Hu Yongqing[ Tribunal Director, the Fourth Civil Court of Higher People’s Court of Shanghai]/Dong Min[ Assistant to Chief Judge, the Fourth Civil Court of Higher People’s Court of Shanghai]

[Keywords]  Marine Insurance Dispute; Marine Shipping Dispute; Subrogation; Interruption of Statute of Limitations

I. Issues concerning the insured’s bringing actions on insurance dispute and shipping dispute simultaneously.

The insured is entitled to two independent petitions to claim for compensation where the loss occurred to the insurance object is caused by the fault or negligence of the carrier. When the insured elects to bring actions on insurance dispute and shipping dispute simultaneously, most of the courts usually give priority in the hearing of the marine insurance case and suspend the hearing of the marine shipping case for later time. The phenomenon owns much to the fact that in a marine insurance dispute the contractual relations are clear and well defined and the trial of such case takes shorter period of time. However, in the trial of a marine insurance dispute, the insurer usually finds it hard to give clear accounts for the actual carriage process, conditions of marine accident, or identification of liabilities, which results in the failure in collection evidence to prove the exemption of liabilities that the insurer may probably enjoy. Usually, it is not until the insurer compensates the insured and recourses to the carrier for recovery of the insurance compensation that the insurer may place itself in a favorable position. That is, it is not until the hearing of the shipping dispute between the insurer and the carrier that the court can identify the cause or the liability of the insured accident differently from that of the same insured accident in an insurance dispute.

We therefore suggest the two kinds of disputes be handled by one congenial court. In the preliminary stage of the trial, the court may give priority to the trial of marine insurance dispute and suspend the marine shipping case in the event that the insurer has satisfactory competence to collect evidence in respects including situations of the insured accident, findings of causes of cargo damage and identification of liabilities. Otherwise, a simultaneous trail is suggested so as to facilitate investigations and deliver more unified outcomes. Of course, when hearing the cases simultaneously, the court may conclude the marine insurance case before moving towards the judgment of marine shipping case since it takes time for the insurer to effect payment according to the judgment on insurance compensation and apply to the court to put itself in the position of the plaintiff in the marine shipping case. In this way, it defuses a latent problem that the insured may get doubled compensations in the condition of a simultaneous trial.

II. Issues on the insurer’s participation in actions between the insured and the carrier.

1．When a full insurance compensation has been made to cover all the losses occurred to the insured, the insurer may apply to take the position of the plaintiff and participate in the marine shipping action between the insured and the carrier. In the event that several co-plaintiffs are co-insured, the insurer may apply to directly replace these co-plaintiffs.

2．When the insurance compensation does not cover all the losses occurred to the insured, the insurer may apply to join the insured as co-plaintiff and claim compensation from the third party, namely, the carrier, within the scope of the insurance compensation it has actually paid.

3．When not all the plaintiffs are co-insured, the insurer may apply to take the place of one or more plaintiffs according to the situations of case.
(1) Where the several plaintiffs, though not the co-insured persons, are joint creditors of the carrier, the insurer may apply to replace the insured and become the plaintiff so as to act as co-plaintiff with other joint creditors.
(2) Where the several plaintiffs are not the co-insured persons or the joint creditors of a third party, the insurer may apply to replace the insured and become the co-plaintiff with other plaintiffs so as to claim compensation from the carrier within the scope of the insurance compensation it has actually paid.

4．In a marine shipping dispute, provided that the plaintiff is not a proper subject to raise claims, the court shall not approve the insurer’s application for replacing the plaintiff all at once, regardless of whether the plaintiff is a proper subject or not. The replacement should be in two steps: the plaintiff who is not a proper subject firstly withdraws the lawsuit; then the insurer joints other plaintiffs who are proper subjects in the proceedings. It can be clearly seen that the insurer’s joining the marine shipping action occurred between the insured and the carrier and the improper plaintiff’s withdrawal from the suit are two different litigation processes. They cannot be streamlined or merged into one. When an insurer applies to the court for replacing the insured and other improper plaintiffs in a marine shipping case, the court shall make explanations to the improper plaintiffs, thereby persuading these plaintiffs to withdraw the lawsuit. If the improper plaintiffs reject to withdraw the lawsuit, the court may render an interim judgment to overrule the claims made by the improper plaintiffs and place the insurer in the position of the plaintiff upon the application of the insurer before heading towards the hearing.

III. Issues concerning the statute of limitations for the insurer’s bringing new action on marine shipping dispute.

(1)Discussions over interruption of statute of limitations when insurer raises new lawsuit against the carrier.

Provided that the insurer refuses to assume the subrogation right by participating in the action on marine shipping dispute arising between the insured and the carrier, but elects to bring a new action against the carrier in the name of its own, the insurer shall enjoy the right to call for interruption of statute of limitations according to Article 15 of the Provisions of the Supreme People's Court on Several Issues about the Trial of Cases Concerning Marine Insurance Disputes. But here comes the problem: when will the statute of limitations be resumed? Since there is no legislations to forbidden the insurer to exercise the subrogation right by raising new lawsuit against the carrier, we consider it reasonable to set the date when the insurer effects insurance payment to the insured as the starting point for resumption of the statute of limitations. This starting point, on one hand, ensure the maximum time for the insurer to exercise the right of subrogation by filing new lawsuit against the carrier, and press the insurer to file action against the carrier in a timely manner after it effects insurance payment on the other hand.

(2) Discussions over whether Article 12 of the Interpretations on Statute of Limitation concerning interruption of statute of limitations is applicable to the lawsuit on indemnity insurer’s subrogation rights.

Article 10 through Article 19 of Interpretations of the Supreme People’s Court on Several Issues concerning the Application of Statute of Limitation during the Trial of Civil Cases (hereinafter “Interpretations on Statute of Limitation”) set detailed provisions concerning the interruption of statute of limitations, expounding the three reasons for interruption of statute of limitations set forth in the General Principles Of the Civil Law Of the People's Republic Of China. Of these provisions, Article 12 provides: “Where a party files a bill of compliant to or orally brings a lawsuit in the people’s court, the interruption of statute of limitations shall start from the date of filing a bill of complaint or orally brings a lawsuit.” But is this provision applicable to a lawsuit concerning the indemnity insurer’s subrogation rights?

We consider that it should be subject to the situations of the case. We must keep alert to a circumstance that the party may, by referring to the said Article 12, submit an ineligible statement of claim to the court and extend the marine statute of limitations in disguise.
 
In some cases, when a party files an action to the court, the court may require the party to supplement the necessary materials missing from the required ones before the party can file a bill of complaints. But it may happen that the statute of limitations has expired before the party manages to supplement the materials and files an action. For this circumstance, we consider that Article 12 of the Interpretations on Statute of Limitations is applicable. This is because the party has always been active to stake out its claims by supplementing the materials required by the court. As long as the case is finally received by the court, the interruption of statute of limitations shall start from the date when the party files the action or orally brings a lawsuit for the first time.