On the general average of the pirate ransom properties of

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

I. Introduction

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 ([1950] 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:

(A) to pay the pirates ransom premise is the same voyage by sea cargo suffered a common danger

Constitute a prerequisite for the owner to pay the pirates ransom lies in the same sea voyage in the cargo suffered a 'common danger'. So-called 'common danger' refers to a damage to the party, the whole ship are dangerous 'state, in such a critical state, only in order to make the boat, goods or other property from damage, that is, only for cargo extraordinary sacrifice or expenditure made by special charges in the common interests of both sides can be considered as a general average. And the owner to pay a the pirates ransom, although both these two purposes in exchange for the cargo to be released and to protect the safety of the crew, but the subject is still the comprehensive protection of the ship and cargo that is to protect the common interests of both cargo. Pirate ransom amount is generally based on the total value of the ship and cargo, as a basis for the owner to pay a the pirate ransom consideration but in reality is the common value of the cargo; and if the crew lives in safety hazards, the owner can often be protection and indemnity insurance by the Shipowners Mutual Assurance Association ultimately responsible, and it did not have the crew was hijacked need to pay a huge ransom. Therefore, from the point of view of responsibility, the purpose of the owner to pay the pirates ransom is not entirely its own interests in order to protect the ship and crew, and in order to protect the common interests of both cargo.

Meanwhile, from the above-mentioned MIA 1906 and York - Antwerp Rules 'on the definition of' general average ', constitutes a general average' common danger 'must be real and not speculation, it is inferred from subjective risk can not be regarded as a real danger. In this regard, when the ship hijacked by pirates, ship, cargo, including the lives and safety of the crew, of course, is in real danger, and thus pay the pirates ransom premise of course cargo facing real danger.

(B) the owner to pay the pirates ransom behavior is intentionally and reasonably

General theoretical, the right to make that decision of the general average shall be the master of the ship; However, in the special circumstances of the pirates hijacked the ship, the captain and other crew members, together with the ship and cargo hijacked by the pirates, so it can not be based on its judgment to make the decision whether to pay the pirates ransom. In practice, the pirates often through the intermediary or media directly to the owner of the ship was hijacked for ransom. Therefore, in the special circumstances of the ship encounters pirates hijacked, the owner as the owner of the ship owner and master, should be treated as making a payment the pirate ransom decision to main, this should not affect the pirate ransom as jointly general average assessed established.

As for the pay pirates ransom is intentional understanding, some scholars believe that the so-called 'intentional' refers to the ship knowing that the measures taken will have some consequences, but had to take in order to avoid common hazards of the cargo the behavior; Some scholars believe that 'intend,' should be artificial, voluntary and intended to cause some consequences of a positive as, and 'voluntary' should be the proper meaning of 'intention' and therefore constitute general average measures taken by the ship must be voluntary. In this regard, I believe that the pay pirates ransom is 'intentional' be understood in the adoption of the first view, that is not to make a decision of general average 'voluntary' as a general average of the constituent elements. This is because, the ship made the decisions are always based on the general average faced a real risk of the premise, the real danger is not the ship voluntarily encountered. Therefore, in critical state, no matter what measures of general average, the ship had no choice because of external pressure or coercion and the decisions made, so there is no so-called ship according to their free will voluntarily make joint general average decision makes sense. Therefore, the 'intentional' is limited to 'voluntarily' as a general average constituent elements no practical significance.

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.

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(c) special damages to the owner of the obligation to pay the pirates ransom

One of the general average of the constituent elements of the sacrifices made and the fees paid to be special. The losses caused by the so-called 'special' which means the non-normal case, the ship to its obligation of taken measures and pay. Therefore, it includes the meaning of the following two aspects: First, at the expense or costs occur outside the normal operations of the ship; Second, at the expense of the fees paid by ship outside the obligation of loss. The ship was hijacked by pirates natural accidents outside the normal operations of the ship, the pirate ransom a special loss occurred outside of the normal operations of the ship that is not self-evident. As for the pirate ransom the same structure as the ship outside the obligation of losses above the manifestations of the behavior and salvage at sea discusses pay pirates ransom is not the same already mentioned, encounter pirates hijacked the ship such extreme cases going beyond the obligations of shipowners should be sufficient attention to the custody of the goods category, while still subject to the constraints of the rights and obligations established by the contract of carriage of goods by sea, but the owner to pay the pirates ransom is no longer entirely tube under the contract goods obligations, but an act done by the obligation implied, made by the owner in the pipe cargo obligations should pay pirates ransom behavior. For this, I believe that there is a need for further analysis.

Tube cargo carrier obligations under which the carrier shall properly and carefully load, move, stowage, transport, storage, care and discharge the cargo. Among them, the 'transport' refers to the obligation of the carrier to the goods from the port of departure to reach their destination safely. General theoretical, tube cargo obligations is considered to be a mandatory obligation of the carrier, the carrier during its obligations shall not relieve the task. However, in my opinion, when to encounter pirates hijacked the ship's extreme case, pay the pirates ransom to ensure the safety of the goods reach their destination should no longer be regarded as the owner or say mandatory obligation of the carrier. The following reasons: First, from the legislative purpose, the maritime transport of goods rules pipe cargo obligations purpose of the establishment of the carrier in the transport of goods under the contract should be to ensure consistent quality of the goods in transit and loading, to ensure that the contract for the sale of goods fulfilled. In this sense, the establishment of the carrier pipe goods when the goods lead to inability to fulfill the contract for the sale of maritime or other reasons deterioration, the general practice by the carrier at an intermediate port goods sold for as much as possible to achieve the residual value of the goods, The purpose of the duty is not to unconditionally guarantee that the goods delivered to the port of destination, but to maximize the preservation of the transaction value of goods. The owner to pay the the pirate ransom for the real purpose to ensure the safety of the goods reach their destination but in reality is not the establishment of the carrier pipe cargo obligations. Second, the The carrier pipe cargo obligation mandatory also is relative, in the case of cargo out of control due to the fault of the non-carrier, the carrier pipe cargo obligations may be suspended; tube cargo obligations at the same time in the carrier period of responsibility is limited. According to the relevant provisions of China Maritime 46 and Article 4 of the Hamburg Rules, the period of responsibility of the carrier requirements under the cargo is in the charge of the carrier, if the carrier fails to direct control of the goods, the carrier pipe goods behavior can not and goods, pipe goods is also not realistic to fulfill obligations objectively. And the special circumstances of the ship, the pirates hijacked the owner lost control of the ship and the cargo ship hijacked the goods is under the charge of the owner, is not the responsibility of the owner during the time; Because the owner is not at fault for pirates hijacked the ship incident occurred, the obligations of the goods in his possession to be aborted.

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.

(D) pay the the pirate ransom of cargo security interests of both sides effect

Government authority relief and other relief means the absence of payment the pirates ransom in exchange for the cargo to be released is the owner compelling self-help behavior, but it is taken for the pirates hijacked the ship behavior the most common but also the most effective remedies. And tend to be lower than the final payment to the owner through negotiations pirate ransom the pirates extortion amount and the value of the cargo itself, pay pirates ransom to a large extent to achieve the effect of protecting the interests of both cargo. In this regard it is, shipwreck paid ransom comply with the measures taken for general average must have the effect of 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.

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