海商法概述
I. Definition 概念
1.Maritime law is a set of legal rules regulating the maritime transport and ships. 海商法是调整特定的海上运输关系和船舶关系的法律总称。
2. Subject matter 海商法的调整对象
*relations arising from maritime transport 海上运输中发生的法律关系
i.e. contract, tort and other relations from maritime transport
(2) relations arising from ships 与船舶有关的特定社会关系
i.e. legal status of ships, real rights of ships, management of ships
II. Characteristics 海商法的性质
*civil law v. commercial law 海商法隶属于民法还是商法
*national l egislation v. int’l law 海商法是国内法还是国际法
III. The sources of maritime law 海商法的渊源
1. National legislations 国内法
Maritime Code
Regulation on the Registration of Ships
2. Int’l treaties 国际条约
Int’l Convention on Standard of Training, Certificate and Watc h-keeping for Seafarers
3. Customs 国际惯例
York-Antwerp Rules
Int’l practice may be applied to matters for which neither the relavent laws of the PRC nor any international treaty concluded or accede to by the PRC contain any relevant provisions.
4. Cases 司法判例
Chapter 1
Ships 船舶
§1.1 Ships in brief
船舶概述
Definition（船舶的概念）
Legal nature （船舶的法律本质）
Nationality of a ship （船舶的国籍）
I. Definition 定义
* A large craft in which persons and goods may be conveyed on water.广义上是指大型水上航行工具。
*Art. 3 of Maritime Code: Ships means sea-going ships and other mobile units, but does not include ships or craft to be used for military or public service purposes, nor small ships of less than 20 tons gross tonnage. 狭义上的船舶
1. sea-going ships and other mobile units (关于海船及其他海上移动式装置）
2. ships used for military or public service purposes （用于军事、政府公务的船舶）
3. small ships less than 20 tons gross tonnage （20总吨以下的小型船艇）
II. Legal nature 船舶的法律本质
*Ship is a composition of many parts. （船舶是合成物）
*Ships is a personal property, it is sometimes treated as a real property. （船舶是动产，但也有按照不动产处理的情形）
3. Ship is a property, it is sometimes personifized. （船舶是物，但有时也作拟人化处理）
III. Nationality of a ship船舶的国籍
1. The importance of a ship’s nationality船舶国籍的重要性
Int’l:
eg. 1958 Convention on the High Seas
eg. transport and towage between the ports of PRC shall be undertaken by ships flying the Chinese flag
2. Conditions for the grant of nationality 授予船舶国籍的条件
*General provisions 国际法上的一般规定
eg. UN Convention on the Law of the Sea: Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. There must exist a genuine link between the State and the ship.
Case: Saint Vincent and the Grenadines
vs.
the Republic of Guinea
On Oct 28, 1997, a Guinean patrol boats arrested a ship SAIGA at the southern limit of Guinea’s exclusive economic zone. The SAIGA is an oil tanker flying the flag of Grenadines. It is owned by a shipping company of Cyprus.
(2) PRC Rules 我国的规定
Ships owned by citizens of the PRC whose residences or principal places of business are located within the territory;
Ships owned by enterprises with legal person status established under the laws of PRC and whose principal places of business are located within the territory.
3. Flag of convenience 方便旗
* A flag of convenience ship is one that flies the flag of a country other than the country of ownership.
* A flag of convenience country is considered to be a country with what is called an open registry, which makes a business from granting its flags to all kinds of vessels, including fishing vessels, that are owned by nationals from other States.
List of flags of convenience countries
*Antigua and Barbuda
Bahamas
Barbados
Belize
Bermuda (UK)
Bolivia
Burma
Cambodia
Cayman Islands
Comoros
Cyprus
Equatorial Guinea
French International Ship Register (FIS)
German International Ship Register (GIS)
Georgia
*Gibraltar (UK)
Honduras
Jamaica
Lebanon
Liberia
Malta
Marshall Islands (USA)
Mauritius
Mongolia
Netherlands Antilles
North Korea
Panama
Sao Tome and Príncipe
St Vincent
Sri Lanka
Tonga
§1.2 Real rights of ships
船舶物权
*Ownership of ships （船舶所有权）
*Mortgage of ships （船舶抵押权）
*Maritime liens of ships （船舶优先权）
*Possessory lien of ships （船舶留置权）
I. Ownership of ships 船舶所有权
*Definition 概念
Art. 7 of Maritime Code: the ship owner’s right to lawfully possess, utilize, profit from and dispose of the ship in his ownership （船舶所有人依法对其船舶享有占有、使用、收益、处分的权利）
2. The acquisition, transference or extinction of the ownership 所有权的取得、转让和消灭
(2) transference of the ownership 转让
the time of transference 转让的时间
◆Maritime Code: no provision
◆Real Rights Law: Art. 23（动产物权的设立和转让，自交付时发生效力，但法律另有规定的除外）
◆Case: Chinese ship breaker vs. US. ship-owner
(4) registration of the ownership 所有权登记
Art. 9 of Maritime Code: The acquisition, transference or extinction of the ownership shall be registered at the ship registration authorities; no acquisition, transference or extinction of the ship’s ownership shall act against a third party unless registered.
Who is the third party?
II. Maritime lien 船舶优先权
*Definition 定义
Maritime lien is the right of the claimant, subject to the provisions of Art. 22, to take priority in compensation against ship-owners, bareboat charters or ship operators with respect to the ship which gave rise to the said claim.
2. Characteristics of maritime lien 船舶优先权的特点
*Statutory right 法定性
*Accessory right 依附性
*Secret right 秘密性
*Preferred right 优先性
3. The items secured by maritime lien 优先权所担保的债权项目
(1) Payment claims for wages, other remuneration, crew repatriation and social insurance costs made by the Master, crew members and other members of the complement in accordance with the relevant labor laws, administrative rules and regulation on labor contracts.
(2) Claims in respect of loss of life or personal injury occurred in the operation of the ship.
(3) Payment claims for ship’s tonnage dues, pilotage dues, harbor dues and other port charges.
(4) Payment claims for salvage payment.
(5) Compensation claims for loss of or damage to property resulting from tortious act in the course of the operation of the ship.
4. The priority of maritime lien 优先权的受偿顺序
*claims secured by maritime lien vs. non-secured claims 船舶优先权担保的债权与无担保的债权
*maritime liens vs. other secured rights (mortgage, possessory lien) 优先权与其他担保物权
(3)the ranking of different kinds of
claims secured by maritime liens
优先权担保的不同类海事请求
*to protect the interests of crew 保护船员利益原则
*claims for loss of life or personal injury vs. claims for loss of or damage to property 人身伤亡之债优先于财产损
*to protect the revenue from tax 保护国家税收原则
*claims that create conditions for the satisfaction of other claims 为其他债权受偿创造条件的债权
(4) the ranking of the same kind of claims 优先权担保的同类海事请求之间的受偿顺序
*paid in proportion at the same time 按比例同时受偿
*first in time, last in right (salvage payment) 先发生后受偿
Art. 23: The maritime claims set out in paragraph 1 of Art. 22 shall be satisfied in the order listed. However, any of the maritime claims set out in sub-paragraph(4) arising later than those under sub-paragraph(1) through (3) shall have priority over those under sub-paragraph(1) through (3).
*In case there are more than two maritime claims under sub-paragraphs (1)(2)(3)(5), they shall be satisfied at the same time regardless of their respective occurrences; where they could not be paid in full, they shall be paid in proportion.
*Should there be more than two maritime claims under sub-paragraph(4), those arising later shall be satisfied first.
*the legal costs for enforcing the maritime liens 行使优先权产生的诉讼费用
*the expenses for preserving and selling the ship 保存、拍卖船舶产生的费用
*the expenses for distribution of the proceeds of sale 分配船舶价款产生的费用
*other expenses incurred for the common interests of the claimants 为海事请求人的共同利益支付的其他费用
5. The extinction of maritime liens 优先权的消灭
*The maritime claim attached by a maritime lien has not been enforced within one year of the existence of such maritime lien 除斥期间届满
*The ship has been the subject of a forced sale by the court 强制出售
*The ship has been lost 船舶灭失
Case: 闽安8号拍卖争议案——海事法院委托拍卖行拍卖船舶的效力
*案情：1996.12，某海事法院对扣押中的船舶——闽安8号，委托某拍卖市场进行拍卖。该拍卖市场以自己的名义发布广告，依照拍卖法规定的程序组织实施了全部拍卖活动，最终竞买人——某船务公司签署了《拍卖成交确认书》，并经公证部门公证。船舶在海事法院扣押期间，遭到严重损坏，致使竞买人未能已约定的船舶状态取得船舶。竞买人向拍卖人提出赔偿请求。
*判决：一、二审法院对竞买人的请求不予支持，最高院驳回再审的通知书称，―本案所设拍卖属于司法拍卖，不适用于《拍卖法》‖。―拍卖标的在交接前始终处于司法扣押之下，拍卖市场对闽安8号没有保管和向船务公司交付义务，在拍卖过程中也没有过失‖。故驳回再审请求。
II. Mortgage of ships 船舶抵押权
*Definition 定义
It’s the right of preferred compensation enjoyed by the mortgagee of that ship from the proceeds of the auction sale made in accordance with law where and when the mortgagor fails to pay his debt to the mortgagee secured by the mortgage of the ship.
*the object of mortgage 抵押权的客体
ship and its apparel,
vessel under construction,
compensation paid from the insurance coverage on account of the loss of the ship
(2) with respect to a ship 提供的船舶
(3) the proceeds of the auction sale 依法拍卖为其实现方式
2. The ranking of the mortgages 抵押权的受偿顺序
Art. 19: The ranking of the mortgages shall be determined according to the dates of their respective registrations. The mortgages registered on the same dates shall rank equally for payment.
以抵押权登记的先后顺序为准，同日登记的按同一顺序受偿。
III. Possessory lien of ships 船舶留置权
*It’s the right of the ship builder or repairer to secure the building or repairing cost of the ship by means of detaining the ship in his possession when the other party to the contract fails in the performance thereof. 造船人、修船人在合同另一方未履行合同时，可以留置所占有的船舶，以保证造船、修船费用得以偿还的权利。
Chapter 2
Contract of Carriage of Goods by Sea
海上货物运输合同
§2.1 Introduction 概述
*Definition of contract of carriage of goods by sea
*Basic types of contracts
*Formation and cancellation of contracts
*Carrier’s responsibilities and rights
*Shipper’s responsibilities and rights
I. Definition of COGS 海上货物运输合同的概念
*It’s a contract under which the carr ier, against payment of freight, undertakes to carry by sea the goods contracted for shipment by the shipper from the port of a country to another’s.
*指承运人收取运费，负责将托运人托运的货物经海路由一国的港口运至另一国港口的合同。
*the parties to the contract 主体: carrier and shipper 承运人与托运人
*the object of the contract 客体: goods 货物(it includes live animals and containers, pallets or similar articles of transport supplied for consolidating the goods)
II. Basic types of contracts 海上货物运输合同的基本类型
*Bill of Lading (B/L) 提单运输
*Charter Party (C/P) 租船合同
III. Formation and cancellation of contract 合同的成立与解除
*Formation 合同的成立
the form of the contracts: The carrier and the shipper may demand confirmation of the contract of carriage of goods by sea in writing. However, voyage charter shall be done in writing. 书面形式
2. Cancellation of contract 合同的解除
(1) The shipper may request the cancellation of the contract before the ship sails from the port of loading. 一方有权解除
(2) Either the carrier or the shipper may request the cancellation of the contract and neither shall be liable to the other if, due to force majeure or other causes not attributable to the fault of the carrier or the shipper. 双方有权解除
IV. Carrier’s responsibilities and rights 承运人的责任与权利
*Responsibilities 责任
(1)The carrier shall before and at the beginning of the voyage, exercise due diligence to make the ship seaworthy, properly man, equip and supply and to made the holds, refrigerating and cool chamber and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
——谨慎处理使船舶适航的义务
*seaworthiness: seaworthy of the ship, competency of the crew, cargo worthy of the hold 船舶适航，船员适职，船舱适货
*due diligence 谨慎处理
*before and at the beginning of the voyage 开航前与开航时
(2) The carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. ——管货的义务
*装载，搬移，积载，运输，保管，照料和卸载
*妥善地、谨慎地
(3) The carrier shall carry the goods to the port of discharge on the agreed or customary or geographically direct route. ——不得绕行的义务
(4) Delivery of goods
——交付货物的义务
2. Period of carrier’s responsibilities 责任期间
*non-containerized goods: the period during which the carrier is in charge of the goods, starting from the time of loading of the goods onto the ship until the time the goods are discharged 非集装箱货物：装船到卸船tackle to tackle, rail to rail 勾到勾，舷到舷
before and after clause 装前卸后条款
(2) goods carried in containers: starting from the carrier has taken over the goods at the port of loading, until the goods have been delivered at the port of discharge 集装箱货物：装运港接收货物起至卸货港交付货物
3. Exculpatory exceptions 承运人的免责
*(1) Fault of the Master, crew members, pilot or servant of the carrier in the navigation or management of the ship;
(2) Fire, unless caused by the actual fault of the carrier;
(3) Force majeure and perils, dangers and accidents of the sea or other navigable waters;
(4) War or armed conflict;
*(5) Act of the government or competent authorities, quarantine restrictions or seizure under legal process;
(6) Strikes, stoppages or restraint of labor;
(7) Saving or attempting to save life or property at sea;
(8) Act of the shipper, owner of the goods or their agents;
*(9) Nature or inherent vice of the goods;
(10) Inadequacy of packing or insufficiency or illegibility of marks;
(11) Latent defect of the ship not discoverable by due diligence;
(12) Any other causes arising without the fault of the carrier or his servant or agent.
4. Package limitation of liability 承运人的赔偿责任限额
*loss of or damage to goods:
the higher amount between 666.67 SDR per package and 2 SDR per kilogram of the gross weight; 每件666.67SDR或每公斤2SDR
(2) delay in delivery of the goods:
the amount equivalent to the freight 运费数额
5. Carrier’s rights 承运人的权利
*claims for freight and other costs 运费、其他费用请求权
freight prepaid vs. freight to collect
demurrage & dead freight
(2) lien on the goods 货物留置权
V. Shipper’s responsibilities and rights 托运人的责任与权利
*Responsibilities 托运人的责任
(2) to perform all necessary transport procedures 办理货物运输手续的义务
(3) properly shipment of dangerous goods 妥善托运危险货物的义务
(4) to pay the freight and other costs 支付运费及其他费用
2. Rights 托运人的权利
*to demand the insurance of B/L or other transport document 要求签发提单
(2) claims for damage to or loss of goods 请求货物损害赔偿
§2.2 Bill of Lading 提单
*The definition of B/L
*Types of B/L
*Contents of B/L
*International convention
I. Definition 提单的概念
A Bill of Lading is a document which serves as an evidence of the contract of carriage of goods by sea, and the taking over or loading of the goods by the carrier, and based on which the carrier undertakes to deliver the goods against surrendering the same. 提单是用以证明海上货物运输合同和货物已经由承运人接受或装船，以及承运人保证拘以交付货物的凭证。
Legal nature 提单的法律性质
*Evidence of contract 运输合同的证明
*Receipt of goods 货物收据
*Document of title 物权凭证
*请看视频：提单
II. Types of B/L 提单的种类
*Shipped B/L vs. Received for shipment B/L 已装船提单与收货待运提单
*Clean B/L vs. Foul B/L
清洁提单与不清洁提单
3. Straight B/L vs. Order B/L vs. Bearer B/L 记名提单、指示提单与不记名提单
*Direct B/L vs. Through B/L
直达提单与联运提单
III. Contents of B/L 提单的内容
*Obverse clause 正面条款:
name of vessel, carrier, shipper, consignee, port of loading, mark, number of package or pieces, quantity, weight of goods, freight and charges,
*Reverse clause 背面条款:
jurisdiction, paramount clause, carrier’s responsibility and rights
IV. Int’l Convention 关于提单的国际条约
*The Hague 海牙规则
Int’l Convention for the Unification of Certain Rules of Law Relating to Bill of Lading
1924关于统一提单若干法律规定的国际公约
*Package limitation of liability
*Containers
*Legal status of servants, anent of the carrier
*Scope of application
Adler v. Dickson (the Himalaya)
喜马拉雅条款
Mrs. Adler a passenger on the Himalaya, had been injured when a gangway fell, throwing her 16 feet to the quay below. Because the passenger ticket contained a non-responsibility clause exempting the carrier, Mrs. Adler took suit against the Master (Mr. Dickson) and the boatswain.
The court declared that in the carriage of passengers as well as in the carriage of goods the law permitted a carrier to stipulate not only for himself, but also for those whom he engaged to carry out the contract. In the case of Captain Dickson, however, the court held that the passenger ticket did not expressly or by implication benefit servants or agents and thus Dickson could not take advantage of the exception clause.
2. The Hague/Visby 维斯比规则
Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1968修订统一提单若干法律规定的国际公约的议定书
3. The Hamburg 汉堡规则
United Nations Convention on the Carriage of Goods by Sea 1978
联合国海上货物运输公约
The Rules were devised with the intention that they should supersede the Hague and the Visby amendments.
*The defects in the Hague-Visby regimes were:
*(1) the excepted perils of Hague-Visby do not apply to deck cargo or live animals.
*(2) the carrier has the benefit of the defense of nautical navigation.
*(3) the Hague-Visby only apply to a tackle to tackle basis.
*(4) there care certain matters hardly touched on at all, delay.
*(5) the package limitation
*(6) the time bar
*(7) there is nothing in the Hague-Visby about jurisdiction and arbitration clauses.
The Hamburg Rules came into force on 1 Nov 1992 and although there are already 25 parties to the Convention it has so far had no major impact on world trade.
*Parties to the Convention:
*Austria, Barbados, Botswana, Burkina Faso, Cameroon , Chile, Czech Republic, Egypt, Gambia, Georgia, Guinea, Hungary, Kenya, Lebanon, Lesotho, Malawi, Morocco, Nigeria, Romania, Senegal, Sierra Leone, Tunisia, Uganda, Tanzania, Zambia
§2.3 V oyage Charter Party
航次租船合同
*Definition and characteristics
*Contents of Voy. C/P
I. Definition and characteristics定义及特征
A V oy. C/P is a charter party under which the ship-owner charters out and the charterer charters in the whole or part of the ship’s space for the carriage by sea of the intended goods from one port t o another and the charterer pays the agreed amount of freight.
1. The parties to the charter party are ship-owner and charterer.
合同双方当事人是出租人和承租人。
2. The consideration of the contract is freight.
合同的对价是运费。
3. The form of V oy. C/P shall be in writing.
采用书面形式。
*Uniform General Charter -- GENCON
*Baltime Berth Charter Party Steamer, Form C -- NORGRAIN
*Australian Grain Charter Party – AUSTRAL
*Tanker Voyage Charter Party – ASBATANKVOY
*Tanker Voyage Charter Party -- INTERTANKVOY
II. Contents 合同的主要内容
*Description of vessel clause 船舶说明条款
vessel’s name,
vessel’s nationality,
vessel’s class,
vessel’s tonnage,
vessel’s position
2. Preliminary voyage clause 预备航次条款
It’s the voyage between the discharging port of the prior commitments to th e loading port of the said contract.
lay days
canceling date
3. Cargo clause 货物条款
the kinds of cargo,
quantity
4. Loading/discharging clause 装卸条款
safety port and berth,
lay time,
loading/discharging costs
Liner Terms
Free in,
Free out,
Free in & out
Liner in, Free out
Free in , Liner out
5. Owner’s responsibilities clause 出租人责任条款
The owners are to be responsible for loss of or damage to the goods or for delay in delivery of the goods only in case the loss, damage or delay has been caused by personal want of due diligence on the part of the owners or their manager to make the vessel in all respects seaworthy and to secure that she is properly manned, equipped and supplied or by the personal act or default of the owners or their manager.
6. Deviation clause 绕航条款
7. Bill of Lading clause 提单条款
8. Cesser clause 责任终止条款
9.Strike, War , Ice clause 罢工、战争、冰冻条款
10. Arbitration clause 仲裁条款
Chapter 3 Charter Parties
租船合同
I. Time C/P定期租船合同
*Definition定义
Time Charter Party is a contract under which the ship-owner provides a designated manned ship to the charterer, and the charterer employs the ship during the contractual period for the agreed service against payment of hire.
定期租船合同是指船舶出租人向承租人提供约定的由出租人配备船员的船舶，由承租人在约定的期间内按照约定的用途使用，并支付租金的合同。
2. Characteristics 特征
(1) The ship-owner provides a manned vessel, is in charge of navigation and management of the vessel and affords the running costs. 出租人提供配备船员的船舶，负责船舶航行和内部事务管理，并负担船舶营运成本。
(2) The charterer operates the vessel and affords the voyage costs. 承租人有权指挥船舶营运，并负担航程使费。
(3) The consideration of time charter is hire. 出租人获得的报酬是租金。
Larrinaga Steamship Co. Ltd
v. The King
In 1939 the Larrinaga was requisitioned by the King on time charter terms. The charter provided that the master was to be under the orders and direction of the charterer as regards employment, agency. While discharging a cargo of military transport at St. Nazaire, then a British war base, on 13 Oct, the ship received written orders from the charterer at Nazaire to proceed
Immediately to Quiberon Bay. The Master objected that conditions were too dangerous for the voyage that evening, but the charterer insisted. The ship was then taken by pilot down channel; soon afterwards the weather worsened and the pilot advised returning to Nazaire. While attempting to do so, the ship grounded on a sand bank and sustained damage. The ship-owners claimed the cost of repair should by borne by the charterer.
3. Nature of Time C/P 性质
*Lease contract & Transport contract 具有租赁合同与运输合同的双重属性
*Lease contract & Service supply contract 具有租赁合同与提高劳务合同的双重属性
4. Standard forms 标准格式
*Uniform Time Charter, BALTIME
统一租船合同，租约代号波尔的姆
(2) Time Charter, Produce FORM
租船合同，租约代号土产格式
5. Contents 合同的主要内容
*vessel’s speed and fuel consumption 船速与燃油消耗量
*delivery of vessel, canceling clause 交船与解约条款
*trading limit 航行区域
*payment of hire, withdrawal 租金支付与撤船
*off-hire clause 停租条款
*redelivery of vessel 还船条款
*sublet clause 转租条款
*Lawful merchandise 运送合法货物
II. Bareboat C/P 光船租赁合同
*Definition 定义
A bareboat charter party is a contract under which the ship-owner provides the charterer with an unmanned ship which the charterer shall possess, employ and operate within an agreed period and for which the charterer shall pay the ship-owner with hire.
光船租赁合同是指船舶出租人提供不配备船员的船舶，在约定的期间内由承运人占有、使用、营运，并向出租人支付租金的合同。
2. Characteristics 特征
*The ship-owner provides a bareboat which is possessed, employed and operated by the charterer. 出租人提供一条未配备船员的空船，在租期内船舶由承租人占有、使用、经营。
(2) The charterer shall make the ship properly manned, afford the running costs and assume all the risks and responsibilities. 承租人负责配备合格的船员，负担一切营运费用、责任和风险。
(3) A Bareboat charter has some characters of real rights. 具有某些物权的特征。
3. Standard forms 标准格式
Standard Bareboat Charter, BARECON 标准光船租赁合同，租约代号贝尔康
4. Bareboat Charter with Hire Purchase 船舶租购合同
The ownership of a ship under bareboat charter containing a lease purchase clause shall be transferred to the charterer when the charterer has paid off the lease purchase price to the ship-owner as stipulated in the charter.
III. Comparison
三种租船合同的比较
*请看视频：租船合同
Chapter 4
Collision of Ships
船舶碰撞
§4.1 Introduction 概述
*Definition of collision of ships 船舶碰撞的定义
*The definition in Maritime Code 海商法中的定义
A collision of ships means an accident arising from the touching of ships at sea or in other navigable waters
adjacent thereto. Ships shall include those nonmilitary or public service ships or craft that collide with the ships mentioned in Art 3 of the Code.
*船舶碰撞是指船舶在海上或与海相通的可行水域发生接触造成损害的事故。前款所称船舶，包括与本法第三条所指船舶碰撞的任何其他非用于军事的或政府公务的船艇。
2. Conditions of ship’s collision 构成我国海商法意义上的船舶碰撞的条件
*Collision happens between/among ships, one of which is sea-going vessel. 碰撞必须发生在船舶之间，且有一方是海船。
(2) There is touching between ships. 船舶之间必须发生接触。
direct contact collision & non contact collision
Where a ship has caused damage to another ship and persons, goods or other property on board that ship, either by the execution or nonexecution of a maneuver or by the nonobservance of navigation regulations, even if no collision has actually occurred, the provisions of collision of ships shall apply.
船舶因操纵不当或不遵守航行规章，虽然实际上没有同其他船舶发生碰撞，但是使其他船舶以及船上的人员、货物或者其他财产遭受损失的，适用船舶碰撞的规定。
Bertucci Contracting Copr
v.
Marvita Antwerpen
This legal dispute arose from a vessel collision that occurred on Jan 19, 2003 on the Mississippi River. In the wee hours of that fateful morning, there were several vessels navigating on the river. Headed south were the Bayou Black, the Beverly Anderson, and the tugboat Lady Jeaette, which was pursing four loaded barges in two
-by-two configuration. Headed in the opposite direction were the Alice Hooker and the Antwerpen, an enormous oceangoing bulk freighter.
The Lady Jeanette’s captain Kenneth and the Antwerpen’s ca ptain Grue, communicated by radio about the best way to pass each other on the crowded river.
The two ships passed each other without incident. Immediately after the passage, however, the Antwerpen collided with barges.
The barges were owned by the plaintiff. The Antwerpen was owned by the defendant.
The defendant said that Lady Jeanette broke the passing agreement by heading directly at the Antwerpen instead of sticking close to shore, and that this action forced Grue to maneuver the Antwerpen in such a way that collision with the barges was inevitable.
(3) Collision happens at sea or in other navigable waters adjacent thereto. 碰撞叙发生在海上或与海相通的可航水域。
(4) Damage is caused by the collision. 碰撞必须造成损害。
3. Definition in Lisbon Rules 里斯本规则中对船舶碰撞的定义
“Preliminary Draft Int’l Convention on the Assessment of Damages in Maritime Collision” 《船舶碰撞损害赔偿国际公约草案》
V essels means any ship, craft, machine, rig or platform whether capable of navigation or not, which is involved in a collision.船舶是指碰撞中涉及的不论是否可航的的任何船只、船艇、机器、井架和平台。
Collision means any accident occurring between vessels which causes loss or damage even if no actual contact has taken place. 船舶碰撞是指船舶间发生的造成灭失或损害的任何事故，即使没有发生实际接触。
Collision means any interaction between two or more vessels caused by the fault of one or more of them resulting in loss or damage whether or not contact between the vessels has occurred. 船舶碰撞是指一船或几船的过失造成两船或多船间的相互作用所引起的灭失或损害，而不论船舶间是否发生接触。
II. Types of collision of ships 船舶碰撞的分类
*Fault collision 过失碰撞
*Non fault collision (force majeure & accident) 无过失碰撞
*Inscrutable fault collision 不明过失碰撞
Neither of the parties shall be liable to the other if the collision is caused by force majeure or other causes not attributable to the fault of either party or if the cause thereof is left in doubt.
4. Deliberate collision 故意碰撞
III. Obligations after collision 船舶碰撞后的义务
*Obligation of the Master to render assistance 施救义务
Case: Golden Rose v. Jinsheng
2. Obligation of the Master to notify 通知义务
§4.2 Compensati on for the Damage Caused by Ship’s Collision 船舶碰撞的损害赔偿
*Determination of the responsibility of ship’s collision 归责原则
*The basis of the responsibility: fault principle 过失规则原则
A colliding vessel will not by held responsible for damage to another ship, unless the collision is caused by negligence or a willful act on the part of its navigators.
2. Negligence 过失
*Definition of negligence 过失的定义
*Kinds of negligence 过失的种类
i. actual negligence 实际过失
ii. presumption of negligence by law 法律推定过失,
iii. presumption of negligence by fact 实施推定过失
II. Basic principles 基本原则
*Restitutio in integrum 恢复原状
*Only damages proximately caused by the collision shall be recoverable 直接损失赔偿原则
*Correlative duty of injured party to minimize damages 受损方尽力减少损失的原则
*III. Calculation of the compensation for damage
* 1. if the collision is caused by the fault of one of the ships, the one in fault shall be liable therefore.
* 2. if the colliding ships are all in fault, each ship shall be liable in proportion to the extent of its fault.
*If the ship comes into collision with another ship as a result of the negligence of the other ship and any act, neglect or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship, the owners of the goods carried hereunder will indemnify the carrier against all loss or liability to the other or non-carrying ship or her owners insofar as such loss or liability represents loss of, or damage to, or any claim whatsoever of the owners of said goods, paid or payable by the other or non-carrying ship or her owners to the owners of said goods and set off, recouped or recovered by the other or non-carrying ship or her owners as part of their claim against the carrying ship or carrier.
* 3. Where damage is caused to the property of a third party, the liability for compensation of any of the colliding ships shall not exceed the proportion it shall bear.
* 4. if the ships in fault have caused loss of life or personal injury to a third party, they shall be jointly and severally liable therefore.
Chapter 5
General Average
共同海损
§5.1 Basic Principles of General Average 共同海损的基本原则
*The definition of average 海损的概念
1. Average: it means loss or damage, less than total, to maritime property, caused by the perils of the sea.在海上运输中可能发生各种危险，因而会遭受各种损失，这些损失的总称就是海损。
2. Types of average 海损的分类
(1) physical loss v. expenditure loss物质损失和费用损失
(2) total loss v. partial loss全部损失和部分损失
(3) particular average （Abbreviation: PA）v. general average (Abbreviation: GA)单独海损和共同海损
II. The definition of GA 共同海损的概念
General average means the extraordinary sacrifice of expenditure intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the ship, goods, or other property involved in a common maritime adventure. 共同海损，是指在同一海上航程中，船舶、货物和其他财产遭遇共同危险，为了共同安全，有意地合理地采取措施所直接造成的特殊牺牲、支付的特殊费用。
III. Conditions of GA 共同海损的成立要件
1. The ship，cargo and other property are in common danger 船货处于共同危险中
(1) The danger must be real.
(2) The danger must be inevitable.
(3) The danger is unforeseen.
(4) The danger is common.
2. The measure must be intentional and reasonable 措施有意而合理
3. The sacrifice and expenditure must be extraordinary or additional 牺牲和费用必须是特殊的
4. The ship and/or the cargo and/or other property must be preserved from the peril 共同海损措施必须最终有效果
5. The sacrifice and expenditure must be direct consequences of the measure 牺牲和费用必须是直接的
IV. Sacrifice of GA 常见的共同海损牺牲
1．Jettison of cargo （including materials and stores）抛弃货物
2．Extinguishing fire onboard 扑灭船上火灾
3. Damage done by voluntary stranding 有意搁浅所致的损害
4．Damage to engines and boilers 机器与锅炉的损坏
5．Damage to cargo in discharging, etc in the port of refuge 卸货等过程中造成的损害
6．Cargo, ships’ materials and stores burnt for fuel 作为燃料烧掉的货物、船用材料和物料
7．Cutting away wreck 切除残留部分
V. Expenditure of GA 常见的共同海损费用
*Salvage rewards 救助费用
Salvage payments, including interest thereon and legal fees associated with such payments, shall lie where they fall and shall not be allowed in general average
2. Expenses lightening a ship when ashore, and consequent damage 搁浅船舶减载费用以及因此而受的损害
3. Expenses in port of refuge
B （port of refuge）
A C
*Expenses in port of refuge includes:
1.驶入避难港（或原装港）与驶离避难港（或原装货地点）的费用
2. 航程延长产生的费用
3. 船舶在避难港额外停留（extra period of detention）期间产生的费用
4. 货物、燃料等卸岸、搬运、重装、积载、保管费等。
4. Wages and maintenance of crew and other expenses bearing up for and in a port of refuge etc 驶往和停留在避难港等地的船员工资、给养和其他费用
5. Repairing expenses 修理费用
6. Substituted expenses 代替费用
7. Others 杂项费用
VI. Fault and GA 过失与共同海损的关系
1．Non-actionable Fault
The changes on this issue in the US：
*1897 Irrawaddy (伊洛瓦迪案) —— General Average Negligence Clause 共同海损疏忽条款
*1910 Jason —— the Clause was affirmed
*1936 COGSA —— New Jason Clause (新杰森条款)
The Irrawaddy
171 U.S. 187 (1898)
*Fact:
*On November 9, 1895, the British steamship Irrawaddy, upon a voyage from Trinidad to New York, with cargo, stranded on the coast of New Jersey through the negligent navigation of her master. Up to the time of stranding, she was properly manned, equipped, and supplied, and was seaworthy.
*The vessel was relieved from the strand November 20th as the result of sacrifices by jettison of a portion of her cargo, of sacrifices and losses voluntarily made or incurred by the shipowners through the master, and through the services of salvors.
*The Irrawaddy then completed her voyage and made delivery of the remainder of her cargo to the consignees in New York.
*An adjustment was afterwards made in New Y ork which allowed in the general average account the compensation of the salvors, the sacrifices of cargo, and the losses and sacrifices of the shipowner.
*However, the cargo owner refused to pay for the sacrifices of the shipowner. Then the shipowner sued in the district court.
*The district court made a decree in favor of the libelant, from which decree the respondent duly appealed to the U.S. Circuit Court of Appeals for the 2nd Circuit, and then to the Supreme Court.
*The decree was reversed.
*Issue:
*If a vessel, seaworthy at the beginning of the voyage, is afterwards stranded by the negligence of her master, does the shipowner, who has exercised due diligence to make his vessel in all respects seaworthy, properly manned, equipped and supplied, under the provisions of the Harter Act has a right to general average contribution for sacrifices made and suffered by him subsequent to the stranding in successful efforts to save vessel, freight and cargo？
*Holding：No
*MR. JUSTICE BROWN, with whom was MR. JUSTICE McKENNA, dissenting.
The Jason Case
225 U.S. 32 (1912)
*On July 30, 1904, the Norwegian Steamship Jason, while bound on a voyage from Cuba, to New York, with general cargo, including 12,000 bags of sugar, consigned to Arbuckle Brothers, and insured with the Insurance Company of North America, stranded off the south coast of Cuba through the negligence of her navigators. The steamship was seaworthy and was properly manned, equipped, and supplied."
*The vessel was relieved from the strand on August 9 as the result of sacrifices by jettison of 2,042 bags of sugar (1,657 bags being the property of Arbuckle Brothers), of sacrifices and extraordinary expenditures voluntarily made or incurred by the shipowner through the master, and of the services of salvors specially employed. Said sacrifices and expenditures were necessary to relieve ship, cargo, and freight from common peril. She then completed her voyage, and made delivery of the remainder of her cargo to the several consignees at New York
*The bills of lading for all of the Jason's cargo contained the General Average Negligence provision.
* A general average adjustment was afterwards made in New York by Johnson & Higgins. The adjusters allowed in the general average account the compensation of the salvors, the sacrifices of cargo, and the sacrifices and extraordinary expenditures of the shipowner, and each of the interests was credited with such amounts as had been paid by it for the common benefit.
*The adjustment and apportionment of general average, so made, showed a balance due from Arbuckle Brothers of $5,060.24, which the latter refused to pay. The grounds of such refusal were that the stranding resulted from the ship's negligence, and that the general average clause, above quoted, contained in the bills of lading, is invalid.
*Whether the general average agreement above quoted from the bills of lading is valid, and entitles the shipowner to collect a general average contribution from the cargo owners, under the circumstances above stated, in respect of sacrifices made and extraordinary expenditures incurred by it subsequent to the stranding, for the common benefit and safety of ship, cargo, and freight.
*Holding: the question should be answered in the affirmative
New Jason Clause
*If a salving ship is owned or operated by the carrier, salvage shall be paid for as fully as if salving ship or ships belonged to strangers. Such deposit as the carrier may deem sufficient to cover the estimated contribution of the goods and any salvage and special charges shall, if required be mad by the shippers, consignees or owners of the goods to the carrier before delivery.
2．Actionable Fault
Maritime Code of PRC
Rights to contribution in general average shall not be affected, though the event which gave rise to the sacrifice or expen diture may have been due to the fault of one of the parties to the adventure. However, this shall not prejudice any remedi es or defenses which may be open against or to that party in respect of such fault. 《海商法》第197条：引起共同海损特殊牺牲、特殊费用的事故，可能是由航程中一方的过失造成的，不影响该方要求分摊共同海损的权利；但是，非过失方或者过失方可以就此项过失提出赔偿请求或者进行抗辩。
Art 2 of Beijing Adjustment Rules:
* If the event giving rise to a claim submitted for adjustment as general average is due to a fault of one of the parties to the contract of affreightment, for which he is not entitled to exemption from liability, no general average adjustment shall be proceeded with, but the case may be otherwise appropriately dealt with through consultation according to the circumstances involved.
VII. Adjustment of GA 共同海损理算
*The process of adjustment
Declaration- Security (GA deposit; GA guarantee)-Contributory Amount of GA - GA statement
GA损失总金额（损失+费用）
*GA分摊率= X 100%
GA总的分摊价值
*GA分摊金额= GA分摊价值X GA 分摊率
2. GA Adjustment Rules 共同海损理算规则
(1) York-Antwerp Rules
约克—安特卫普规则
Glasgow Resolutions
promulgated in 1890 and amended in 1924, 1950, 1974, 1990, 1994 and 2004.
*i. 1924 rules:
*Lettered Rules – School of thought for the common safety
*Numbered Rules - School of thought for the common interest
*ii. 1950 rules:
*Interpretation Rule: Numbered Rules > Lettered Rules
*iii. 1974 rules:
*simplifying the adjustment formality
*iv. 1990 rules:
*Special compensation
*V. 1994 rules:
*Rule Paramount: In no case shall there be any allowance for sacrifice or expenditure unless reasonably made or
*Vii. 2004 rules:
*RULE VI. SALV AGE REMUNERATION
has been amended to exclude the allowance of salvage from G.A.
*RULE XI. EXPENSES AT PORT OF REFUGE
has been amended to exclude the allowance in G.A. of wages and maintenance of master, officers and crew while the vessel is detained at a port of refuge.
*RULE XIV. TEMPORARY REPAIRS
A second sentence has been added to Rule IV b), the effect of which is that recovery in G.A. of the cost of temporary repairs of accidental damage at a port of refuge is limited to the amount by which the estimated cost of the permanent repairs at the port of refuge exceeds the sum of the temporary repairs plus the permanent repairs actually carried out.
*(2) Beijing Adjustment Rules 北京理算规则
*Interim Rules for General Average Adjustment of the China Council for the Promotion of International Trade (Known As Beijing Rules for Adjustment, for Short)
Chapter 6
Salvage at Sea
海难救助
I. Definition of salvage at sea定义
1. It’s salvage operations rendered at sea or any other navigable waters adjacent thereto ships and other property in distress.
2. Types of salvage 海难救助的类型
*Pure salvage: No Cure, No Pay
*Contract salvage: No Cure, No Pay
*Compulsory salvage:
With respect to the salvage operations performed or controlled by the relevant competent authorities of the State, the salvor shall be entitled to avail themselves of the rights and remedies provided in this Chapter in respect of salvage operation.
*请看视频：海事事故中的宝贵教训
II. Conditions for salvage at sea
海难救助的条件
*The property salved must be recognized by law
*The property must be in danger
*The salvage operation is a voluntary action
*The salvage operation has useful result
III. Salvage rewards救助报酬
*Principle of rewards
*Rewards <= the value of the property salved
―Salved value‖ means the assessed value of the ship and other property salved or the proceeds of the sale thereof, after deduction of the relevant taxes and customs dues, quarantine expenses, inspection charges as well as expenses incurred in connection with the discharge, storage, assessment of the value and the sale thereof.
But it does not include the value of the salved personal belongings of the crew and that of the cabin luggage of the passengers.