船东保赔协会之先付原则与第三人直接诉讼——以英国立法与司法实践为视角

The "Pay to Be Paid" Principle of the Protection and Indemnity Club——Based on the Legislative and Judicial Practice in UK and Comparison with Direct Action against P&I Club

先付原则作为船东保赔协会规则书中"黄金"条款,强调在保赔保险中,船东保赔协会理赔的先决条件是会员先予赔偿其对第三人责任项下的损失。先付原则作为保赔保险补偿性的充分体现,其优先适用的效力为英国上议院司法判例所确认,并一直沿用至今。然而近年来随着国际社会对于生命健康和海上环境保护意识的逐步增强,强制责任保险及其保障制度——第三人直接诉讼越来越为国际公约所重视,由此对先付原则的效力提出了挑战。如何在维护船东保赔协会的先付原则传统和顺应第三人直接诉讼制度的时代潮流之间做一取舍,英国的立法实践通过清晰谨慎的规制格局妥善地解决了这一问题。这不仅对其他国家的立法实践具有重要的借鉴意义,而且对整个航运保险业的发展起到了积极的促进作用。

The ＂Pay to Be Paid＂ principle which is ＂not all but the most＂ principle in the Club＇s rule, emphasizes that it is a condition precedent of an Owner＇s right to recover from the funds of the Association in respect of any liabilities or costs that he shall first have discharged or paid the same out of funds belonging to him. The ＂Pay to Be Paid＂ principle has the most significant characteristic of the protection and indemnity insurance. The verdict made by the House of Lord in UK has admitted its legal effeet. As the development of protection awareness of life, health and environment, however, the compulsory liability insurance and direct action from the third party are getting more and more popular, which challenge the ＂Pay to Be Paid＂ principle. How to halance between the tradition of P＆I Club- the ＂Pay to Be Paid＂ and the new trend-third party＇s direct action？ The leghlative practice in UK makes a goxt answer. The successful legislative practice plays an important role in promoting the development of the legislative practice in other countries, as well as the maritime insurance industry.