>>>welcome 河南大学, You have logged in.
Logout History Contact us  
Font Size:  A A A Search “Fabao” Window English 中文 = 简体  繁体
  Favorite   DownLoad   Print
 
Guiding Case No. 52:Hainan Fenghai Cereals & Oils Industrial Co., Ltd. v. Hainan Branch of PICC Property & Casualty Co., Ltd. (Dispute over a marine cargo insurance contract)
指导案例52号:海南丰海粮油工业有限公司诉中国人民财产保险股份有限公司海南省分公司海上货物运输保险合同纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Maritime
  • Legal document: Judgment
  • Judgment date: 07-13-2004
  • Procedural status: Retrial

Guiding Case No. 52:Hainan Fenghai Cereals & Oils Industrial Co., Ltd. v. Hainan Branch of PICC Property & Casualty Co., Ltd. (Dispute over a marine cargo insurance contract) 指导案例52号:海南丰海粮油工业有限公司诉中国人民财产保险股份有限公司海南省分公司海上货物运输保险合同纠纷案
 (最高人民法院审判委员会讨论通过 2015年4月15日发布)
Guiding Case No. 52 指导案例52号
Keywords 关键词
Civil; maritime; marine cargo insurance contract; all risks; external causes 民事 海事 海上货物运输保险合同 一切险 外来原因
Key Points of Judgement 裁判要点
In addition to Free from Particular Average (“FPA”) and With Particular Average (“WPA”), “all risks” in a marine cargo insurance contract covers all or partial losses for external causes in transit of the insured cargos. Where, in the absence of intention or negligence on the part of the insured, damage to the insured cargo is caused under circumstances other than those listed in the exclusion clauses of the relevant insurance contract, it may be determined that the insured cargo is damaged for “external causes,” and the insurer should bear all losses for such external causes in transit. 海上货物运输保险合同中的“一切险”,除包括平安险和水渍险的各项责任外,还包括被保险货物在运输途中由于外来原因所致的全部或部分损失。在被保险人不存在故意或者过失的情况下,由于相关保险合同中除外责任条款所列明情形之外的其他原因,造成被保险货物损失的,可以认定属于导致被保险货物损失的“外来原因”,保险人应当承担运输途中由该外来原因所致的一切损失。
Legal Provisions 相关法条
Article 30 of the Insurance Law of the People's Republic of China 中华人民共和国保险法》第三十条
Basic Facts 基本案情
On November 28, 1995, Hainan Fenghai Cereals & Oils Industrial Co., Ltd. (hereinafter referred to as “Fenghai Company”) took out insurance for 4,999.85 tons of palm oil in barrels to be carried from Dumai Port, Indonesia to Yangpu Port, China by “HAGAAG,” an Indonesian vessel, at the Hainan Branch of PICC Property & Casualty Co., Ltd. (hereinafter referred to as “Hainan Branch of PICCP&C”), against all risks, with the freight price of USD 3,574,892.75, insurance amount of USD 3,951,258, and insurance premiums of USD 18,966. After taking out the insurance, Fenghai Company paid Hainan Branch of PICCP&C the insurance premiums as agreed upon, and Hainan Branch of PICCP&C delivered a shipment declaration to Fenghai Company, issued a marine cargo insurance policy, and attached the marine cargo insurance clauses to the insurance policy. In accordance with the insurance clauses, in addition to FPA and WPA, the coverage of insurance against all risks required that Hainan Branch of PICCP&C be “liable for all or partial damage to the insured cargo for external causes in transit.” There were five exclusions prescribed in the insurance clauses. The aforesaid insured cargo was purchased by Fenghai Company from Singapore Wilmar Private Co., Ltd. (hereinafter referred to as “Wilmar Company”) at CNF. According to the sales contract, the consignor, Wilmar Company, and the ship owner's agent Liang International Agency Co., Ltd. (hereinafter referred to as “Liang International”) concluded a lease. Under the lease, “HAGAAG” carried the cargo, 5,000 tons of palm oil, for which Fenghai Company took out insurance, to Yangpu Port, China, and the other 1,000 tons of palm oil to Hong Kong. 1995年11月28日,海南丰海粮油工业有限公司(以下简称丰海公司)在中国人民财产保险股份有限公司海南省分公司(以下简称海南人保)投保了由印度尼西亚籍“哈卡”轮(HAGAAG)所运载的自印度尼西亚杜迈港至中国洋浦港的4999.85吨桶装棕榈油,投保险别为一切险,货价为3574892.75美元,保险金额为3951258美元,保险费为18966美元。投保后,丰海公司依约向海南人保支付了保险费,海南人保向丰海公司发出了起运通知,签发了海洋货物运输保险单,并将海洋货物运输保险条款附于保单之后。根据保险条款规定,一切险的承保范围除包括平安险和水渍险的各项责任外,海南人保还“负责被保险货物在运输途中由于外来原因所致的全部或部分损失”。该条款还规定了5项除外责任。上述投保货物是由丰海公司以CNF价格向新加坡丰益私人有限公司(以下简称丰益公司)购买的。根据买卖合同约定,发货人丰益公司与船东代理梁国际代理有限公司(以下简称梁国际)签订一份租约。该租约约定由“哈卡”轮将丰海公司投保的货物5000吨棕榈油运至中国洋浦港,将另1000吨棕榈油运往香港。
On November 29, 1995, the time charterer of “HAGAAG” and actual carrier of the cargo, PT. SAMUDERA INDRA (Indonesia) (hereinafter referred to as “PSI Company”) issued a Shipped Bill of Lading (No. DM/YPU/1490/95), which indicated that the vessel was “HAGAAG,” the port of loading was Dumai Port, Indonesia, the port of discharge was Yangpu Port, China, the mark of the shipment was BATCH NO.80211/95, the amount of cargo loaded was 4,999.85 tons, and both the cleaning charges and freight charges had been paid. It was discovered upon investigation that the consignor, Wilmar Company, paid the freight charges to Liang International, which then paid such freight charges to PSI Company. On December 14, 1995, Fenghai Company made payment to the opening bank to redeem documents, and obtained the full set of original bills of lading (in triplicate) of the aforesaid insured cargo. From November 23 to 29, 1995, after “HAGAAG” carrying 31,623 barrels of Fourseas palm oil in the net weight of 5,999.82 tons set sail from Dumai Port, its voyage as agreed upon in the bill of lading was suspended and the information on the vessel was blocked to outsiders because there was dispute over charter hire between the ship owner, PT. PERUSAHAAN PELAYARAN BAHTERA BINTANG SELATAN (Indonesia) (hereinafter referred to as “BBS Company”) and the time charterer, PSI Company. 1995年11月29日,“哈卡”轮的期租船人、该批货物的实际承运人印度尼西亚PT. SAMUDERA INDRA公司(以下简称PSI公司)签发了编号为DM/YPU/1490/95的已装船提单。该提单载明船舶为“哈卡”轮,装货港为印度尼西亚杜迈港,卸货港为中国洋浦港,货物唛头为BATCH NO.80211/95,装货数量为4999.85吨,清洁、运费已付。据查,发货人丰益公司将运费支付给梁国际,梁国际已将运费支付给PSI公司。1995年12月14日,丰海公司向其开证银行付款赎单,取得了上述投保货物的全套(3份)正本提单。1995年11月23日至29日,“哈卡”轮在杜迈港装载31623桶、净重5999.82吨四海牌棕榈油启航后,由于“哈卡”轮船东印度尼西亚PT. PERUSAHAAN PELAYARAN BAHTERA BINTANG SELATAN公司(以下简称BBS公司)与该轮的期租船人PSI公司之间因船舶租金发生纠纷,“哈卡”轮中止了提单约定的航程并对外封锁了该轮的动态情况。
In order to avoid losses to the insured cargos, Wilmar Company, Fenghai Company, and Hainan Branch of PICCP&C repeatedly sent representatives to participate in negotiations between the owner and the time charterer of “HAGAAG”; however, such negotiations failed because the owner refused to reveal the whereabouts of “HAGAAG” on the ground that it did not receive the charter hire. Afterwards, Wilmar Company and Fenghai Company negotiated with the owner and searched for the whereabouts of “HAGAAG” through various channels, and Hainan Branch of PICCP&C also sought assistance of its agencies abroad in searching for “HAGAAG.” “HAGAAG” was not found until it was captured for engaging in smuggling in Shanwei, China in April 1996. As determined in the Decision of the People's Procuratorate of Guangzhou City on Exemption from Prosecution (No. 64 [1996], Criminal Division, People's Procuratorate, Guangzhou), from January to March 1996, as directed by BBS Company, Ellis Lunbach, captain of “HAGAAG” commanded crew to reship 11,325 barrels of palm oil with the weight of more than 2,100 tons to “YIWANA” and “SARAHA,” two vessels of BBS Company which carried such palm oil away for sales, and afterwards, instructed crew to alter the vessel name from “HAGAAG” to “ELIZAII.” In April 1996, the freighter whose name was altered to “ELIZAII” smuggled the remaining 20,298 barrels of palm oil to Shanwei, China, and on April 16, 1996, such cargo was seized by the Chinese coast guards. The aforesaid 20,298 barrels of palm oil were confiscated by the prosecutorial authority of Guangdong Province and turned over to the state treasury. Fenghai Company filed a written claim report with Hainan Branch of PICCP&C On June 6, 1996, and filed another written claim application with Hainan Branch of PICCP&C on August 20, 1996, which expressly dismissed the claim. Therefore, Fenghai Company instituted a lawsuit in the Haikou Maritime Court. 为避免投保货物的损失,丰益公司、丰海公司、海南人保多次派代表参加“哈卡”轮船东与期租船人之间的协商,但由于船东以未收到租金为由不肯透露“哈卡”轮行踪,多方会谈未果。此后,丰益公司、丰海公司通过多种渠道交涉并多方查找“哈卡”轮行踪,海南人保亦通过其驻外机构协助查找“哈卡”轮。直至1996年4月,“哈卡”轮走私至中国汕尾被我海警查获。根据广州市人民检察院穗检刑免字(1996)64号《免予起诉决定书》的认定,1996年1月至3月,“哈卡”轮船长埃里斯·伦巴克根据BBS公司指令,指挥船员将其中11325桶、2100多吨棕榈油转载到属同一船公司的“依瓦那”和“萨拉哈”货船上运走销售,又让船员将船名“哈卡”轮涂改为“伊莉莎2”号(ELIZA Ⅱ)。1996年4月,更改为“伊莉莎2”号的货船载剩余货物20298桶棕榈油走私至中国汕尾,4月16日被我海警查获。上述20298桶棕榈油已被广东省检察机关作为走私货物没收上缴国库。1996年6月6日丰海公司向海南人保递交索赔报告书,8月20日丰海公司再次向海南人保提出书面索赔申请,海南人保明确表示拒赔。丰海公司遂诉至海口海事法院。
Fenghai Company was a Chinese-foreign joint venture formed by Hainan Fengyuan Trade Development Co., Ltd. and Singapore Haiyuan International Co., Ltd. on August 14, 1995. After its formation, it established business connection with Hainan Branch of PICCP&C. From October 1 to November 28, 1995 (before the issuance of the insurance policy in this case), there were four insurance transactions regarding import of palm oil, of which three were covered by insurance against all risks and one was covered by “insurance against all risks with additional war-risk insurance.” Claims occurred under all such four insurance policies, including compensation for shortage of or damage to cargo within the coverage of insurance against all risks. 丰海公司是海南丰源贸易发展有限公司和新加坡海源国际有限公司于1995年8月14日开办的中外合资经营企业。该公司成立后,就与海南人保建立了业务关系。1995年10月1日至同年11月28日(本案保险单签发前)就发生了4笔进口棕榈油保险业务,其中3笔投保的险别为一切险,另1笔为“一切险附加战争险”。该4笔保险均发生索赔,其中有因为一切险范围内的货物短少、破漏发生的赔付。
Judgement 裁判结果
On December 25, 1996, the Haikou Maritime Court entered a civil  (No. 096 [1996], First, Maritime Court, Haikou) that (1) Hainan Branch of PICCP&C should compensate Fenghai Company for losses in the amount of USD 3,593,858.75 for the insured value; and (2) other claims of Fenghai Company should be dismissed. After the Judgement was pronounced, Hainan Branch of PICCP&C appealed. On October 27, 1997, the Higher People's Court of Hainan Province entered a civil  (No. 44 [1997], Final, HPC, Hainan) to revoke the  of the court of first instance and dismiss the claims of Fenghai Company. Fenghai Company filed a petition for retrial with the Supreme People's Court. The Supreme People's Court entered a civil ruling (No. 35 [2003], Civil DivisionIV, SPC) on August 11, 2003, deciding to directly review the case, and on July 13, 2004, entered a civil  (No. 5 [2003], Civil DivisionIV, SPC) that (1) the civil  (No. 44 [1997], Final, Hainan HPC) should be revoked; and (2) the civil  (No. 096 [1996], First, Maritime Court, Haikou) should be sustained. 海口海事法院于1996年12月25日作出(1996)海商初字第096号民事判决:一、海南人保应赔偿丰海公司保险价值损失3593858.75美元;二、驳回丰海公司的其他诉讼请求。宣判后,海南人保提出上诉。海南省高级人民法院于1997年10月27日作出(1997)琼经终字第44号民事判决:撤销一审判决,驳回丰海公司的诉讼请求。丰海公司向最高人民法院申请再审。最高人民法院于2003年8月11日以(2003)民四监字第35号民事裁定,决定对本案进行提审,并于2004年7月13日作出(2003)民四提字第5号民事判决:一、撤销海南省高级人民法院(1997)琼经终字第44号民事判决;二、维持海口海事法院(1996)海商初字第096号民事判决。
Judgement's Reasoning 裁判理由
The Supreme People's Court held that: This case involved a dispute over an international marine cargo insurance contract. As both the insured and the destination port of the insured cargo were located within the territory of the People's Republic of China, it was correct for the trial court to apply the law of the People's Republic of China as the governing law for settling the dispute, to which neither party raised any objection. 最高人民法院认为:本案为国际海上货物运输保险合同纠纷,被保险人、保险货物的目的港等均在中华人民共和国境内,原审以中华人民共和国法律作为解决本案纠纷的准据法正确,双方当事人亦无异议。
The insurance contract concluded between Fenghai Company and Hainan Branch of PICCP&C was legal and valid, and the rights and obligations of both parties should be bound by the insurance policy and the insurance clauses attached thereto. The total loss of the subject matter insured in this case had actually occurred, for which the consignor, Wilmar Company, had no fault, nor was there any evidence that the insured, Fenghai Company, had intentionally or negligently caused the loss. The loss of the subject matter insured arose from a dispute over the charter hire between the owner of “HAGAAG,” BBS Company, and the time charterer thereof that led to BBS Company's sale and smuggling of the cargo on board. The focal dispute in this case was how to comprehend the liability scope of insurance against all risks in the insurance clauses involved. 丰海公司与海南人保之间订立的保险合同合法有效,双方的权利义务应受保险单及所附保险条款的约束。本案保险标的已经发生实际全损,对此发货人丰益公司没有过错,亦无证据证明被保险人丰海公司存在故意或过失。保险标的的损失是由于“哈卡”轮船东BBS公司与期租船人之间的租金纠纷,将船载货物运走销售和走私行为造成的。本案争议的焦点在于如何理解涉案保险条款中一切险的责任范围。
In the trial on appeal, the Higher People's Court of Hainan Province held that: In accordance with the insurance clauses attached to the insurance policy and the practice of the insurance industry, the liability scope of insurance against all risks included FPA, WPA, and common insurance against additional risks (theft, pilferage and non-delivery/T.P.D.D, fresh water and/or rain damage, risk of shortage in weight, risk of intermixture and contamination, risk of leakage, risk of clashing and breakage, risk of odor, sweating and heating risk, hook damage risk, breakage of packing risk, and risk of rust). The Reply of the People's Bank of China regarding the Request for Instructions on the Interpretation of the Clauses of “Insurance against All Risks” in the Marine Cargo Insurance Contract also included the same clear provisions. Therefore, Fenghai Company's loss of the insured cargo did not fall within the liability scope of insurance against all risks. In addition, considering that Hainan Branch of PICCP&C and Fenghai Company maintained a long-term insurance business relationship, both parties concluded several insurance contracts before the dispute in question arose, and Hainan Branch of PICCP&C had made indemnity within the liability scope of insurance against all risks, Fenghai Company should clearly know the main content of the insurance contract in this case, the exemption clauses, and the liability scope of insurance against all risks. Therefore, the court determined that the  of the court of first instance was erroneous in the application of law. 二审审理中,海南省高级人民法院认为,根据保险单所附的保险条款和保险行业惯例,一切险的责任范围包括平安险、水渍险和普通附加险(即偷窃提货不着险、淡水雨淋险、短量险、沾污险、渗漏险、碰损破碎险、串味险、受潮受热险、钩损险、包装破损险和锈损险),中国人民银行《关于〈海洋运输货物保险“一切险”条款解释的请示〉的复函》亦作了相同的明确规定。可见,丰海公司投保货物的损失不属于一切险的责任范围。此外,鉴于海南人保与丰海公司有长期的保险业务关系,在本案纠纷发生前,双方曾多次签订保险合同,并且海南人保还作过一切险范围内的赔付,所以丰海公司对本案保险合同的主要内容、免责条款及一切险的责任范围应该是清楚的,故认定一审判决适用法律错误。
In accordance with the provisions of the “marine cargo insurance clauses” involved, insurance against all risks should, in addition to FPA and WPA, cover damage to the insured cargo for external causes in transit. Five exclusions were also specified in the insurance clauses: (1) losses caused by the insured's intentional act or negligence; (2) losses caused by the consignor; (3) losses caused by any existing quality defect or shortage of the insured cargo prior to the commencing of the insurance liabilities; (4) losses caused by natural wastage, essential defect, and features of the insured cargo as well as market price fluctuations and delay in freight; and (5) liability scope and exclusions as prescribed in the Company's clauses of marine cargo war risks and strike risks. It could be seen from the aforesaid insurance clauses that insurance against all risks in the marine cargo insurance clauses had the following features: 根据涉案“海洋运输货物保险条款”的规定,一切险除了包括平安险、水渍险的各项责任外,还负责被保险货物在运输过程中由于各种外来原因所造成的损失。同时保险条款中还明确列明了五种除外责任,即:①被保险人的故意行为或过失所造成的损失;②属于发货人责任所引起的损失;③在保险责任开始前,被保险货物已存在的品质不良或数量短差所造成的损失;④被保险货物的自然损耗、本质缺陷、特性以及市价跌落、运输迟延所引起的损失;⑤本公司海洋运输货物战争险条款和货物运输罢工险条款规定的责任范围和除外责任。从上述保险条款的规定看,海洋运输货物保险条款中的一切险条款具有如下特点:
(1) All risks were not enumerated risks. In the marine cargo insurance clauses, FPA and WPA were enumerated risks, and all risks covered FPA, WPA, and damage to the subject matter insured for external causes in transit that were not enumerated. 1.一切险并非列明风险,而是非列明风险。在海洋运输货物保险条款中,平安险、水渍险为列明的风险,而一切险则为平安险、水渍险再加上未列明的运输途中由于外来原因造成的保险标的的损失。
(2) The damage to the subject matter insured must be for external causes. When the insured claimed insurance compensation from the insurer, it must prove that the damage to the subject matter insured was for external causes in transit. External causes may be natural causes or man-made accidents. Risks covered in insurance against all risks should be uncertain, i.e. they should be risks that were undetermined and unexpected and could not be enumerated. Risks that were expectant, determined, and normal were not within the scope of liabilities arising from external causes. 2.保险标的的损失必须是外来原因造成的。被保险人在向保险人要求保险赔偿时,必须证明保险标的的损失是因为运输途中外来原因引起的。外来原因可以是自然原因,亦可以是人为的意外事故。但是一切险承保的风险具有不确定性,要求是不能确定的、意外的、无法列举的承保风险。对于那些预期的、确定的、正常的危险,则不属于外来原因的责任范围。
(3) External causes should be limited to those occurring in transit, excluding accidents occurring before and after transit. As long as the insured proved that the losses were caused by an accident in transit rather than the insured, the insurer should assume the insurance compensation liability. 。 3.外来原因应当限于运输途中发生的,排除了运输发生以前和运输结束后发生的事故。只要被保险人证明损失并非因其自身原因,而是由于运输途中的意外事故造成的,保险人就应当承担保险赔偿责任。
In accordance with the provisions of the Insurance Law, where there was a clause regarding the insurer's liability exemption in an insurance contract, the insurer should clearly explain the clause to the insurance applicant when concluding the contract; if the insurer failed to explain it, the clause was not binding. The insurer need not compensate under the exclusions specified in the insurance clauses, provided that the insurer had explicitly notified the insured of the exclusions when the insurer and the insured concluded the insurance contract; otherwise the exclusions were not binding on the insured. 根据保险法的规定,保险合同中规定有关于保险人责任免除条款的,保险人在订立合同时应当向投保人明确说明,未明确说明的,该条款仍然不能产生效力。据此,保险条款中列明的除外责任虽然不在保险人赔偿之列,但是应当以签订保险合同时,保险人已将除外责任条款明确告知被保险人为前提。否则,该除外责任条款不能约束被保险人。
As for the aforesaid Reply of the People's Bank of China, before the establishment of the China Insurance Regulatory Commission, the People's Bank of China was the administrative authority for the insurance sector. On May 1, 1997, in the Reply regarding the Request of the People's Insurance Company of China (“PICC”) for Instructions on Interpretation of the Clause of “Insurance against All Risks” in the Marine Cargo Insurance Contract, the People's Bank of China held that the coverage of insurance against all risks included FPA, WPA as well as all or partial losses to the insured cargo for external causes in transit. The People's Bank of China further proposed that external causes only referred to theft, pilferage and non-delivery/T.P.D.D, and fresh water and/or rain damage, among others. On November 27, 1998, in its reply regarding the Interpretation of PICC Property Insurance Co., Ltd. of the Marine Cargo Insurance Clauses, the People's Bank of China once again specified that the liability scope of insurance against all risks included FPA, WPA as well as all or partial losses to the insured cargo for external causes in transit. In particular, all or partial losses for external causes referred to 11 types of general additional risks. The aforesaid replies made by the People's Bank of China were neither laws and regulations nor administrative rules. In accordance with the provisions of the Legislation Law of the People's Republic of China, the ministries and commissions of the State Council, the People's Bank of China, the State Audit Administration, and other divisions with administrative functions directly under the State Council may, in accordance with the laws and the administrative regulations, decisions, and orders of the State Council, develop rules within their respective power; the matters prescribed in departmental rules should be matters regarding the enforcement of laws or the administrative regulations, decisions, and orders of the State Council. Insurance clauses were not within the scope of rules that the government's operating departments had the power to develop. Therefore, the interpretation by the People's Bank of China could not bind the insured. In addition, the replies made by the People's Bank of China on insurance against all risks were interpretation of the insurance contract clauses. For an insurance contract concluded by equal parties, only the people's court or the arbitral institution had the authority to make interpretation binding on the parties according to the law. Therefore, the aforesaid replies were not binding on the insured. To make the interpretation in the replies be a contract clause binding on the insured, such interpretation should be attached to the insurance policy as part of the insurance contract. The fact that PICC filed a request for instructions on the liability scope of insurance against all risks with the competent authority and the competent authority made replies just showed that there was contradictive comprehension of insurance against all risks. In accordance with Article 31 of the Insurance Law, when there was any dispute over the clause of an insurance contract between the insurer and the insurance applicant, the insured, or the beneficiary, the people's court or arbitral institution should make interpretation in favor of the insured and beneficiary. The interpretation in favor of the sector made by the competent authority for the sector could not apply to the parties to contracts which were not in the sector. 关于中国人民银行的复函意见。在保监委成立之前,中国人民银行系保险行业的行政主管机关。1997年5月1日,中国人民银行致中国人民保险公司《关于〈海洋运输货物保险“一切险”条款解释的请示〉的复函》中,认为一切险承保的范围是平安险、水渍险及被保险货物在运输途中由于外来原因所致的全部或部分损失。并且进一步提出:外来原因仅指偷窃、提货不着、淡水雨淋等。1998年11月27日,中国人民银行在对《中保财产保险有限公司关于海洋运输货物保险条款解释》的复函中,再次明确一切险的责任范围包括平安险、水渍险及被保险货物在运输途中由于外来原因所致的全部或部分损失。其中外来原因所致的全部或部分损失是指11种一般附加险。鉴于中国人民银行的上述复函不是法律法规,亦不属于行政规章。根据《中华人民共和国立法法》的规定,国务院各部、委员会、中国人民银行、国家审计署以及具有行政管理职能的直属机构,可以根据法律和国务院的行政法规、决定、命令,在本部门的权限范围内,制定规章;部门规章规定的事项应当属于执行法律或者国务院的行政法规、决定、命令的事项。因此,保险条款亦不在职能部门有权制定的规章范围之内,故中国人民银行对保险条款的解释不能作为约束被保险人的依据。另外,中国人民银行关于一切险的复函属于对保险合同条款的解释。而对于平等主体之间签订的保险合同,依法只有人民法院和仲裁机构才有权作出约束当事人的解释。为此,上述复函不能约束被保险人。要使该复函所做解释成为约束被保险人的合同条款,只能是将其作为保险合同的内容附在保险单中。之所以产生中国人民保险公司向主管机关请示一切险的责任范围,主管机关对此作出答复,恰恰说明对于一切险的理解存在争议。而依据保险法三十一条的规定,对于保险合同的条款,保险人与投保人、被保险人或者受益人有争议时,人民法院或者仲裁机关应当作有利于被保险人和受益人的解释。作为行业主管机关作出对本行业有利的解释,不能适用于非本行业的合同当事人。
In conclusion, it should be determined that the insurance accident in this case was within the liability scope of insurance against all risks. The court of second instance was erroneous in holding that losses to the insured cargo of Fenghai Company were not within the liability scope of insurance against all risks, which should be corrected. The grounds of Fenghai Company for petition for retrial had sufficient basis and should be supported. 综上,应认定本案保险事故属一切险的责任范围。二审法院认为丰海公司投保货物的损失不属一切险的责任范围错误,应予纠正。丰海公司的再审申请理由依据充分,应予支持。
fnl_4438571 
     
     
Scan QR Code and Read on Mobile
【法宝引证码】        北大法宝en.pkulaw.cn
Message: Please kindly comment on the present translation.
 
Confirmation Code:
Click image to reset code
 
  Translations are by lawinfochina.com, and we retain exclusive copyright over content found on our website except for content we publish as authorized by respective copyright owners or content that is publicly available from government sources.

Due to differences in language, legal systems, and culture, English translations of Chinese law are for reference purposes only. Please use the official Chinese-language versions as the final authority. Lawinfochina.com and its staff will not be directly or indirectly liable for use of materials found on this website.

We welcome your comments and suggestions, which assist us in continuing to improve the quality of our materials as we dynamically expand content.
 
Home | About us | Disclaimer | Chinese