Marine cargo insurance from the carrier pipe caused by improper Subrogation Case Analysis

[Abstract] In cargo insurance, when the insured goods, because the insurance carrier's reason for being within the responsibility of loss, the insurer paid the insured person after the right to replace the status of claims to the carrier, namely, subrogation right, however, when the ocean insurance carrier "pipe cargo improper" responsibility blurred, it can not determine whether the insurance is the subject matter of the loss caused by the fault of the carrier's liability to the insured and the carrier's subrogation arises between claims disputes. Based on the characteristics of insurance subrogation, combined with the relevant typical case, analysis of how to respond when the insured person due to the carrier "improperly managed cargo" liability arising from vague subrogation disputes.

[Keywords] marine insurance, subrogation, pipe cargo properly, damage and loss, disputes

1 Case Brief

August 25, 2004, the Japanese company as a buyer and THP Roche Ltd. of Hong Kong as the seller entered into two hot-rolled coil sales contracts, price conditions are cost and freight to a Japanese port. Under the contract for the sale of goods Shanghai belongs to the defendant installed the "Tong Sheng" round, the carrier to the shipper has issued two sets of original clean bill of lading. September 25, 2004 carrying vessel arrived in port in Japan FUNABASHI start unloading, unloading THP company found that under both sets of lading there is a serious deformation of hot-rolled coil, corrosion, scratches and other damage to the phenomenon. Then on October 1, 2004 under the two sets of lading to the carrier of cargo damage claims notification and identification of trust test in the Japanese Maritime Association of the goods of the inspection, inspection report that the coil rupture, compression is due to the voyage of the goods have not been fully banding The stowage and displacement caused by the collapse, but water damage is due to sea voyage never fully closed the hatch into the cargo hold, with the crew's negligence as a result of September 27 caused by rain water into the cargo hold. cargo damage occurred After the plaintiff AIU Insurance Company Japan as the goods of the insured as the insured accepted the company's insurance claims in THP, December 29, 2004 by Sumitomo Mitsui Banking Corporation to the THP paid 113,490,654 yen in compensation, and to obtain the lifting of THP signed responsibilities and rights assignment, according to Roche issued the commercial invoice and policy records, the Japanese port of discharge the goods CIF value of 267,826,471 yen, the goods of the amount of 86,707,125 yen cargo damage . ask the court to order the defendant to compensate the plaintiff's loss of ¥ 86,707,125 and the interest on the goods, cargo damage inspection costs 656,100 yen.

However, the carrier argued that the defendant: the plaintiff failed to adduce evidence to prove the goods are the responsibility of the defendant occurred during deformation, corrosion, scratching the objective facts, but also failed to prove that the deformation, corrosion, scratches cause the purpose and function of the goods changes and lead to devaluation of the voyage packing, lashing by the shipper, voyage on the way the collapse of part of the shipper of goods in the cabin caused by the negligence, the defendant which may not be liable for damages, the consignee of cargo handling in the port of discharge time, did not notify the carrier, consignee cargo handling methods, there are questions about the objectivity of the results.

Liaoning Provincial Higher People's Court held that, although the plaintiff to provide the Japanese Association for Maritime Inspection report to show cause damage to the goods and the actual loss, but it was only the cause of cargo damage is to test, but the extent of damaged goods, timely identification, The inspection of the damaged goods unloaded in the month after leaving the ship, so the test report the test of time beyond the period of the carrier's liability, it does not reflect the actual responsibility of the carrier status of the goods during the addition, most of the goods begins with tests were non-tested people but by testing the applicant's own conduct, and the test coil begins with people of all inspection reports were not corroded area of ​​goods, the extent of corrosion, steel material thickness changes and changes in mechanical properties of any description, but only based on the applicant proceeds of the sale of goods as goods to calculate the residual value of goods damaged, neither consider the market factors affecting the price of goods sold, nor to consider cutting costs, handling fees and contact with the cargo damage , so the report defective goods are neither factual nor conclusions of the legal basis, therefore, the court shall not be found.


Case Study 2

This case is a typical carrier pipe as a result of improper cargo subrogation claim disputes in this case, the carrier accepted the goods at the port of shipment and issue a clean bill of lading, the obligation to properly and carefully load, move, stowage, carriage, custody, care and discharge the goods, delivered to the consignee at the port in line with the well-documented bill of lading the goods, and in its statutory duty exemptions occurred during the severe deformation of the goods, rust, scratch rub, etc. should be liable for damages, while the plaintiff based contract claim of the insured and the insured to obtain release issued by the transfer of responsibilities and rights of the book that made a right of subrogation, the plaintiff was entitled to the carrier because of its tube Cargo for cargo damage caused by improper claims.

However, far away from sea transport, long time, goods, property restrictions uncertainties exist, and it often is difficult to discern whether damage was due to improper cargo carrier tube produced, and therefore result in the case of subrogation disputes generation, while the focus of the dispute is mainly reflected in the following areas:
First, verify the validity of identification in this case, although in unloaded THP found serious deformation of hot-rolled coil, corrosion, scratches and other damage to the phenomenon, carried out an inspection must be identified, but the Japanese Association for Maritime Inspection reports issued just a survey inspection reports, without the loss of cargo damage assessment, will be damaged. the correct approach should be based on open-book case to determine how much area of ​​the plate as the original purpose, not as much need for the original purpose processed, or changed into other uses and the corresponding depreciation rate, but were not mentioned in the report, but only according to the applicant to provide the sales price to determine the residual value of goods and calculation of impairment rate, and that the price is fair and reasonable, which is contrary to common sense appraisal import and export commodities.

Second, identify the impact on the nature of the goods as raw materials, products, hot rolled coil generally do not need just a simple packaging and packing, is usually exposed to the air, and corrosion caused by rain water have little impact on the product itself, only the long time effect caused by the corrosion of sea water will cause the volume of steel pickling, the number of material thinning and other losses, the Japanese Maritime Association's report did not test for corrosion of the steel plate thickness as a description of impact, and the prevailing domestic and Japanese steel market data analysis, the Japanese steel market environment has been in short supply, this case caused by moisture loss rate has been rising steel market factors offset, if the Japanese owner to give up the goods, notify the carrier can and even the goods back to China deal with the most reasonable price and way to reduce the losses.

Finally, the validity of testing procedures in the case, the plaintiff's inspection system for defective goods unloaded in the month after leaving the ship, and most goods are non-open-book examination to test people themselves but by the test applicant , so the test report the test of time beyond the period of the carrier's liability, it does not reflect the actual responsibility of the carrier status of the goods during the period.

Accordingly, the court held that the Japan Association of Marine Inspection Report issued by the inspection and appraisal expert conclusion of the defective goods are neither factual nor legal basis, which are not identified, dismissed the plaintiff's claim.

Links to free download http://www.hi138.com 3 case revealed

(1) must consider the nature of the cargo loss and damage and the dialectical relationship between
In this case, since the middle reaches of hot rolled coil is just a product, it can be directly used to produce other products, or further processed by pickling and other downstream products, as raw materials, products, packaging and just generally do not need is a simple binding, usually exposed to air and rain water caused by corrosion of the product itself is not affected, only the effects caused by prolonged exposure to sea water corrosion would have caused the volume of steel pickling, the number of material thinning and other losses, so Even as the responsibility of the carrier generated during the deformation, corrosion, scratches and other damage to the surface of the phenomenon of the goods, but if it did not bring the actual nature of the insured loss, the carrier will no negligence.

(2) we must clarify the relationship between the shipper and the loss of goods
In some under the terms of trade (such as FOB, CIF, etc. under the terms of trade), the shipper is responsible for loading the goods specified on the vessel, then it may be due to various reasons the process of shipping the goods to a certain degree of damage, so in the identification of cargo damage the shipper must clarify whether the loss associated with the goods, so that the claim can proceed smoothly, for example, the defendant was the defense in this case, the voyage packing, lashing by the shipper, voyage on the way collapse in the cabin belonging to the shipper of goods caused by the negligence of the defendant which may not be liable for damages. Now that involve the shipper, then the insurance people, you should first clarify whether the shipper the loss associated with the goods, and then find the relevant parties to each claim, thus minimizing the cost of claims, to protect their own interests.

(3) identify the period of the carrier's liability cargo damage and cargo damage because of
As the damage was generally first discovered by the insured person claims to the carrier, and the documents are relevant documents in the hands of the insured, therefore, as subrogation of the insurer, the insured person receiving the notice of cargo damage, should arrive discharge site inspection, be sure to identify the period of the carrier's liability cargo damage because in the present case, as the insurer of the damaged goods inspection and disembarkation in the unloaded one month later, so the inspection test report time period beyond the carrier's liability, it does not reflect the actual responsibility of the carrier status of the goods during the period, so the actual business operation, the insurer must master the forensic investigation of the time period identified in the carrier's liability cargo damage causes and extent of cargo damage.

(4) a statutory inspection procedures and test item specifications
First, the inspection process to test the people rather than by the applicant to complete the test in this case, it is because most goods are non-open-book examination tests were carried out but by testing the applicant's own conduct, and cause the test to prove no legal effectiveness has not been adopted by the Court. Second, the test project includes not only the identification of the cause of cargo damage, cargo damage level also includes the identification, because the only way to truly prove that the goods are due to damage and loss resulting from improper cargo carrier tube while the case The plaintiff failed to prove precisely the coil deformation, corrosion, scratches, use of goods and brings a change and lead to devaluation, the court found them not. Finally, the consignee in the port of discharge when handling and inspection of goods notify the carrier so the carrier to the consignee cargo handling methods, results of objectivity into question.


4 Conclusion
With the growing diversity of the main competition in the insurance industry, insurers' re-efficiency "concept continued to strengthen, subrogation cases will be greatly increased, so the insurer in the exercise of its subrogation rights, for the occurrence of improper cargo carrier tube loss of goods arising from circumstances to take prompt and effective measures to avoid disputes and reduce unnecessary losses in order to better safeguard their legitimate rights and interests.

References:
[1] Dou Yanle. Marine insurance subrogation [J]. Managers, 2010 (2:194
[2] Ma Jing. Insurance Subrogation Litigation several studies [D]. Southwest University of Political Science, 2010 (3)
[3] Lin Aimin. On marine insurance subrogation to exercise a number of legal issues [J]. Group of Economic Research, 2007 (6)

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