Abstract ship phenomenon caused a serious threat to the safety of international shipping against pirates in recent years by the owner to pay the ransom in exchange for the release of cargo become taken in response to piracy, cargo security a last resort, but also the best line effective access measures. Since the loss suffered by the shipowner beyond its legal obligations should pay the ransom, so based on the protection of the interests of shipowners, cargo sharing pirate ransom has become a development trend of shipping practices; cargo-sharing pirates The theoretical basis of the ransom that the legal nature of the pirates ransom should be characterized as general average.
The Paper Keywords pirate ransom legal nature of the contribution in general average
The 21st century, with the deteriorating global economic situation, piracy is rampant. According to the statistics of the International Maritime Organization (IMO), in 1984-1994, the cumulative incidence of piracy in the world looting vessels the total number of cases is not more than 100; involved in piracy cases occur each year since 1996, more than 200, some years even more than 300. 80% of the cases, the pirates hijacked the ship, are to be resolved by payment of a ransom to the pirates, including the October 15, 2008, Somali pirates hijacked the world's second largest oil tanker - Saudi Arabia 'Sirius' wheel and ask for a ransom of $ 25 million; 2008 alone, the total amount of money used to pay the pirates ransom worldwide reached $ 150 million. And governments around the world based on the motives of the fight against piracy, to make it for the purpose of ransom so that they are not easily succeed consideration, often refused to pay the ransom to the pirates, on behalf of the government to pay the ransom, but in reality only in a minority, more case , is still the owner of the ship was hijacked (owner) alone bear a significant loss of pay pirates ransom.
Thus, the pirates hijacked the ship's behavior is not only a serious threat to the safety of international shipping, the the pirate ransom payment resulting share the rights and obligations of the parties to the maritime transport of goods, the balance of interests of both sides of the division of responsibilities and cargo caused a very significant impact. Therefore, it is necessary to define from a legal point of view on the legal nature of the pirate ransom, and on this basis to determine the rights and obligations of both cargo around the pirate ransom payment.
Pirate ransom should be classified as a general average
So far, the case law on the history of pirate ransom as general average precedent need to be traced back to 1590, the Hicksv Palington case ( Moore's (KB) 297). The decision in that case that, in order to protect other interests to avoid losses and deliver the goods to the loss of the pirates is a sacrifice, the sacrifice can be used as general average is sharing. Since then hundreds of years, is no longer relevant case law supports the pirate ransom should be classified as a general average view. As for the legislation of the countries in the world, and only 706 of the German Commercial Code stipulates, in the case of a ship captured by the enemy or pirate any redemption cargo expenses and redemption of hostages expenses can be included in the general average . Therefore, whether the pirate ransom will be characterized as general average, still to be with the general average of the constituent elements of comparative analysis and to confirm its investigation in the specific practice.
On 'general average common' definition, the United Kingdom 1906 'maritime insurance law' (MIA 1906) 66 (2) of the regulations: 'There is a general average ACT the where Any extraordinary sacrifice or expenditure is voluntarily and reasonably made or incurred in time of peril for the purpose of preserving the property imperiled in the common adventure. 'similar to the provisions York - Antwerp Rules' (York-Antwerp Rules) Rule A requirements specification adjustment of general average and assessed under the International Covenant on: 'There is a general average when, and only when, any extraordinary sacrifice or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the PROPERTY involved in a common maritime adventure. 'Accordingly,' general average 'should be is defined as in the same sea voyage, when the ship, cargo and other property suffered common risk for the common safety, intends to take reasonable measures are a direct result of the special sacrifices special charges paid by the benefited party pro rata on the basis of a legal system. Its constituent elements should include: (1) the property in the same sea voyage suffered a common danger; (2) the measures taken must be intentional and reasonable; (3) the sacrifices made and the fees paid to be special; (4 must have the effect of measures taken). And if the shipowner after a ransom was paid to the pirates announced the general average, they paid pirates ransom to the owner of advocates claim, then in accordance with the requirements of the 'York - Antwerp Rules Rule E (1), the owner the burden of proving its claims losses or expenses shall be allowable as general average burden of proof that the owner paid pirates ransom must demonstrate that they meet the general average of the constituent elements. In this regard, the author tries to comparative analysis of the pirate ransom (behavior) pay the pirates ransom and the general average of the constituent elements are as follows:
As mentioned above, when the pirates hijacked the ship incident, the government authority can not get adequate protection and the lack of other effective means of relief, the owner of the ship was hijacked choose to pay the the pirate ransom of a self-help approach reasonable, so pay pirate ransom act itself is reasonable. As for the reasonableness of the amount of the ransom paid by the shipowners to the pirates, the fact that a matter of judgment, subject to appeal by the court or arbitral tribunal shall be made by the ruling. In this, I believe that It should be highlighted that, despite the reasonable requirements of the general average measures the cost of the measures taken and the preservation of cargo value ratio is reasonable, beyond a reasonable limit losses caused can not require beneficiaries to allocate This does not affect the measures taken by the ship, the establishment of the reasonable part of general average contribution in general average does not affect the establishment of the general average. Therefore, it should be the pirate ransom paid according to the value judgments of the hijacked cargo ship in which the environment and reasonable. In practice, the owner to pay the pirates ransom is usually able to minimize the loss of the cargo, the specific amount is much lower than the actual value of the cargo. For example, the owner of the 'Sirius' through negotiations and ultimately paid the ransom of $ 3.0 million, far below the $ 25 million ransom Somali pirates blackmail, and even less than the total value of up to $ 250 million cargo. Thus, in the judgment pirate ransom amount is reasonable, it should be fully integrated with the actual situation of the case to take into consideration, can not be higher than the general cases of kidnapping ransom because the pirates ransom categorically be excluded from the general average; and the specific practice pirate ransom amount is reasonable, it is able to achieve as much as possible to protect the interests of both cargo purposes.Reposted elsewhere in the Research Papers Download http://eng.hi138.com
Due to the shipowner tube cargo obligation itself does not require the goods must be unconditionally delivered to the port of destination, and the special circumstances of the pirates hijacked the ship, the owner of the pipe cargo obligations may be suspended, so the owner to pay the pirates ransom to ensure cargo security reach their destination is not because of the obligations of the tube cargo claims, but outside its due obligations, special damages. In line with the general average of the sacrifices and pay the pirates ransom must be a special constituent elements.
Third, the conclusion
Intensified due to piracy, the legal nature of the pirates ransom has become a hotspot of maritime law scholars in recent years. Although traditional Roman law the pirate ransom characterized as general average, but due to lack of piracy today new features and existing laws on the pirate ransom sharing mechanism specification makes many new problems for the qualitative pirate ransom. In this regard, I believe that the pirate crew hostage ransom cargo value, facing the cargo does not affect the establishment of common risk; and owners to pay the ransom to the pirates in exchange for the cargo to be released had measures taken should be recognized for its extraordinary losses due obligations outside. Therefore, the the pirate ransom paid by the owners is made in order to protect the common interests of both cargo and special self-sacrifice, the pirate ransom in the legal nature remain under the general average, shall be borne by the different benefit-sharing. The same time, the identification of the nature of the general average pirate ransom, you can make up for the shortcomings of the current marine insurance system in the sharing of maritime risk, help to protect the legitimate rights and interests of shipowners and shippers, the healthy development of the international shipping industry also has significance.Reposted elsewhere in the Research Papers Download http://eng.hi138.com