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How to make claims for shipping damage?

by:VIPUTRANS     2020-03-02
The main controversial issues involved in the recovery of marine insurance are: whether the subrogation right is obtained, the period of the carrier's liability, the cause of the cargo damage, the determination of the amount of the cargo damage, the identification of the carrier and the actual carrier. However, successful recovery is by no means easy. Knowing and sorting out common dispute points will help to improve the effectiveness of recovery judgments in order to guide specific claims and recovery arrangements. From whom? Cargo damage is divided into two categories according to the cause: general cargo damage and cargo damage caused by ship collision. The general cargo damage can be divided into multimodal cargo damage and water transport cargo damage. 01. Object of general cargo damage recovery a. For the carriage of goods by water, the carrier or the actual carrier is generally notified. In judgment, if the strength of the carrier is obviously sufficient, the carrier can be notified. It is not necessary to notify the actual carrier at the same time, so as not to increase the power of defense; such as the carrier If the strength is unclear, the actual carrier will be notified at the same time to increase the probability of debt realization. Try to avoid just complaining to the actual carrier, because this way, you may encounter difficulties in prosecution and difficulty in proof. b. Identification of the carrier or actual carrier. First, make a judgment based on the contract. If the contract content is not an agent, the counterparty to the contract is the carrier; if there is no contract, the carrier is determined according to the condition of the transport vessel. If the vessel has a voyage charter party, the charterer of the voyage charter party is the carrier; If there is bareboat leasing on the ship, the charterer is the actual carrier, otherwise the owner of the ship is the actual carrier; in the case of berthing, the anchoring party and the anchored party are generally listed as the defendant. c. When multimodal transport, if it is clear that the segment is damaged, the carrier of the multimodal transport and the carrier of the damaged segment will be notified; if the damaged segment is unclear, the multimodal transport carrier and each segment will be reported. The carrier will also report to the actual carrier. 02. Who should recover the cargo damage caused by the collision of the ship? According to Article 6 of the Supreme People's Court's Provisions on Several Issues Concerning the Trial of Disputes over Collision of Ships, 'The collision of ships with each other caused the loss of the cargo on board, and the owner of the cargo on board has filed a claim for breach of contract against the ship carrying the cargo. Where one or both of the collision vessels file a claim for infringement compensation, the people's court shall accept it according to law '; Article 7,' If the owner of the goods on board the ship causes a loss of their goods due to the collision of the ship, the carrier may According to Article 169, Paragraph 2 of the Maritime Law, claiming to be liable for damages in proportion to the extent of the fault ”stipulated that, although the owner of the cargo damage caused by the collision can bring a lawsuit for breach of contract against the ship, the ship can claim liability for collision Proportionate responsibility. Therefore, different situations should be distinguished, and different subjects should be selected for litigation. a. When the collision is unilateral responsibility, if the own ship is the responsible party, only the own ship will be sued, and the cause of action is optional for breach of contract or infringement; if the other ship is the responsible party, only the other ship will be sued, but only as a tort. b. When the collision is the responsibility of both parties or multiple parties, both the own ship and the other ship will be sued at the same time. If you only sue the ship, you may not get full compensation. c. Note that in the case of bareboat leasing and registration of the ship of own ship or other ships, it is better to choose to inform the owner and bareboat charterer at the same time, especially in the case of no application for arrest and bareboat charter. When the charterer is a shell single ship company. Which court to sue 1. In the case of general cargo damage, in accordance with the provisions of Article 6, paragraph 2 (b) of the Special Procedures Law of the People's Republic of China on Maritime Proceedings, litigations arising from disputes over maritime transport contracts are subject to the provisions of the Civil Procedure Law of the People's Republic of China. 'In addition to the provisions of Article 28, it may also be under the jurisdiction of the maritime court where the transshipment port is located. That is to say, the maritime court at the place of departure (port of departure), destination (port of destination), transshipment port, and place of residence of the defendant has jurisdiction over the contract of carriage of goods by sea. After considering the circumstances such as proximity, familiarity, and degree of judicial civilization, you can choose a lawsuit. 2. In the case of collision of cargo damage, the competent court chooses differently according to the cause of action. According to Article 6, paragraph 2 (a), of the Special Procedures Law of the People's Republic of China on Maritime Procedures, litigations brought against maritime infringements are subject to Articles 29 to 1 of the Civil Procedure Law of the People's Republic of China In addition to the provisions of Article 31, it may also be under the jurisdiction of the maritime court where the port of registry is located. That is, the maritime court at the place where the collision occurred, the place where the collision ship first arrived, the place where the ship was detained or the defendant's domicile, and the place where the ship's port of registry is located have jurisdiction. Therefore, if you are suing for infringement, you can choose one of the aforementioned options. However, it should be noted that if the collision ship has set up a maritime compensation liability limitation fund, after the establishment of the fund, litigation can only go to the maritime court where the fund is established. In the case of multimodal transport, collisions in the maritime sector cause cargo damage, and if the contractual action is chosen, the situation in the competent court is the same as before. 3. In the case of multimodal transport, the same shall be selected from the defendant's place of residence, the place of departure, the place of transshipment, and the destination maritime court, unless only the carrier of the non-maritime sector is notified. Substantive issues in recovery VAT issues According to Article 11 of the 'Implementation Rules of the Interim Regulations of the People's Republic of China on Value-added Tax', sales refunds or discounts can be deducted from the taxable amount accordingly. Therefore, if the goods are damaged, the consignee refuses to accept the goods, and when the shipper makes a claim, the carrier often uses the foregoing clause as a reason to claim that 17% of the value-added tax should be deducted from the damage compensation. There are various situations in the issue of whether the value-added tax is deducted in the dispute over the cargo damage caused by water transportation. First, when the consignee is the subject of the claim, there is no question of whether the tax should be deducted because the value paid by the consignee includes VAT. Second, when the shipper provides a VAT invoice, the carrier should generally deduct the amount that the carrier should compensate based on the amount of tax recorded on the tax invoice. One of the reasons is that in accordance with the foregoing provisions, uncompleted sales can be deducted according to law. The second reason is that, in practice, the seller who is the shipper, when the damaged goods are not sold, can often be shipped separately and the VAT invoice for the damaged goods is applied; or in the future sales, the already applied VAT invoice issued. The third reason is that even if the shipper is not the seller of the goods, the value-added tax issue can be traced back to the seller for adjustments. Although the freight forwarder as the shipper is under commercial consideration or is not clear and can be deducted in specific disputes, the seller of the goods has been compensated including The full payment, including VAT, shall not be the reason for its right to claim compensation from the carrier. Third, if the shipper does not provide a VAT invoice, if the sales contract has clearly stipulated that the sales price does not include tax, the carrier's compensation should not be deducted, but only subject to review. Whether the sales price is about the same as the tax-included price of similar products on the market to avoid the shipper deliberately not providing a VAT invoice for the claim. If the tax-excluded price claimed by the shipper is basically the same as the market tax-included price, and the shipper cannot provide a reasonable explanation, then from the common sense of trade, the price should also be regarded as a tax-included price, and the carrier's compensation amount should be deducted Taxes. From the principle of who claims to prove, the burden of proof that the shipper's tax-excluded price is the same as the tax-included price lies with the carrier. Judgment of cargo damage status Judgment of cargo damage status 1. Consensus. If there is written confirmation from both parties, the written agreement between the two parties shall prevail. 2. There is no consensus. If there is no written confirmation of joint inspection by both parties, the owner of the claim will need to prove the damage of the goods when they are received at the port of destination. The damage of the goods, if the corresponding port unloader, assessor, etc. participate in the determination, unless the carrier has evidence to the contrary to overturn, the status of the loss can be determined according to the loss of the parties involved in the determination of the damage. situation. In practice, the carrier often proposes that it has not been given the opportunity to participate in the joint inspection, but most of them are an excuse. In most cases, the owner will notify the carrier to send someone to participate, but the carrier is sometimes unwilling to participate or is unwilling to sign for confirmation after participation. . Even if the carrier has not been notified, if the law does not require the carrier to participate, or the damage cannot be confirmed, as long as the damage can be determined based on evidence, the situation of the damage should still be confirmed based on the facts reflected in the evidence. 3. Identification situation. In addition, some consignors unilaterally entrust appraisal agencies to appraise the damage of the goods. At this time, factors such as the qualifications of the appraisal agency, whether the appraised goods are controversial, and whether the basis of the appraisal conclusions are sufficient are needed to determine whether the appraisal conclusions can be used as the basis for determining the status of the cargo damage. If it is in the process of litigation, one party applies for cargo damage assessment, and the two parties jointly choose an appraisal agency or a court-appointed appraisal agency for the appraisal. Unless the conclusion of the appraisal obviously does not conform to the facts, the appraisal conclusion can generally be used as the basis for determining the status of the cargo damage . 4, matters needing attention. It is important to note that the condition of the damage to the goods is not directly equivalent to the amount of the damage. For example, after the goods are partially damaged, the whole batch of specially customized goods cannot be used and have no market value; or some sealed package goods, although the quality has not changed, but because of seawater immersion or other pollution, the market value has been greatly depreciated. Wait. However, the burden of proof of this special depreciation lies with the owner, that is, the owner must submit evidence to prove that the market price of the goods has actually depreciated. How does marine cargo insurance cover claims? Maritime insurance is a mandatory type of insurance for maritime cargo transportation insurance. Basic insurance includes general cargo insurance and special cargo insurance. General cargo insurance is divided into safety insurance, water damage insurance and all risks. Risks by sea The risks of maritime cargo transportation are divided into maritime risks and external risks. Maritime risks include natural disasters and accidents. Natural disasters refer only to severe weather, lightning, floods, drift ice, earthquakes, tsunamis, and other human irresistible disasters. Accidents mainly include major accidents with obvious marine characteristics; external risks refer to various risks other than maritime risks, and are divided into general external risks and special external risks: general external risks refer to theft, fragmentation, leakage, pollution, Moisture and heat, odor, rust, hook damage, short amount, fresh water and rain. Special external risks mainly refer to risks caused by military, political, and administrative decrees, which cause the loss of goods. Such as war, strike, under delivery, refusal, etc. Insurance against these risks is called marine insurance. Calculation of marine insurance premiums Insurance premium = insurance amount * insurance premium rate Insured amount = CIF invoice price (CIF price) * Invoice markup rate (usually 10% markup) = CIF price * 110% 1. In the absence of special regulations, it is generally 110% of the CIF price, and does not exceed 120% of the CIF price. 2. According to international practice, there are three types of maritime insurance clauses: ICC (A / B / C), which are clauses of the British Insurance Association; domestic companies generally also use CIC clauses, which are self-defined clauses in China. 3. The factors of fixed insurance rate are as follows: cargo type, voyage, packaging, terms used, insurance limit, policy model and liability limit; each item will affect the rate. 4. Insurance modes are generally divided into three types: single bills, that is, only one ticket is insured separately; monthly bills, which apply for insurance at the agreed premium rate each month, and do not charge insurance premiums without declarations; At the settlement time, about 75% of the estimated premium is delivered in advance, and more is not refunded. For the above three methods, the rates will be reduced in order. Maritime insurance claims principle 1. The principle based on marine insurance contracts. After a marine accident, whether it is within the scope of insurance liability, whether it is within the insurance period, the amount of insurance compensation, the determination of the deductible, the self-responsibility of the insured, etc. are all based on the liability determined in the insurance contract. 2. The principle of reasonableness. In handling insurance compensation, marine insurers should base their insurance contracts and pay attention to reasonable principles, because the terms of marine insurance contracts cannot summarize all situations. 3. Timeliness. The main function of marine insurance is to provide financial compensation. After an insured accident occurs, the insurer shall promptly investigate, inspect, and determine the damage, and promptly send the insurance compensation to the insured. Maritime insurance claims related processes 1. Notice of loss. When an insured accident or loss within the scope of insurance occurs, the insured shall immediately notify the insurer. Loss notification is the first procedure for insurance claims. In ship insurance, if the accident is abroad, the nearest insurance agent should also be notified. 2. Survey and inspection. The insurer or his agent shall immediately carry out the survey and inspection of the loss of the subject-matter insured upon receiving the notification of the loss. There are two main steps: 1) Joint port inspection. When the goods are found to be damaged after the goods arrive at the port of destination, the consignee should promptly notify the insurance company, apply for joint inspection to the commodity inspection department, jointly find out the cause of the damage, the amount and extent of the damage, and prepare a joint inspection report or record of the situation. 2) Joint inspection at different places. When the freight is transferred to the inland consignee, no matter whether the cargo is found unloaded at the port or not, as long as the goods arrive at the destination and there is a shortage of damage within the scope of insurance liability, the consignee can conduct a joint inspection and preparation by the local insurance company. Joint Inspection Report. After passing the cargo inspection, the claimant shall determine the attribution of cargo damage liability accordingly. The 'original damage' of the goods is the responsibility of the consignor, which is an out-of-risk liability of the insurance clauses. The insurer is not responsible for compensation. Losses caused by “ship disability”, “work disability” or other external causes shall be compensated as long as they occur during the period of coverage. When applying for inspection to the insurer or its designated inspection agent, the inspection applicant shall provide the necessary documents to fill in the following: application inspection form, ocean bill of lading, cargo invoice, maritime report, insurance certificate, packing list, tally, The weight list of the goods. 3. Verify the insurance case. 4. Analyze claims and determine responsibilities. The insurer should determine whether the cause is an insurance liability, whether it occurred within the insurance period, and whether the claimant has an insurable interest. The relevant documents reviewed include insurance documents, accident inspection reports, insurance accident certificates, rescue and repair of the insurance subject, etc. Aspect file. 5. Calculate the amount of compensation and pay insurance compensation. The calculation of insurance compensation is usually based on the Statement of claim. The calculation of insurance compensation may be carried out by the insurer itself, or it may be calculated by its agent or entrusted to the average claim adjuster.
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