共同海损英语法律论文.doc

Abstract General average system is an ancient and special mechanism of sharing the risk of ocean transport in admiralty and maritime law. Notwithstanding the process of adjustment that begins without reference to the source and nature of the perils which necessitate a general average act, whether the contribution in general average comes true will undoubtedly be affected by these questions, especially that of the carrier negligence. However, the opinions still remain in divergence with regard to the scope of the faults as well as their effects whatsoever on such contribution. This paper analyzes the meaning of Rule D of York-Antwerp Rules, and Article 197 of The Maritime Code of China, the relationship between negligence and the establishment and contribution of general average, with an introduction of the respective judicial practices and doctrines in United Kingdom, United States and China and some specific cases in this respect together. Based on the regulations of the Maritime Code of China, it analyses that whether the general average system is applicable for the carriage of goods in coastal sea and inland river. Based on the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea in which the exemption of nautical fault has been abolished, this paper intents to analyze the impact of the legal status of the carriers and shippers, and then making a conclusion of what attitude The Maritime Law of China should uphold. Keyword：General average Fault exemption CarrierFirst,Definition of general average General average is the same sea voyage, when the ship, cargo and other property suffered a common danger, for the common safety, intentionally and reasonably direct result of measures taken special sacrifice, to pay a special fee, by the beneficiary by proportional share of the legal system. Only those who truly belong to a general average loss was assessed by the benefit of the parties, the general average of the establishment should have certain conditions that must be common danger at sea, real; general average of the measures must be deliberate, rational, effective; general average loss must be special, unusual, directly caused by the total loss measures.General average performance in the form of general average sacrifice and general average expenses, including general average sacrifice to abandon the goods for fighting fires on board ships and cargo damage caused by loss, discard damaged material cut losses, damage caused intentionally ran aground, machine and boiler damage to the goods used as fuel, marine materials and materials in the process of unloading the damage and so on. General average expenses, including salvage, stranding the ship load shedding costs and therefore subject to damage, a port of refuge expenses, such as heading and in the port of refuge to pay wages to the crew and other expenses, repair costs, instead of costs, fees and advances insurance, general average loss of interest and so on.Second,General average and the relationship between faulta、Fault does not affect the establishment of general average, general average adjusters do not consider fault problem. Establishment and the general average contribution in general average adjuster with two levels or two-stage problem, can not be confused with each other. They meet the above conditions for the establishment of general average, you can declare general average adjuster and request at this time does not consider the direct cause of general average triggered the legal characterization, which is not considered an accident or exempting the carrier Disclaimer or not caused by negligence general average.That adjustment of general average and negligence to confirm the principle of separation processing. In practice, even if the ship is suspected of common marine accidents can not disclaim its own negligence, still declared general average, and apply for adjustment of general average, but will give the court finds negligence or arbitration award. b、If the court or arbitration body to confirm the accident caused by a general average loss is caused by the fault of the cargo, the cargo can not ship all the other requirements of the general average share, if the other party has been assessed on the amount of loss, is entitled to the fault of the goods side recovery, and called for its commitment to other losses. In 1974, Smith v. horse farm case, the U.S. Southern District of New York federal district court finally found common cause marine accidents due to anchovy fish meal fever caused by fire, because of the potential caused by defects in the goods, so the cargo can not be general average compensation from the ship, cargo ship is entitled to share in general average.Third,Lead to a general average of the fault shall bear the responsibility a、Cargo and other property caused by the common danger of suffering an accident is caused by the negligence of a third person, according to York - Antwerp Rules did not affect the establishment of general average, adjusting and sharing, the parties so assessed the amount of total loss legally entitled to claim the third person at fault, and this negligence caused the average for other individual claims. According to Beijing Rules is the same. b、If the court or arbitration body to confirm the accident caused by a general average loss is caused by the fault of the cargo, the cargo can not ship all the other requirements of the general average share, if the other party has been assessed on the amount of loss, is entitled to the fault of the goods side recovery, and called for its commitment to other losses. In 1974, Smith v. horse farm case, the U.S. Southern District of New York federal district court finally found common cause marine accidents due to anchovy fish meal fever caused by fire, because of the potential caused by defects in the goods, so the cargo can not be general average compensation from the ship, cargo ship is entitled to share in general average. c、The accident was caused by general average is not a defense because the carrier caused by negligence, the ship has no right to share general average and shall indemnify the losses caused. According to Chinas maritime law, the carrier and sailing before the sail should be handled carefully at all aspects of the ship seaworthy, properly throughout the voyage should be carefully managed goods, shall be in accordance with the agreed or customary route or geographical voyage, had reasonable deviation, if the negligence causing the accident, general average, the ship has no right to the apportionment of general average and shall bear the losses caused by this to the other party. In addition, because the carriers negligence caused the fire as well. If the other party has been assessed, then the ship should be refunded. Beihai Maritime Court in China has been this case for reference. In Hainan, Guangxi Hualian Shipping Co. v. International Cooperation Trade Corporation in the case of general average contributions. Verdict found that the establishment of general average, but the cause of the accident caused by general average, the aging of the Aegean Sea 108 round, the host of each cylinder of the seal ring are all aging and not air-tight, This is obviously prudent professionals to the usual method of checking ships to discover the defect, not a ship of potential defects. latent defects caused by this non-unseaworthiness, the carrier can not disclaim. cargo-sharing can not require general average. d、Caused by general average loss is due to an accident caused by the carrier can be a defense, the carrier may require the apportionment of general average, the assessed party and shall not use this to conduct a defense. Chinas Maritime and the Hague - Visby Rules are not entirely the fault to take accountability, allow the carrier to the nautical fault, fault management and non-vessel carriers own negligence caused due to fire caused damages. Therefore, if management is driving the ship or ships in fault, and because the captain, crew, pilot or other servants of the carriers negligence caused the fire caused by general average, the other parties as required shall not refuse to share general average. However, if under the Hamburg Rules completely fault responsibility, no matter what fault caused by general average, carriers are not exempt from liability.Fourth,Conclusion So we can reach the following conclusions:a. The establishment of general average and the general average contribution are two independent issues, the negligence does not affect the establishment and adjustment of general average. If general average act is occasioned by one partys negligence, then the fault party can not ask the non-fault party for general average contributions; but the non-fault party can claim the loss to fault party.b. No contribution may be collected from cargo where the general average was occasioned by the carriers negligence, whether exemptible or actionable. However, the carriers exemptible fault will not preclude its entitlement to contribution if a Jason Clause or other similar clauses have been inserted in the bill of lading or the charter. c. Rule D in York-Antwerp Rules and Article 197 of The Maritime Code of China make it clear that whether there is a negligence or not, do not prejudice the existence of a general average act and the process of adjusting general average losses incurred, and it also preserves any remedies and defenses that may be open to the parties concerned in respect of the general average contribution. It can be naturally inferred that the so-called approach of Contribution precedent, Recourse subsequent is nothing but a misunderstanding as to the Rule D, and whether or not to enforce in accordance with such approach lies on how the actual situations of the case evolves and develops. In other words, Rule D does not previously establish a fixed mode for the parties to the adventure.d. The provisions of general averag