[北京理算规则]

 

中国国际贸易促进委员会
共同海损理算暂行规则
(简称北京理算规则
一九七五年一月一日

为了在平等互利的基础上,正确地进行共同海损理算,以增强各国人民的友好关系,促进国际贸易与海洋运输的发展,中国国际贸易促进委员会制定本暂行规则,并设立海损理算处。

第一条 共同海损的范围

在海上运输中,船舶和货物等遭遇自然灾害、意外事故或其他特殊情况,为了解除共同危险,采取合理措施所引起的下列特殊损失和合理的额外费用,属于共同海损:

一、为了抢救船舶和货物等而造成的船、货等合理损失。

二、船舶驶入避难港额外的费用,在避难港额外停留期间的港口费用,以及事后载有原货物驶出的额外费用。

三、船舶由于驶往避难港而延长航程和在避难港额外停留期间支付的船员工资和给养,以及消耗的燃料和物料的费用。

四、救助费用、抢卸和重装货物等的费用以及其他额外费用。

由于本航程中的意外事故,为了安全地完成航程必须修理时,船舶在修理港合理停留期间必须支付的港口费用、船员工资和给养、消耗的燃料和物料费用,以及由于修理而卸载、重装和移动船上货物等所引起的费用和损失,在当前情况下可列入共同海损。

为了节省原应列入共同海损的费用而支付的费用, 可以作为代替费用列入共同海损,这些费用,除经船、货双方同意的以外,不得超过被节省的费用。

除以上三款所列的损失和费用外,其他一切间接损失,包括由于迟延所引起的一切损失和费用,都不属于共同海损。

第二条 共同海损理算的原则

进行共同海损理算的原则是:在调查研究的基础上,明确责任,实事求是、公平合理地处理各项损失和费用的补偿和分摊。

提出共同海损理算要求的一方和其他有关各方,有举证的责任,证明其提出的损失或费用根据本规则的规定可列入共同海损。

对作为共同海损提出理算的案件,如果构成案件的事故确系运输契约一方不能免责的过失所引起, 则不进行共同海损理算,但可根据具体情况,通过协商另作适当处理。

第三条 共同海损损失金额的计算

船舶、货物和运费的共同海损损失金额,按照下列标准计算:

一、船舶的损失金额,按照损失部分实际支付的合理修理费用(包括临时性修理费用、合理扣减后的换新费用)计算。如果船舶损失部分尚未进行修理,则按必要修理的合理估计费用计算。燃料、物料等损失按实际价值计算。

二、货物的损失金额,按照损失部分的到岸价格,减除由于损失无需支付的运费。如果遭受损失的残货已经出售,而受损程度无法确定,则按该货物的到岸价格与出售净得金额之间的差额计算。

三、运费的损失,按照货物遭受损失而引起的运费损失金额,减除由于损失无需支付的营运费用计算。

第四条 共同海损的分摊

共同海损的损失和费用,由各受益方根据各自的分摊价值比例分摊。

分摊价值按照下列标准计算:

一、船舶分摊价值,按照船舶在航程终止时的当地完好价值减除不属于共同海损的损失金额计算;或按照船舶在航程终止时的当地实际价值加上共同海损的损失金额计算。

二、货物分摊价值,按照货物的到岸价格,减除不属于共同海损的损失金额和承运人承担风险的运费计算。

未经申报的货物或谎报的货物,应按实际价值参加分摊;如果这些货物遭受损失,不得列入共同海损。

旅客行李和个人物品,除特殊情况外,不参加共同海损分摊。

三、运费分摊价值,按照承运人承担风险并于事后收得的运费,根据共同海损事故发生时尚未完成的航程,作相应比例的扣减,加上列入共同海损的运费损失金额计算。

第五条 利息和手续费

对共同海损的损失和费用,给予年利百分之七的利息,利息计算至共同海损理算书编就之日为止

对垫付的共同海损费用,除船员工资、给养、燃料、物料外,给予百分之二的手续费。

第六条 共同海损担保

为了保证分摊共同海损,经有关方的要求,各分摊方应提供共同海损担保。共同海损担保,可以提供可靠的担保函,也可以提供担保金。如果提供保证金,除各有关方另有协议者外,应交由理算处以保管人的名义存入银行。保证金的使用,由理算处决定。保证金的提供、使用或退还,不影响各分摊方的最终分摊责任。

第七条 共同海损时限

为了维护各有关方的利益,尽快完成共同海损案件的理算,各有关方在共同海损事故发生后应及时办理必要的事项,并按照下列期限宣布共同海损和向理算处提供有关材料:

一、宣布共同海损:船舶在海上发生事故,不迟于到达第一个港口后的四十八小时;船舶在港内发生事故,不迟于事故发生后的四十八小时。

二、提供有关材料:有关共同海损事故和损失的证明材料,在有关方收到后一个月以内,但全部材料不迟于航程结束后一年。

如有特殊情况,在上述期限内向理算处提出理由,经理算处同意,可以适当延长。

如果有关方不按上述规定办理,理算处可以根据情况,不予理算;或根据已有材料进行理算。

第八条 共同海损的简化

为了减轻各 有关方的负担,提高工作效率,共同海损理算应尽量简化,避免繁琐的手续和计算;理算书应力求简明扼要,便于执行。

对于案情简单的案件,可以作简易理算。

对于共同海损金额较小的案件,经征得主要有关方的同意,可以不进行理算。

 

CHINA COUNCIL FOR THE PROMOTION OF INTERNATIONAL TRADE
PROVISIONAL RULES FOR GENERAL AVERAGE ADJUSTMENT
(or in short Peking Adjustment Rules)

January 1, 1975

With a view to dealing properly with general average adjustment on the basis of equality and mutual benefit so as to enhance friendly relations among peoples of different countries and promote the development of international trade and marine transport, the China Council for the Promotion of International Trade has adopted the present Provisional Rules and set up the Department for Average Adjustment.

Article 1 - Scope of General Average

The following extraordinary loss or damage and reasonable extra expenses arising from measures properly taken for relieving a ship, cargo, etc. from common danger caused by natural calamities, accidents and/or other extraordinary circumstances in marine transport shall fall within the scope of general average:

1. Loss or damage reasonably caused to the ship, cargo, etc. for rescuing the same from danger;

2. Extra expenses incurred by the ship for entering a port of refuge, port charges incurred during the extra period of detention of the ship in a port of refuge and extra expenses for the ship's leaving the port of refuge subsequently with her original cargo or a part thereof;

3. Crew's wages and maintenance incurred as well as fuel and stores consumed during the prolongation of the voyage occasioned by the ship proceeding to a port of refuge and during the extra period of detention of the ship in a port of refuge;

4. Salvage expenses, expenses for forced discharge and reloading of the cargo, etc. and other extra expenses.

When the ship needs repairs for the safe completion of the voyage in consequence of damage caused by an accident during the voyage, the port charges, crew's wages and maintenance and fuel and stores necessarily incurred or consumed during the reasonable period of detention of the ship in the port of repair, as well as the expenses and loss or damage arising from such discharging, reloading and handling on board of the cargo, etc. as are required for the repairs, may under the present circumstances be admitted as general average.

Where any expenses is incurred to save another expense which would have been admissible in general average, such expense may be allowed in general average as a substituted expense. Unless otherwise agreed upon by and between the ship and cargo interests, the amount so allowable shall not exceed the amount of the expense saved.

With the exception of loss or damage and expense referred to in the above three paragraphs, any other indirect loss, including loss or damage and expenses through delay, shall not fall within the scope of general average.

Article 2 Principle of Adjusting General Average

The principle of general average adjustment is the ascertainment of liability on the basis of investigation and study and dealing with the compensation for and contribution to various losses and expenses fairly, reasonably and in a truth-seeking way.

The onus of proof shall be upon the party applying for general average adjustment as well as other parties concerned to show that their respective loss or damage and expenses claimed for are allowable as general average according to the provisions of the Rules.

If the event giving rise to a claim submitted for adjustment as general average is due to a fault of one of the parties to the contract of affreightment, for which he is not entitled to exemption from liability, no general average adjustment shall be proceeded with, but the case may be otherwise appropriately dealt with through consultation according to the circumstances involved.

Article 3 Computation of Amount of General Average Loss or Damage

The amount to be admitted as general average for loss or damage to the ship, cargo and freight shall be computed on the following basis:

1. The amount allowable for loss or damage to the ship shall be computed in accordance with the actual reasonable cost of repairing such damage, including cost of temporary repairs and of replacements subject to reasonable deductions in respect of "new for old". Where no repairs have been effected, computation shall be made in accordance with the reasonably estimated cost of necessary repairs. The amount allowable for loss of or damage to fuel and stores, etc. shall be computed on the basis of their actual values.

2. The amount allowable for loss of or damage? to the cargo shall be computed on the basis of the c.i.f. value, less the freight which would have been incurred but for such loss or damage. Where the cargo so damaged is sold and it is impossible to ascertain the extent of the damage, the amount shall be computed on the basis of the difference between the c.i.f. value and the net proceeds of sale.

3. The amount allowable for loss of freight shall be computed on the basis of the freight lost owing to the loss of or damage to the cargo, less the operating costs of the ship, which would have been incurred but for such loss or damage.

Article 4 Contribution to General Average

General average loss or damage and expenses shall be contributed to by the benefited interests in proportion to their respective contributory values.

The contributory values shall be computed on the following basis:

1. The Contributory value of the ship shall be computed either in accordance with the value of the ship in sound condition at the time and place of the termination of the voyage, less the amount of loss or damage not allowable in general average, or in accordance with the actual net value of the ship at the time and place of the termination of the voyage, plus the amount allowable in general average.

2. The contributory value of the cargo shall be computed on the basis of the c.i.f. value, less the amount of loss or damage not allowable in general average and the freight at the risk of the carrier.

Undeclared or falsely declared cargo shall contribute on the actual value, but loss of or damage to such cargo, if any, shall not be admitted as general average.

Passengers' luggage and personal effects shall not contribute to general average except under extraordinary circumstances.

3. The contributory value of the freight shall be computed on the basis of the freight at the risk of the carrier and subsequently earned, subject to a deduction corresponding to the extent of the voyage still uncompleted at the time of the event giving rise to general average, plus the amount of loss of freight allowable in general average.

Article 5 Interest and Commission

Interest shall be allowed on general average loss or damage and expenses at the rate of 7 percent per annum until the date of the completion of the general average adjustment.

A commission of 2 percent shall be allowed on general average expenses other than crew's wages and maintenance and fuel and stores.

Article 6 General Average Security

The contributing parties shall, at the request of the parties concerned, provide a security to ensure the contribution to general average. Such security may be in the form of a reliable letter of guarantee or a cash deposit. Where a cash deposit is provided, same shall be paid into an account in a bank in the name of the Department for Average Adjustment unless otherwise agreed upon by and between the parties concerned. Any use of the cash deposit shall be decided by the Department for Average Adjustment. The provision, use and refund of the cash deposit shall be without prejudice to the ultimate liability of the contributing parties.

Article 7 Time Limit of General Average

For the purpose of safeguarding the interests of all parties concerned and completing the adjustment of general average as promptly as possible, all parties shall, upon the occurrence of the event giving rise to general average, do everything necessary in time and declare general average and provide the Department for Average Adjustment with relevant materials within the following time limits:

1. Declaration of general average

Within forth-eight hours upon the ship's arrival in the first port after the event, if it has occurred at sea, or within forty-eight hours after the event, if it has occurred in a port;

2. Provision of Relevant Materials

For documentary evidence pertaining to the occurrence of general average and general average loss or damage, within one month after receipt thereof by the claiming party, but all materials shall in any case be provided within one year of the completion of the voyage.

In case of extraordinary circumstances the above time limits may be appropriately extended, provided reason for extension have been given within the respective time limits to the Department for Average Adjustment and its approval obtained.

In case of failure to observe the above stipulations on the part of any of the parties concerned, the Department for Average Adjustment may either decline to proceed with adjustment or adjust the case on the basis of the materials in its possession.

Article 8 Simplification of Adjustment of General Average

With a view to lightening the burden of all parties concerned and improving working efficiency, the adjustment of general average shall be made as simple as possible; unduly complicated procedures and calculations shall be avoided; adjustment shall be made as clear and concise as possible and easy to execute.

Summary adjustment may be applied in simple cases.

For cases in which the amount involved is small, adjustment may be dispensed with if consent has been obtained from the principal parties concerned.