海上拖航侵权中连带责任下的海事赔偿责任限制问题探讨

Discussion on limitation of liability in the case of joint and several liability in marine towing

在海上活动中,拖航是一种常见的方式。在拖航过程中若发生海事侵权,承拖方和被拖方应就对第三者造成的损害结果承担连带责任;如果承拖方和被拖方均为《中华人民共和国海商法》意义上的船舶,且对该侵权没有重大过失或故意,承拖方和被拖方均有权享受海事赔偿责任限制。此时就会对连带责任条件下如何适用海事赔偿责任限额产生困惑。通过对"整体限额连带"、"双重限额连带"以及"按份限额连带"三种解决问题思路的分析,找寻一种既符合法律的基本原则,又能平衡各方利益的合理解决方法,并在此基础上就如何设立责任限制基金等问题进行探讨,供立法者在修订法律时参考。

Abstract： Marine towing is a common form of sea service. The towing and the towed parties shall be jointly and severally lia- ble for the loss or damage if marine tort is incurred during marine towing. If the towing and the towed ships are the ships reg- ulated by the Maritime Code of the People＇s Republic of China, and there are not intent or gross negligence on both parties, the towing and the towed parties can enjoy the benefit of limitation of liability. It is often a confusing problem as to how to ap- ply limitation of liability in the case of joint and several liability. By analysing the different solutions of jointly liable for whole limitation, jointly liable for double limitations and jointly liable for proportional limitation, this paper tries to find out a way not only to conform to the basic principle of law but also to balance each party＇ s interests. Further, this paper discusses the way to establish the limitation fund so as to provide reference for legislators while amending the existing legislation.