Compensation are: whether the right of subrogation is obtained, the cause of the loss of the goods during the period of the carrier's responsibility, the determination of the amount of the loss, the determination of the carrier and the actual carrier, etc.However, successful recovery is by no means easy, and understanding and sorting out the common disputes among them will help to improve the prediction of recovery effectiveness in order to guide specific claims and recovery arrangements.to whom?Cargo damage is divided into two categories according to the cause: general cargo damage and cargo damage caused by ship collision. Among them, general cargo damage can be divided into multimodal cargo damage and waterway cargo damage.
01 Object of recovery for general cargo damagea. In the case of waterway cargo transport, the carrier or the actual carrier is generally sued, and when judging, if the carrier's strength is clearly sufficient, the carrier can be sued, and there is no need to sue the actual carrier at the same time, so as not to increase the strength of the defense. Try to avoid only the actual carrier, because this way, may encounter the dilemma of the cause of action, the difficulty of proof.B. Identification of the carrier or actual carrier. First of all, judge according to the contract. If the content of the contract is not agency, then the other party of the contract is the carrier. If there is no contract, the carrier will be determined according to the situation of the ship. If the ship has voyage charter, the charterer will be the carrier. If the ship has bareboat charter, the charterer will be the actual carrier, otherwise the owner of the ship will be the actual carrier, generally, the affiliated person and the affiliated person are listed as defendants.c. In multimodal transport, if it is clear that the section is damaged, the carrier of the multimodal transport and the carrier of the damaged section shall be sued; if the damaged section is not clear, the multimodal carrier and the carrier of each section shall be sued together, and the actual carrier may also be sued for the waterway section.
02 Who should recover the cargo damage caused by ship collision
According to Article 6 of the Supreme Court's "Provisions on Several Issues Concerning the Trial of Ship Collision Disputes", "If the colliding ships are at fault with each other and cause the loss of the cargo on board, the right holder of the cargo on board files a lawsuit for breach of contract compensation against the ship carrying the cargo, or If one or both parties of the colliding ship file a lawsuit for tort compensation, the people's court shall accept it in accordance with the law"; Article 7, "If the right holder of the goods on board a ship brings a lawsuit against the ship carrying the goods due to the loss of the goods caused by the collision of the ship, the carrier ship may claim to be liable for compensation in proportion to the degree of negligence in accordance with the provisions of the second paragraph of Article 169 of the Maritime Law". Although the right holder of the goods damage caused by the collision may bring a lawsuit for breach of contract to the ship, the ship may claim to be liable in proportion to the collision liability.
Therefore, different situations should be distinguished and different subjects should be selected for litigation.
a. When the collision is unilateral liability, if the ship is the responsible party, only the ship is sued, and the cause of action is either breach of contract or infringement; if the other ship is the responsible party, only the other ship is sued, but only the infringement can be sued.B. When the collision is the liability of both parties or parties, the ship and the other ship are sued at the same time, and the liability is claimed in proportion to the liability, and the cause of action is infringement. If you only report this ship, you may not be able to get full compensation.c. Note that if the ship or another ship has a bareboat charter and is registered, it is best to choose to sue the owner of the ship and the bareboat charterer at the same time, especially if the ship has not applied for arrest, and if the bareboat charterer is a shell single ship company.to which court1. In the case of general cargo damage, in accordance with the provisions of Article 6, paragraph 2, item (II) of the the People's Republic of China Maritime Litigation Special Procedure Law, a lawsuit arising from a dispute over a contract of carriage by sea may also be under the jurisdiction of the maritime court of the place where the port of transshipment is located, in addition to the provisions of Article 28 of the the People's Republic of China Civil Procedure Law. That is, the maritime court of the place of origin (port of departure), destination (port of destination), port of transshipment, and place of residence of the defendant has jurisdiction over the contract of carriage of goods by sea. You can choose a lawsuit after considering the situation of proximity, familiarity and judicial civilization.2. In the case of collision cargo damage, the competent court varies according to the choice of the cause of action. According to the provisions of Item (I) of Paragraph 2 of Article 6 of the Special Maritime Procedure Law of the People's Republic of the People's Republic of China of China, an action brought in respect of a maritime tort may, in addition to the provisions of Articles 29 to 31 of the Civil Procedure Law of the People's Republic of the People's Republic of China, be under the jurisdiction of the maritime court of the place where the port of registry is located. That is, the maritime court shall have jurisdiction over the place where the collision occurred, the place where the collision ship first arrived, the place where the ship was detained or the place where the defendant has his domicile, or the port of registry. Therefore, in the case of infringement, one of the aforementioned options may be chosen for court action. However, it should be noted that if the collision ship has established a limitation fund for maritime liability, then after the establishment of the fund, litigation can only go to the maritime court that established the fund.In the case of a collision in the maritime segment in the case of multimodal transport resulting in loss of goods, the competent court is in the same situation as described above if a contractual cause of action is chosen.3. In the case of multimodal transport, the same choice shall be made from the place of residence of the defendant, the place of origin, the place of transshipment and the maritime court of destination, unless only the carrier of the non-maritime section is notified.recoveryVAT issuesto the provisions of Article 11 of the Rules for the Implementation of the Provisional Regulations on the People's Republic of China Value Added Tax, the return or discount of the purchase price of the sale may be deducted from the amount of tax payable. Therefore, if the goods are damaged and the consignee refuses to accept the goods, when the shipper makes a claim, the carrier often claims that the amount of VAT of 17% should be deducted from the compensation for the goods on the basis of the aforementioned clause., in the dispute over the loss of goods transported by water, there are different situations in the question of whether the value-added tax is deducted.one, when the consignee is the subject of the claim, there is no question of whether the tax should be deducted because the price paid by the consignee already includes VAT.Second, when the shipper provides a VAT invoice, it should generally deduct the amount of compensation payable by the carrier according to the tax amount recorded on the tax invoice. One of the reasons is that according to the above terms, the tax can be deducted according to law for unfinished sales. Second, in practice, the seller as the shipper can often deliver the goods separately and apply the VAT invoice for damaged goods when the sales of damaged goods are not completed; or in future sales, apply the VAT invoice that has been issued.the third reason, even if the shipper is not the seller of the goods, the value-added tax problem can be traced back to the seller for adjustment. Although in the specific dispute, the freight forwarder as the shipper is in commercial consideration or is not clear and can be deducted, and has paid the seller of the goods, including the value-added tax, all the payment has been paid, but it cannot be the reason for its right to claim compensation from the carrier.Third, when the shipper does not provide a value-added tax invoice, if it is clearly agreed in the sales contract that the sales price does not include tax, the amount to be compensated by the carrier does not have to be deducted from the value-added tax, but it is only necessary to examine whether the sales price is roughly the same as the tax-inclusive price of similar products in the market, so as to avoid the shipper deliberately not providing a value-added tax invoice for compensation.If the shipper's non-taxable price is essentially the same as the market tax-inclusive price, and the shipper cannot provide a reasonable explanation, the price should also be determined to be tax-inclusive from the common sense of trade, and the amount of the carrier's compensation should be deducted from the tax. From the principle of who claims who gives evidence, the burden of proof of whether the shipper's tax-free price is the same as the market tax-inclusive price lies with the carrier.The judgment of the condition of the goods damage.1. Consensus. If there is a written confirmation by both parties, the written agreement of both parties shall prevail.2. No consensus. If there is no written joint confirmation of the joint inspection by both parties, the owner of the claim is required to prove the damage condition of the goods at the time of receipt at the port of destination. The condition of the damage to the goods, if determined with the participation of the corresponding port discharge party, the assessment agency, etc., may be determined on the basis of the circumstances of the loss determined by the participation of the parties involved in the carriage of the goods, unless the carrier has evidence to the contrary.practice, the carrier often suggests that it has not been given the opportunity to participate in the joint inspection, but most of the time it is a pretext, and in most cases, the owner of the cargo will notify the carrier to send someone to participate, except that the carrier is sometimes reluctant to participate or to sign for confirmation after participation.Even if the carrier has not been notified, but in the case where the law does not require the carrier to participate, otherwise it cannot confirm the loss of goods, as long as the circumstances of the loss can be determined based on the evidence, the loss of goods should still be confirmed based on the facts reflected in the evidence.3, identification situation. In addition, some cargo owners unilaterally entrust an appraisal agency to identify the damage to the goods. At this time, it is necessary to judge whether the appraisal conclusion can be used as the basis for determining the damage status of the goods, such as the qualification of the appraisal institution, whether the goods being appraised are disputed goods, and whether the basis of the appraisal conclusion is sufficient.if, in the course of litigation, one party applies for damage appraisal, the two parties jointly choose an appraisal institution or the court appoints an appraisal institution to carry out the appraisal, then unless the conclusion of the appraisal is obviously inconsistent with the facts, the appraisal conclusion can generally be used as the basis for determining the condition of the damage.4. Precautions. It is important to note that there is no direct equivalence between the condition of the damage to the goods and the amount of the damage.such as partial damage to the goods, resulting in the entire batch of specially customized goods can not be used, there is no market value, or some sealed packaging of goods, although the quality has not changed, but because of seawater immersion or other pollution, the market value has been greatly devalued.only the burden of proof of the special devaluation lies with the owner of the goods, I .e. the owner of the goods must submit evidence that the market price of the goods has actually depreciated.How is the insurance for the carriage of goods by sea settled?marine insurance is a must-have insurance for the carriage of goods by sea. There are two types of basic insurance: general cargo insurance and special cargo insurance. General cargo insurance is divided into three types of insurance, water damage insurance and all risks.Maritime transport riskThe risks of the carriage of goods by sea are divided into maritime risks and foreign risks. Maritime risks include natural disasters and accidents. Natural disasters, only bad weather, lightning, floods, ice, earthquakes, tsunamis and other human irresistible disasters.
accidents mainly include major accidents with obvious marine characteristics; external risks refer to various risks other than marine risks, which are divided into general external risks and special external risks: general external risks refer to theft, crushing, leakage, contamination, damp and heat, odor, rust, hook damage, short quantity, fresh water and rain, etc.
Special external risks mainly refer to the risks caused by military, political and administrative decrees, resulting in the loss of goods. Such as war, strike, non-delivery, rejection, etc. Insurance against these risks is called marine insurance.
The calculation method of maritime insurance premiums.insurance premium = insurance amount * insurance rateinsurance amount = CIF price (CIF price) * invoice markup rate (usually 10%)= CIF price * 110%1, in the absence of special provisions, generally according to the CIF price of 110, special not more than 120 of the CIF price.2, in accordance with international practice, marine insurance provisions for ICC(A/B/C) three, which is the British Insurance Association provisions; domestic companies generally also use CIC provisions, for China's own provisions.3. The factors that fix the insurance rate are as follows: type of goods, voyage, packaging, terms used, amount of insurance, policy model and liability limit; each will affect the rate.4. Insurance modes are generally divided into three types: single, that is, only one ticket of goods is insured; Monthly list, according to the agreed insurance rate to declare insurance every month, no premium will be charged if there is no declaration; Annual list, with annual settlement time, about 75% of the estimated premium will be paid in advance, with no refund or compensation. In the above three ways, the rate will be reduced in turn.Principles of marine insurance claims1. Principles based on marine insurance contracts. After the occurrence of a maritime accident, whether it is within the scope of insurance liability, whether it is within the insurance period, the amount of insurance compensation, the determination of the deductible, the insured's own liability, etc. are all based on the liability determined by the insurance contract.2. Principle of reasonableness. When dealing with insurance compensation, the marine insurer should take the insurance contract as the basis and pay attention to the principle of reasonableness, because the terms of the marine insurance contract can not summarize all the circumstances.3. The principle of timeliness. The main function of marine insurance is to provide financial compensation. After the occurrence of an insurance accident, the insurer shall promptly survey, inspect and determine the loss, and send the insurance compensation to the insured in a timely manner.Marine Insurance Claims Related Processes1. Notice of Loss. In the event of an insured accident or a loss within the scope of insurance liability, the insured shall notify the insurer immediately. Notice of loss is the first procedure for insurance claims. In ship insurance, if the accident is abroad, the nearest insurance agent should also be notified.2. Survey inspection. The insurer or its agent shall, upon learning of the notice of loss, immediately carry out the survey and inspection of the loss of the subject matter of the insurance. There are two main steps:1) Joint port inspection. When the goods arrive at the port of destination and find the damage, the consignee shall promptly notify the insurance company, apply to the commodity inspection department for joint inspection, jointly identify the cause of the damage, the amount and extent of the damage, and prepare the port joint inspection report or record of the situation.2) Off-site joint inspection. When the freight is transferred to the inland consignee, regardless of whether the goods are found to be damaged at the port, as long as the goods arrive at the destination and are found to be damaged within the scope of insurance liability, the consignee may conduct joint inspection and prepare a joint inspection report through the local insurance company. After passing the inspection of the goods, the claim adjuster shall determine the attribution of liability for cargo damage accordingly.
the goods "original disability" is the responsibility of the consignor, belongs to the insurance clause of the insurance liability, the insurer is not responsible for compensation. Losses caused by ship disability, "work disability" or other external causes shall be covered by insurance as long as they occur during the period of insurance, and the insurer shall compensate.The applicant for inspection shall provide the necessary documents to fill in the following contents when applying for inspection to the insurer or its designated inspection agent: application for inspection form, sea bill of lading, cargo invoice, maritime report, insurance document, packing list, tally list, weight list of goods, etc.3. Verify the insurance case.4. Analyze the case of the claim and determine the responsibility. The insurer shall determine whether the cause is an insurance liability, whether it occurs within the insurance period, whether the claimant has an insurable interest, and examine the relevant documents such as insurance documents, accident inspection reports, insurance accident certificates, rescue and repair of the subject matter of the insurance.5. Calculate the amount of compensation and pay insurance compensation. The calculation of insurance compensation is usually based on the list of claims (Statement of claim). The calculation of insurance compensation may be carried out by the insurer itself, or by its agent or entrusted to the average claimant.
