论共同海损案件中对当事人过失的考量时间

On When to Consider Party Fault in General Average Cases

因当事人过失引起的共同海损,不进行分摊还是先分摊后追偿?由于《海商法》和《约克·安特卫普规则》的规定模糊,我国不同海事法院在司法实践中给予了不的回答。问题的焦点在于:共同海损案件中应何时考虑当事人过失?对该问题的回答应当符合实体法精神和诉讼法价值。

When the general average loss occurs due to the parties, should the loss be shared in proportion among them in advance, or should it he recovered after judicial procedure？ Since Chinese Maritime Code and the York-Antwerp Rules are ambiguous about it, Chinese Maritime Courts also give different answers in judicial practice. This article holds that it is essential that fault of claimant should be considered at proper stage. The article analyses the different effects on parties in different manner according to value of substantial law and procedure law.