"Key Law"?

Article 155 A towage contract at sea refers to a contract in which the towage party uses a tugboat to tow the towed object from one place to another by sea, and the towage party pays the towage fee. ?

The provisions of this chapter do not apply to tugboat services provided for ships in the port area. ?

"Relevant clauses" refers to article 158 ~ 16 1 of this Law. ?

"Meaning decomposition"?

1? Scope of application, especially if it is not applicable (Article 155, paragraph 2). ?

2? Termination of the contract, payment of expenses and responsibilities before and after towing (Articles 158 and 159). ?

3? It is regarded as the completion of towing task (Article 160). ?

4? The undertaker has the lien (16 1).

"Key Law"?

Article 162 In the process of towing at sea, if the tugowner or the towed party suffers losses due to the fault of one party, the party at fault shall be liable for compensation; If it is caused by the fault of both parties, both parties shall be liable for compensation in proportion to the fault procedure. ?

Notwithstanding the provisions of the preceding paragraph, the tow party shall not be liable for compensation if it proves that the loss of the tow party is caused by one of the following reasons:

(1) The fault of the master, crew, pilot or other employees or agents of the tugboat when driving or managing the tugboat; ?

(2) The fault of the tugboat in rescuing or attempting to rescue life or property at sea. ?

The provisions of this article only apply to cases where there is no agreement or no different agreement in the maritime towage contract. ?

Article 163 In the process of towing at sea, if personal injury or property loss is caused to a third party due to the fault of the towing party or the towed party, the towing party and the towed party shall be jointly and severally liable for compensation to the third party. Unless otherwise agreed in the contract, if the compensation jointly paid by one party exceeds its share, it has the right to recover from the other party.

?

"Meaning decomposition"?

The above two provisions on towing liability are very important. ?

1? The contractual liability between the parties to a maritime towage contract is fault liability (article 162, paragraph 1). ?

2? Pay attention to two situations in which the contractor is exempted from liability (article 162, paragraph 2). ?

3? Tort liability of towing at sea to a third party belongs to fault liability. Whether it is the fault of the tow party or the fault of the tow party, it shall be jointly and severally liable to the third party (Article 163).

? Don't confuse?

Article 163 is different from article 169 on the liability of the tow party and the tow party for the tort of the third party. See 169 article analysis for details.

Chapter VIII Collision of Ships

"Key Law"?

Article 167 If a ship collision is caused by force majeure or other reasons that cannot be attributed to either party or cannot be determined, the parties to the collision shall not be liable for compensation. ?

Article 168 A ship collision was caused by the fault of one party, and the ship at fault shall be liable for compensation.

Article 169 If a ship collides, and both the colliding ships are at fault, each ship shall be liable for compensation in proportion to the degree of fault; If the degree of negligence is equivalent or the proportion of negligence procedure cannot be determined, it shall bear the average liability for compensation.

Ships that are at fault with each other shall be liable for the losses caused by the collision, as well as the goods and other property on board, in accordance with the proportion stipulated in the preceding paragraph. If the collision causes property losses to a third party, the liability of each ship for compensation shall not exceed its share. ?

If the ships are at fault with each other, they shall be jointly and severally liable for the personal injury or death of a third person. If the compensation paid jointly by one ship exceeds the proportion stipulated in the first paragraph of this article, it shall have the right to recover from other ships at fault.

? "Meaning decomposition"?

It is also very important to stipulate the liability for ship collision. ?

1? Ship collision liability is a kind of creditor's rights liability. ?

2? This responsibility adopts the principle of fault imputation (article 168), and it is not responsible for the following three situations:

(1) force majeure; ?

(2) Not attributable to any party; ?

(3) Unable to find out the reason. ?

3? Note several meanings of 169:

(1) mixed fault and fault offset principle (1 clause); ?

(2) In the case of joint negligence, if the property of a third person is lost, the parties to the collision shall bear their respective shares of the debts of the third person (Paragraph 2); ?

(3) If a third person is killed or injured due to joint fault, both parties to the collision ship shall bear joint and several debts to the third person (Paragraph 3).

Don't confuse?

1? Remind readers to pay attention to the different responsibilities of the third party's property loss and personal injury and death caused by collision under mixed fault. ?

2? According to Article 163, towage at sea involves the tort liability of a third party, and both parties shall bear joint and several liabilities, whether it is the fault of one party or joint fault, whether it is personal injury or property loss; However, according to Article 169, the parties involved in ship collision shall bear joint and several liabilities to the third party only in case of joint fault, and shall bear different liabilities in case of personal injury or property loss.

Chapter IX Salvage at Sea

"Key Law"?

Article 175 The salvor and the salved party reached an agreement on maritime salvage, and the salvage contract was established. The captain of a ship in distress has the right to conclude a salvage contract on behalf of the shipowner. The captain or owner of a ship in distress has the right to conclude a salvage contract on behalf of the property owner on board. ?

"Relevant clauses" Article 176 of this Law; Article 54 of the Contract Law. ?

"Meaning decomposition"?

1? The salvage contract is a promise contract. ?

2? The captain and the shipowner have the right to sign the contract. ?

3? Note that article 176 obviously changes the obviously unfair clause.

"Key Law"?

Article 179 If the salvor has achieved success in rescuing the ship and other property in distress, he shall be entitled to the reward for the salvage; Unless otherwise stipulated in Article 182 of this Law or other laws or otherwise stipulated in the contract, the person who has not received the subsidy is not entitled to receive the subsidy. ?

"Relevant clauses" Article 182 of this Law.

? "Meaning decomposition"?

1? The premise of the salvor's right to remuneration: the principle of effect. In other words, if aid is ineffective, it is generally not entitled to payment. ?

2? Pay attention to the exception of 182 "effect principle".

"Key Law"?

Article 185 The salvor who saves lives in salvage operations shall not demand remuneration from the salved person, but shall have the right to obtain a reasonable share of the salvage money from the salvor who rescues the ship or other property and prevents or reduces environmental pollution damage. ?

"Relevant clauses" refers to Article 186 ~ 187 of this Law.

? "Meaning decomposition"?

1? No remuneration shall be required for the rescued personnel. ?

2? Understand other situations in which you are not entitled to receive assistance (186, 187):

(1) Normal performance of contractual obligations such as towing contract; ?

(2) Forced rescue; ?

(3) Negligent rescue increases the difficulty of rescue; ?

(4) The salvor has committed dishonest acts such as fraud.

Chapter X General Average

"Key Law"?

Article 193 General average refers to the special sacrifices and special expenses directly caused by taking reasonable measures for common safety when the ship, cargo and other property encounter common dangers on the same sea voyage. ?

The loss caused by the delay of the ship or cargo, whether during or after the voyage, including the loss of shipping time, market loss and other indirect losses, shall not be included in the general average. ?

Relevant articles: Articles 194 ~ 196 and 199 ~ 200 of this Law.

"Meaning decomposition"?

General average has always been a hot and difficult point in judicial examination, and its inspection angle is mainly to judge whether a certain expense belongs to general average and the allocation of general average. Please be cautious about the above provisions. Take it.

1? To judge whether a certain expense belongs to general average, it is important to remember several expenses listed in articles 194 and 195, but this is not enough. It is important to master the legal characteristics of general average before making changes. According to 193, the occurrence of general average must meet three conditions: ① common danger; ② For common safety; (3) Take the initiative to pay direct special sacrifices or costs. ?

2? Pay attention to the three losses that are not general average in the second paragraph of Article 193:?

(1) shipping loss; ?

(2) market losses; ?

(3) Other indirect losses. ?

3? Pay attention to the burden of proof in article 196: whoever gives evidence will give it. ?

4? Pay special attention to the principle of general average contribution in Article 199 and the punitive provisions of Article 200 on dishonest persons.

Don't confuse?

There are two points in 199 that are easily misunderstood. Hereby declare:

1? Beneficiaries who contribute to general average include those who make special sacrifices; ?

2? Passengers' luggage and personal belongings are not shared.

Chapter XII Contract of Marine Insurance

"Key Law"?

Article 243 Unless otherwise agreed in the contract, the insurer shall not be liable for compensation for loss of goods caused by one of the following reasons:

(1) Navigation delay, delivery delay or market change; ?

(2) Natural wear and tear, defects and natural characteristics of the goods; ?

(3) Improper packaging. ?

Article 244 Unless otherwise agreed in the contract, the insurer shall not be liable for the loss of the insured ship caused by one of the following reasons:

(1) The ship is unseaworthy at the time of sailing, unless it is unknown to the insured in the term insurance of the ship. ?

(2) The ship is naturally worn or rusted. ?

The provisions of this article shall apply mutatis mutandis to freight insurance. ?

"Meaning decomposition"?

Pay attention to the five situations of insurer exemption stipulated in the above two articles.

"Key Law"?

Article 249 Where the subject matter insured is presumed to be a total loss and the insured claims compensation from the insurer according to the total loss, he shall entrust the subject matter insured to the insurer. The insurer may or may not accept the abandonment, but it shall notify the insured of the decision to accept or not accept the abandonment within a reasonable time. ?

No conditions may be attached to the abandonment. Once the abandonment is accepted by the insured, it cannot be withdrawn. ?

Article 250 Where the insurer accepts abandonment, the rights and obligations of the insured with respect to the abandoned property shall be transferred to the insurer.

"Relevant clauses" Articles 245-248 of this Law.

"Meaning decomposition"?

Chapter 12, Section 5, Maritime Code "Loss and abandonment of the subject matter insured" is the most different clause from the Insurance Law, which embodies the characteristics of marine transportation insurance system and is also the focus of judicial review. This section should be understood accurately. ?

1? Master the concepts and occurrence of actual total loss, constructive total loss and partial loss (Articles 245-248). ?

2? It is important to grasp that when a constructive total loss occurs, the insurer has the right to choose whether to accept abandonment (Article 249 1). ?

3? Waiver should not be conditional, nor can it be withdrawn (article 249, paragraph 2). ?

4? According to the legal effect of abandonment (Article 250), the insurer obtains all the rights and obligations of the insured to the abandoned property.

Chapter XIII Restrictions

"Key Law"?

Article 265 The limitation period for claims for oil pollution damage from ships is three years, counting from the date of the damage; However, in any case, the limitation period shall not exceed six years from the date of the accident causing the damage. ?

"Meaning decomposition"?

The prescription system in maritime law is very complicated, and its prescription period is roughly divided into three grades: 1 year, 2 years and 3 years. Only article 265 stipulates three years, and the rest are 1 year or two years. Candidates can be as familiar as possible, and it is too difficult to remember them all.

"Key Law"?

Article 268 Where the international treaties concluded or acceded to by People's Republic of China (PRC) have different provisions from this Law, the provisions of the international treaties shall apply. However, the provisions on which People's Republic of China (PRC) (China) has declared reservations are excluded. ?

If there are no provisions in the laws of People's Republic of China (PRC) and international treaties concluded or acceded to by People's Republic of China (PRC), international practices can be applied. ?

Articles 269-276 of the relevant law. ?

"Meaning decomposition"?

The legal application of foreign-related relations in Maritime Law (chapter 14) is the focus and hot spot of judicial examination.

There is not much analysis in this chapter, most of which are memory contents, depending on the diligent memory of candidates. ?

There are 9 articles in this chapter, all of which can be tested. Judging from the previous test questions, 27 1, 273,274 items are particularly important, of which 273 items are the most important. Article 273 can be interpreted from three levels:

(1) The applicable law for compensation for damages caused by ship collision shall, in principle, apply the laws of the place where the infringement occurred (including the place where the infringement occurred and the place where the infringement result occurred); ?

(2) In case of collision on the high seas, the law of the forum shall apply; ?

(3) When ships of the same nationality collide, only the laws of the flag state shall apply.