1、,Admiralty LawMaritime Law,参考资料,中国涉外商事海事审判网 上海国际海事信息与文献网 中国海运信息网 锦程物流网 国航人 www.guohang.org 海事法.杨良宜.大连海事大学出版社 中国海商法年刊 中国海事审判年刊,Chapter 1 Introduction,Section 1 Chinese Maritime Law,Definition,The code for regulating the relations arising from maritime transport and those pertaining to ships CMC A
2、rt.1,Subject matter of CMC,Special relations of maritime transport Special relations referring to ships,Nature of CMC,Maritime law is a kind of special law Civil Law is the basic law CMC is based on civil law CMC preferred to Civil law,Section 2 Resources of Maritime Law,National Legislations Intern
3、ational Maritime Conventions International Maritime Customs Other resources of Maritime Lawprecedentdoctrines and legal theories,Definition Essential factors Classification Conflict Rules applicable law Substantive Rules Procedural Rules,Section 3 Maritime Rules,Section4 History of Maritime Law,Chap
4、ter 2 Ships,Section 1,Introduction,Definition,“Ship“ as referred to in this Code 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.“Ship” shall also include ships ap
5、parel.CMC Art. 3,Classification,Sea-going ships Non-sea-going shipsMerchant ship Non-merchant shipNational ships Foreign ships,Nature of the ship,Ship is object ,but is personified. Ship is movable property, but is treated as real estate usually. Ship is indivisible, but has exception.,Section 2 Shi
6、p Registration,Definition Port of registry Flag Why the ships must be registered?,Kinds of Registration,Strict registration Open registration Overseas registration Special registration,Ship ownership registration Ship mortgage registration Bareboat charter registration,Registration for acquisition R
7、egistration for transference Registration for abrogation,Normal registration Temporary registration,Section 3 Rights of Navigation,Inland waters: special permission Territorial sea：innocent passage Jurisdictional sea: restricted freedom of navigation High seas: freedom of navigation,Exception,Right
8、of ApproachRight of Hot PursuitRight of Intervening in Oil Pollution,Chapter 3 Real Right of Ships,Sections 1 Ownership of Ships,Definition,The ownership of a ship means the shipowners rights to lawfully possess, utilize, profit from and dispose of the ship in his ownership. CMC Art. 7,Acquisition o
9、f ships ownership,original acquisition derivative acquisition,Transference of ships ownership,The transference of the ownership of a ship shall be made by a contract in writing,Extinction of ships ownership,Loss of ship Transference of ships ownership Abandonment in insurance Expropriation and confi
10、scation of the ship Court auction Abandon ships ownership,The acquisition, transference or extinction of the ownership of a ship shall be registered at the ship registration authorities; no acquisition, transference or extinction of the ships ownership shall act against a third party unless register
11、ed.,Ownership of ship under construction,a ship being constructed at the stage of laying keel or at a similar stage.,Application of law,The law of the flag State of the ship,Section 2 Mortgage of Ships,Definition,The right of mortgage with respect to a ship is the right of preferred compensation enj
12、oyed 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 that ship. CMC Art. 11,Acquisition of the mortgage of a ship,The mortgage shall be established by a cont
13、ract in writing No mortgage may act against a third party unless registered Information about the registration of mortgage of ships shall be accessible to the public for enquiry. Mortgage may be established on a ship under construction.,Object of Mortgage of Ships,Ship Compensation paid from the ins
14、urance coverage on account of the loss of the ship Freight Hire Accessories,The Ranking of Liquidation,CMC Art. 25 CMC Art. 19,Acquisition,By contract,Transference,CMC Art.18,Extinction,Loss of mortgaged object Liquidation Court auction Acquisition in good faith of third party,Enforcement,Judicial p
15、rocedure,Application of law,The law of the flag State of the ship,Section 3 Maritime Lien,Definition,A maritime lien is the right of the claimant, subject to the provisions of Article 22 of this Code, to take priority in compensation against shipowners, bareboat Chapterers or ship operators with res
16、pect to the ship which gave rise to the said claim. CMC Art.21,Object of Maritime Lien,The ship which gave rise to the said claim.,Maritime claims secured,CMC Art. 22,The ranking of liquidation,CMC Art.25 CMC Art. 24 CMC Art.23,The Acquisition, Transference of Maritime Lien,The acquisition:by law Th
17、e transference (CMC Art.27),Extinction of Maritime Lien,Loss of ship Liquidation Expiry Other security being accepted Court auction Abrogation,Enforcement,CMC Art.28:Judicial procedure,Application of law,The law of the place where the court hearing the case is located. Or, the law of the place of th
18、e court hearing the case.,Section 4 Possessory Liens on Ships,Definition,Where an obligor fails to pay off its due debts, the obligee may take lien of the chattels that are owned by the obligor and lawfully occupied by the obligee, and has the right to seek preferred payments from such chattels. Art
19、. 230 RRL Possessory lien of which ship is object,Characteristic Effect,Twice effect,Enforcement,Conditions as per RRL Obligee to give a graceful period for fulfillment Obligee to notify the obligor to fulfill within the period The obligor fails to fulfill within the period. No security is provided
20、upon expiration of the period.,The Acquisition and Extinction of Possessory Lien,Acquisition:by law Extinctionliquidationloss of shiploss of possessionother security being accepted,Application of law,The law of the place where the court hearing the case is located.,Chapter 4 Crew,Section 1 Outline,D
21、efinition The term “crew“ means the entire complement of the ship, including the Master. CMC Art.31,The Kinds of Crew,Rank:Master, officers and engineers Rating: other members of crewDeck department crew Engine department crew Service department crew,Qualification of Crew,Test according to Internati
22、onal Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW),Complement,Vessels shall be manned with qualified crew members according to a standard quota to ensure the vessels safety. 中华人民共和国船舶最低安全配员规则,Section 2 The Functions of crew,Master: the person having command
23、 of a ship The functions and power of the Master Command and Management of Ship （Art. 35） Function and power of police（Art. 36） Function of notarization（Art. 37） Meeting an Emergency （Art. 38） Function of agent Function of salvage, prevention from pollution,The Functions of Officers,Chief officer (F
24、irst mate) Second officer Third officer,The Functions of Engineers,Chief engineer Second engineer Third engineer Fourth engineer,The Functions of Navigational Political Commissar,The Functions of Other Crew,Section 3 Rights of Crew,2007,9,1 Regulation of crew,Employment and wages Insurance Working a
25、nd living conditions on board ship Health protection, medical care, welfare measures Social protection (security) Holidays and annual leave with pay Repatriation,Chapter 5 Collision of Ships,Section 1 Definition,Collision of ships means an accident arising from the touching of ships at sea or in oth
26、er navigable waters adjacent thereto. CMC Art.165,Conditions of ships collision,Direct collision Navigable waters Between ships Damage,Indirect collision Navigable waters No touch Damage Fault-CMC Art.170,Nature of Collision,Maritime tort actionAdministrative responsibility Criminal liability Civil
27、Liability,International Conventions Related,Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels,1910 Convention on the International Regulations for Preventing Collisions at Sea, 1972,Section 2 Collision Responsibility,Basis of liability Fault liability,
28、None Vessels are to Blame,Force majeure Accident Inscrutable FaultWhen none vessels are to blame, damages will not be compensated.,Fault Collision,Fault Collision caused by the fault of one vesselCMC Art.168 Collision caused by joint fault CMC Art.169,Third Party Damage,Cargo on board Life at sea Th
29、e third vessel,Fault in Special Operation,Wreck owner Towage Pilotage Salvage VTS (vessel traffic service) center,Section 3 Compensation for the Damage Caused by Ships Collision,General Principle for the Compensation,Restitution principle Compensation for proximately damages Duty of injured party to
30、 minimize damages Limitation of liability,Damage Caused by Collision,Vessels Property on board Personal injury Oil Pollution Damage,Calculation of the Compensation for Damage,A and B proportional fault：30：70Ship A：1million Ship B：1.8million Cargo A：0.6million Cargo B：0.9millionQ: Liability of the sh
31、ip owner?,Maritime Collision Responsibility in American Maritime Law,Equally at fault principle Innocent cargo rule,Both to Blame Collision Clause,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
32、, 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 in so far as such loss or liability represents loss of, or dam
33、age 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 non-carrying ship or her owners as part of their claim against the carrying ship or carrier. The fo
34、regoing provisions shall also apply where the owners, operators or those in charge of any ship or ships or objects other than, or in addition to, the colliding ships or objects are at fault to a collision or contract.,BBC Clause,proportional fault ：50：50500 thousandA B500 1 million thousandCargo A：1
35、 million,Limitation of Time,CMC Art.261,Application of law,CMC Art.273,Treatment at Scene,Salvage Noticement Check and record Confirmation of collision occurance Report to shipowner Submission of sea protest Collection of evidences,Chapter 6 Salvage at Sea,Definition,Any act or activity undertaken t
36、o assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.,Types of Salvage,Pure Salvage No cure no pay Contract Salvage Lloyds Open Form(LOF)Employed Salvage Service,Salvage Conventions,Salvage Convention 1910 Salvage Convention 1989 Background of the c
37、onvention Main contents,Salvage Rewards,The objects salved must be recognized by law Salvage is a voluntary action The objects must be in danger Salvage operation must succeed (CMC Art.179),Except,Fault of salvor Fraud or other dishonest conduct of salvor The express and reasonable prohibition,Salva
38、ge Between the Ships of the Same Owner,The Role of Reward,No cure no pay The reward shall not exceed the value of the ship and other property salved,Reward Fixed,CMC Art.180,Who pays to Salvage Reward,The salvage reward shall be paid by the owners of the salved ship and other property in accordance
39、with the respective proportions which the salved values of the ship and other property bear to the total salved value. CMC Art.183,Distribution,The distribution of salvage reward among the salvors taking part in the same salvage operation shall be made by agreement among such salvors on the basis of
40、 the criteria set out in Article 180 of this Code; failing such agreement, the matter may be brought before the court hearing the case for judgment, or, upon the agreement of the parties, submitted to the arbitration organization for an award. (Article 184),Salvage of Human Life,Remuneration CMC Art
41、.185,Salvage of Environment,Special compensation clauseCMC Art.182,Confirming the Right of the Master,The Master shall have the authority to conclude a contract for salvage operations on behalf of the shipownerand the owner of the property on board. Art.175,The Princle of Salvage Contract,Fair The c
42、ontract has been entered into under undue influence or the influence of danger and its terms are obviously inequitable The payment under the contract is in an excessive degree too large or too small for the services actually rendered.(Art.176),Duty of Salvor(Art.177),Carry out the salvage operation
43、with due care;Exercise due care to prevent or minimize the pollution damage to the environment;Seek the assistance of other salvors where reasonably necessary;Accept the reasonable request of the salved party to seek the participation in the salvage operation of other salvors. However, if the reques
44、t is not wellfounded, the amount of payment due to the original salvor shall not be affected.,Obligation of the Party Salved(Art.178),Cooperate fully with the salvor;Exercise due care to prevent or minimize the pollution damage to the environment;Promptly accept the request of the salvor to take del
45、ivery of the ship or property salved when such ship or property has been brought to a place of safety,With respect to the salvage operations performed or controlled by the relevant competent authorities of the State, the salvors shall be entitled to avail themselves of the rights and remedies provid
46、ed for in this Chapterin respect of salvage operations. (Art.192),Chapter 7 General Average,Section 1 Outline,Average Categories sacrifice and expendituretotal loss and partial loss particular average and general average,Definition of GA,General average means the extraordinary sacrifice or expenditu
47、re 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.CMC Art.193,Elements of GA,The ship，cargo and other property are in common danger The measure must be intentional
48、and reasonable The sacrifices and expenditures must be extraordinary or additional The ship and/or the cargo and/or other property must be preserved from the peril,GA Announced and Security,Announced SecurityGA depositGA guaranteeAverage bondLien on cargoNon-separation agreement,Section 2 GA Adjustm
49、ent Rules,York-Antwerp Rules（YAR） Beijing Adjustment Rules,1924 YAR,lettered rules: common safety numbered rules: common interestsMakis agreement,1950 YAR,Lettered rules Numbered rules Rule of interpretation,1974 YAR,1994 YAR,Lettered rules Numbered rules Rule of interpretation Rule paramount,2004 YAR,York-Antwerp Rules（YAR）1950 YARlettered rulesnumbered rules,Section 3 Adjustment of GA,Definition Amount of GA Contributory value of GA GA percentage Contributory amount of GA,
