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A Study On The Law Application Problem Of Marine Cargo Insurance

Posted on:2016-03-10Degree:MasterType:Thesis
Country:ChinaCandidate:H ZhangFull Text:PDF
GTID:2296330479488025Subject:International law
Abstract/Summary:PDF Full Text Request
Along with the evolution of the legislation of international maritime law, deep changes take place in every aspect, and so is the system of marine insurance, for instance the electronic commerce has became an important part of marine cargo insurance. There are two main sources from which come the challenges to the marine insurance law: one is the request of the development of marine insurance law itself. Some stipulations of the insurance laws are too old to apply to the new situations; the other one is the influence from the tendency of the legislation of the international maritime law. In this thesis we focus on the marine cargo insurance contract, which possesses the unique characters apart from the common features of normal insurance contract.In this thesis, we analysis the oversea feature of the marine cargo insurance and compare it with the marine cargo contract, and then the core issue is raised: the residence or the organization of insurer and insurant, and the object of insurance may locate on different countries and districts. This will cause conflicts in choosing laws controversial insured events happen. For avoiding those conflicts, contract parties will follow some conventions in the maritime cargo. Comparing to normal insurance, in marine cargo insurance large mount of cargo is involved, and will cause sever lost if cargo is damaged. The result under the law of a country may deviate a lot from the one that uses laws of another country, thus it is key issue to find a system way for choosing the application of law. Presently, in the international community there is no unified substantive law for regulating the oversea marine cargo insurance, and maritime law and insurance law of china do not contain such stipulations as well. So that it used to follow the general principle of the application of law of oversea contract.The connection between the place of performance of the insurance contract and the payment of claims have also been analyzed, so as the significance of payment of claims to the determination of the point of contact. The application of law on maritime cargo insurance contract means to choose a law from the laws of different countries to regulate the relationship of rights and obligations among the contract parties. To be concrete, at first, parties can negotiate a treaty under the Principle of Autonomy of the Parties; generally this treaty will be respected apart from a few special situations. When the choosing has not been made, the court will determine the most connected location under the Doctrine of the Most Significant Relationship.This thesis also focuses on the selection of protocol of the application of marine cargo insurance law. On the level of the legal effect, reach consensus on the choice of law means that the rights and the obligations of the parties have been explicit chosen, and will explicitly bound by it. In the field of international contract law, contract parties have the right to determine the applicable law, and it reflected in the international private law as the Principle of Autonomy of the Parties. But the application the Principle of Autonomy is not absolute; the chosen applicable law may also be invalidated. This article further explore the limitations of the Principle of Autonomy of Parties in the process of choice of law applicable restrictions, the limitations can be grouped in to three parts: the range, the time, the ways for choosing law.Comparative analysis and case study analysis are employed in the study of different negative legal effects of the principle of autonomy of the parties in marine cargo insurance in European Union, the United Kingdom and the United States. For example, on the limitation of the time for choosing law, Chinese practice of allowing parties are allowed to choose applicable law after the conclusion of the contract or in the compliance process, sometimes even before the end of the first instance court debate. Oppositely in the United Kingdom, it is not allowed to choose the proper law applicable to the contract after the contract came into effective, and the proper law chosen after the beginning of the dispute can not be selected as a reference to the pre-determined application of law, that is the determination of the proper law can not be retroactive. If the choosing of law is found to be invalid, which is equivalent to the situation that the parties did not choose the application of law, it will re-adjustment in accordance with stipulations on the conduct of foreign relations of contract in the private international law and determine the proper law. In this chapter we also discussed from substantive justice level. For example in the actual operation, applicable provisions of law are printed in the insurance policy issued, and, without the mutual agreement, these provisions are assumed to be accepted automatically. Is such an approach legally binding? Dose it avoid the substantive justice and the protection of the interests of the weak? Those questions will be analyzed and suggestions will be given.In practice of marine cargo insurance, insurance companies are mostly full of economic strength and experienced with insurance claims. On the other side, the insurant are disadvantaged compared to the insurer from the perspective of bargaining power and negotiation skills. In addition, the insurance policy issued by the insurance company has been well modified repeatedly before announced to the public. The terms of format and the dispute resolution in the policy are stated without mutual consultation, the acceptance of those policies by the insurant appeared to be quite passive, and is likely to be detrimental to the interests of the insurant. From those above, insurance policy, as proof of marine cargo insurance contract, records the provisions of the applicable law which are determined without consulting with the insurant. This is most notably reflected in the fact that the content of application of law in the contract are often not preferable to the insurant, and it was chosen by the insurance provider alone. From the perspective of freedom of contract, it is obviously lack of substantial justice for those who accept the applicable provisions of law.As an important part, we consider the situation of lacking of treaty of the application of law, the way to determine ‘most significant’ when the Doctrine of the Most Significant Relationship is applicable and the way to determine characteristic when characteristic performance is applicable have been discussed. We also analyze the way of application of the point of contact in marine cargo insurance and the difference between the Doctrines of the Most Significant Relationship of marine cargo insurance contract and the marine cargo insurance. On the analysis of the objective signs of marine cargo insurance, there are differences in the applicable degree of the Doctrine of the Most Significant Relationship in different countries. The Doctrine of the Most Significant Relationship is focused on the legal relationship and the local connection. The fixed point of contact no longer play a decisive role, while flexible link concept takes place. The characteristic performance approach is the concrete way of application of the Doctrine of the Most Significant Relationship, its essence is to study the functions of different contracts, especially the social purpose that those contract attempt to achieve, and determine the application of law of those contracts. In this thesis we list the specific provisions of the Doctrine of the Most Significant Relationship in the European Union, the United Kingdom and the United States, which may provide reference and inspiration to us. At the same time we also analyze the usage of the Doctrine of the Most Significant Relationship in cases of marine cargo insurance dispute in Chinese maritime court. Finally, suggestions to the criteria of the determination of the Doctrine of the Most Significant Relationship have been given.In the level of analysis with respect to practice, along with the process of the market reform and the ongoing optimization of industry open structure in marine insurance, especially in the way of constructing an international shipping center in Shanghai, guidance and support of the inflow of various forms of foreign capital into China’s insurance market is also an important part. In the field of maritime cargo insurance, there would be maritime insurance policies issued by multinational insurance company branches. But as an integral department of foreign subsidiaries of the corporation, those company branches do not have an independent legal personality, they are only representative of the total companies engaged in insurance services, so that the policy issuing actions should be identified as actions of the agent corporation. In this case, should the "insured location" point to the location of company branches or the location of controlling corporation? This question often raises dispute in practice.With the vigorous development of the Internet shipping, Internet contracts of marine cargo insurance have appeared. Under the influence of internet, the actual transaction become more virtual. Based on the actual performance of the contract, the e-commerce can be is divided into complete e-commerce contract and incomplete e-commerce contracts. Complete e-commerce is not only made through the network, but also need to deliver a product or provide electronic information services through a network, such as the computer information transactions contract. And specific to the marine cargo insurance contract studied in this thesis, the Internet tends to be a tool to facilitate the parties to conclude an insurance contract: the insured person can effect an insurance, consult, and pay on the Internet insurance platform. And the two sides will reach agreement after the insurance company commit the insurance contract, this makes the transaction more facilitation. Globalization and the virtual nature of the Internet makes trading performance of the contract more difficult to determine, but commitment of the object of insurance is still in the physical space, with a determined location. There is still applicable space and scope for the Doctrine of the Most Significant Relationship and method of characteristic performance, but the determination of the location of the most significant relationship must be based on the location of the parties, the place of performance and the cargo location. To determine these factors in the virtual network space, adjustments or new interpretation are needed for the criteria for the Doctrine of the Most Significant Relationship. To help the construction of Shanghai international shipping center, the author puts forward some opinions and suggestions.
Keywords/Search Tags:Marine Cargo Insurance, Conflict of Laws, The Principle of Autonomy of the Parties, The Doctrine of the Most Significant Relationship
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