Research On Apportionment Rules Of Maritime Tort Liability

Apportionment of tort liability is a new legal theory which develops gradually compared with traditional constitution theory.This theory provides complete system for dealing with complex cases of mass tort.On the basis of summarizing the theoretical results of general tort liability,this paper provides a solution and several advices for maritime tort cases considering the legislation and judicial practice of maritime tort.The legal apportionment rules of maritime tort liability is not only a solution to maritime tort cases but also an organic supplement to the research of sepecial field of general tort liability apportionment theory.In detail,this paper can be divided into six chapters,each chapter of the main contents are as follows:Chapter one studies the general tort liability apportionment theory and sorts out the background of this theory.Tort liability apportionment theory defines tortious act,tort obligation and tort liability.Tort obligation is the connection of tortious act and tort liability.Tortious act is only one main cause of tort liability.The achievement of tort liability depends on force of law.Tort liability contains a variety of ways to achieve.Damage compensation liability is one of those ways.The attribution of property of this way is the basis for the responsibility to share.The dilemma of classification of tortious act causes the scholars to analyze tort cases from the angle of liability,which forms the theory of shapes of tortious liability.There are several shortcomings of theory of shapes of tortious liability,such as the incomplete correspondence between modes of tortious act and shapes of tortious liability,irrational of division of modes of tortios act and lack of core rules.Therefore,the theory of general tort liability apportionment develops on the basis of the theory of shapes of tortious liability.The theory of tort liability apportionment refers to theory of allocating damages,including risk responsiblity,ultimate liability and corresponding procedural burden,among victim and tortfeasors based on several rules.The main contents of the apportionment of tort liability theory are four aspects,distributive justice instead of corrective justice as the value of apportionment;the division of risk responsibility through corresponding modes of tortious act and shapes of tortious liability,application of forms of tort liability apportionment from the angle of applicable law,internal share and legislative rules;the integration of the victim's fault system,called auto-responsibility,victim's fault and comparative responsibility;the determination of the ultimate responsibility according to fault and legal causative potency and construction of proportional liablity.Chapter two is the necessity of apportionment rules of maritime tort liability.Maritime tort liability apportionment rules are part of general tort liability apportionment rules.They have specialties because of unknown risks different from land situation.The specialties can be explained in five aspects,non equal repayment of tort obligation,limited amount of damages,duality of values of apportionment,difference of risk responsiblity apportionment and applicable rights of internal transfer system.There are several limitations when general apportionment rules applied in maritime practice,including limitation of values,division of risk responsibility,relation between victim's fault sytem and apportionment of tort responsibility,separate determination of risk responsibility and ultimate liability,lack of definite rules and special field research results.Apportionment rules of maritime tort liability have important theoretical and practical values,it is the response to the demand of diversification of comteporaty maritime industry values,it makes up the tort constitution theory;It is the vital part of risk sharing mechanism;It is the tools of solving traditional maritime tort problems;It aslo becomes part of tort apportionment theory.Therefore,it's vital to study apportionment rules of maritime tort liability separately.Legal apportionment rules of maritime tort liability refer to compensation rules in the process of ocean shipping,maritime production and related maritime operation on navigable water of sea and other water connected with sea.Maritime tort liability apportionment includes two stages,distribution and assumption.Distribution is the first adjustment of damaged rights and it's temporary.Assumption is result of tort cases and the two stages have their own functions and applicable rules.The author puts forward a proposal based on the situation of maritime area.Separate external and interal relation and apply different rules in known tortfeasors and unknown tortfeasors situation.Chapter three analyzes initial distribution rules of tort liability.This chapter summarizes the first phase rules of apportionment of maritime tort liability which deal with external relation.Initial distribution rules determine scope of liability and forms of tort liability apportionment between victim and tortfeasors.The initial apportionment stage allocates risk responsibility,procedural burden and ultimate responsibility at the same time.In the initial apportionment stage,the legal rules maily include three categories,namely,liability share rule between victim and tortfeasors,corresponding rule of tort liability apportionment forms and the cap rule of maritime imperfect compensation.Liability share rule between victim and tortfeasor identifies facts of cases as factors to determine liability share.Homogenization treatment in the way of proof under condition of admitting heterogeneity of victim and tortfeasors' fault based on the experience of mirror image rule in European Tort Law,Principles of European Tort Law:Text and Commentary.This chapter recommends the use of fault and legal causative potency to determine liability share based on the analysis of legal practice under common law,civil law and Chinese law.Determine the order and importance of two factors by distinguishing damged rights and tort imputation principle and combining the apportionment values.Forms of maritime tort liability apportionment deal with the ways of undertaking responsibility for tortfeasors and determine risk responsibility distribution.Generally,victim undertakes risk responsibility in several liability and tortfeasors undertake risk responsibility in joint liability.Maritime tort cases apply forms of tort liability apportionment according to cause of loss and damged rights.The author separates forms of maritime tort liability apportionment as general and special forms.There are three principles adhered to when apply forms,several liability as main type and joint liability as supplement,determine different forms according to imputation principle in joint liability cases,definite legislation only for special kinds of tort cases applying joint liability.Specail forms of maritime tort liability apportionment refer to average liability.Average liability is the supplemental rule to several liability.It lacks of fairness and it's a compromise solution of disputes in nature.It is different from equal responsibility under several liability and it can be applied in clear injurer and unknown injurer cases with different application mechanisms.The cap rule of maritime imperfect compensation develops with imperfect compensation practice in mairtime area and legislation practice of limitation of liability.There is a cap for tortfeasors to take responsibility under this rule and the result is imperfect compensation.There are restrictions of parties and types of tort obligation which can be limited under this rule.Chapter four is the rules of ultimate assumption of maritime tort liability apportionment.Those rules allocate liability within tortfeasors after initial distribution stage.This stage includes three categories,namely,corresponding rule between the apportionment of tort liability forms and internal transfer form,redistribution rule of maritime risk responsibility and priority rule between apportionment forms of tort liability and limitation of liability.Internal transfer rule determines tortfeasors' right under different forms of tort liability apportionment.Contribution and indemnity applied in maritime cases for a long time and indemnity separated from contribution when rule of moiety applies in joint tortfeasors' cases.Contribution and indemnity integrated with each other when comtemporary tort practice applies comparative negligence rule.Contribution and indemnity are different in several ways,like applicable cases,applicable rules and restrictions.Internal transfer rule makes a guideline to choose contribution or indemnity for every form of tort liability apportionment.Redistribution rule of maritime risk responsibility helps tortfeasor who undertakes risk responsibility to recollect the amount which hasn't been paid after contribution.Composite claim apportionment rule and redistribution rule after non-contribution are rules to solve this problem under comparative law.The author suggests that redistribution rule of maritime risk responsibility should adopt the concepts and ideas of redistribution rule afer non-contribution.It's important to reallocate risk responsibility between definite parties and set rule for factors that will start the redistritbution rule,the amount that can be redistributed and redistribution procedures.Priority rule solves the conflict between apportionment forms of tort liability and limitation of liability.The conflict between several and joint liability and limitation of liability in ship collision case is just one typical example of this issue.There is also conflict between several liability and limitation of liability.The essence of this conflict is the risk responsibility distribution rule is changed by the litigation rule under forms of tort liability apportionment.To solve this issue we should give priority to limitation of liability rule,pay the insufficient amount according to forms of tort liability apportionment rule and use risk responsibility redistribution rule to deal with the non-contribution amount.Chapter five is the supplemental rules of typical unknown injurer of maritime tort practise.This chapter is the rules dealing with unknown injurer.Unknown injurer refers to the doer who actual caused damge is unknown.This rule only studies the situation that doer is clear but injurer is unknown.The particularity of unknown injurer situation is imputation principle and difficulty of indentifying doer who caused damage and the liability share of each injurer.The imputation principle of unknown injurer is different from traditional tort imputation principle,like principle of liability with fault,rule of negligence presumption and strict liability.The first step to study unknown injurer rule is to admit this difference.Although it's difficult to comfirm the doer who actually caused damge and the liability share of each tortfeasor,it doesn't mean there's no actual share of fault and legal causative potency in a real case.The object of legal fiction of share of responsibility is to realize substantial equivalence.This chapter proposes of the scheme of two legal fictions of share of responsibility and tortfeasor based on the experience of common law,civil law and Chinese maritime regulations related to this area.Besides,this chapter illustrates apportionment of tort liability in typical unknown injurer area,maritime dumping and ship oil pollution.The author suggests that it's better to apply joint tortfeasor theory in maritime dumping cases.Chapter six proposes to perfect the legal system of apportionment of maritime tort liability based on the above research to protect vicitim's right and divide responsibility between parties.Legal system of apportionment of maritime tort liability refers to principles and rules in initial distribution and ultimate assumption stage that allocate risk responsibility,ultimate responsibility and procedural burden among victim and tortfeasors.The character of commercial law presented in maritime practice is main pratitioners,limitation of liability and bill of lading.Tradition of maritime tort legislation chooses effieciency as primary pursuit of value.While distributive justice recognized as values of apportionment of tort liability,the combination of efficiency and distributive justice should be the basis of legal system of apportionment of maritime tort liability.This chapter concludes initial distribution and ultimate assumption stage resercah paradigm based on the above chapters' analyze.Rules of unknown tortfeasors are supplemental.Legal system of apportionment of maritime tort liability is part of maritime tort law system.Normally,if tort rules under maritime law accord with general principel of tort law,the former prefers to apply in maritime tort cases.The promulgation of General Principles of Civil Law will have an important effect on the relation among China Maritime Code,Tort Law and General Principles of Civil Law.Legal system of apportionment of maritime tort liability is a core part of construction of comprenhensive relif system and it represents the trend of comtemporaty tort law.