| With the development of maritime trade of China,there are more and more cases involving salvage at sea due to ships in distress.As a new product of the development of salvage at sea in recent years,employed salvage service has been controversial in the field of legal nature and legal application by academic community all the time because of its character that not been based or established on the principle of “no cure,no pay”.In order to maintain and guarantee the healthy and orderly development of marine economic activities,the two issues above should be discussed from the perspective of encouraging salvage at sea.The “Gabriel” case is a typical case of the dispute over the legal nature and legal application of employed salvage service.After three trials,this case was listed as one of the 21 st batch of guiding cases by the Supreme Court.And it aroused great response in the academic community of maritime law and the judicial community.Although the verdict result of the Supreme Court's retrial is still been controversial in academic community.The segmented approach adopted by the Supreme Court separately discusses the overall legal application of the contract of employed service and the legal application of the amount of the employed reward,which pointed out the direction of defining the employed salvage service and dilemma of application in judicial practice,and also provided ideas for the amendment and improvement of chapter nine of the Maritime Law in the future.Confirmation of the legal nature of employed salvage service is a prerequisite for its correct application of law.Whether a contract of employed salvage service can be belonged to a contract of salvage at sea determines directly whether its application of law should exclude these two laws.Hence,this article intends to take the judgment result of the "Gabriel" case as the perspective.In the absence of any specific provisions on employed salvage service in the International Convention on salvage,1989 and the Maritime Law,this article firstly analyzes and compares the foreign regulations and two domestic theories on the nature of employed salvage.What's more,the author will try to define that the legal nature of employed salvage service belongs to salvage at sea.After that,a conclusion that the contract of employed salvage service shall apply the two laws above as a whole can be obtained.Secondly,since these two laws only stipulated the amount of reward for the contract of salvage at sea based on the principle of “no cure,no pay”,and did not make specific provisions on the determination of the amount of employed reward,this issue shall apply the Contract Law.Finally,it points out the current inadequacy of legislation and justice on employed salvage service in China.In response to these issues,the author proposes some advice on amendments to chapter nine of the Maritime Law and apply International Convention on Salvage,1989 correctly to protect the realization of the legitimate rights and interests of parties to the contract of employed salvage service,and to implement the principle of encouraging salvage,so that to maintain a safe and fair maritime economic order.The first chapter of this article intends to introduce the definition of employed salvage service and the basic facts of the “Gabriel” case.By analyzing the controversial focus of the case,this article illustrates the issues which will be studied in this thesis are legal nature and legal application of employed salvage service.Based on the enumeration of different academic viewpoints,the author will discuss the relationship between the two,clarify the direction of this article,and lay the foundation for the arrangement of subsequent chapters.The second chapter firstly explores the determination of the legal nature of employed salvage by foreign law,and then analyzes the dispute between the two major views of the domestic academic community,namely,whether the principle of “no cure,no pay” is a constituent element of salvage at sea.Because the different determination in the legal nature of employed salvage service is the cause of disputes over the legal application of employed salvage service,this chapter combines “Gabriel” case and provides some legal provisions and theoretical basis to determine that the legal nature of employed salvage service belongs to salvage at sea.What's more,it carries a foreshadowing of exploring the correct legal application on domestic contract of employed salvage and the amount of the employed reward.The third chapter firstly elaborates on the conclusion of the previous chapter that the International Convention on salvage,1989 and Maritime Law apply to the contract of employed salvage service,and demonstrates this through legal basis,discusses the relationship between those two laws.That is,when there is no conflict between those two laws,the former can be directly applied;when the International Convention on salvage,1989 and the Maritime Law conflicts,the former should be applied firstly;If there is no provision can be applied in the International Convention on salvage,1989,the Maritime Law can be applied.Secondly,this chapter makes a distinction between the reward and employed reward.At the same time,it specifically analyzes that the provisions of the Contract Law can be applied in cases when the those two special laws do not have provisions to apply for deciding the amount of the employed reward.Finally,because the Maritime law is applicable for the employed salvage service,the author also discusses the issue of its connection and application with other maritime systems of the Maritime Law briefly.The fourth chapter mainly puts forward some problems in China's judicial practice of employed salvage service by summarizing the above chapters,and puts forward some discussionable suggestions on these issues from the aspects of legislation and justice separately.Specifically,the suggestions are the ones on amending chapter nine of the Maritime Law,and the ones on applying the International Convention on Salvage,1989 correctly on the issues of employed salvage service in China. |
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