[This article is the original work of Zhai Dongwei's logistics lawyer team, the team *** Pearl River Delta logistics lawyer, the team's official website: wuliulvshi.]com, professional handling of maritime legal disputes for 16 years].
As the insured, A took out a batch of cotton (20 boxes) that was about to be shipped from Dalian to Los Angeles with an insurance amount of 500,000 yuan, and insurance company B was the insurer of this batch of goods. The ship capsized due to strong winds and waves (bad weather) during transportation and was rescued by C Rescue Company, and all the cotton was flooded, seriously damaged and lost its original shape, and could no longer be owned by the insured. This type of loss is referred to as "actual total loss". However, in some cases, the total loss is not only presented in this form, but may also be a "presumed total loss".
According to Article 246 of the Maritime Law of the People's Republic of China, "the so-called presumed total loss refers to the fact that after the insured goods have occurred, the actual total loss is considered unavoidable, or the sum of the expenses to avoid the actual total loss and the cost of continuing to transport the goods to the destination exceeds the insured value of the insured goods." "In the above case, if the cotton did not all fall into the water, and the salvage cost of the salvage of the remaining 10 boxes of goods to be salvaged by the rescue company and the cost of continuing to transport the 10 boxes of goods to Los Angeles had exceeded 500,000 yuan, then we would consider that the presumed total loss of the ship had occurred.
In the face of the legal effect of a presumed total loss, Article 249 of the Maritime Law of the People's Republic of China stipulates that: "If the insured requires the insurer to compensate for the total loss in the event of a presumed total loss of the subject matter of insurance, it shall entrust the subject matter of insurance to the insurer." "The term "entrustment" means that in this case A renounces the right to the cotton, expressly abandoning the ownership of the cotton and the interests that may be due to him (after all, the remaining 10 boxes are intact) and transferring these interests to the insurer B. In the case of insurer B, it may accept the goods or reject them, but the notice of acceptance or rejection shall be communicated to the insured within a reasonable time. Once the insurer has made the decision to accept, it should assume the corresponding obligations for the cotton, such as salvage obligations. At the same time, China's "Maritime Law" also clearly defines that the commission cannot be limited, and once accepted, it cannot be withdrawn. At the same time, the insurer also needs to examine whether the requirements for presumed total loss are met, and if the conditions for presumed total loss are not met, the insured will naturally not be able to obtain the corresponding full compensation.
It should be emphasized that China's "Maritime Law" only stipulates the presumed total loss of two subject matter, the ship and the cargo, and the insured should bear the burden of proof to show that the subject matter of his insurance belongs to one of the ships or cargo, otherwise he will not be able to obtain compensation, but the insured and the insurer can make special agreements on other subject matter, which is not strictly governed by China's "Maritime Law" For the subject matter of insurance specifically agreed otherwise, when applying the presumed total loss, it is recommended that the insured and the insurer apply the insurance clauses or corresponding laws and regulations that can have detailed provisions, otherwise a more detailed explanation should be drafted to define the application and exclusion of the presumed total loss.