【摘要】海上航行是一个高危险行业，船员失踪时有发生，往往没有直接证据表明船员死亡的原因是自杀还是事故使然。在这种情况下，谁负有举证责任？船方承担侵权责任还是合同责任？往往是船东、船舶管理公司、船员外派公司、船东互保协会和船员家属等所关心的核心问题。
Braganza v BP Shipping Limited and another [2015] UKSC 17一案就是这样的一个典型案例：轮机长Braganza先生在航行途中失踪，其遗孀主张是船东BP公司过失导致的事故致其落海死亡，但是BP认为是自杀，不承担侵权责任或者合同责任。
这宗案件不仅是此类案件中少有诉讼到英国高等法院的案件，更是近年来唯一一个经过了三审诉讼到英国最高法院的案件；不仅三级法院对此案判决的观点不同，同时英国最高法院的院长和副院长都参与了案件的审理，并因此案建立了“Braganza Duty”这一法律赋予合同的默示责任；不仅应用于船员雇佣合同，同时更对其他合同产生了广泛的影响。短短五年的时间，就有近百宗案件引用了这一原则，因此，值得引起充分的注意。
详细信息请参阅附件。
JUDGMENT-Braganza (Appellant) v BP Shipping Limited and another (Respondents)
Between 01.00 and 07.00 on 11 May 2009, Mr Renford Braganza, Chief Engineer on BP’s oil tanker the British Unity, then in the mid-North Atlantic, disappeared. No-one knows for certain what happened to him. But his employers formed the opinion that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard. This would mean that his widow was not entitled to the death benefits provided for in his contract of employment. Clause 7.6.3 of that contract provided relevantly as follows:
“For the avoidance of doubt compensation for death, accidental injury or illness shall not be payable if, in the opinion of the Company or its insurers, the death, accidental injury or illness resulted from amongst other things, the Officer’s wilful act, default or misconduct whether at sea or ashore ….” (emphasis supplied)
It is not the task of this or any other court determining a claim under such a contract to decide what actually happened to Mr Braganza. The task of the court is to decide whether his employer was entitled to form the opinion which it did. The issue of general principle in this appeal, therefore, is the test to be applied by the court in deciding that question.
Please see attached file for details.
