| Maritime towing,as an independent system from the rescue of marine disasters,has not attracted enough attention in the country.The current Maritime Law,as a special law governing maritime tow contracts,is based on the particularity of maritime tow operations in Chapter VII,and provides provisions that are different from those of the general law.The Ten Provisions have made it difficult to meet the needs of judicial practice.The case of the towing infringement dispute between Tianjin Zhonghetaifu Shipping Co.,Ltd.and China Pacific Property Insurance Co.,Ltd.Dongguan Branch reflects the difficulties that need to be resolved in the maritime towing dispute due to the particularity of the case,and is not limited to the analysis in the judgment.The dispute also involves potential legal issues.Therefore,analyzing this case is helpful to solve the theoretical difficulties in the towing contract,enrich the existing theoretical results,and provide some suggestions for judicial practice.The body of this article consists of four parts.The first part summarizes the basic case and related issues raised by the case.The second part studies the first contention regarding the airworthiness and airworthiness obligations of the carrier.This part starts from the theory,discusses the nature and connotation of the airworthiness and airworthiness obligations of the towing party,and the proving power of airworthiness and airworthiness certificates required by China in practice for towage.Finally,it analyzes whether the emergency caused by the case should be emergency The provision of the plan is considered as the content of the airworthiness and airworthiness obligations of the carrier,and its necessity and consequences are examined.The third part studies the second contention point about the scope of the party’s rescue obligation.China’s maritime law has no expression of the obligation to rescue,but there is no doubt that the party in charge has a certain obligation to rescue.When the tow party claims that the other party’s assistance is not in place or is not timely,it often involves what standard the court should use to determine the scope of the rescue obligation.Once this limit is exceeded,the party to be dragged does not need to perform additional assistance.This section starts from the humanitarian obligation to rescue people at sea and the rescue obligation in the field of shipwreck rescue,compares the relevant fields and draws on foreign jurisprudence,and proposes the obligations of the towing party in the towage to save the person and theobligation to rescue the towed object.Different standards.The fourth part studies the third contention,which is about compensation for damage during sea tow.In this case,the parties have agreed on the grounds for exemption.Article 162 should be used as the basis for determining the validity of the exemption of the towing contract as the basis for the special law or should be comprehensively determined in conjunction with other laws.In addition,the case was prosecuted for infringement rather than breach of contract.At this time,whether Article 162 under the chapter of the maritime tow contract under the Maritime Law can be applied to the practice of maritime tow disputes based on infringement has been controversial.The fifth part puts forward corresponding suggestions for the above three issues,including refining the provisions of Article 157 of the Maritime Law on airworthiness and airworthiness obligations,and based on the standard analysis of judging the scope of rescue obligations proposed in the third part.The measurement methods available in practice and what to do when tort liability and breach of contract compete during towing. |
