《中华人民共和国海商法》下“天灾、海难”免责抗辩在台风案中的适用
发布时间：2018-08-20 13:12
【摘要】：《中华人民共和国海商法》下的"天灾、海难"免责抗辩不应等同于"不可抗力"抗辩。对台风免责抗辩的司法审查,"不可预见性"不应作为决定因素,重点要审查海况的恶劣程度是否属于正常的海上风险。风力及持续时间、浪高及船舶吨位是两组重要的指标,能见度、横摇角度以及本船及附近他船的受损程度等可以作为辅助指标。"天灾、海难"免责抗辩常与船舶适航性、管货义务及管理和驾驶船舶过失等问题交织在一起,在认定海况是否构成"天灾、海难"之后,还要进一步审查因果关系,在多种原因共同作用的情况下,应按照各原因力的比例判定责任承担。
[Abstract]:Under the Maritime Law of the people's Republic of China, the defense of "natural disaster, maritime disaster" should not be equal to "force majeure". "unpredictability" should not be taken as a decisive factor in the judicial review of typhoon immunity defense. The emphasis should be placed on whether the bad degree of sea condition is a normal marine risk. Wind and duration, wave height and ship tonnage are two important indicators. Visibility, roll angle and damage to the ship and other ships nearby can be used as supplementary indicators. " The defense of exemption from natural disasters and shipwrecks is often intertwined with such issues as the seaworthiness of ships, the duty to manage cargo, and the fault of managing and navigating ships. After determining whether sea conditions constitute "natural disasters, shipwrecks," they also need to further examine the causal relationship. In the case of joint action of various causes, the responsibility should be determined according to the proportion of the force of each reason.
【作者单位】： 上海海事法院海商庭;
【分类号】：D922.294
，
本文编号：2193729
[Abstract]:Under the Maritime Law of the people's Republic of China, the defense of "natural disaster, maritime disaster" should not be equal to "force majeure". "unpredictability" should not be taken as a decisive factor in the judicial review of typhoon immunity defense. The emphasis should be placed on whether the bad degree of sea condition is a normal marine risk. Wind and duration, wave height and ship tonnage are two important indicators. Visibility, roll angle and damage to the ship and other ships nearby can be used as supplementary indicators. " The defense of exemption from natural disasters and shipwrecks is often intertwined with such issues as the seaworthiness of ships, the duty to manage cargo, and the fault of managing and navigating ships. After determining whether sea conditions constitute "natural disasters, shipwrecks," they also need to further examine the causal relationship. In the case of joint action of various causes, the responsibility should be determined according to the proportion of the force of each reason.
【作者单位】： 上海海事法院海商庭;
【分类号】：D922.294
，
本文编号：2193729
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