Hunan
Zhonglian International Trade Co., Ltd. v. Shanghai Jiexi International Cargo Transportation Agency Limited
Company for dispute over a contract of carriage of goods by sea
――the
judicial review of typhoon exemption defence
Exemption Act of God/
Shipwreck Predictability Typed Facts
Referee
Points
1.The
exemption defences of “act of God、Shipwreck”
in 《Maritime
Code of the People’s Republic of China》 should not be
equated with the defences of “force majeure”. Concerning
the judicial review of typhoon exemption defence, “predictability”
should not serve as a decisive factor. The emphasis should be on whether the extent
of severity of the sea conditions is a normal maritime risk.Two
important indicators are wind speed and duration as well as wave height and
ship tonnage. In addition, visibility, hell angle and the extent of damages to a
ship and other nearby watercrafts and so on can be used as auxiliary indexes.
2.
The exemption defences of “act of God、Shipwreck”
interweave with the problems that includethe
seaworthiness of a ship、cargo obligation and the fault in the management and
navigation of a ship. Therefore, after determining whether the sea conditions
constitute “act of God、distress at sea” or not, man should further review
the causal relationship, to distinguish the cause of goods damage is “act of
God、Shipwreck”、the carrier’s exempt fault or non-exempt fault. In the case of multiple
causes, man determines the responsibilityon the basis
of the proportion of each cause.