Marine Insurance Subrogation System

There is much disagreement in practise and acedemic about how to interpret the stipulations of subrogation in marine insurance; The stipulation of maritime code, insurance code, special procedure law in the maritime litigation and the other related laws of the PRC are not perfert. Especially our state belongs to continental law, but as the important form of the subrogation of marine insurance, the draft of maritime code has much reference to the common law. It is an embarrassment that how to interpret them.So the writer studies stipulations of subrogation in marine insurance by comparison all-sided. On the base of studying the principle of civil law, this paper interprets the Chinese Law, looks over the unreasoable stipulations and makes suggestion on the amendment to structure the subrogation stipulations with valid civil law basement.In this paper, the writer divided the right of subrogation into two aspects, that is, the right to request the third party to compensate for the loss and/ or damage of the subject matter insured, and the right to take over the interest of the assured in whatever may remain of the subject matter so paid for. The former has its peculiarity, that is, there exist exoneration from the liability in the navigation or management of the ship and limitation of liability for maritime claims. It originated from the subrogation system and can be classified to the statutory right of subrogation in civil law, but it is quite different from that in nature. Being one of the statutory subrogations, it is quite similar to the theory of non-genuinelly joint and several liabilities (unechte Gesamtschulden). The latter i.e. the right to take over the remains of the subject matter insured possesses a unique form- to give the notice of abandonment to the underwriter where there exists a constructive tatal loss.As to the aspect that the right of subrogation to request the liable third party to compensate the loss and/ or damage of the subject matter insured, thewriter advocates understanding the name problem from the purpose of subrogation system, and hold the view that its purpose is to carry out the principle of indemnifying and to achieve the goal of legal justice by binding the assured and the third party, Therefore, the underwriter may exercise the right of subrogation in his own name or in the name of the assured. The writer also thinks that the third party can only contend that he is not liable for the assured's loss or damage and cannot contend that the insurance contract between the assured and the underwriter is invalid. Both The Insurance Law and The Special Procedural Law of Maritime Litigation regulate that the insurer should exercise the right of subrogation to the extent that he has paid. The writer deems that these regulations may safeguard the assured better than that regulated in The Maritime Code, and should be appreciated because they accord with the current trend. But attention should also be paid to the underwriter's interest in a specific case. For that purpose the writer studies and analyzes the benefit relationship between the underwriter and the assured from several aspects. Furthermore, this paper also separetelystudies theduties of the assured, the time-bar and the limitation to the right of subrogation.The right of subrogation to the subject matter insured has also been discussed. Just like the right of subrogation to request the liable third party to compensate the loss and/or damage of the subject matter insured, its purpose is also to carry out the indemnifying principle, but it has different forms under actual total loss or constructive total loss.YING YIJIA(MARITIME LAW) Directed by: PRO. YU SHICHENG...