Study Of The Abandonment In Marine Insurance

This thesis is composed of four chapters. The chapter one, beginning with emphasizing the significance of reasonable understanding of the nature of abandonment, reviews all various points scholars hold toward it. On study of abandonment in English terminology , the paper refers the English judges' definitions of abandonment and some influential countries' legislation on the abandonment, and hereby concludes that the abandonment universally tends to be a bilateral legal act from a perspective of the continental law. Within the common law jurisdiction, there is not a corresponding concept of bilateral legal act with that in the continental law. "abandonment" means either a transfer or an action of discarding, or even a kind of notice. Different understandings of the nature of abandonment result from different meanings the word has. In addition, the abandonment and the notice of abandonment shall be distinguished, because, from the perspective of civil law in continental law system, a notice, as an offer, is undoubtedly a unilateral act while the abandonment as a contract is a bilateral act. The abandonment is often seen as a right of the assured in China and the system of abandonment is for the benefit of the assured, but this thesis holds otherwise.In chapter two, the thesis, by study of some English cases, argues that both of actual total loss and constructive total loss are the premises of the abandonment. The main difference between the two total losses lies in the notice of abandonment, i.e. under actual total losses there is no requirement for a notice of abandonment. At the same time, the effects produced under actual total loss and constructive total loss respectively are based on different laws. Legal relations involving constructive total loss are rather more complicated than in actual total loss, so the abandonment under constructive total loss has attracted much more attention and generally the abandonment refers to that under constructive total loss.In chapter three, the thesis studies the notice of abandonment in terms of its nature,form,intention,exceptions and effects, and introduces a case to demonstrate the notice's role in the abandonment system. At last, the thesis questions that constructive total loss is the only premise of the notice of abandonment.In the chapter four, the thesis investigates the effects when the abandonment is accepted or refused by the insurer and suspects the argument that the insurer has two opportunities to acquire the property of the insured object. To define correctly the scope of rights on the insured object transferred by abandonment, the paper examines the concept of the subrogation right and its differences with abandonment, and the application of the subrogation principle after the insurer accepts the abandonment and pays insurance damages.In sum, the establishment of abandonment system is in favor of the insurer when the insured pursues the full damages under constructive total loss. But the system doesn't go too far and in the contrary emphasizes the balance of the parties' interests and obligations. At last the paper makes some comments on the relative stipulations in China's Maritime Law and points out some shortcomings and some advice as well to correct them.