A Study On Applicable Law For General Average

As it is an international maritime system and due to its interna tionalism,complexity and particu larity,there are p roblems in applicable law with respect t o disputes over the General A verage from time to tim e,which,on the one hand,is owing to d ifferent stipulations on legislation and jud icial practices in d ifferent countries,on the other hand,is related to the absence of rele vant theories and methods.In this paper,the study is started with the causes and contents of conflicts of laws on General Average,based on the current si tuation of legislation and judiciary of China,while consid ering relevant r ules for applicable law as well as theories and practices of relevant countries in this field.With the method of combining theoretical description and empirical analysis,the author attempts to build a unified methodology system for resolving conflicts of laws on General Average,with a view to benefit the legislative and judicial pr actices of China.Using both the deductive m ethod and the inductive method,the author attaches im portance to the following issues:(1)causes and contents of conflicts of laws on General Average;(2)characteristics of applicable law for General Average;(3)theoretical resolutions for conflicts of laws on General Average;(4)problems in practices concer ning conflicts of laws on General A verage and solutions;(5)to improve m aritime legislation of our country b y referring to theories on and practices in applicable law for General A verage of the contemporary international community.As a special and complex m arine system,there are m any reasons causing conflicts of laws on Ge neral Average.From the perspective of private international law,they are mainly concentrated in two dimensions,national legislation and uniform international legislation.The root cause of conflicts of laws on General Average is the different laws on General Average system of different countries,which depends on the demand of sovereign interests of these countries and is in evitable at this stage.The trend of assim ilation development of m arine private internati onal law em bodies in two aspects: the increase of the number of international maritime conventions and the wide application of inte rnational customs and pract ices;however,because of differences in the scope of application of the conven tions and the reservations permitted and for other reason s,coupled w ith the dif ficulties in con cluding the conventions,at this stage,it is unlikely to eliminate conflict of laws on General Average.The international maritime custom,York-Antwerp Rules(hereinafter referred to as YA Rules)play an important role in the elimination of conflict of laws on General Average;however,because of its arbitrarin ess and limited scope of application,it is still unable to avoid the occurrence of c onflict of laws on General A verage.With regard to the study on conflict of laws on General Average,the analysis on substantive contents is inevitable,and when studying the applicab le law,the conflicts of substantive laws shall also be considered.As the conflict of laws on General Average is varied,the author takes two typical conf licts,namely,the conflict of definition or scope of General A verage and the conflict of negligence and apportionm ent in General Average,as examples,to analyze its causes and features,and th en compare the differences between dif ferent nations,to lay groundwork for ef forts made for searching for solutions.The particularity of applicable law for Ge neral Average is closely related to the system itself:(1)the customary feature of General A verage determines that international maritime customs have a prominent place in the resolution of conflicts of laws on General Average.The customary origin of General Average makes the legal system on General Average absorb a great d eal from the customary law.During their application,YA Rules under the international m aritime customs are am ended from time to time in light of the demand of development,having the nature of “advancing with the times”,and thus realize the rules of adjustment better;(2)As it is a special system in maritime laws,resolution of conflict of laws on Genera l Average requires the aid of a special rules of conflict,that is,rules of conflict not existing in other general civil or comm ercial fields that involve in foreign affairs,such as Law of th e Adjustment Place,Law of the Destination of Voyage and Law of the Flag,which may resolve conflict of laws on General A verage better.(3)The implication between the applicable law for General A verage and marine cargo transportation system s and maritime insurance laws.The General Average system is a subsequent legal regim e applicable in the process of transportation of goods by se a or based on tort or breach of contract or accidents,and the maritime cargo transport system is a prerequisite for the development of the General A verage system.Common voyage and common risk are permanent themes of maritime laws.The sharing principle of General Average is the budding of m arine insurance,and both are closely linked with special maritime risks.The implication between these legal systems is reflected in the applicable laws,and laws on m aritime cargo transportation restrict General Average directly or indirectly;at the same time,guarantee letters involved in m arine insurance systems,such as Average Bond,Non-separation Ag reement,and Letter of Guarantee under General Average,applicable laws agreed by the parties to them will also m ake the applicable laws governing disputes over Ge neral Average complicated.Therefore,to study the applicable law for General Average,attention must be paid to these characteristics,focusing the study of characteristics of applying such laws on the basis of general rules,so as to resolve disputes over General Average better.Analyzing from the historical process of generation and development of General Average system,it can be seen that it is a legal system based on consensus.The contractual nature of General A verage determines that the resolution of conflict of laws concerned must follow the rules of conflicts under contracts.Nowadays,as far as laws governing disputes under contracts ar e concerned,both the common law system and the continental law system recognize the “proper law” of which the subject is “principle of autonomy” or “the principle of the m ost significant connection" is an important way to resolve conf lict of laws under contr acts;at the s ame time,the principle of combining “splitting” and “uniform” has become the basic pattern of the theory and legislation f or conflict of laws under cont racts.Although the conflict approach is an important method to solve the conflict of laws on General Average,it can not eliminate the conflicts on this issue between countries fundamentally.To solve the problem more thoroughly,the most funda mental way is to ach ieve international harmonization of legislation,and the assimilation of different legal systems and legal provisions in dif ferent countries also show s that it is an inevitable trend of development of maritime laws.Ways to a chieve a unif ied international legislation include the development of international conventions and the adoption of international customs;so far,there is no unified intern ational convention in the field of General Average,but YA Rules that have the nature of cu stom effectively makes up the inadequacy,which play an im portant role in resolving conflict of laws on General Average and are absorbed and learnt by different countries in legislation concerning General Average,and thus prom ote the unity of international legislation concerning General Average.In practice,to determine laws applicable to disputes over General Average,from the microscopic point of view,the relationship between clauses subject to choice of laws under bill of lading shall be determined and laws applicable to General Average cases shall be identified by com paring effectiveness of applicable clauses of different laws;and from the macroscopic point of vi ew,we must resolve the conflict between the bill of lading and other contracts,to clarify that applicable law under which contract should be applied.Th e clauses subject to choice of laws under bill of lading mainly include Paramount Clause,Local Cl ause,the General Clause of Choice and General Average Clause.Laws ap plicable to a General A verage case shall b e determined through the analysis on the definitions,roles and conditions on application of above clauses.Applicable laws are closely linked with jurisdiction,and all choices of laws are subject to the constraint of mandatory laws of the court having jurisdiction,regardless of the form of choice,that is,the choice of jurisd iction constrains the effectiveness of choice of law clause indirectly.Accordingly,to apply the laws agreed by the parties to a bill of lading,we must ensure that these provisions are not contrary to the mandatory laws of jurisdiction.The applicable law b etween bill of lading and other contracts mainly refers to the applicable laws with r espect to bill of lading,charter and the insurer's subrogation.As a special pattern of contracts,bill of lading has an important role in the transport of goods by sea,and its close connection with the charter contract m akes the clause on applicable laws under charter contract constrains the applicable law clauses under bi ll of lading directly or indirectly.With regard to the applicable law for subrogation,the relati onship between the insurer 's subrogation and the ap plicable law concerning act of cause shall be identified and whether it should be constraine d by applicable laws under the insurance contract.T o solve problems in applicable law for Genera l Average,we m ust straighten out th e applicable law under dif ferent legal rela tionship;the author,through em pirical analysis,points out the anal ytical approach for applic able law between dif ferent contracts and between different clauses under bill of lading.The objective result o f theoretical di scussion helps the perfection of the legislation of our country.Our country is a great maritime country,but has a long way to go to become a marine power,and one of the important reasons is the imperfection of laws.With regard to the applicable laws for General Average,the Applicable Law in Civil Relations with Foreigners of the People's Republic of China(hereinafter referred to as the applicable law),the Contract Law of the People's Republic of China(hereinafter referred to a s the Contract Law),and the General Rules of Civil Law of the People's Republic of China(hereinafter referred to as th e General Rules of Civil Law)set forth only principled provisions;and only the Maritime Law of the People's Republic of China(hereinafter referred to as the Maritime Law)sets forth relatively clear and specific provisions,but there are stil l many aspects to be perfected,such as the discordance between provisions and rules and the imperfection of legal provisions,and therefore the modification and perfection of Maritime Law is an important way to resolve the conflict of laws on General A verage.The Applicable Law absorbs advanced legislative approach of international private law,and is a law having a high level of legislation of our country.For the modification and perfection of Maritime Law,approaches and techniques specified in the Applicable Law shall be considered,to correct any inadequacy in legislative provisions on applicable laws for General Average in it from both the macro and the micro points of view.In summary,in this paper,the author starts from theoretical study on applicable laws for General Average based on judicial practice cases at hom e and abroad and finally ends with analysis on legislation,expecting to help the study on applicable law for General Average.Some points of view in this paper may not be correct completely,but the au thor believes that the necessary academic contention and serio us confrontation of ideas and in tegrity of academic criticism are always beneficial.Th e author does not expect that all points of view are accep ted by m aritime academic circle,legislation circle and shipping circle,but hopes that it will cause public concerns and in-depth discussions about a pplicable law for General A verage,which have direct practical significance on pract ical problems arising from inadequate maritime legislation.