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[Small knowledge of foreign trade] Shipping cargo damage how to settle claims? Common problems in recovery The main disputes involved in the recovery of Marine insurance include whether the right of subrogation is obtained, the period of the carrier's liab
[Small knowledge of foreign trade] Shipping cargo damage how to settle claims?Common problems in recoveryThe main disputes involved in the recovery of Marine insurance include whether the right of subrogation is obtained, the period of the carrier's liability, the cause of the occurrence of cargo damage, the determination of the amount of cargo damage, the determination of the carrier and the actual carrier, etc.However, successful recovery is not easy. Understanding and sorting out the common points of dispute will help to improve the prediction of recovery effect, so as to guide specific claims and recovery arrangements.From whom?According to the cause of the damage, generally divided into two categories: general damage and ship collision caused damage.The general cargo damage can be divided into multimodal transport cargo damage and water transport cargo damage.The object of recovery for general damageA. In case of carriage of goods by water, the carrier or the actual carrier is generally sued. In judgment, if the strength of the carrier is obviously sufficient, the carrier may be sued.If the strength of the carrier is not clear, then at the same time to the actual carrier, in order to increase the probability of the realization of the claim.Try to avoid only the actual carrier, because of this approach, may encounter the dilemma of cause of action, the difficulty of proof.B. Identification of the carrier or actual carrier.First, judge according to the contract, if the content of the contract is not an agent, then the other party of the contract is the carrier;If there is no contract, the carrier shall be determined in the light of the circumstances of the carrying vessel, and if the vessel is on a voyage charter, the charterer shall be the carrier;If there is bareboat charter, the charterer shall be the actual carrier; otherwise, the shipowner shall be the actual carrier;Under the circumstance of affiliating, the person attached and the person attached are generally listed as the defendant.C. In the case of multimodal transport, the carrier of the multimodal transport and the carrier of the segment in which the damage is made clear;If the damaged section is not clear, the multimodal carrier and the carrier of each section shall be informed together, and the same may be applied to the actual carrier for the water section.Who should recover the cargo damage caused by collision of shipsAccording to the Supreme Court on several issues of ship collision dispute cases the provisions of article 6, "the collision of ship fault causes damage to the ship the goods with each other, the holder of the ship the goods to the carrier of the goods the ship lift for damages of breach of contract, or a collision of ship side or both sides by the infringement for damages in the people's court shall accept it according to law";Article 7, "the holder of the ship the goods caused by collision loss of the goods to the carrier the goods of this vessel to a lawsuit, the ship can be in accordance with the provisions of the second paragraph of article one hundred and sixty-nine of the maritime law, claiming the proportion shall bear the liability for compensation according to the degree of negligence", the provisions of this ship collision damage caused by the right holder can be filed a default action, but the vessel can claim responsibility according to the proportion of collision liability.Therefore, different cases should be distinguished and different subjects selected for litigation.A. If the collision is the unilateral liability, if the ship is the responsible party, only the ship shall be sued, either for breach of contract or for infringement;If the other party is responsible, only the other party can be sued, but only according to tort.B. If the collision is the responsibility of both parties or multiple parties, both the ship and the other ship shall be sued, and the compensation liability shall be borne in proportion to the liability, and the infringement shall be sued.You may not be able to get full compensation if you only press this ship.C. It should be noted that in the case of bareboat charter and registration, it is better to inform both the shipowner and the bareboat charterer, especially in the case of no application for ship arrest and in the case of bareboat charterer being an empty single-boat company.Which court to Sue in1, the general situation of damage, according to "maritime litigation special procedure law of the People's Republic of China" in paragraph 2 of article 6 (2) of regulation, due to the maritime transport contract dispute filed lawsuit, except in accordance with the law of the People's Republic of China civil procedure law the provisions of article 28 of the outside, also can be made by the jurisdiction of the maritime court in the locality of transshipment port.That is, the place of origin (port of embarkation), destination (port of destination), transshipment port and the place where the defendant has his domicile have jurisdiction over the contract of carriage of goods by sea.Can be in consideration, near, familiar with, after the circumstance such as judicial civilization degree, choose a lawsuit.2. In the case of collision damage, the jurisdiction court will choose different cases according to the litigation.In accordance with the provisions of item (1), paragraph 2, Article 6 of the Special Maritime Procedure Law of the People's Republic of China, a lawsuit brought on a maritime tort may, in addition to the provisions of Articles 29 to 31 of the Civil Procedure Law of the People's Republic of China, be under the jurisdiction of the maritime court at the place where the vessel's port of registry is located.That is, the maritime court of the place where the collision occurred, the first place of arrival of the ship in collision, the place where the injured ship was detained or the place where the defendant has his domicile or the port of registry has jurisdiction.Therefore, if a tort is brought, the court of action may be chosen from the foregoing options.However, it should be noted that if the ship in collision has established a limitation fund for maritime claims liability, after the establishment of the fund, the litigation can only go to the maritime court where the fund is established.In the case of a collision of maritime sections in the case of multimodal transport resulting in damage to the goods, if contract action is chosen, the circumstances in the competent court shall be the same as those described above.3. In the case of multimodal transport, the choice shall be made by the maritime court of the place where the defendant has his domicile, place of departure, place of transshipment, and place of destination, equally, unless only the carrier of the non-marine section is sued.Substantive issues in recoveryQuestion of value-added taxIn accordance with article 11 of the Detailed Rules for the Implementation of the Interim Regulations of the People's Republic of China on Value-added Tax, the payment for goods returned from sales or given as a discount may be correspondingly deducted from the tax payable.Therefore, if the goods are damaged and the consignee refuses to accept the goods, when the shipper makes a claim for compensation, the carrier often claims that the VAT amount of 17% should be deducted from the compensation for the goods.In the dispute of waterway transport, whether VAT is deducted or not is different.First of all, when the consignee is the subject of claim for compensation, the value added tax has been included in the price paid by the consignee, so there is no question whether the tax should be deducted.Secondly, when the shipper provides the VAT payment invoice, the amount of the carrier's compensation shall be deducted in accordance with the tax amount recorded on the tax invoice. One of the reasons is that the tax can be deducted for the unfinished sales according to the foregoing provisions.Second, in practice, as the seller of the shipper, when the sale of the damaged goods has not been completed, it is often possible to ship the goods separately and apply the VAT invoice of the damaged goods.Or in the future sales, apply the VAT invoice has been issued.Third reason, even if the shipper is not the seller of goods, value added tax problems can also be to adjust the layers of back to the seller, though the dispute, as shippers forwarder in commercial considerations can be deducted or not clear, have to pay the full payment for the goods the seller including VAT, but it can't be the reason has the right to claim against the carrier.Third, the shipper did not provide a VAT invoice, such as business contract has been expressly agreed upon in the sales price is without tax, the carrier shall compensate money, there is no still must deduct VAT payment problem, just need to review the sales price and the tax-inclusive price of similar products on the market is roughly same, in order to avoid the shipper intentionally don't provide the VAT invoice to claim.If the tax-exclusive price claimed by the shipper is basically the same as the market tax-inclusive price, and the shipper fails to provide a reasonable explanation, then the common sense of the trade should also assume that the price is tax-inclusive and the carrier's indemnity shall be tax deductible.According to the principle of who takes the burden of proof, the burden of proof whether the tax - free price proposed by the shipper is the same as that of the market price lies with the carrier. Judgment of the condition of the goods damaged1. Consensus.If there is written confirmation from both parties, the written agreement between both parties shall prevail.2. No consensus.In the absence of a written confirmation from a joint inspection by both parties, the owner of the claim will be required to show evidence of damage to the goods received at the port of destination.If the status of cargo damage is determined with the participation of the corresponding port unloading party, public assessment agency, etc., the status of cargo damage can be determined according to the status of cargo damage participated in by the relevant parties of cargo transportation unless the carrier has evidence to the contrary to refute it.In practice, the carrier often proposes that it has not been given the opportunity to participate in the joint inspection, but this is mostly an excuse. In most cases, the shipper will inform the carrier to send someone to participate, but the carrier is sometimes unwilling to participate or does not want to sign for confirmation after participating.Even if the carrier has not been notified, if the law does not require the carrier to participate, otherwise the damage cannot be confirmed, as long as the circumstances of the damage can be determined on the basis of the evidence, the status of the damage shall be confirmed on the basis of the facts reflected in the evidence.3. Identification situation.In addition, some shippers unilaterally entrust appraisal agencies to appraise the damage of the goods.At this time, the qualification of the appraisal institution, whether the goods being appraised are in dispute, whether the basis of the appraisal conclusion is sufficient and other factors are needed to judge whether the appraisal conclusion can be used as the basis for determining the status of goods damage.If in the course of litigation, one party applies for the appraisal of goods damage, and both parties jointly choose an appraisal institution or the court designates an appraisal institution for the appraisal, the conclusion of the appraisal can generally be used as the basis for determining the status of goods damage unless it is clearly inconsistent with the facts.4. Notes.It is important to note that the condition of the damage is not directly equivalent to the amount of the damage.If part of the goods is damaged, the whole batch of specially customized goods cannot be used and have no market value;Or certain sealed packages of goods whose quality has not changed, but whose market value has been greatly diminished by sea water immersion or other pollution.However, the burden of proof for the 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?Marine insurance is a compulsory type of Marine cargo insurance.The basic risks are general risks and special risks.The general cargo risks are further divided into FREE from Particular Average, With Particular Average and All Risks.Risk of maritime transportThe risks of carriage of goods by sea are divided into maritime risks and external risks.Risks at sea include natural disasters and accidents.Natural disasters refer only to inclement weather, lightning, floods, ice, earthquakes, tsunamis and other force majeure events.Accidents mainly include major accidents with obvious Marine characteristics;External risks refer to all kinds of risks other than maritime risks, which can be divided into general external risks and special external risks. General external risks refer to theft, breakage, leakage, contamination, dampness, heat, odor, rust, hook damage, short quantity, fresh water rain, etc.Special external risk mainly refers to the risk caused by military, political and administrative laws and regulations, thus causing loss of goods.Such as war, strike, delivery, rejection, etc.The insurance against these risks is called Marine insurance.Methods of calculation of Marine insurance premiumsPremium = amount insured * premium rateInsurance amount = CIF price * invoice plus rate (usually 10%)= CIF price *110%1. In the absence of special provisions, it is generally 110% of the CIF price, and special no more than 120%.2. According to international practice, Marine insurance clauses are ICC(A/B/C), which are the Clauses of The British Insurance Institute;Generally, CIC provisions are also applicable to domestic companies, which are provided by China itself.3. The factors of the fixed insurance rate are as follows: type of cargo, voyage, packing, terms used, amount of insurance, policy mode and limit of liability;Each of these will affect the rates.4, the insurance mode is generally divided into three types: single, that is, only for a single shipment of goods;Monthly statement, according to the insurance rate agreed monthly declaration of insurance, no declaration of insurance premium;Annual single, take the year as settlement time, pre-delivery of the estimated premium of 75% or so, more do not refund less compensation.The above three ways, the rate will be reduced in turn. Principles of Marine Insurance claims1. Principles based on the contract of Marine insurance.After the occurrence of a Marine accident, whether it is within the scope of insurance liability, whether it is within the period of insurance, how much is the amount of insurance indemnity, the determination of deductibles, the insured's own liability, etc., are all determined in accordance with the contract of insurance.2. Reasonable principle.In dealing with claims, a Marine insurer should take into account the contract of insurance and pay attention to the principle of reasonableness, as the clauses of a Marine insurance contract cannot cover all the circumstances.3. Timeliness.The main function of Marine insurance is to provide economic compensation.After insurance accident happens, the underwriter should survey quickly, examine, decide loss, send insurance compensation to insurant hand in time.Marine insurance claims related procedures1. Notice of loss.In the event of an insured incident or loss within the scope of insurance liability, the insured shall immediately notify the insurer.Notice of loss is the first procedure of 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 its agent shall, upon receipt of the notice of loss, immediately carry out survey and inspection of the loss of the subject matter insured.There are two main steps:1) Port joint inspection.When the goods are found damaged upon arrival at the port of destination, the consignee shall timely notify the insurance company, apply to the commodity inspection department for joint inspection, jointly find out the cause of the damage, the quantity and extent of the damage, and prepare the port joint inspection report or situation record.2) Remote joint inspection.When the goods are transferred to the inland consignee, no matter whether the goods are found damaged or not when they are discharged at the port, as long as the goods arrive at the destination and there is shortage of damage within the scope of insurance coverage, the consignee may conduct joint inspection through the local insurance company and prepare the joint inspection report.After passing the cargo inspection, the claims personnel shall determine the attribution of the liability for cargo damage.The "original damage" of the goods is the consignor's responsibility, which falls outside the insurance clauses, and the insurer is not liable for compensation.The insurer shall be liable for any loss caused by "ship damage", "work damage" or other external causes occurring during the period of the undertaking.When applying to the insurer or its designated inspection agent, the applicant shall provide the necessary documents to fill in the following: application form, bill of lading, invoice of goods, maritime report, insurance documents, packing list, tally list, weight list of goods, etc.3. Verify the insurance case.4. Analyze the claims and determine the responsibility.The underwriter should judge whether reason belongs to insurance liability, whether happen inside insurance time limit, claimant whether have insurable interest, the relevant document that examines if insurance document, accident inspects a report, insurance accident proof, insurance mark is saved and repair wait for respect document.5. Calculate the amount of indemnity and pay the insurance indemnity.Insurance claims are usually calculated according to the Statement of claim.The calculation of an insurance claim may be made by the insurer itself, by its agent or by an average adjuster.