船舶碰撞油污损害承担连带赔偿责任的法理分析——兼评最高人民法院2005年《纪要》第149条

以侵权法中的因果关系学说、连带责任理论及立法规定为基础.对船舶碰撞造成油污损害时的法律关系进行了分析,认为船舶碰撞与漏油造成的油污损害之间不具有因果关系.针对船舶碰撞双方漏油及单方漏油的不同情况.分别分析两船对连带责任的承担--认为在两船都漏油而且油污损害无法合理分开时,两船构成共同侵权应当承担连带责任.一船漏油时两船不应承担连带责任;但基于民法中的补充责任理论,提出在特定情况下由非漏油方承担补充责任.本文侧重理论联系实践,并对最高人民法院<纪要>提出修改意见.

Legal Analysis on the Joint and Several Liability for Oil Pollution Damage Caused by Ships Collision

Based on the theory of causality, joint and several liability and legislation of tort law and by analyzing the legal issues in respect of the oil pollution damage caused by ships collision, the author finally comes to the conclusion that there is no causation between the oil pollution damage and collision. The author looks into as to whether the owners of two vessels shall jointly and severally be responsible for oil pollution damage respectively in the different situations of leakage of oil due to collision from one vessel and both of two vessels. Further, the author considers that the owner of non-leakage vessel shall be responsible for the supplement liability in special circumstance in accordance with supplement liability theory in civil law. This article pays attention to both of theory and practice; especially it puts forward comments on modification of Summary made by the Supreme Court of People's Republic of China.