Study On The Principle Of Proximate Cause In Marine Insurance Law

The principle of proximate cause is one of basic principle in the marine insurance law. It is used to determine whether the underwriter shall make compensation to the insured when an accident occurred. If the accident is proximately caused by the risk covered in the policy, the underwriter shall undertake liability according the the insurance contract. Otherwise, the underwriter does not need to take any liability for the insured loss. So the principle of proximate cause is a modem to ease the conflict between the insurer and the insured. In fact, the principle of proximate together with the utmost good faith, the insurance interest and principle of indemnity constitutes the legal framework of marine insurance.Thus, a compensative and profound study on the principle of proximate cause is necessary to conduct judicial practice.This dissertation introduces the back ground of principle of proximate cause, explained the concept and connotaiton of the principle of proxiamate cause basis on the legel theory. It also point out the difference of proxiamte cause between the common law and civil law. Although the principle of proxiamte cause is not stipulte in Chinese Insurance Law and Maritime Code, but it contains implied theory of proxiamte cause. However, the legal princile shall be applied even without stipulated rules, and legal doctrine only be treated as a reference. So the principle of proxiamte cause should be legislated in the insurance law.The concept of proxiamte cause and relevant concept were interpreated through philosophy of law and economics ananlysis of the law. Meanwhile, it compared the difference of proximate cause theory between the common law and civil law. it also analysis the difference of proximate cause theory and casual relation principle, the similarities and differences between the principle of proximate cause in the insurance law and casual relation principle in the tort law field, the similarities and differences between the principle of proximate cause in the insurance law and casual relation principle in the contract law field, in order to clarify the connotaiton of the principle of proximate cause. In addition, it could prove that the existence of the principle of proximate cause is reasonable according the Coase theorem theory, the Hicks Kaldor efficiency theory and Hande Formula. so the principle of proximate shall be legislated.The theory in the insurance shall be comprehensive refered with each other. The traditional proxiamte casue doctrine of the time-space standard, the effectiveness standard and common sense standard was evoluated one by one, but not completely repalced each other. So the three doctrines shall be integrated to use in legal practice. However, there is only two results, yes or no when the above doctrines was applied to determine the proxiamte cause, it is not beneficial to the insured when the accident was casued by mutual reason though one reason was covered nor proxiamte cause. The new liability allocation, such as causal force theory, proportional cause and effect theory and Norway allocation theory which has a different advantage, could be used as amendment theory of application of principle of the proxiamte cause.A relative completely framework of proxiamte cause determination is established by sorting out the types of proxiamte cause, collecting, analysing and comparing the cases in the result of similar reason. (1) for a single cause of loss, one reason, several independent results or several connection results, focus on the methods of determine of proxiamte cause. (2) for multiple casue of loss circumstance, each effective methods shall be applied to find out proximate cause, such as distingish the "simple causal chains" and "complex chain of causes", and use "net" diagram, "umbrella'" diagram and "fish bone" graph to analysis the proxiamte cause.The reason which caused the object of insurance loss is complicated in practices due to the perils of the sea. So it is necessary to make empirical research on the principle of proxiamte cause under marine insurance through collect and sort out the cases among the ship insurance, cargo insurance and ship operation insurance.As a summary of this article, in the chapter 6, the suggestion to consummate the legislation and improve the justice was raised. It analysis the negative effect of lack of principle of proximate cause, and make a proposal of change the concept into principle within the present legal framework. The principle of proximate shall be clarify in our Insurance Law and and through judicial interpretation, case guidance to unify to the rules of principle of proximate, in order to enhance the operability of legal principles.