of this Convention’ although it needs to make some confirmation or reservation on chapter 14 and 15 and shall make a further thinking of the application of the Rules in Hong Kong and Macau .
On the contrary, some other scholars and practitioners are pessimistic on the effectiveness of Rotterdam Rules, and even presume that the Rules might not be widely adopted and will become as the fourth convention on the Carriage of goods by sea . In addition, they oppose to ratify the Rotterdam Rules at least before a full evaluation on the impacts by the Rotterdam Rules has been done ... 

Among the shipping companies, common consent has not been met yet. From my investigations, some of them preferred the ratification the Convention in view of the certainty and uniformity of law, but some others opposite against it strongly. As interesting phenomena, to my knowledge, certain association of freight forwarders and the port operators haven’t paid enough attention to the new Rules yet.

I.2 Specific analyses
Besides the general comments, specific analyses and comments focus on the aspects as follows:

I.2.1 Carrier’s liability regime:
Different from HR/HVR and Hamburg Rules do, the Rotterdam Rules abolish the exemption of Negligence in navigation and in management of vessel , strengthen the carrier’ obligations of keeping the vessel seaworthy during the whole voyage , increase the limitation of liabilities  as well as clarify the burden of proof between the shipper and the carrier . For such reconstruction of the liability system under carriage of good, some scholars regarded that it had balanced the shipping and cargo interests better .
Contrarily, some others commended that the heavier burden on the carrier and the changing of the basis of liabilities will bring the ‘new unbalance of the shipping and cargo interests’, and the ‘extra ordinate burden on the carrier’ will ‘infringe the interests of merchant shipping, especially of the medium and minor shipping companies,’ and deviates from the aim for the developing countries to foster their owner merchant shipping .
In addition, viewpoints show that the significant change regarding with carrier’s liability regime might make it difficult for the ‘larger and active shipping countries to ratify the Convention’, at least in the near future .  

I.2.2 Shipper’s liability regime & documentary shipper:
Unlike the HR/HVR  focusing on the system of the carrier, Rotterdam Rules also defines the obligations and liabilities on the shipper or documentary shipper .
Someone supported that the clarity on shipper’s obligation and liabilities adapted to the development in practice and was gearing with the situation of the getting more powerful position of the shippers in international trade. It is further commended that such provisions will balance the ship and cargo interests well .
However, as to the innovation of the ‘documentary shipper’ under the Convention, practitioners expressed more worries. According to art.35 of the Convention, documentary shipper is entitled to obtain transport document upon shipper’s consent. That will harm the interest of the consignor, especially the FOB Seller in practice if they fail to get the consent from the shipper , and the Convention ‘lead the consignor to lose its lawful status as the shipper ‘. So, it is so suggested that statute regulation shall confirm the right of FOB Seller or consignor to obtain the transport documents .  

I.2.2 Right of control in the transit:
As an innovation in a transport instrument, the designing of Right of Control on the goods during the transit brought great interests from. Previously, most of them regarded this innovation was good for resolution of the conflicts between legal systems of Transportation and the of Sales, and had filled the emptiness of the former transportation legislation .. 
Nevertheless, this system is also under controversy like it being in the international circle. According to some scholars, the innovation of the ‘Right of Control’ under Rotterdam Rules just exists in the changing of the ordinary mode of delivery of goods by the carrier, and the possibility of the changing of the right of control by parties’ agreement will make this system to lose its function in the practice .

I.2.3 Application scope of ‘Maritime+’ mode:
As a positive evaluation, the application of the Convention to ‘door to door’ carriage will improve the uniformity of the legal system in respect to logistics and will fill the emptiness of some domestic’s carriage under a ‘door to door’ one .
But some others recalled the attention to proposals by EU countries and FIATA opposing against the wide application of the Convention to ‘Maritime +’ modal . And they were worried that the derogation of the application of national regulations by Art.26 of the Convention would increase the risk on MTOs because their liabilities might be different from those of the carriers of actual legs, and will be difficult to get wide acceptance .

In addition to the above mentioned topics, the researches and discussions also made on the provisions of volume contract , the freedom of carrier’s obligations under a contract, especially the effectiveness of FIOST clause under the Convention , the mechanism and innovation on the delivery of goods by the carrier  and so on. Among these comments, controversies arose.

III. Comparison of Rotterdam Rules and CMC
The provisions concerning the contracts of carriage of goods by sea under Maritime Code of China (hereinafter as ‘CMC’) are applicable only to the international carriage . As to the carriage of goods between the ports of mainland China , the Contract Law of China and the Regulations on Carriage of Goods by Domestic Water-way will be applicable. Due to the limitation of the length of the paper, the comparison will be made just between the CMC and the Rotterdam Rules and focus on the issues as follows:

III.1 Carrier’s liability regime:
China is not a member state of either HR/HVR or Hamburg Rules, but she made lots of reference to the above instruments. I’d like to say that the liability regime of carrier under CMC is a hybrid of HVR and Hamburg Rules.

III.1.1 Basis of liability
The CMC established a basis of ‘incomplete fault liability system’ for the carrier. The mandatory obligations of carrier  and the exemptions for them , the limitation of liability  are very similar to those under HVR or its protocol, excepting some different in wording. But the provisions of period of responsibility , the delay in delivery , deck cargo and live animal  and so on are also a mixture from both Hamburg Rules and HR. In addition, at the side of Shipper, CMC is closer to the provisions under Hamburg Rules.
Compared with CMC, as discussed in part I, the Rotterdam Rules have made the obligations on the carrier heavier with stricter mandatory obligations, the derogation of some traditional exemptions and the great increasing of limitation of liabilities. More important, the Rotterdam Rules establish the system of ‘presumption fault’ of the carrier as the basis of liability. Therefore, as far as the basis of carrier’s liability is concerned, Rotterdam Rules have increased the burden on the carrier and are in favor of the cargo interests.
In addition, in line with the development in the practice, Rotterdam rules have also introduced some new provisions, such as the exemption of the piracy, the terrorist activities, which are not included in the CMC yet.

III.1.2 Burden of proof
The other issue shall not be omitted is the burden of proof. Stipulations under CMC are closer to the HVR, and also made some references to Hamburg Rules. By virtue of art. 51, if the carrier claims to exonerate from liabilities due to the exemptions causes provided, the carrier shall bear the burden of proof excepting the exemption of fire. For fire damages, the claimant shall bear the burden to prove that it is caused by the actual fault of carrier. In addition, according to art.54, ‘where loss or damage or delay in delivery has occurred from causes from which the carrier or his servant or agent is not entitled to exoneration from liability, together with another cause,’  the carrier shall ‘bear the burden of proof with respect to the loss, damage or delay in delivery resulting from the other cause.’
Compared with CMC, Rotterdam Rules allocates the burden of proof between the shipper and carrier clearer. The claimant shall prove that the loss, damage or delay, or the event or circumstance that caused or contribute to it occurred during the responsibility period . On the other hand, the carrier shall prove that none of the events or circumstances referred to his mandatory obligation caused the loss, damage or delay, or he has complies with his obligation to exercise due diligence pursuant to the provisions of the Rules .

III.1.3 Freedom of contract
According to art. 48 of CMC, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. And as a common sense, such kind of obligation is not allowed to be transferred to merchant party under a contract of carriage other than a charter party or under a contract conclusively evidenced by a bill of lading .
But the Rotterdam Rules provides that the carrier and shipper may agree that the loading, stowing or unloading of the goods is to be performed by the shipper, documentary shipper or the consignee, and such an agreement shall be referred to in the contract particular . That means FIOST clause may be functional under liner shipping or under a bill of lading. That conflicts with CMC.
In addition, Rotterdam Rules further provide that as between the carrier and the shipper, a volume contract to which this Convention applies ‘may provide for greater or lesser rights, obligations and liabilities than those imposed by the Convention. ’ But under CMC, any stipulation in a contract of carriage of goods by sea or a bill of lading or other similar documents evidencing such contract that derogates from the provisions of this Chapter (Chapter IV, noted by the author) shall be null and void. ’ So volume contract governed by Chapter IV of CMC shall have no privilege.

As to such revolutions by Rotterdam Rules, we are also worried about the possible abusing of the freedom of contract under Rotterdam Rules and which will finally weaken the basis of the mandatory law.

III.1.4 Others
The period of responsibility under the two instruments is different. CMC divides the periods into two categories. As to the container cargos, the period is from ‘the goods have been taken over at the port of loading, until been delivered at the port of discharge’, and as to the non-containerized goods, the period is from the time of ‘loading of the goods on the ship till the time the goods are discharged from therefrom. ’ This division is different from the uniform one under Rotterdam Rules as “from the receipt of goods by the carrier or performing party till the delivery of the goods therefrom ’. The Chinese modal has brought confusions in Chinese practice and also is criticized for not adapting to the modern shipping.
The provisions on definition of delay in delivery are the same under CMC and Rotterdam Rules.

III.2 Concerned Parties to the Carriage
III.2.1 Shipper & documentary shipper
Under CMC, shipper is the person a) by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier, b) by whom or in whose name or on whose behalf the goods have been delivered to the carrier involved in the contract of carriage of goods by sea. Therefore, under FOB trade, usually, there are concurrent shippers, one is the contracting shipper, and the other is the consignor, usually the FOB seller. However, the CMC does not clarify any difference on the obligations and rights on the two shippers, so it also brings confusions in judicial practice, e.g., who shall be responsible for the damage to the carrier caused by insufficiency of the package of goods, whether the shipper, the FOB seller is entitled to sue under a bill of lading , so on and so forth.
Rotterdam Rules introduces the party as ‘documentary shipper,’ and provides that such shipper will be at the same position as the contracting one, and also defines the condition for a party to become as a “documentary shipper.’
Although this innovation is also questioned or criticized by scholars or practitioners both in and out of China, the clarity on this party is of great value of reference to China. 

III.2.2 Actual Carrier & Performing Party
Making reference to Hamburger Rules, CMC introduces the system on actual carrier. When the performance of carriage has been entrusted to an actual carrier, the carrier shall nevertheless remain responsible for the entire carriage  and when both the carrier and the actual carrier are liable for compensation, they shall bear joint and several liabilities ., the provisions with respect to the responsibility of the carrier shall be applicable to the actual carrier .
Under CMC, the Actual carrier means the person to whom the performance of carriage of goods, or part of the carriage has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted under a sub-contract . From this definition, the intermediate party (ies) entrusted by the carrier but not actually perform the carriage shall not be deemed as the actual carrier. For example, the stevedores, the port operators usually are not the actual carriers or governed by CMC nor are they entitled to the limitation of liability or exemptions under the Code.
But under Rotterdam Rules, ‘performing party’ is a wider definition than actual carrier. As my understanding, it might include the stevedore, or port operator who just takes the receipt, cargo handling or delivery rather than the carriage. Furthermore, it includes the intermediate parties such as some freight forwarders or shipping agencies who undertake to perform (part of) the contract of carriage but not actually does that.
So in the district where Rotterdam Rules are applicable to, the system of contract of carriage shall be widely applied and the concerned party to the contract of carriage will be under uniform system. But in China, the maritime carriage and the onshore operation are governed by different regimes.

 
III.3 Delivery of good by the carrier
Except the Article 71 which concerns about the functions and definition of Bill of Lading deals with the delivery under a bill of lading, CMC does not provide special provisions on delivery. But the disputes in respect of delivery are very common, and research on resolution of them continues .  As mentioned in footnote 44 supra, the Supreme Court of P. R. China issued Rules on Application of Law for the Trialing of Delivery of Goods without B/L in March 2009.
However the Rules issued by the Supreme Court of China is far from comprehensive, and they still insist on the most traditional systems of delivery under bill of lading. Although have made some references to the Rotterdam Rules, the Supreme Court Rules do not  follow the innovation under Rotterdam Rules for releasing carrier’s obligations for delivery upon bill of lading under certain circumstance, and the right of sue for one kind of the shipper (the consignor) is different from that of the documentary shipper under the Convention.

III.4 Multimodal transportation
CMC deals with the multimodal transport when sea carriage is incorporated . It put the network system on the liabilities of the MTO. The laws and regulations governing the specific section of the multimodal transport where the loss of or damage to the goods occurred shall be applicable to matters concerning the liability of the MTO and the limitation . The CMC will be applied only when the section in which the loss of or damage to the goods occurred could not be ascertained .So in most the situations, the regulations of domestic laws or the conventions such as CMR, Warsaw Convention will be applied when loss of or damage to the goods occurred in the section rather than a maritime one.
But as discussed in Part I, Rotterdam Rules will apply to multimodal transport. So, it will increase the un-uniformity of the laws. And, it might be applied to some Chinese section even if China has not ratified this Convention yet. The even more serious is the exclusion of the application of domestic regulations in the sections before the loading of cargo onto the ship or after the discharge from the ship , When the Convention is applied to China, the domestic regulations, such as the Rule on carriage by Road, or by Rail will not be applied and the uncertainty of the liability of MTO or other section carrier will arise.    
In addition to the above mentioned diversity between the CMC and the Rotterdam Rules, the right of control in the transit, the identification of the carrier, the provisions on contract particular and on electronic transportation document  which are the focuses under Rotterdam Rules have not been dealt with in CMC.

IV. Conclusion
In a summary, in China, the attitudes to the Rotterdam Rules are still vague.

But as my personal view, Rotterdam Rules is still a Convention with advanced features. It is geared with the development of door to door transport, to e-commerce, by its innovations. It is also trying to abolish some confusion which has long existed and to fill the gaps in the international trade, such as the systems on delivery of goods, the title to sue under bill of lading, the identification of carrier, relationship of the rights under both contract of carriage and contract of sales.

However, the Convention is not perfect (none of a convention is perfect). For example, the complex structure and phraseologies of the Convention may be difficult for understanding by practitioners at least in a certain period, some of the designing are not functional enough, and the innovations still need the test in practice so on and so forth.

In addition, the Convention balances more of the interests between the carriers and the shippers. However, the Convention also put heavier burden on both the ship and cargo interests. So, in my view, the great changing from the exiting effective regulations will lead both sides to keep observing. At the mean time, the political interests of countries will also lead to different attitudes to the Convention.

The influence on Chinese legislation will also be foreseeable. In China, the revision of CMC has been appealed for a few years. The innovations introduced into the Rotterdam Rules will also be of great value for the revision of the CMC and the trends reflected through the Convention shall not be ignored either. However, in view of a practical function of the Chinese laws, we shall not be in a hurry for the revision of the CMC before a final decision to the Rotterdam Rules is made.
In addition, the application of the Rotterdam Rules to ‘maritime+’ modal may bring influence to the regulations on multimodal transportation and on the carriages in the sections other than sea carriage. So, China needs also to think of the resolution in order to act with such situation, no matter China will sign the Convention or not.

In brief, Rotterdam Rules will inevitably bring impact in the international trade, especially by sea. It is reasonable to be prudent before accepting it. Nevertheless, the uniformity and certainty shall be the goal of the international trade and carriage, which shall bring the benefits to most of the countries, also to China. So, being one of the most important parties of international trade and shipping, China shall urge the research on the Rotterdam Rules and shall make a clear decision in not a too far future, Not only on Rotterdam Rules, in future, China shall also be strategic on most of the related international legislations.