>>>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
 
Jiangsu Overseas Enterprises Group Co., Ltd. v. Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd. (Case of Disputes over Insurance Contract on Carriage of Goods by Sea)
江苏外企公司诉上海丰泰保险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: 04-21-2003
  • Procedural status: Trial at First Instance
  • Source: SPC Gazette,Issue 11,2005

Jiangsu Overseas Enterprises Group Co., Ltd. v. Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd. (Case of Disputes over Insurance Contract on Carriage of Goods by Sea)
(Case of Disputes over Insurance Contract on Carriage of Goods by Sea)
江苏外企公司诉上海丰泰保险公司海上货物运输保险合同纠纷案

Jiangsu Overseas Enterprises Group Co., Ltd. v. Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd.
(Case of Disputes over Insurance Contract on Carriage of Goods by Sea)

 

江苏外企公司诉上海丰泰保险公司海上货物运输保险合同纠纷案

 【裁判摘要】
 被保险人在投保时至保险合同成立前,未向保险人告知其所知或者在通常业务过程中应知的、足以影响保险人作出是否承保以及如何确定保险费决定的一切重要情况,违反了最大诚信原则,保险人可以因此宣告保险合同无效。
BASIC FACTS 
Plaintiff: Jiangsu Overseas Enterprises Group Co., Ltd., domiciled at Beijing East Road, Nanjing, Jiangsu Province 原告:江苏省海外企业集团有限公司,住所地:江苏省南京市北京东路。
Legal representative: Yang Dawei, Chairman of the board of directors 法定代表人:杨大伟,该公司董事长。
Defendant: Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd., domiciled at Lujiazui Road, Shanghai 被告:丰泰保险(亚洲)有限公司上海分公司,住所地:上海市陆家嘴路。
Person-in-charge: Yuan Jiexin, General Manager of this Branch 负责人:袁杰信,该分公司总经理。
Plaintiff Overseas Enterprises Group Co., Ltd. initiated lawsuit against Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd. in Shanghai Maritime Court because of disputes over the carriage of goods by sea. 原告江苏省海外企业集团有限公司(以下简称江苏外企公司)因与被告丰泰保险(亚洲)有限公司上海分公司(以下简称上海丰泰保险公司)发生海上货物运输保险合同纠纷,向上海海事法院提起诉讼。
The plaintiff alleged that it purchased from S company of France 5, 688. 407 cubic meters of timber with a value of US$ 1, 134, 956.63. On September 12, 1999, after the cargos were shipped and departed from abroad, it filled out 3 cargo carriage insurance applications and submitted them to the defendant, the amount to be insured was US$ 1, 248, 452.29. On October 21 of the same year, S company notified it by fax that the ship carrying the insured cargos sunk into the sea in consequence of a storm and the cargos were totally lost. When the plaintiff filed the insurance applications, no one had reported to it about this marine accident, so this marine accident should fall within the scope of insurance liabilities of the defendant. On November 8 of the same year, the plaintiff reported this case to the defendant and requested it to settle the claim, but the defendant refused to pay indemnities to it on the ground that the contract concluded between both parties was invalid because the insurance accident occurred prior to the commencement of its insurance liabilities. The plaintiff pleaded the court to order the defendant to pay the indemnities in the sum of US$ 1, 248, 452.29 and its loss of interest, as well as the litigation costs of this case. 原告诉称:原告向法国S公司购买了价值1 134 956.63美元的5688.407立方米木材。1999年9月12日货物在国外装船启运后,原告填写了3份货物运输投保书向被告投保,保险金额为1 248 452.29美元。同年10月21日,S公司传真通知原告,承运投保货物的船舶因遇风暴沉没,货物全损。原告投保时,没有人向原告报告过此次海损事故,因此此次海损事故属于被告承保的责任范围。同年1 1月8日,原告向被告报案并要求理赔。被告却以保险事故发生时其保险责任尚未开始、双方之间的保险合同无效等为由,拒绝原告的理赔要求。请求判令被告支付保险赔偿金1 248 452.29美元和此款的利息损失,并负担本案诉讼费。
The plaintiff submitted the following proofs: 原告提交以下证据:
1. The purchase contract, invoice, letter of credit, and the original bills of lading, which were used to prove the name, price, carrying ship and date of voyage of the insured subject-matter; 1.货物买卖合同、货物发票、贸易信斥证、正本提单等,用以证明保险标的的名称、数量、价格以及载货船船名、开航日期;
2. The letter of Nanjing Branch of China Merchants Bank to Jiangsu Overseas Enterprises Group Co., Ltd. (hereinafter referred to as the Jiangsu Group), and the bank payment voucher, which were used to evidence that Jiangsu Group had paid the price for the cargos involved in this case; 2.中国招商银行南京分行致江苏外企公司的函、银行付款凭证,用以证明江苏外企公司已经支付了涉案货款;
3. The insurance applications and duplicates of the insurance policies in triplicate issued by Shanghai Branch of Winterthur Insurance (Asia) Co., Ltd (hereinafter referred to as Winterthur Shanghai), which were used to prove that Winterthur Shanghai agreed to take the risk of the cargos involved in this case; 3.投保书和上海丰泰保险公司签发能保险单副本各3份,用以证明上海丰泰保险公司同意为涉案货物承保;
4. The written testimonies of Zhu Hua, employee of Jiangsu Group, which were used to prove that on October 14, 1999, Jiangsu Group received the insurance policies of the cargos involved in this case; 4.江苏外企公司员工朱华的书面证言,用以证明江苏外企公司收到涉案货物保险单的时间是1999年10月14日;
5. One copy of the counterfoil signed by Yu Yongbin, salesperson of Winterthur Shanghai, which was used to prove that on October 18, Winterthur Shanghai received the insurance fee paid by Jiangsu Overseas Enterprises Group Co. and that the insurance contract between both parties was formed; 5.有上海丰泰保险公司业务员余永彬签字的支票存根一份,用以证明上海丰泰保险公司于1999年10月18日前就收到了江苏外企公司支付的保险费,双方的保险合同已成立;
6. A cargo notification fax sent by the overseas seller to Jiangsu Group on October 21, 1999, which proves that the time when Jiangsu Group knew the loss of cargo was later than the time when it bought insurance; 6.国外卖方于1999年10月21日向江苏外企公司发来通知货损的传真件,用以证明江苏外企公司得知货损的时间是在 投保之后;
7. The claim letter which was addressed by Jiangsu Group to Winterthur Shanghai, and 3 claim refusal letters sent by Winterthur Shanghai, which were used to show the negotiations between both parties after the occurrence of the loss of cargos; 7.1999年11月8日江苏外企公司致上海丰泰保险公司的索赔函,以及上海丰泰保险公司的3份拒绝理赔函,用以证明涉案货损发生后双方当事人的交涉过程;
8. The authorization which Winterthur Shanghai entrusted Mclarens International Group to inspect the loss of cargos involved in this case, and a receipt, which were used to prove that Mclarens International Group had already received the insurance policies, bills of lading, invoice and packing list submitted by Jiangsu Group and had inspected the cargos involved in this case. 8.上海丰泰保险公司委托麦理伦国际集团检验涉案货损的委托书、收条等,用以证明麦理伦国际集团已经收到江苏外企公司提交的涉案保险单、提单、发票、装箱单,并已对涉案货物进行了检验。
The defendant argued that on October 14, 1999, the plaintiff filed insurance applications with the defendant, declaring that the to-be-insured cargos were loaded on a ship on September 12 of the same year and requesting to antedate the insurance policies on September 12. The defendant insisted that its request was a common method for facilitating the financial settlement in international trade, it should be allowed, but the plaintiff must warrant that on or prior to October 14, the date on which it applied for buying insurance for its cargos, there was no known or reported loss to the said cargos. On October 20, the defendant delivered to the plaintiff the insurance policies which were antedated to September 12. As a matter of fact, on October 11 the ship carrying the insured cargos was jettisoned by reason of a maritime peril. The relevant French mass media and the website of Lloyd Daily reported the said maritime peril and on October 14 the seller and carrier of cargos informed the plaintiff of the information, so the plaintiff applied for buying the insurance while it already knew the loss of cargos. In addition, it was noted on the original bills of lading submitted by the plaintiff that some of the cargos involved in this case were put on the deck. This was an important fact to decide whether or not the defendant could take the risk of that batch of cargo, but the plaintiff had never informed the defendant of that important fact so that the defendant, as the insurer, was unable to make a correct decision. The defendant should not bear the liability to compensate for the loss already incurred prior to the conclusion of an insurance contract. Because the plaintiff concealed the fact, which was material to the conclusion of the insurance contract, by breaching the principle of utmost good faith, the defendant had the right to avoid the insurance contract, and the pleadings of the plaintiff should be denied. 被告辩称:1999年10月14日,原告向被告投保,声称投保的货物已于当年9月12日装船,要求将保险单上的日期倒签为9月12日。被告认为,原告要求属于国际贸易中便于结算的一种常见作法,应当允许,但原告必须保证在其投保的10月14日当天或之前,投保货物没有已知或被报道的损失。10月20日,被告向原告交付了日期倒签为9月12日的保险单。本案事实是,载运投保货物的船舶早在10月11日就因遭遇海难而弃船,法国有关媒体以及劳埃德日报网站已于10月12日对此次海难进行了报道,货物卖方及船方也于10月14日向原告通报过这一消息,故原告是在已知货物受损的情况下向被告投保。此外,在原告提交的正本提单上,有批注表明涉案部分货物装于甲板,这是决定被告能否承保这批货物的重要事实,而原告从未将这一重要事实向被告告知,从而影响被告作为保险人对能否承保这批货物作出正确决定。对保险合同成立前已发生的损失,被告不应承担赔偿责任。原告违反最大诚信原则,隐瞒影响保险合同成立的重要事实,被告有权宣布保险合同无效。原告的诉讼请求应当驳回。
The Defendant submitted the following proofs: 被告提交以下证据:
1. Faxes of the insurance applications, and the register of the insurance policies issued, which were used to prove that the actual date was October 14, on which Jiangsu Group bought this insurance; 1.投保书传真件、出具保险单的登记表,用以证明江苏外企公司实际投保时间是1999年10月14日;
2. The insurance policies, the internal records of the receipt of insurance policies of Winterthur Shanghai, the receipt of insurance premiums, the bank entry statement, the blank insurance policies, the notification of insurance premium, some formatted insurance policies actually used by Winterthur Shanghai and outsiders of this case during the course of signing the insurance contract, which were used to prove that in the actual business, the printing date of an insurance policies of Winterthur Shanghai should be identical with that of the notification of the insurance premium, and to further prove that the insurance policies involved in this case was issued on October 18, 1999 and Jiangsu Group could not have obtained this insurance policies until thereafter. 2.保险单、上海丰泰保险公司内部的保险单签收记录、保险费收据、银行进账单、空白格式保险单、保险费通知单、上海丰泰保险公司在与案外人签订保险合同过程中实际使用的部分格式保险单等,用以证明在实际业务中,上海丰泰保险公司的保险单打印日期应与保险费通知单打印日期相同,进而证明本案保险单是于1999年10月18日签发,江苏外企公司只能在此日后得到保险单;
3. Written testimonies of Yan Zhen, Ding Jiayu and Ding Yong, employees of Winterthur Shanghai, which were used to prove the whole process of purchasing insurance, as well as to prove that Jiangsu Group refused to issue a written promise that it did not know that any loss had occurred to the insured subject-matter; 3.上海丰泰保险公司员工严臻、丁佳瑜和丁勇的书面证言,用以证明涉案货物的投保过程以及江苏外企公司投保时拒绝作出其不知有关保险标的已发生损失的书面保证;
4. The preliminary report of Mclarens International Group on the inspection of the loss of cargos, as well as the written testimonies of Michaelho Siu Keung, which were used to show inspection on the loss of cargos; 4.麦理伦国际集团对货损检验的初步报告及麦理伦国际集团员工MICHAELHO SIU KEUNG的书面证言,用以证明对货损检验的情况;
5. The announcement (which has been notarized or certified) and its annexes issued by Jean-Louis Archambeau, the insurance appraiser, as well as the ship accident report which was signed by Wu Xiaomei, witness from Hong Kong, and which was downloaded from the website of the publishing house of Lloyd Daily, which were used to prove that on October 14, 1999 Jiangsu Group already knew that the ship carrying the cargos involved in this case was jettisoned by reason of a maritime peril; 5.涉案货物保险鉴定人JEAN-LOUIS ARCHAMBEAU出具的声明(经公证、认证)及其附件,香港证人吴笑梅签字的从劳埃德日报出版社网站下载的涉案船舶事故报告等,用以证明江苏外企公司早在1999年10月14日前就已知涉案载货船舶因遭遇海难而被抛弃;
6. A letter addressed to Winterthur Shanghai by Jiangsu Group, which was used to prove that Jiangsu Group had failed to negotiate the payment for the letter of credit involved in this case by that time and that it had no insurance interest in the cargos involved in this case; and 6.2000年1月27日江苏外企公司致上海丰泰保险公司的函,用以证明江苏外企公司当时尚未对涉案信用证进行议付,对涉案货物无保险利益;
7. An English photocopy and a Chinese translation of the UK Marine Insurance Act 1906, which was used to show the relevant contents of the applicable law in this case. 7.《英国1906年海上保险法》英文复印件及中文译本,用以证明本案应适用的法律有关内容。
The hearing judges presided over the cross-examination of the proofs and determined the proofs submitted by both parties as follows: 法庭主持了质证,并对双方提交的证据作如下认定:
As to the proofs submitted by the plaintiff, proof No. 4 were written testimonies of the plaintiff's own employee, it should not be ascertained because it was not supported by any other proof; the other proofs should be affirmed because the defendant did not raise any objection to either their form or contents. As to the proofs submitted by the defendant, proof No. 1, proof No. 2, declaration of the insurance appraiser in proof No. 5, proof No. 6 and proof No. 7 should be ascertained because the plaintiff raised no objection to their form and contents; proof No. 3 were written testimonies of the defendant's own employees, it was not supported by any other proof, so it should not be ascertained; the validity of proof No. 4 should not be ascertained because the inspection qualification involved in proof No. 4 was not supported by any other proof; the declaration of the insurance appraiser and its annexes, as well as the report downloaded from the website of Lloyd Daily were obtained from abroad without notification or certification, so their validity should not be affirmed. 在原告提交的证据中,证据4是原告内部员工的书面证言,因其内容无其他证据印证,不予确认;除此以外的其他证据,因被告对证据的形式、内容均无异议,故予以确认。在被告提交的证据中,因原告对证据1、证据2、证据5中的保险鉴定人声明、证据6、证据7的形式、内容无异议,故予以确认:证据3是被告内部员工的书面证言,因其内容无其他证据印证。不予确认;证据4涉及到的检验资质问题没有证据证明。故对证据4的效力不予确认:证据5中的保险鉴定人声明之附件、劳埃德日报网站下载的报告等系从境外取得的证据,未经公证、认证,对其效力不予确认。
Upon cross-examination and determination, Shanghai Maritime Court found that: 经质证、认证,上海海事法院查明:
On July 16, 1999 Jiangsu Group, as the buyer, concluded a trade agreement with S company of France on the import of 10, 000 cubic meters, in which it was stipulated that the timber should be loaded on board in Gabon Port of France and should be shipped to Zhangjiagang Port of China. The price was US$ 197 per cubic meter. The payment should be made by an irrevocable letter of credit within 90 days after the issuance of bills of lading. The buyer should be responsible for the marine insurance according to the notification of the seller. On July 23, Nanjing Branch of China Merchants Bank, upon the application of Jiangsu Group, issued an irrevocable letter of credit, of which the beneficiary was S company and the total amount was US $ 1, 97 million. On September 12, Setramar Company of France, the carrier, issued 2 original clean bills of lading for the 5, 688.407 cubic of timber carried by ship “SANAGA”. 1999年7月16日,原告江苏外企公司作为买方,与法国S公司达成进口木材1万立方米的贸易协议,内容为:木材从法国加蓬港装船,运抵中国张家港港;价格为每立方米197美元,提单签发后90天以不可撤销信用证方式付款,由买方根据卖方通知负责海上保险。7月23日,中国招商银行南京分行根据江苏外企公司的申请,开出受益人为S公司、总金额为197万美元的不可撤销信用证。9月12日,承运人法国SETRAMAR公司为“SANAGA”轮承运的5688.407立方米木材签发了2份正本清洁提单。
On October 14, 1999 Jiangsu Group faxed to Winterthur Shanghai 3 insurance applications, requesting Winterthur Shanghai to issue for the aforesaid timber insurance policies, in which it was stipulated that the name of insurant was Jiangsu Group. The insured amounts were US $ 4, 777, US$ 2,828, 833.34 and US$ 1, 214, 841, 87, respectively. The name of the means of transport was “SANAGA”. The date of departure was September 12, 1999. The cargo quantities were 12. 408 cubic meters, 69. 899 cubic meters and 5, 606.10 cubic meters, respectively. The type of insurance was All Risks. The insurance policies were antedated to September 12, 1999. In the afternoon of October 14, Winterthur Shanghai registered the insurance policies to be issued, for which Jiangsu Group applied. The register form recorded the name of the assured, insurance application date and serial number of the insurance policies. On October 18 Winterthur Shanghai made 3 insurance policies which were antedated to September 12. The type of insurance recorded on the insurance policies were the Institute Cargo Clause (C), Jettison and Washing Damage Clause, Institute Classification Clause, Institute Radioactive Pollution Exclusion Clause, ISM Cargo Endorsement Clause, Millennium Bug Clause, as well as a warrant clause, which stated that “WARRANTED THERE IS NO KNOWN/OR REPORTED LOSS BEFORE 14/10/1999”. During the court trial, Winterthur Shanghai revised the insurance conditions at the request of Jiangsu Group, which, however, failed to acknowledge this. On October 18, an employee of Winterthur Shanghai who took charge of this insurance business handled the internal receipt formalities for these 3 insurance policies. 1999年10月14日,原告江苏外企公司以传真方式向被告上海丰泰保险公司发出3份投保书,要求上海丰泰保险公司为上述运输的木材出具如下内容保险单:保户名称为江苏外企公司,保险金额分别为4777.08美元、28 833.34美元及1 214 841.87美元,运输工具名称为“SANAGA”,开航日期为1999年9月12日,货物数量分别为12.408立方米、69.899立方米和5 606.10立方米,保险条件为一切险,保险单签发日期倒签为1999年9月12日。10月14日下午,上海丰泰保险公司就江苏外企公司投保的业务作了内部出单登记,登记表中记录了投保人名称、投保时间、保险单编号等事项。10月18日,上海丰泰保险公司制作出日期倒签为9月12日的3份保险单,保险单上记载的保险条件为伦敦协会货物条款(C)、弃货及浪损条款、伦敦协会船级条款、伦敦协会放射性污染除外责任条款、ISM货物背书条款、千年虫除外责任条款,并载明了“WARRANTED THERE IS NO KNOW/OR REPORTED LOSS BEFORE 14/10/1999”(保证1999年10月14日之前无已知或被报道(报告)的损失)的保证条款。庭审中,上海丰泰保险公司称是应江苏外企公司的要求才修改保险条件,江苏外企公司对此未确认。10月18日。这3份保险单由上海丰泰保险公司经办此项保险业务的职员办理了内部签收手续。
On October 21, 1999, S company of France sent a fax to Jiangsu Group, saying that the freight ship was lost and proposed Jiangsu Overseas Enterprise Group Co. to notify the insurance company of the information. On October 22, S company forwarded to Jiangsu Group the fax of the carrier of the cargos involved in this case, which stated that the cargo carrying ship sunk into the sea somewhere 750 sea miles from Durban Port of South Africa as a result of a strong storm. All the cargos were lost. On November 8, Jiangsu Group reported this case to Winterthur Shanghai and claimed for indemnities. On December 30 of the same year and on February 21 and April 12, 2002, Winterthur Shanghai declared, by sending 3 letters to Jiangsu Group, that it had the right to abolish and terminate the insurance contract on the ground that Jiangsu Group violated the warrant clause as specified in the front page of the insurance policies and failed to disclose the true information according to the principle of utmost good faith. It refused to pay the insurance indemnities to Jiangsu Group. On June 9, 2000, Jean-Louis Archambeau of Mclarens Toplis France S. A. issued a declaration that, as one of the persons-in-charge of the maritime insurance department of this professional insurance appraisal institution, it accepted the entrustment of Winterthur Shanghai and completed the insurance appraisal of cargos involved in this case. According to his knowledge of the facts involved in this case, on September 24, 1999, S company, the consignor, submitted to Jiangsu Group 2 duplicates of the shipping lists of the cargos involved in this case. On October 12 of the same year, S company received a fax from Setramar, the carrier, which stated that it was said that the ship “SANAGA” was jettisoned by the shipmen on October 11 because a lot of water was coming in. At 13: 38 of October 14 French time, S company faxed to Jiangsu Group 2 duplicates of the faxes from the Setramar about the cargo loss. Jiangsu Group acknowledged that it received the fax sent by S company, but it argued that because there was a 7-hour time difference between China and France, so it was at 20: 38 of October 14, 1999 when Jiangsu Group received the said fax. At that time, Jiangsu Group had filed insurance applications with Winterthur Shanghai, which showed that it did not know that the carrying ship suffered a sea disaster when it filed the insurance applications with Winterthur Shanghai. On December 24, 2002 Jiangsu Group paid US $ 1,134, 956. 63 under the Letter of Credit to Nanjing Branch of China Merchants Bank, the issuing bank. 1999年10月21日,法国S公司向原告江苏外企公司发出传真。称载货船受损。建议江苏外企公司通知保险公司:10月22日,S公司向江苏外企公司转发了涉案货物承运人的传真,其中表明载货船已于10月14日在距南非德班港750海里处遇强烈暴风雨沉没。货物全损。11月8日,江苏外企公司向被告上海丰泰保险公司报案并要求理赔。当年12月30日和2000年2月21日、4月12日,上海丰泰保险公司三次致函江苏外企公司,以江苏外企公司违反保险单正面载明的保证条款、未依最大诚信原则披露真实情况为由,宣布自己有权废止和终止保险合同,拒绝向江苏外企公司支付保险赔款。2000年6月9日。法国MCLARENS TOPLIS FRANCE S.A.公司职员JEAN-LOUIS ARCHAMBEAU出具声明称,其作为该保险专业鉴定机构的海上财产保险部负责人之一,接受上海丰泰保险公司的委托,为涉案货物进行了保险鉴定工作。根据其对本案情况的了解。1999年9月24日,发货人S公司将涉案货物的2份装货单副本提交给江苏外企公司;同年10 月12日,S公司收到承运人SETRAMAR的传真,获悉载货船“SANAGA”据说已因大量进水而于10月11日被船员放弃;10月14日法国当地时间13时38分,S公司向江苏外企公司发送了来自承运人SE,TRAMAR的关于货损的2份传真副本。江苏外企公司承认收到了S公司发来的传真,但称由于中国与法国有7个小时的时差,江苏外企公司收到该传真的时间应当是1999年10月14日20点38分,此时江苏外企公司已经向上海丰泰保险公司投过保,说明江苏外企公司在投保时不知道载货船舶发生了海难。2002年12月24日。江苏外企公司向开证行中国招商银行南京分行支付了信用证下的货款1 134 956.63美元。
Moreover, it was found that:Winterthur Shanghai stated in the court trial that the overleaf of the insurance policies involved in this case specified the applicable clauses of law. Though neither of the parties submitted clauses specified in the overleaf of the insurance policies, both parties raised no objection to the application of UK Marine Insurance Act 1906, as stipulated therein, to the settlement of the disputes in this case. 另查明:被告上海丰泰保险公司在庭审中称,涉案保险单背面载有法律适用条款,双方当事人虽然均未向法庭提交保险单背面条款,但对依保险单背面条款的约定适用《英国1906年海上保险法》解决本案纠纷均无异议。
The disputes of both parties to this case focused on (1) how to determine when the insurance contract involved in this case was concluded and when the insurance liabilities commenced, (2) whether or not the marine accident involved in this case falls within the scope as the warrant clause of the insurance contract refers to, and (3) whether or not Winterthur Shanghai could announce the insurance contract null and void. 本案双方当事人的争议焦点是:(1)如何确定涉案保险合同的成立时间和保险责任的开始时间。(2)本案所涉海损事故是否在保险合同保证条款所指范围内。(3)上海丰泰保险公司能否宣布保险合同无效。
JUDGMENT'S REASONING我不休息我还能学 
Shanghai Maritime Court held that: 上海海事法院认为:
There are foreign-related factors in the subject mater and performance of the insurance contract involved in this case, so this case is a case of disputes over foreign-related contract. Article 245 of the Civil Procedural Law of the People's Republic of China provides that “If the defendant in a civil lawsuit involving foreign interests raises no objection to the jurisdiction of a people's court, responds to the action and answers the action or presents a defense, he shall be deemed to have admitted that this people's court has jurisdiction over the case.” After Jiangsu Group initiated a lawsuit in Shanghai Maritime Court, Winterthur Shanghai raised no objection to the jurisdiction and responded to the lawsuit by making arguments, it should be deemed to have accepted the jurisdiction of Shanghai Maritime Court, so Shanghai Maritime Court has the power to hear this case in accordance with the law. Paragraph 1 of Article 145 of the General Principles of the Civil Law of the People's Republic of China provides that “The parties to a contract involving foreign interests may choose the applicable law for the settlement of their contractual disputes, except as otherwise stipulated by law.” Both parties to this case consented to the application of UK Marine Insurance Act 1906, as stipulated in the overleaf of the insurance policies, to the settlement of the disputes in this case. This stipulation is an expression of the genuine will of both parties, it is not contrary to the general principle of Chinese law or the public interests and it is permitted by the general rules of conflict in private international law, so it should be ascertained that the UK Marine Act 1906 is the governing law for the settlement of disputes over the insurance contract in this case. Jiangsu Group raised no objection to the photocopy of the UK Marine Act 1906 in English and a Chinese translation submitted by Winterthur Shanghai and upon examination and verification in the court trial, the contents thereof should be ascertained. 本案保险合同标的及合同履行地具有涉外因素,故本案为涉外保险合同纠纷。《中华人民共和国民事诉讼法》第二百四十五条规定:“涉外民事诉讼的被告对人民法院管辖不提出异议,并应诉答辩的,视为承认该人民法院为有管辖权的法院。”原告江苏外企公司向上海海事法院提起诉讼后,被告上海丰泰保险公司不提管辖异议并应诉答辩,应视为接受上海海事法院的管辖,上海海事法院依法有权审理本案。《中华人民共和国民法通则曾经瘦过你也是厉害》第一百四十五条第一款规定:“涉外合同的当事人可以选择处理合同争议所适用的法律,法律另有规定的除外。”本案双方当事人均同意依保险单背面条款的约定,适用《英国1906年海上保险法》解决本案纠纷。此约定是双方当事人的真实意思表示,不违反我国法律的一般原则和社会公共利益,且为国际私法一般冲突规范所允许,故应确认《英国1906年海上保险法》为解决本案保险合同纠纷的准据法。上海丰泰保险公司提交的《英国1906年海上保险法》英文复印件及中文译本,江苏外企公司没有提出异议,且经法庭审查核实。对其内容予以确认。
With regard to when the insurance contract involved in this case was concluded and when insurance liabilities commenced, Article 21 of the UK Marine Insurance Act 1906 provides that “A contract of marine insurance is deemed to be concluded when the proposal of the assured is accepted by the insurer, whether the policy be then issued or not; and, for the purpose of showing when the proposal was accepted, reference may be made to the slip or covering note or other customary memorandum of the contract.” According to the said provisions, an insurer's acceptance of an insurance application was not only regarded as acceptance of offer, but also as a commitment simultaneously. Only if the insurer accepted all the insurance conditions listed in the insurance applications of the insured, disregard whether or not the insurer issued insurance policies at that time, the maritime contract should be deemed to have already been concluded. Paragraph 1 of Article 64 of the Civil Procedural Law of the People's Republic of China provides that “A party shall have the responsibility to provide evidence in support of its own propositions.” Both parties to this case confirmed that on October 14, 1999 Jiangsu Group faxed its insurance applications to Winterthur Shanghai, this was the exact date on which Jiangsu Group made an offer. Winterthur Shanghai submitted the records of receipts of insurance policies to show that October 18, 1999 was the earliest date on which it delivered the insurance polices to Jiangsu Group. By reference to the insurance policies issued by Winterthur Shanghai, it could be seen that there was an additional clause therein and the insurance conditions were changed. The additional clause and the change of the insurance conditions were substantial supplements and modification evidence to the insurance conditions, that is to say, Winterthur Shanghai did not accept the offer of Jiangsu Group entirely, it put forward a new offer in the insurance policies it issued, so the insurance contract was not concluded at that time. After Jiangsu Group accepted the insurance policies of Winterthur Shanghai on October 18, 1999, it could be deemed that its acceptance was a commitment to the conclusion of the insurance contract unless it failed to raise any objection within a reasonable time limit, so October 19, 1999 was the earliest date on which the insurance contract involved in this case was concluded. Jiangsu Group alleged that the insurance contract was concluded on October 14, 1999 because it received the insurance policies on the same day when it filed the insurance applications, but it had no valid proof to support it, so it should not be adopted. 关于本案保险合同的成立时间和保险责任的开始时间。《英国1906年海上保险法》第二十一条土豪我们做朋友好不好规定:“保险人接受被保险人的投保单后,无论当时是否出具保险单,海上保险合同即被认为已经成立;为表明保险人何时接受投保申请,得参考承保条或暂保单或其他签订合同时惯有的备忘录。”根据这一规定,保险人接受投保单的行为,不仅仅被看作是接受要约。同时也被看作是作出承诺。只要保险人全盘接受被保险人在投保单中列出的投保条件。无论保险人当时是否出具保险单,都应认为海上保险合同已经成立。《中华人民共和国民事诉讼法》第六十四条第一款规定:“当事人对自己提出的主张,有责任提供证据。”本案双方当事人一致确认,1999年10月14日,原告江苏外企公司向被告上海丰泰保险公司发出投保书,这是江苏外企公司发出要约的确切时间。上海丰泰保险公司以自己提交的保险单签收记录证明,其向江苏外企公司交付保险单的最早时间,应当是1999年10月18日。参考上海丰泰保险公司签发的保险单,可以看出其中附加了保证条款,并改变了保险条件。这些对投保条件的实质性补充和修改证明,上海丰 泰保险公司并未于1999年10月14日全盘接受江苏外企公司发出的要约,而是在签发的保险单中提出新要约,故此时保险合同没有成立。江苏外企公司于1999年10月18日接受上海丰泰保险公司签发的保险单后,如果在合理时间内不提异议。才可认定其接受行为是对订立保险合同的承诺。故本案保险合同最早的成立时间,应当是1999年10月18日。江苏外企公司当庭述称,其在投保当天就收到了保险单,保险合同应当是1999年10月14日成立,但该公司没有以有效证据证明这一主张,故对这一主张不予采信。
The time of commencement of insurance liabilities is different from the time of conclusion of an insurance contract or the time of issuance of an insurance policy. It is not true that the insurance liabilities commence as soon as an insurance contract is concluded or as soon as an insurance policy is issued. The time of conclusion of an insurance contract depends on when the insurance commitment reaches the offeror. The time of commencement of insurance liabilities depends on the stipulations in the insurance contract, including the stipulations in the insurance policy or special stipulations between the parties concerned. According to what the parties concerned stipulate in an insurance contract, the insurance liabilities may commence earlier than, at the same time of, or later than the conclusion of the insurance contract. The insurance policy only reflects the course of negotiation of the insurance contract, or it is only a tool to carry the concrete contents of the insurance contract concluded upon negotiation, so whether or not it is issued and when it is issued has no direct or inevitable connection with the conclusion of the insurance contract and the commencement of insurance liabilities. The insurance contract involved in this case was concluded on October 18, 1999. Both parties acknowledged that the issuance date on the insurance policies was antedated to September 12, 1999. In the insurance contract, it was not expressly stipulated on whether or not the antedated date could be regarded as the date of commencement of the insurance liabilities, so a judgment must be made on the basis of the concrete analysis of the insurance contract. Jiangsu Group claimed that the antedated date in the insurance policies should be regarded as the time of commencement of insurance liabilities, but it lacked legal basis, it should not be adopted. 保险责任的开始时间,与保险合同的成立时间或者保险单的签发时间是有区别的,并非保险合同一旦成立或者保险单一经签发,保险责任就开始。保险合同的成立时间,取决于保险承诺到达要约人的时间;保险责任的开始时间,取决于当事人在保险合同中的约定,包括在保险单上的约定或者当事人之间的特别约定。依照当事人在保险合同中的约定,保险责任开始时间既可以早于,也可以等于或者晚于保险合同成立时间;而保险单只是反映保险合同磋商过程,或者经磋商成立的保险合同具体内容的一个工具,因此其是否签发以及何时签发,与保险合同的成立以及保险责任的开始没有直接的、必然的联系。本案保险合同成立于1999年10月18日,双方当事人均承认,保险单上的签发日期1999年9月12日是倒签。能否将此倒签日期作为保险责任的开始时间,保险合同中没有明文约定,必须结合对保险合同的具体分析作出判断。江苏外企公司主张将保险单倒签的日期作为保险责任开始时间,该主张缺乏法律依据,不予采信。
With regard to whether or not the marine accident involved in this case falls within the scope as the warrant clause of the insurance contract refers to. There is a warrant clause in the insurance contract involved in this case, which provides that “WARRANTED THERE IS NO KNOWN/OR REPORTED LOSS BEFORE 14/10/1999”. The significance of this clause is that it clarifies that 24 o'clock of October 14, 1999 is the time division for the insurant and insurer to bear the risks. Although the existing proofs cannot prove that Jiangsu Group had already learned of the marine accident of the cargos involved in this case, it is able to prove that this company had learned of it prior to 24 o'clock of October 14, 1999. Moreover, the accident was reported prior to 24 o'clock of October 14, 1999. Only if the warrant clause is effective will the marine accident involved in this case fall within the scope of liabilities of the insurant, so it is groundless for Jiangsu Group to refuse to bear the liabilities for the marine accident in excuse of no knowledge of the marine accident at the time of filing the insurance applications. 关于本案所涉海运事故是否在保险合同保证条款所指范围内。本案保险合同有“保证1999年10月14日之前无已知或被报道(报告)的损失”的保证条款,这一条款的意义在于划定投保人与保险人对风险承担的时间分界线是1999年10月14日24点。尽管现有证据不能证明原告江苏外企公司在投保前知道涉案货物出险,但能够证明该公司在1999年10月14日24点前已经知道涉案货物出险,并且出险情况已于1999年10月14日24点前被报道。因此只要保证条款生效,本案所涉海损事故仍属该条所指由投保人承担的责任范围。江苏外企公司以其投保时不知出险情况为由拒绝承担海损事故责任,理由不能成立。
With regard to whether or not Winterthur Shanghai could announce the insurance contract null and void. Article 17 of the UK Marine Act 1906 provides that “A contract of marine insurance is a contract based upon the utmost good faith, and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party.” Paragraphs 1 and 2 of Article 18 provides that “… the assured must disclose to the insurer, before the contract is concluded, every material circumstance which is known to the assured, and the assured is deemed to know every circumstance which, in the ordinary course of business, ought to be known by him. If the assured fails to make such disclosure, the insurer may avoid the contract. Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk.” Article 20 provides that “… Every material representation made by the assured or his agent to the insurer during the negotiations for the contract, and before the contract is concluded, must be true. If it be untrue the insurer may avoid the contract. A representation is material which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk. A representation may be either a representation as to a matter of fact, or as to a matter of expectation or belief …A representation may be withdrawn or corrected before the contract is concluded…” According to the above-mentioned provisions, the conclusion of an insurance contract should be based upon the utmost good faith. During the whole course of making an offer, accepting a new offer and making a commitment, the assured must, according to the principle of utmost good faith, disclose to the insurer any material circumstance which is known to the assured, and the assured is deemed to know any material circumstance which, in the ordinary course of business, ought to be known by him. The material circumstance herein refers to any circumstance which would influence the judgment of a prudent insurer in determining whether he will take the risk or whether he will increase the premium. The phrase “every material circumstance which is known to the assured” refers to the actual circumstance which is known to the assured. The phrase “every circumstance which he ought to have known in the ordinary course of business” not only includes the information which the assured has known by making inquiries, but also other information which the assured ought to have obtained through consultation. The term “faithful notification” refers to the entire and correct notification. Any failure to notify or a wrong notification of the entire or partial content of any material circumstance constitutes a failure to perform the obligation of faithful notification. The time limit for the assured to perform the obligation of faithful notification should commence at the time when it files an insurance application, continue during the negotiation between both parities and terminate until the insurance contract is concluded. The assured has the obligation to inform the insurer of the material circumstances and the material circumstance changed from any unimportant one, which the assured knows just during the period of negotiation between both parties. The carrying ship involved in this case departed on September 12, 1999. It was said that it was abandoned by the seamen on October 11 of the same year because a lot of water was coming in and it sunk into the sea somewhere 750 sea miles from Durban Port of South Africa because of a strong storm. As the buyer of the cargos, after the lapse of 1 month since the departure of the ship, Jiangsu Group failed to learn about the current status of the cargos even though it made various efforts to this regard so that it purchased insurance for the cargos which were facing maritime perils. It failed to perform the obligation to reasonably and duteously consult the relevant information and the obligation of faithful notification. The existing proofs show that at 20: 38 of October 14, 1999 Jiangsu Group received a cargo loss fax sent by S company. At that time, though Jiangsu Group had filed insurance applications in Winterthur Shanghai, the insurance contract was not concluded yet. As an assured, Jiangsu Group failed to comply with the principle of utmost good faith because it did not inform the insurer of the material circumstance, which it knew before the insurance contract was concluded and which was sufficient to influence the conclusion of the insurance contract. It was groundless for Jiangsu Group to deny that it had the obligation of faithful notification of the said material circumstance in excuse of being without knowledge of the cargo loss. By reference to an English case, if the assured conceals the fact that the ship has been stranded and any leak have already occurred, the insurance contract shall be void. If the assured fails to mention such circumstance on its own initiative, concealing of the substantial problem shall have constituted. The circumstance of this case is quite similar to the aforesaid case. Jiangsu Group violated Article 17 of the UK Marine Insurance Act 1906, Winterthur Shanghai had the right to announce the insurance contract null and void. 关于上海丰泰保险公司能否宣布保险合同无效。《英国1906年海上保险法》第十七条规定:“保险依赖于最大诚信。海上保险合同建立在最大诚信基础之上,如果合同任何一方不遵守最大诚信,另一方即可宣告合同无效。”第十八条第一、二款规定:“……在签订合同前,被保险人必须向保险人告知其所知的一切重要情况。被保险人视为知道在通常业务过程中所应知晓的每一情况。如果被保险人未履行该项告知义务,保险人即可宣布合同无效。影响谨慎的保险人确定保险费或影响其决定是否接受承保的每一情况,被认为是重要情况。”第二十条规定:“……合同磋商期间以及合同签订前,被保险人或其代理人向保险人的每一重要陈述,必须真实。如不真实,保险人即可宣告合同无效。影响谨慎的保险人确定保险费或影响其决定是否接受承保的每一陈述,被认为是重要陈述。陈述可以是事实,也可是一种期望或信念。……陈述在合同签订前可以撤销或更正。……”根据上述规定,保险合同的订立应遵循最大诚信原则。被保险人在发出要约、接受新的要约、作出承诺的整个过程中,都应依据最大诚信原则,向保险人如实告知其知道或者在通常业务中应当知道的、可能影响保险人作出是否承保与是否增加保险费决定的 任何重要情况。“被保险人知道”,是指其实际知情:“被保险人在通常业务中应当知道”,既包括保险人已经询问到的情况,更包括在通常业务中应当由被保险人查询掌握的其他情况。“如实告知”,是指全部告知和正确告知;凡对某一重要情况的全部或部分内容未告知或错误告知,均属未尽到如实告知义务。被保险人履行如实告知义务的期限,应当自提出投保请求时开始,在双方协商过程中持续,直到保险合同成立时为止。在双方协商期间被保险人才了解到的重要情况,以及从不重要变为重要的情况。被保险人都有义务告知保险人。涉案货运船舶于1999年9月12日开航,同年10月11日据说因大量进水而被船员放弃,10月14日在距南非德班港750海里处遇强烈暴风雨沉没。作为货物买方。原告江苏外企公司在船舶开航一个月后,没有通过各种有效途径对货物现状进行必要了解,以至将已面临海损的货物投保,未尽到一个善意被保险人应当承担的恪尽职责合理查询并如实告知的义务。现有证据证明,1999年10月14日20点38分,江苏外企公司收到S公司发来的货损传真。此时,江苏外企公司虽然已向被告上海丰泰保险公司投保,但保险合同尚未成立。作为被保险人,江苏外企公司并未遵守最大诚信原则。在保险合同成立前将自己知道的这一足以影响保险合同成立的重要情况告知保险人。江苏外企公司以其投保时不知道发生货损为由,否认自己有如实告知这一情况的义务,理由不能成立。参照英国判例“如果投保人隐瞒了在订约前其船舶已经搁浅并出现漏缝的事实,所订保险合同无效。被保险人未主动提示此种情况,构成对实质性问题的隐瞒”,本案情况与该判例十分相似。江苏外企公司违反《英国1906年海上保险法》第十七条规定,上海丰泰保险公司有权宣布保险合同无效。
Moreover, the risk of the cargos loaded on the deck is obviously greater than those loaded within the cabin, it would directly influence the judgment of an insurer in determining whether he will take the risk, or fixing the premium. On September 24, 1999, Jiangsu Group received a duplicate of the packing list, which means that it already knew that partial cargos were loaded on the deck of the ship. As the assured, Jiangsu Group failed, at the time of and after the filing of insurance applications, to inform the insurer of this important fact which may influence the conclusion of the insurance contract as well as the change of rights and obligations of both parties, it is obvious that Jiangsu Group failed to perform the obligation of faithful notification. It was groundless for Jiangsu Group to deny such a notification obligation by making an argument that loading timber on the deck was a customary practice and that the insurer ought to know. 此外,舱面载货的风险明显大于舱内,它直接影响保险人作出承保和确定保险费率的决定。原告江苏外企公司早在1999年9月24日就收到了装货单副本,已知部分货物装载于船舶舱面。作为被保险人,江苏外企公司在投保当时及之后,未将这一足以影响保险合同成立及双方权利义务变化的重要事实告知保险人,显然也未尽到如实告知义务。江苏外企公司以木材在舱面装载是航运惯例、保险人应当知道为由,辩称自己没有此项告知义务,理由不能成立。
JUDGMENT法小宝 
To sum up, Jiangsu Group failed to observe the principle of utmost good faith in concluding the insurance contract, Winterthur Shanghai had the right to announce the insurance contract void and should not bear the insurance indemnities. For this reason, Shanghai Maritime Court ruled on April 21, 2003: 综上,原告江苏外企公司未能以最大诚信原则订立保险合同,被告上海丰泰保险公司有权宣布保险合同无效,且不承担保险赔偿责任。据此,上海海事法院于2003年4月21日判决:
The litigation pleadings of Jiangsu Group shall not be supported. 对原告江苏省海外企业集团有限公司的诉讼请求不予支持。
After the judgment, neither party appealed, the judgment of first instance has already taken legal force.

 判决后,双方当事人均未上诉,一审判决已发生法律效力。
 

     
     
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