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(2014) Yong Hai Fa Shi Chu Zi No. 9 CIVIL JUDGMENT

NINGBO MARITIME COURT OF THE PEOPLE¡¯S REPUBLIC OF CHINA

CIVIL JUDGMENT

[case No. (2014) Yong Hai Fa Shi Chu Zi No. 9]

Plaintiff (Defendant in the counter claim): COSCO BULK CARRIER CO., LTD.
Domicile: 12/F., Sailing Business Center, the Intersection of Dry Port Economic Area Center Ave. and East 7 Rd., Tianjin P.R. China
Legal representative: Xu Zun-wu, the company manager
Agentsad litem: Jun WANG, attorney-at-law of Wang JING Co.
Xueguang YANG, attorney-at-law of Wang JING Co.

Defendant (Plaintiff in the counter claim): SINOKOR MERCHANT MARINE CO., LTD.
Domicile: Haenam Building 2nd Floor, 21 Bukchang-dong, Jung-gu, Seoul, Korea
Legal representative: Chung, Tae-Soon, the company's chairman
Agentsad litem: Patrick XU, attorney-at-law of Wintell Co.
 Gary WU, attorney-at-law of Wintell Co., Ningbo Office

    With regard to the case that the Plaintiff COSCO BULK CARRIER CO., LTD. (hereinafter referred to as ¡°COSCO BULK¡±)sued the Defendant SINOKOR MERCHANT MARINE CO, LTD (hereinafter referred to as ¡°SINOKOR MERCHANT¡±) about dispute over liability for damage caused by ship collision, this court accepted and registered the case on January 21, 2014 and applied common procedure to try the case in accordance with law. SINOKOR MERCHANT filedcounter claim in this court on May 12, 2014. After review, the action in chief and the counterclaim were heard in combination by this court. The case was tried first time in public on June 30, 2014. Due to that the ascertaining of losses of two parties shall be subject to the results of following cases, i.e., (2014) Yong Hai Fa Shang Chu Zi No. 380, (2014) Yong Hai Fa Shang Chu Zi No. 482, (2015) Yong Hai Fa Shang Chu Zi No. 921. The subject case was postponed and was heard second time in public on September 29, 2016. The agents ad litem Mr. Jun WANG and Mr. Xuegang YANGof COSCO BULKand the agents ad litem Mr. Patrick Xu and Mr. Gary Wu of SINOKOR MERCHANT attended the court hearing. The court hearing of the subject case was concluded now.

    COSCO BULK filed the lawsuit as follows: (a) to order the Defendant to pay all the losses, expenses and costs in the sum of RMB 83,186,544.71 arising from the ship collision and the oil pollution, and the interests from the day when they accrued to the day when all the sums are actually paid off (the interests shall be calculated as per the benchmark interest rate for loan of People¡¯s Bank of China for the corresponding period); (b) to order the Defendant to bear the court fees, the fees for pre-litigation preservation of property, the survey fee and assessment fee, and all the case handling fees sustained by the Plaintiff. The facts and reasons contended by COSCO BULK of the subject case were as follows: On December 6, 2013, M/V ¡°JIA LI HAI¡± owned by COSCO BULK, which headed for Zhoushan, China from Russia, was collided by M/V ¡°XIUMEI TIANJIN¡± owned by SINOKOR MERCHANT when she normally proceeded at the traffic lane in the adjacent waters of west entrance of Xiazhimen Channel. Due to the collision, the engine room, cargo holds and fuel oil tanks of M/V ¡°JIA LI HAI¡± were broken and oil spilled, and she beached for grounding.On December 11, 2013, COSCO BULK applied for a pre-litigation preservation of property before this court for arresting M/V ¡°XIUMEI TIANJIN¡±, and required this court to order SINOKOR MERCHANT to provide Letter of Undertaking in the sum of RMB 122 million. Ningbo Maritime Court issued a Civil Ruling and permitted the application re pre-litigation preservation of property raised by COSCO BULK. Due to the collision accident, COSCO BULK suffered huge losses and costs, inclusive of ship¡¯s damage, loss of earnings, salvage costs, anti-oil pollution costs and compensation for damage caused by oil pollution, etc. COSCO BULK thought that the collision accident was caused by gross negligence or intentional misconduct of M/V ¡°XIUMEI TIANJIN¡±. Therefore, SINOKOR MERCHANT should be held responsible for all the losses suffered by COSCO BULK and should not be entitled to enjoy limitation of liability for maritime claims.

    SINOKOR MERCHANT argued that: (a) It was M/V ¡°JIA LI HAI¡± that existed gross fault for the collision accident, so it was neither grounded in fact nor grounded in law for COSCO BULK to require M/V ¡°XIUMEI TIANJIN¡± to bear all the liabilities; (b) SINOKOR MERCHANT had objections to the authenticity and reasonability of losses claimed by COSCO BULK;(c) SINOKOR MERCHANT was entitled to enjoy limitation of liability for maritime claims and the limitation fund in the amount of SDR 2,739,802(equivalent to RMB 26,628,602.55) had also been constituted.

    SINOKOR MERCHANT filed a counterclaim before this court as follows: (a) to order COSCO BULK to pay all the costs and losses sustained by SINOKOR MERCHANT arising from the collision accident, which amount to USD 558,802 (the USD shall be converted into RMB at the date of this Civil Judgment issued), and the interests from the day when they accrued to the day when all the sums are paid off, which shall be calculated as per the benchmark interest rate for loanof People¡¯s Bank of China for the corresponding period; (b) to order COSCO BULK to bear all the court fees in the subject case. The facts and reasons contended by SINOKOR MERCHANT of the subject case were as follows: On 6th December 2013, M/V ¡°XIUMEI TIANJIN¡±, which is owned by SINOKOR MERCHANT, collided with a Panamanian-flagged cargo ship M/V ¡°JIA LI HAI¡±, which is owned by COSCO BULK, off waters of Zhoushan. Both vessels were damaged in vary degrees in the collision accident. Due to the collision, SINOKOR MERCHANT has sustained extra ship repair costs, agency fees, inspection fees, loss of earnings, etc. SINOKOR MERCHANT held that M/V ¡°JIA LI HAI¡± had breached the provisions of the COLREG 1972 in navigation, e.g. failing to keep a proper look-out, failing to keep a safe speed, etc., which resulted in the occurrence of the collision and caused the abovementioned costs and losses of SINOKOR MERCHANT.

    COSCO BULK defended against the counterclaim and argued that: (a) as to liabilities of two ships¡¯ collision, SINOKOR MERCHANT should bear all liabilities; (b) as to losses, SINOKOR MERCHANT did not provide evidences to prove.

    The two parties provided this court with evidences for their respective claims and this court organized evidence exchange and cross-examination for both parties.

    For the evidences provided by COSCO BULK, this court holds as follows: For Evidence 1~Evidence 17, i.e., book of ship's certificates of M/V ¡°JIA LI HAI¡±, the newest survey table before arrival at port, list of crew members, certificates of competency, proof for actual weather condition, deck logbook and engine logbook of M/V ¡°JIA LI HAI¡±, both parties had no objection to them. Since the above evidences can prove the objective facts at the time of occurrence of the accident, this court recognizes the same. For Evidence 18 - Marine Traffic Accident Report for Liability Confirmation, since it was issued by the MSA, this court holds that its authenticity can be confirmed and the liabilities of both parties would be integratedly analyzed in detail below. For Evidence 19-Confirmation of Cover, Evidence 20 - Sales Contract of ¡°JIA LI HAI¡± and Evidence 62 - bank receipt issued by China Merchants Bank of China, which were used to prove loss of hull of M/V ¡°JIA LI HAI¡±, their authenticity can be confirmed but the actualloss would be analyzed in the following paragraphs. For Evidence 21 -invoice of repair costs for M/V ¡°JIA LI HAI¡± and Evidence 63 -bill for completion of repair works, which were used to prove the repair costs of M/V ¡°JIA LI HAI¡±. This court also recognizes their authenticity but the amount of costs and necessity of repair would be discussedin the following paragraphs. For Evidence 22 - Civil Mediation with case No. (2014) Yong Hai Fa Shang Chu Zi No. 380 and Evidence 23 - payment voucher, which were used to prove the salvage costpaid to Manyang Company. Since the salvage cost was concluded by way of mediation organized by this court, its authenticity and reasonability can be confirmed. For Evidence 24 - Debit Note from East China Sea Rescue Bureau, Evidence 25 - S.A. re salvage costs signed between COSCO BULK and East China Sea Rescue Bureau and Evidence 26 - payment voucher re costs paid to East China Sea Rescue Bureau, which can be mutually verified and also the salvage cost is reasonable, this court therefore affirms. For Evidence 27- Claim documents from Shanghai Salvage Bureau, Evidence 28 - S.A. re salvage cost signed between COSCO BULK and Shanghai Salvage Bureau and Evidence 29 - payment voucher re costs paid to Shanghai Salvage Bureau, which were provided to prove the salvage cost paid to Shanghai Salvage Bureau, this court affirms as well since the Evidence 27~29 can be mutually verified and the salvage cost is reasonable. For Evidence 30 - S.A. signed by COSCO BULK and Ningbo Barge Company and Evidence 31 - invoice issued by Ningbo Barge Company, which were submitted to the court to prove the salvage cost paid to Ningbo Barge Company, this court holds that the two evidences can be confirmed by one another and the salvage cost is reasonable as well and hence can be supported. For Evidence 32 - Emergency Service Agreement signed between COSCO BULK and PENAVICO Zhoushan, Evidence 33 - Trip Account issued by PENAVICO Zhoushan, Evidence 34 - VAT special invoices issued by PENAVICO Zhoushan, Evidence 35 - invoice issued by Tianjin COSCO Bulk Freight Company or Payment voucher and Evidence 64 -Trip Account issued by Tianjin COSCO Bulk Freight Company, since SINOKOR MERCHANT strongly challenged the authenticity and reasonability of the above costs, this court confirms these evidences¡¯ apparent authenticity, and the reasonability and relatedness of the costs would be discussed and ascertained in the following paragraphs. For Evidence 36 - S.A. signed by COSCO BULK and MSA Ningbo, Evidence 37 - payment voucher, Evidence 38 - S.A. signed by COSCOBULK and MSA Zhoushan, Evidence 39 - payment voucher, which were used to prove the oil-cleaning and anti-pollution costs paid to MSA Ningbo and MSA Zhoushan, the costs can be supported by this court since the evidences can be mutually verified and also the above costs are reasonable.  For Evidence 40 - Civil Mediation with Case No. (2014) Yong Hai Fa Shang Chu Zi 482 between COSCO BULK and Ningbo Yongjie and Evidence 41 - payment voucher, which were used to prove the oil-cleaning and anti-pollution cost paid to Ningbo Yongjie, since the cost was concluded by way of mediation organized by this court, its authenticity and reasonability can be confirmed. For Evidence 42 - S.A. between COSCO BULK and Zhoushan Hai¡¯an and Evidence 43 - payment voucher, which were provided to prove oil-cleaning and anti-pollution cost paid to Zhoushan Hai¡¯an, this claim can be supported by this court since the evidences can be mutually verified and the cost is reasonable. For Evidence 44 - VAT special invoices (costs re sewage disposal and tank cleaning), since SINOKOR MERCHANT had objections to the authenticity and reasonability of the costs, this court confirms these evidences¡¯ authenticity, and the relatedness of the costs would be confirmed in the following paragraphs.  For Evidence 45 - Appraisal Report and Assessment Report issued by Shandong Maritime Judicial Appraisal Center, Evidence 46 - S.A. signed between COSCO BULK and Zhoushan Ocean and Fishery Bureauand Evidence 47 - receipt issued by Zhoushan Ocean and Fishery Bureau, which were provided to prove the losses of aquaculture and marine environment, this claim can be supported by this court for the evidences can be mutually verified and the cost is reasonable. For Evidence 48 - Charter Party and Evidence 49 - Statistics of net profit of two voyages prior to accident, which were furnished to this court to prove the loss of earnings of M/V ¡°JIA LI HAI¡±, this court holds that the authenticity of the evidences can be recognized, but these evidences are unable to fully reflect the net profit of two voyages prior to accident, so loss of earnings of M/V ¡°JIA LI HAI¡±would be determined and calculated on the basis of the same kind ships¡¯ earnings in the corresponding period.For Evidence 50 - Survey Report re quantum of fuel oil spilled from M/V ¡°JIA LI HAI¡±, Evidence 51 - Bunker Delivery Receipt and Evidence 52 - Invoice of Bunkering, SINOKOR MERCHANT have objections to them because the loss of bunkers did not appraised correctly by the third party, so the loss of bunkers would be ascertained by this court. For Evidence 53 - Engagement Contact, authenticity of which can be confirmed and relatedness of which would be discussed later. For Evidence 54 - GA Adjustment Report, which had been notarized and authenticated, this court affirms. For Evidence 55 - invoices, debt notes issued by Trade-Wind Surveyors and remittance receipt issued by Bank of China, Evidence 56 -invoices issued by E-joy Surveyors, Evidence 57 -work records of AMA, fees of vouchers and relevant translation, Evidence 58 - debt notes and invoices issued by Hai Tong & Partners and payment voucher issued by Bank of China, Evidence 59 - payment vouchers for WANG JING & CO attorney fees, Evidence 60 - payment vouchers of losses of crew members¡¯ personal belongings and Evidence 61 - payment voucher re administrative penalties issued by MSA, the above evidences were to prove the assessment costs, consultation costs, lawyers¡¯ fees, personal belongings¡¯ losses and administrative penalties, etc. This court confirmed their authenticity, but their reasonability and relatedness would be discussed and analyzed in the following paragraphs.

    For the evidences provided by SINOKOR MERCHANT, this court holds as follows: For Evidence 1~Evidence 8 and Evidence 11, these evidences are ship¡¯s and crew members¡¯ certificates. Since both partied had no objection to them, this court affirms. For Evidence 9 - VHF records and Evidence 10 -two vessels¡¯ course and speed records prior to collision, these evidences¡¯ authenticity can be confirmed, and relevant facts are subject to MSA¡¯s conclusion. With respect to Evidence 12 - repair cost of M/V ¡°XIUMEI TIANJIN¡±, Evidence 13.1~13.8, inclusive of invoice, Electronic Tax Bill and Service Report of renewal speed log/echo sounder, which were issued by SEALINK ELECTRONICS; invoice, Electronic Tax Bill of S-VDR data back-up, which were issued by SEALINK ELECTRONICS, and Service Report issued by Seven Seas Marine Service Co., Ltd.; Electronic Tax Bill, notice of payment and delivery note concerning costs for bow thruster hub overhaul and spare, which were issued by Yugang Tech; Electronic Tax Bill, notice of payment and certificate of work completion concerning costs for bow thruster & panel repair, which were issued by Samyong Automation; Invoice concerning cost for bow thruster hub overhaul, which was issued by Euro-Kytex Engineering BV; Electronic Tax Bill and invoice concerning costs for paint, which were issued by PPG SSC; Delivery Notes of paint, which were issued by PPG Performance Coatings (Hong Kong) Ltd.; Electronic Tax Bill and invoice concerning costs for making drawings of lines, which were issued by Jungang, and Evidence 14 - class survey fees for M/V ¡°XIUMEI TIANJIN¡±, and Evidence 15 - Port charges, pilotage, traffic fees incurred by vessel¡¯s inbound & outbound, fee for MSA safety escort, embarkation costsand agency fees, and Evidence 16 - costs for shipowners¡¯ representatives and Evidence 17 - Survey Report issued by Modern Marine Surveyors & Adjusters Ltd., the abovementioned evidences were provided to this court to prove that the direct losses of M/V ¡°XIUMEI TIANJIN¡±, which were incurred due to the collision accident. This court holds that the authenticity of these evidences can be recognized, and the reasonability of relevant costs would be integratedly ascertained by this court in below. For Evidence 18, inclusive of Freight Manifests, invoices, debt notes, bills, receipts and service vouchers, emails and bunker delivery note, these evidences were used to prove the loss of earnings of M/V ¡°XIUMEI TIANJIN¡±. This court held that the above evidences are statistical data provided by unilateral party and are unable to fully reflect net profit, so loss of earnings of M/V ¡°XIUMEI TIANJIN¡± would be integratedly ascertained and calculated on the basis of the same kind ships¡¯ earnings in the corresponding period.

    Each item of loss claimed by COSCO BULK is analyzed and ascertained by this court as follows:

1. Loss of hull. COSCO BULK contended that if M/V ¡°JIA LI HAI¡± had effected repair, the costs of which would have exceeded her insured value, so she constituted a constructive total loss. Pursuant to the Article 3 and Article 8 of the provisions of Supreme People's Court on Compensation for Property Damage in the Cases of Ship Collision and Touch (hereinafter referred to as "the Compensation Provisions"), the compensation for total loss of ship includes the loss of ship¡¯s value. Ship¡¯s value is decided by ship¡¯s market price at the time and place of occurrence of collision. In case there is no market price, ship¡¯ value is calculated by cost of building/ship¡¯s purchase price, excluding ship¡¯s depreciation (depreciation rate: 4%-10% per year). If there is residual value, it shall be deducted from ship¡¯s value. In the subject case, the insured value of M/V ¡°JIA LI HAI¡± in December, 2012 was USD 6M (equivalent to RMB 37,406,400 at the exchange rateat that time). In the absence of evidences to the contrary, the insured value of M/V ¡°JIA LI HAI¡± can be presumed as ship¡¯s reasonable market price at the time of insurance. However, the collision accident happened in December, 2013, so the aspect of depreciation shall be taken into consideration. The ship¡¯s value of M/V ¡°JIA LI HAI¡± shall be identified as RMB 34,787,952 (i.e., 37,406,400*0.93)at the time of occurrence of the accident by reference to yearly depreciation rate 7%. This court held that loss of hull shall be RMB 17,806,962 after deducting the residual value RMB 16,980,990.

2. Repair cost. Whether the repair cost can be claimed or not in the case of total loss for ship is not stipulated in the Compensation Provisions. However, the repair work performed by Zhoushan COSCO Shipyard was not indispensable repair demanded by MSA. Moreover, M/V ¡°JIA LI HAI¡± instituted a constructive total loss and was sold as a vessel disposed of by crapping eventually in the subject case, so this court holds that the repair work is unnecessary and the costs arising therefrom cannot be supported.

3. Salvage costs. The salvage costs claimed by COSCO BULK were inclusive of the costs paid to Manyang Company, East China Sea Rescue Bureau, Shanghai Salvage Bureau, Ningbo Barge Company, PENAVICO Zhoushan and Tianjin COSCO Bulk Freight Company. Among these, this court recognizes the salvage costs paid to Manyang Company, East China Sea Rescue Bureau, Shanghai Salvage Bureau and Ningbo Barge Company,i.e., in the sum of RMB 16,879,208 in total, since the relevant evidences are sufficient and the costs are reasonable. The salvage costs for PENAVICO Zhoushan include the costs resalvaging M/V ¡°JIA LI HAI¡± and cargo on board, and accident handling feesand agency fees which PENAVICO Zhoushan was entitled to charge. For this, the above costs have been analyzed and adjusted in detail in the GA Adjustment Report, namely, only USD 2,087,553.66 (equivalent to RMB 14,298,699 @1: 6.8495, at the exchange rate of the issuance date of this Civil Judgement)was considered as GA. The rest costs were charged for the sound cargo or damaged cargo and shall therefore not be claimed by the JIA LI HAI interests. Similarly, the salvage costs paid to Tianjin COSCO Bulk Freight Company have also been analyzed and adjusted in detail in the GA Adjustment Report, namely, only USD 227,381.28 (equivalent to RMB 1,557,448 @1: 6.8495) was considered as GA. The rest costs were charged for the sound cargo or damaged cargo and shall therefore not be claimed by the JIA LI HAI interests. In the absence of evidences to the contrary, this court recognized the conclusions of the GA Adjustment Report. To sum up, the salvage costs are RMB 32,735,355 in total. According to the proportion (i.e., 0.744)of salved value of ship and cargo, the salvage costs that COSCO BULK can claim in the subject case shall be RMB 13,965,083 (32,735,355*0.744/1.744).

4. Oil cleaning and anti-pollution costs. The oil cleaning and anti-pollution costs claimed by COSCO BULK were inclusive of costs paid to MSA Ningbo, MSA Zhoushan, Ningbo Yongjie, Zhoushan Hai¡¯an and Zhoushan Zhong Hai Tank Cleaning Company. Among these, this court recognizes the oil cleaning and anti-pollution costs paid to MSA Ningbo, MSA Zhoushan, Ningbo Yongjie and Zhoushan Hai¡¯an, i.e., in the sum of RMB 25,380,000 in total, since the relevant evidences are sufficient and the costs are reasonable. With respect to oil cleaning and anti-pollution cost paid to Zhoushan Zhong Hai Tank Cleaning Company, COSCO BULK onlyprovided VAT invoices as evidences. Considering that the evidences are insufficient and unable to reflect whether the costhad relevance with the subject case, so this court does not recognize.

5. Fishery resources. Pursuant to the Article 1 of the Compensation Provisions, the loss of fishery resources caused by ship¡¯s oil spillage belongs to loss of property caused by ship collision. The amount of loss can be mutually verified as per the relevant evidences submitted by COSCO BULK. Moreover, the payment had been actually effected to Zhoushan Ocean and Fishery Bureau. Therefore, this court recognizes this item of loss, which is in the amount of RMB 12,000,000.

6. Loss of earnings. M/V ¡°JIA LI HAI¡± is a bulk carrier, DWT of which is 69,365 tons, andis mainly engaged in ocean transport of bulk cargo.COSCO BULK failed to provide sufficient evidences to prove the average net profit of M/V ¡°JIA LI HAI¡±. Considering that M/V ¡°JIA LI HAI¡± was total loss, this court supports 60 days¡¯ loss of earnings in the sum of RMB 600,000 at court¡¯s discretion according to the loss of earnings of the same kind ships during the period from November, 2013 to January, 2014.

7. Loss of bunkers. Pursuant to the Article 8 of the Compensation Provisions, COSCO BULK is entitled to claim loss of bunkers. However, the loss of bunkers of M/V ¡°JIA LI HAI¡± in the subject case cannot be accurately confirmed. Combined with the Survey Report, Bunker Delivery Receipt submitted by the COSCO BULK, bunker consumption and oil price at that time and so on, this court holds that the loss of bunkers would be RMB 300,000 at court¡¯s discretion.

8. Loss of personal belongings. Pursuant to the Article 9 of the Compensation Provisions,the loss of crew members¡¯ personal necessaries of life shall be compensated properly as per actual loss. COSCO BULK just provided a list of loss of personal belongings which were declared by crew members themselves. So, this court only supports the loss of personal belongings in the sum of RMB 10,000 at court¡¯s discretion.

9. Administrative penalties. The item of claim is not stipulated in the Compensation Provisions and this court therefore does not support the same.

10. Costs or fees concerning survey, appraisal, consulting and lawyers. These items of claims are not stipulated in the Compensation Provisions and moreover, did not belong to indispensable losses arising from the collision accident. Therefore, they cannot be supported by this court.

To sum up, all the losses claimed by COSCO BULK shall be in the sum of RMB 70,062,045in total.

Each item of loss claimed by SINOKOR MERCHANT is analyzed and ascertained by this court as follows:

1. Repair cost of ship. After the occurrence of the collision accident, M/V ¡°XIUMEI TIANJIN¡± proceeded to Haizhou Shipyard for repair and actually paid repair costin the amount of USD 245,000 to Haizhou Shipyard. After the assessment re repair cost was conducted by a loss adjusting company entrusted SINOKOR MERCHANT, the reasonable repair cost shall be USD 230,500 as per the assessment result. Since the repair cost was caused by the collision accident and the payment had already been effected, and the repair cost appraised is less than the repair cost which was actually paid, this court is of the opinion that the reasonable repair cost shall be USD 230,500.

2. Costs or fees for renewal speed log, echo sounder, VDR data buck-up, bow thruster repair, purchase of paint, drawings lines for Plimsoll Line. All the costs were caused by the collision accident. Since the relevant evidences can be mutually verified and the cost are reasonable, this court holds that the abovementioned costs shall be USD 153,365 in total.

3. Class survey fees, port charges, agency fees and superintendents¡¯ disbursements, which were caused by the collision accident. Since the relevant evidences can be mutually verified and the cost are reasonable, this court holds that the abovementioned costs shall be USD 33,294 in total.

4. Loss of earnings. Pursuant to the Article 10 of the Compensation Provisions,the loss of earnings for ship¡¯s partial damage shall be limited to the reasonable period of active repair time, including time of docking, survey and other reasonable time. The time of docking of M/V ¡°XIUMEI TIANJIN¡± was on December 20, 2013 and the time of completion was on January 3, 2014. Taking the reasonable time for contact, docking and survey into consideration, the repair time of 16 days shall be reasonable. However, SINOKOR MERCHANT did not provide sufficient evidences to prove the average net profit of M/V ¡°XIUMEI TIANJIN¡±. This court supports loss of earnings in the sum of USD 40,000 at court¡¯s discretion according to the loss of earnings of the same kind ships during the period from November, 2013 to January, 2014.

    To sum up, all the losses claimed by SINOKOR MERCHANT shall be in the sum of USD457,159in total(equivalent to RMB 3,131,311@6.8495:1).

    According to the sufficient evidences submitted by both parties, the above analysis for two parties¡¯ losses and court investigation, this court hereby confirms the facts of the subject case as follows:

    M/V ¡°JIA LI HAI¡± is a bulk carrier. Her port of registry is Tianjin, China. Ship¡¯ s length: 225m. Width: 32.2m. Depth: 18.3m. GT: 36986. NT: 22691. DWT: 69,365 tons. She is owned by COSCO BULK. M/V ¡°XIUMEI TIANJIN¡± is a container ship. Port of registry is Jeju, Korea. Length: 156.92m. Width: 26.7m. Depth: 14.4m. GT: 15906. NT: 9227. DWT: 22,015 tons. She is owned by SINOKOR MERCHANT.

    At 0825hrs of December 6, 2013, M/V ¡°XIUMEI TIANJIN¡± carried 805TEU proceeded from 1# berth of Meishan International Container Terminal. The visibility at that time was 0.6-0.7nm. She proceeded with her navigation lights turned on and anchor standby. Also, two radars on the bridge were switched on and the screens were off-center displayed by 3nm range, one of which was adjusted to 1.5nm range at 0839hrs. Two watch-keepers were arranged at the bow. M/V ¡°XIUMEI TIANJIN¡± was piloted by a pilot.3/O gave assistance for look-out. Around 0925hrs, when she proceeded to the position 29¡ã50¡ä.6N, 122¡ã10¡ä.9E, her course was about 069¡ã and her speed was about 14.5 knots. The pilot released ship¡¯s information by VHF CH8 to request passby vessels to strengthen contacts and navigate with caution. At the same time, M/V ¡°JIA LI HAI¡± proceeded at waters near Xialanshan at the Xiazhimen Channel.The distance between the two ships was about 3nm. Around 0926hrs, M/V ¡°XIUMEI TIANJIN¡± proceeded at the position 29¡ã50¡ä.7N, 122¡ã11¡ä.2E at a speed of 14.5 knots and her course was about 70¡ã. At that time, M/V ¡°XIUMEI TIANJIN¡± was about 0.5nm away from the southern boundary of precautionary area #1 in the Ningbo-Zhoushan Port ship¡¯s route area. An order of ¡°Starboard ten¡± was given to enter the outbound lane at No.3 traffic separation scheme of the ship¡¯s route.At the same time, M/V ¡°JING TAI 28¡± was at her starboard bow and the bearing was about 27¡ã and distance was about 1nm. M/V ¡°JIA LI HAI¡± was also at her starboard bow and the bearing was about 57¡ãand distance was about 2.6nm. At around 0928hrs, M/V ¡°XIUMEI TIANJIN¡± proceeded at the position 29¡ã50¡ä.7N, 122¡ã11¡ä.7E at a speed of 12.3 knots and her course was 124¡ã. The wheel order was changed from ¡°HALF AHEAD¡± to ¡°SLOW AHEAD¡± and ¡°STEADY¡±.Her position was about 0.3nm away from the southern boundary of precautionary area #1 in the Ningbo-Zhoushan Port ship¡¯s route area. Ningbo VTS called M/V ¡°XIUMEI TIANJIN¡± for reminding her of keeping a safe distance from M/V ¡°JING TAI 82¡± and avoiding overtaking the latter.At this moment, M/V ¡°JING TAI 82¡± was at her port bow and distance between them was about 0.7nm. Around 0929hrs, M/V ¡°XIUMEI TIANJIN¡± proceeded to 29¡ã50¡ä.6N, 122¡ã11¡ä.8E at a speed of 11.7 knots and her course was 124¡ã. The wheel order was changed to ¡°DEAD SLOW AHEAD¡±.Around 0930hrs-0931hrs, M/V ¡°XIUMEI TIANJIN¡± was contacting M/V ¡°JING TAI 82¡± for matter of collision avoidance. At around 0931, M/V ¡°XIUMEI TIANJIN¡± proceeded to 29¡ã50¡ä.4N, 122¡ã12¡ä.2E at a speed of 9.1 knots and her course was 114¡ã. A wheel order of ¡°Port ten¡± was given (which was kept for about 47 seconds and then an order of ¡°midships¡± was given) to distance herself from M/V ¡°JING TAI 82¡±. At this moment, M/V ¡°JING TAI 82¡± was at her starboard bow. And the bearing was about 13¡ã and distance was about 0.3nm.M/V ¡°JING TAI 82¡± was at her starboard bow as well. And the bearing was about 12¡ã and distance was about 0.9nm.M/V ¡°JIA LI HAI¡± was at the position of right front 12¡ã from it and with a distance of 0.9 nautical mile. At around 0932, M/V ¡°XIUMEI TIANJIN¡± proceeded to 29¡ã50¡¯.3N, 122¡ã12¡¯.3E at a speed of 8.5 knots and her course was 110¡ã. Because of the obvious left deviation of it, M/V ¡°XIUMEI TIANJIN¡± gave the orders as starboard 30 and hard starboard, and changed to minimum ahead and dead slow ahead. During the above-mentioned period, M/V ¡°XIUMEI TIANJIN¡± observed M/V ¡°JIA LI HAI¡± by eye for the first time and felt the possibility of collision. At the moment, M/V ¡°JIA LI HAI¡± was at the position from right front 13¡ã from M/V ¡°XIUMEI TIANJIN¡± with a distance of 0.6 nautical mile. At around 0933, M/V ¡°XIUMEI TIANJIN¡± proceeded to 29¡ã50¡¯.3N, 122¡ã12¡¯.4E at a speed of 8 knots and her course was 96¡ã. Meanwhile, M/V ¡°JIA LI HAI¡± was at the position of right front 28¡ã from M/V ¡°XIUMEI TIANJIN¡±. The vessel changed her wheel to slow astern, half astern and etc. to emergently avoid collision with M/V ¡°JIA LI HAI¡±. During the collision avoidance, Ningbo VTS called M/V ¡°XIUMEI TIANJIN¡± on Channel VHF8 and the vessel replied that it was turning its head. At around 0934, M/V ¡°XIUMEI TIANJIN¡± changed to full astern. About half minute later, the bow of this vessel collided port side of M/V ¡°JIA LI HAI¡± in way of aft No. 7 cargo hold with an approximate collision angle of 30¡ã at the approximate position of 29¡ã50¡¯.3N, 122¡ã12¡¯.6E (within the inward vessel traffic lane of No. 3 separation scheme of the ship¡¯s route). At the time of collision, M/V ¡°XIUMEI TIANJIN¡± was proceeding at a speed of 6.4 knots. At 0935, this vessel stopped engine.

    On 30 November 2013. M/V ¡°JIA LI HAI¡± sailed from Russia for Zhoushan, China with about 67,740tons of coals laden on board. At around 0845 on 6 December, the pilot embarked M/V ¡°JIA LI HAI¡± to guide the vessel entering into port along Xiazhimen waterway. In the meantime, except the pilot, the captain, 3rd officer and the sailor on duty of M/V ¡°JIA LI HAI¡± were on the navigation bridge, and two additional look-outs were arranged at the bow.  In her voyage, the vessel lighted her navigation lamps, stood by anchorage and whistled her fog horn, besides, the two radars in the bridge turned on with range of 3 nautical miles and off center display.  At around 0921, M/V ¡°JIA LI HAI¡± proceeded to 29¡ã48¡¯.6N, 122¡ã14¡¯.2E at the speed of 8.8 knots and her course was 313¡ã, and the vessel then changed her wheel to slow ahead.  At around 0926, this vessel proceeded to 29¡ã49¡¯.2N, 122¡ã13¡¯.6E at the speed of 9.6 knots and her course was 322¡ã. M/V ¡°JIA LI HAI¡± contacted with M/V ¡°JING TAI 82¡± via VHF to discuss collision avoidance proposal. Meanwhile, M/V ¡°XIUMEI TIANJIN¡± was at the position of portside front 16¡ã from M/V ¡°JIA LI HAI¡± with a distance at 2.6 nautical miles.  At around 0932, M/V ¡°JIA LI HAI¡± proceeded to 29¡ã49¡¯.9N, 122¡ã 12¡¯.9 E with a speed of 10.4 knots and her course was 327¡ã. Then the vessel discussed the collision avoidance with M/V ¡°YU ZHOU 19¡±, which was about to cross Caution Area 1# from east along Channel Fuodu. At that time, M/V ¡°XIUMEI TIANJIN¡± was at the position of portside front 24¡ã from M/V ¡°JIA LI HAI¡± with a distance 0.6 nautical miles. On around 0933, M/V ¡°JIA LI HAI¡± proceeded to 29¡ã50¡¯.1N, 122¡ã12¡¯.8E with a speed of 10.3 knots and her course was 327¡ã. And then it changed her wheel to slow ahead and discussed the collision avoidance proposal with M/V ¡°YU ZHOU 19¡± again. Meanwhile, M/V ¡°XIUMEI TIANJIN¡± was at the position of portside front 22¡ã from M/V ¡°JIA LI HAI¡± with a distance of 0.4 nautical mile. On around 0934, M/V ¡°JIA LI HAI¡± realized the danger of collision with M/V ¡°XIUMEI TIANJIN¡±, so that changed her wheel to slow ahead with hard starboard immediately and called M/V ¡°XIUMEI TIANJIN¡± on VHF to request for altering course. And M/V ¡°XIUMEI TIANJIN¡± replied that she was altering course and requested M/V ¡°JIA LI HAI¡± to change her course immediately. And then, M/V ¡°JIA LI HAI¡± changed her wheel to full ahead with midship and hard-a-port immediately. After 15 seconds, M/V ¡°JIA LI HAI¡± collided with M/V ¡°XIUMEI TIANJIN¡±. The approximate collision spot was 29¡ã50¡¯.3N, 122¡ã12¡¯.6E (within the inward vessel traffic lane of No. 3 separation scheme of the ship¡¯s route), and these two vessel collided with a collision angle 30¡ã. At the time of collision, M/V ¡°JIA LI HAI¡± was proceeding at a speed of 10.3 knots, and the vessel stopped after the collision hereof.

    At the time of collision accident, the visibility was poor at the accident sea area with a distance of 1000-1500m, fog and hazy weather, NW 5-6 wind scale, spring tide with flood tide stream, NW current set and current speed 3-4kts. M/V ¡°XIUMEI TIANJIN¡± was partially damaged in way of her bow and her bulbous bow was also partially damaged to dented; while M/V ¡°JIA LI HAI¡± was damaged in way of No.7 cargo hold and bulkhead of engine room on port side with water ingress, the accommodation on port side was also partially damaged; M/V ¡°JIA LI HAI¡± leaked part of oil. After the subject accident, MSA salvaged M/V ¡°JIA LI HAI¡± and appointed related companies to carry out emergency action for anti-pollution. M/V ¡°XIUMEI TIANJIN¡± sailed for Haizhou Shipyard Co., Ltd. for repair. Ningbo MSA investigated the subject accident and issued the Liability Report on Marine Traffic Accident to decide that M/V ¡°XIUMEI TIANJIN¡± borne the main responsibility and M/V ¡°JIA LI HAI¡± borne the secondary responsibility thereof. It is ascertained that the reasonable losses claimed of M/V ¡°JIA LI HAI¡± is RMB70,062,045, while the reasonable losses claimed of M/V ¡°XIUMEI TIANJIN¡± is RMB3,131,311.

    It is also ascertained that COSCO BULK submitted Application for Pre-litigation Vessel Arrest for arresting M/V ¡°XIUMEI TIANJIN¡± on 11 December 2013 and requested SINOKOR MERCHANT to provide a undertaking in the quantum ofRMB122,000,000, for which COSCO BULK paid fee for pre-litigation property preservation in the amount of RMB5,000. This court ordered to approve the application and arrested M/V ¡°XIUMEI TIANJIN¡± factually. And then this court released the arrest of M/V ¡°XIUMEI TIANJIN¡± for that SINOKOR MERCHANT provided the requested guarantee. On 19 December 2013, SINOKOR MERCHANT applied to this court for constituting limitation fund for maritime claims for losses other than loss of life or personal injuries, which was approved by this court after the acceptance, and the amount of the limitation fund for maritime claims is 2,739,802SDR and its interests (calculated at the benchmark one-year loan rate of financial institution for the corresponding period stipulated by Bank of China from 6th December 2013 to the date of constitution of the limitation fund). As a result, SINOKOR MERCHANT remitted RMB26,628,602.55 to the bank account of this court to constitute the limitation fund for maritime claims.

    This court holds that the subject case was a dispute re damage liability involving foreign-related element due to ship collision. Since the ship collision occurred in the sea areas of Zhejiang, this court has the jurisdiction over the subject case, pursuant to Article 28 of the Civil Procedure Law of P. R. China and Article 6 of the Special Maritime Procedure Law of P. R. China.  The parties did not have any objection to the application of the laws of P. R. China.  Thus, pursuant to Article 3 of the Law of Applicable Law for Foreign-related Civil Relations of P. R. China, the laws of P. R. China should apply to subject case.

    Pursuant to Article 169.1 of the China Maritime Code, if the colliding ships are all in fault, each ship shall be liable in proportion to the extent of its fault; if the respective faults are equal in proportion or it is impossible to determine the extent of the proportion of the respective faults, the liability of the colliding ships shall be apportioned equally.  The subject accident was resulted from the faults of both two vessels in restricted visibility.  The faults of MV ¡°XIUMEI TIANJIN¡± are as follows:

a. Negligence in keeping look-out, failure in making sufficient estimation of the situation at the material time, paid too much attention to MV ¡°JIN TAI 82¡±, failure in observing the movement of MV ¡°JIA LI HAI¡± and establishing VHF contact with MV ¡°JIA LI HAI¡±, failure in foreseeing the possible risk of collision timely and correctly so as to take relevant measures, e.g. reducing speed, in advance, and failure in deploying sufficient watchmen in a complicated circumstance for navigation.  Breaching of Rule 5 and Rule 7 of the COLREG 1972.
b. Failure in keeping a safe speed.  At the time of 0926, the vessel¡¯s speed was still at 14.4 knot when she was entering in the outbound lane of the No.3 Traffic Separation, which caused the vessel¡¯s failure in taking proper and effective avoid action after identifying collision risks for stopping the vessel under the circumstance and situation at the material time.  Breaching of Rule 6 and Rule 19.2 of the COLREG 1972.
c. Failure in taking effective action to avoid collision in ample time.  The vessel failed to take measures, e.g. remarkably reduced the speed, in time when she was entering in the outbound lane of the No.3 Traffic Separation for delaying the entering time, so as to avoid the risks of a close-crossing situation with MV ¡°JIA LI HAI¡± and MV ¡°JIN TAI 82¡± in a narrow waterway.  After the vessel entered in the outbound lane, she took the avoid action ¡°port 10¡± for 47 seconds from 0931 hours, which directly resulted that the vessel passed the spit line, entered in the inward lane, and immediately formed a close-quarters situation with MV ¡°JIA LI HAI¡±.  Breaching of Rule 8 of the COLREG 1972.
d. Failure in making sound signal as per the COLREG 1972.  In the restricted visibility, the vessel failed to sound at intervals of not more than 2 minutes one prolonged blast as required by the rules.  Breaching of Rule 35.1 of the COLREG 1972.
e. Failure in proceeding along in traffic line on the right side of the general direction of traffic flow for that lane.  The vessel had been sailing in the inward lane of the No.3 Traffic Separation after she passed the spit line at about 0933 hours up to the time of collision.  Breaching of Article 5 of the Rules of Ship Route in Deep Water Way of Ningbo-Zhoushan Port.

The faults of MV ¡°JIA LI HAI¡± are as follows:

a. Negligence in keeping look-out, failure in making sufficient estimation of the situation at the material time, failure in observing the movement of MV ¡°XIUMEI TIANJIN¡± and establishing VHF contact with MV ¡°XIUMEI TIANJIN¡±, and failure in foreseeing the possible risk of collision timely and correctly so as to take relevant measures in advance.  Breaching of Rule 5 and Rule 7 of the COLREG 1972.
b. Failure in proceeding at a safe speed.  The vessel¡¯s speed was still at around 10 knot in a complicated circumstance for navigation with restricted visibility, which caused the vessel¡¯s failure in taking proper and effective avoid action after identifying collision risks for stopping the vessel under the circumstance and situation at the material time.  Breaching of Rule 6 and Rule 19.2 of the COLREG 1972.
c. Having neglect of any precaution which was required by the special circumstance of the case.  The vessel failed to exercise good seamanship and to take corresponding measures in time under the complicated circumstance, and failed to take action most in favor of collision avoidance after the occurrence of immediate danger.  Failure in meeting the requirement of good seamanship.

    On the basis of the above faults of two vessels and by analyzing the causative potency of the factors caused the accident, this court holds that the liability proportion of MV ¡°JIA LI HAI¡± and MV ¡°XIUMEI TIANJIN¡± was 40% and 60% respectively.  The reasonable losses of COSCO BULK due to subject accident is RMB70,062,045, and SINOKOR MERCHANT should be liable for RMB42,037,227 as per the liability proportion.  The reasonable losses of SINOKOR MERHCANT due to subject accident is RMB3,131,311, and COSCO BULK should be liable for RMB1,252,524.4 as per the liability proportion.  After offsetting, SINOKOR MERCHANT should pay RMB40,784,702.6 to COSCO BULK.  In view of that the actual payment days of both parties¡¯ losses & costs are different, and that there was no circumstance of delay in performance, this court decides to protect the interests of both parties incurred from the date of issuance of this judgment.

    SINOKOR MERCHANT has established the limitation fund for maritime claims.  In view of that, no evidence has showed that the subject ship collision was resulted from SINOKOR MERCHANT¡¯s act or omission done with the intent to cause such loss or recklessly and with knowledge that such loss would probably result, SINOKOR MERCHANT is entitled to limit its liability for maritime claims.  Pursuant to Article 215 of the China Maritime Code, which provides that ¡°where a person entitled to limitation of liability under the provisions of this Chapter has a counter-claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Chapter shall only apply to the balance, if any¡±, the remaining losses after offsetting should be paid from the limitation fund for maritime claims.  Besides, the fee in the amount of RMB5,000 paid by COSCO BULK for the application for pre-litigation property preservation was court fee in nature. As it is not subject to limitation, the application fee in the amount of RMB5,000 should be paid by SINOKOR MERCHANT out of the limitation fund.

    In view of the foregoing, this court holds that partial claims from both parties are reasonable and should be supported.  Pursuant to Article 169, Article 204, Article 207 and Article 215 of the China Maritime Code, and Article 64.1 and Article 259 of the Civil Procedure Law of P. R. China, this court hereby judges as follows:

I. The Defendant (the Plaintiff in Counter-Claim), SINOKOR MERCHANT MARINE CO., LTD., should pay RMB42,037,227 and its interests, which shall be calculated from November 15, 2016 to the date of performance of this judgment as per the loan rate of China Peoples¡¯ Bank in the corresponding period, to the Plaintiff (the Defendant in Counter-Claim), COSCO BULK CARRIER CO., LTD., for its losses of property;
II. The Plaintiff (the Defendant in Counter-Claim), COSCO BULK CARRIER CO., LTD., should pay RMB1,252,524.4 and its interests, which shall be calculated from November 15, 2016 to the date of performance of this judgment as per the loan rate of China Peoples¡¯ Bank in the corresponding period, to the Defendant (the Plaintiff in Counter-Claim), SINOKOR MERCHANT MARINE CO., LTD., for its losses of property;
III. After offsetting between above Item I and Item II, the Defendant (the Plaintiff in Counter-Claim), SINOKOR MERCHANT MARINE CO., LTD., should pay RMB40,784,702.6 and its interests, which shall be calculated from November 15, 2016 to the date of performance of this judgment as per the loan rate of China Peoples¡¯ Bank in the corresponding period, to the Plaintiff (the Defendant in Counter-Claim), COSCO BULK CARRIER CO., LTD., for its relevant losses.  This fund should be paid from the limitation fund for maritime claims established by SINOKOR MERCHANT MARINE CO., LTD. before this court;
IV. The Defendant (the Plaintiff in Counter-Claim), SINOKOR MERCHANT MARINE CO., LTD., should pay the application fee for pre-litigation property preservation, the amount of which is RMB5,000, to the Plaintiff (the Defendant in Counter-Claim), COSCO BULK CARRIER CO., LTD., within 10 days after the effective date of this judgment;
V. The remaining claims filed by the Plaintiff (the Defendant in Counter-Claim), COSCO BULK CARRIER CO., LTD., should be rejected;
VI. The remaining counter-claims filed by the Defendant (the Plaintiff in Counter-Claim), SINOKOR MERCHANT MARINE CO., LTD., should be rejected.

    If any party fails to make the payment obligation within the period designated by this judgment, the party in breaching of doing so should pay the interests for the period of delay in performance in double, pursuant to Article 253 of the Civil Procedures of P. R. China.

    The court fee of subject case is RMB457,758.  RMB226,422 should be borne by COSCO BULK CARRIER CO., LTD., and RMB231,336 should be borne by SINOKOR MERCHANT MARINE CO., LTD. The court fee of counter-claim is RMB18,710 (which has been collected in half).  RMB6,120 should be borne by COSCO BULK CARRIER CO., LTD., and RMB12,590 should be borne by SINOKOR MERCHANT MARINE CO., LTD.

    If unsatisfied with this judgment, COSCO BULK CARRIER CO., LTD. should, within 15 days after being served with this judgment, while SINOKOR MERCHANT MARINE CO., LTD. should, within 30 days after being served with this judgment, file the appeal.  The petition for appeal should be submitted to Zheijang High Peoples Court via this court, and the number of copies of petition for appeal should be corresponding to the numbers of opponent parties.

Presiding Judge: Zibei XIAO
Judge: Xianda LI
Assistant Judge: Guangen XIA

(Court Seal)
November 15, 2016

Clerk: Meina XU

 

 

 

 

 

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[Attachment] Evidence List

To prove its claim, COSCO BULK provides the evidences as follows:
With respect to the liability for ship¡¯s collision:
Evidence 1: Certificate of Vessel¡¯s Nationality; Evidence 2: Safety Management Certificate; Evidence 3: Minimum Safe Manning Certificate; Evidence 4: Document for Compliance; Evidence 5: Classification Certificate; Evidence 6: Load Line Certificate; Evidence 7: Safe Radio Certificate; Evidence 8: Cargo Ship Safety Construction Certificate; Evidence 9: Cargo Ship Safety Equipment Certificate; Evidence 10: Certificate for Fitness for the carriage of Solid Bulk Cargo; Evidence 11: International Tonnage Certificate; Evidence 12: Latest Investigation Table before Arrival; Evidence 13: Crew List upon the accident; Evidence 14: Crew Certificates of Captain, 3/O, Duty A.B., C/E, Duty Engineer; Evidence 15: Weather Certificate upon the Accident; Evidence 16: Deck Log Book of M/V ¡°JIA LI HAI¡± on 6th December 2016; Evidence 17: Engine Log Book of M/V ¡°JIA LI HAI¡± on 6th December 2016; Evidence 18: Liability Report on Marine Traffic Accident;
With respect to losses:
Evidence 19: Confirmation of Cover; Evidence 20: Sales Contract of ¡°JIA LI HAI¡±; Evidence 21: Invoice of Repair Costs for ¡°JIA LI HAI¡±; Evidence 22: Mediation Paper with Case No. (2014) Yong Hai Fa Shang Chu Zi No. 380 between the Plaintiff and Manyang Company; Evidence 23: Payment voucher; Evidence 24: Debit Note from East China Sea Rescue Bureau; Evidence 25: S.A. re salvage costs signed between Plaintiff and East China Sea Rescue Bureau; Evidence 26: Payment voucher re costs to East China Sea Rescue Bureau; Evidence 27: Claim docs of Shanghai Salvage Bureau; Evidence 28: S.A. re salvage costs signed between Plaintiff and Shanghai Salvage Bureau; Evidence 29: Payment voucher re costs to Shanghai Salvage Bureau; Evidence 30: S.A. signed with barge company; Evidence 31: Invoice issued by barge company; Evidence 32: Emergency Service Agreement signed between Plaintiff and PENAVICO Zhoushan; Evidence 33: Trip Account issued by PENAVICO Zhoushan; Evidence 34: Invoice issued by PENAVICO Zhoushan; Evidence 35: Invoice issued by Tianjin COSCO Bulk Freight Company or Payment voucher; Evidence 36: S.A. signed with MSA Ningbo; Evidence 37: Payment voucher; Evidence 38: S.A. signed with MSA Zhoushan; Evidence 39: Payment voucher; Evidence 40: Mediation Paper with Case No. (2014) Yong Hai Fa Shang Chu Zi 282 between Plaintiff and Ningbo Yongjie; Evidence 41: Payment voucher; Evidence 42: S.A. between Plaintiff and Zhoushan Hai¡¯an; Evidence 43: Payment voucher; Evidence 44: Invoice (sewage disposal and tank cleaning); Evidence 45: Appraisal Report and Assessment Report issued by Shandong Maritime Judicial Appraisal Center; Evidence 46: S.A. signed between Plaintiff and Zhoushan Ocean and Fishery Bureau; Evidence 47: Receipt issued by Zhoushan Ocean and Fishery Bureau; Evidence 48: Charter Party; Evidence 49: Statistics of net profit of two voyages prior to accident; Evidence 50: Survey Report re quantum of fuel oil spilled from JIA LI HAI; Evidence 51: Bunker Delivery Receipt; Evidence 52: Invoice of Bunkering; Evidence 53: Engagement Contact; Evidence 54: GA Adjustment Report; Evidence 55: Invoices, debt notes issued by Trade-Wind Surveyors and remittance receipt issued by Bank of China; Evidence 56: E-joy Surveyors; Evidence 57: The working contents of AMA, expense voucher and their translations; Evidence 58: Debt notes and invoices issued by Hai Tong & Partners and payment voucher issued by Bank of China; Evidence 59: Payment voucher for lawyer fee paid to WANG JING & CO; Evidence 60: Payment vouchers of losses of crew members¡¯ personal belongings; Evidence 61: Payment voucher of administrative penalties issued by MSA; Evidence 62: Bank Slip issued by Bank of Merchant; Evidence 63: Debit Note for Work Completion of M/V ¡°JIA LI HAI¡±; Evidence 64: Voyage Account Bill issued by COSCO BULK TIANJIN.

To prove its counterclaim, SINOKOR MERCHANT provides the evidences as follows:

With respect to the collision accident:

Evidence 1: Certificate of Vessel¡¯s Nationality; Evidence 2: Safety Management Certificate; Evidence 3: Document for Compliance; Evidence 4: Classification Certificate; Evidence 5: Safety Management Certificate; Evidence 6: Crew Certificates of Captain; Evidence 7: Crew Certificates of C/E; Evidence 8: Crew Certificates of 3/O; Evidence 9: Call Log on VHF; Evidence 10: Record on Course and Speed of the two subject vessels before the collision accident; Evidence 11: Crew List.

With respect to the losses:

Evidence 12: Invoice of repair cost and repair list, which were issued by Haizhou Shipyard Co., Ltd., Bank Slip; Evidence 13.1: Invoice, Electronic Tax Bill and Service Report of renewal speed log/echo sounder; Evidence 13.2: Invoice, Electronic Tax Bill of S-VDR data back-up and Service Report; Evidence 13.3: Electronic Tax Bill, notice of payment and delivery note concerning costs for bow thruster hub overhaul, and their spare; Evidence 13.4: Electronic Tax Bill, notice of payment and certificate of work completion concerning costs for bow thruster & panel repair; Evidence 13.5: Invoice concerning cost for bow thruster hub overhaul; Evidence 13.6: Electronic Tax Bill and invoice concerning costs for paint; Evidence 13.7: Delivery notes of paint; Evidence 13.8: Electronic Tax Bill and invoice concerning costs for making drawings of lines; Evidence 14: Electronic Tax Bills, Breakdown of electronic transaction, etc. concerning fees for class survey; Evidence 15: The voyage account bill, the dedicated invoice for Zhejiang Port administrative charge, pilot fees paid to Zhoushan Pilot Station, pilotage bills, General VAT invoice in Zhejiang Province, Universal Invoice of the Chinese Armed Police Force, the receipt of agency fee, the details of traffic fee incurred by vessel¡¯s inbound & outbound, the receipt of fee incurred by MSA safety escort, invoice, The details of embarkation fee and traffic fee, accounting statement and bank slip; Evidence 16: Summary sheet for superintendents, superintendents¡¯ disbursement, invoices of air fees, shipowner¡¯s superintendents¡¯ communication fares; Evidence 17: Survey Report; Evidence 18: Freight manifest, freight invoice, debt notes, bills, assignment sheet, receipts, invoice for bunker oil, Email and bunker delivery note concerning Voyage No. 0045 S/N and Voyage No. 0051 S/N.
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Attachment for Provisions of Law

The China Maritime Code

    Article 169 If the colliding ships are all in fault, each ship shall be liable in proportion to the extent of its fault; if the respective faults are equal in proportion or it is impossible to determine the extent of the proportion of the respective faults, the liability of the colliding ships shall be apportioned equally.

    The ships in fault shall be liable for the damage to the ship, the goods and other property on board pursuant to the proportion prescribed in the preceding paragraph. Where damage is caused to the property of a third party, the liability of for compensation of any of the colliding ships shall not exceed the proportion it shall bear.

    If the ships in fault have caused loss of life or personal injury to a third party, they shall be jointly and severally liable therefore. If a ship has paid an amount of compensation in excess of the proportion prescribed in paragraph 1 of this article, it shall have the right of recourse against the other ship(s) in fault.

    Article 204 Shipowners and salvors may limit their liability in accordance with the provisions of this chapter for claims set out in Article 207 of this code.

    The shipowners referred to in the preceding paragraph shall include the charterer and the operator of a ship.

    Article 207 Except as provided otherwise in Article 208 and 209 of this Code, with respect to the following maritime claims, the person liable may limit his liability in accordance with the provisions of this chapter, whatever the basis of the liability may be:

(1) Claims in respect of loss of life or personal injury or loss of damage to property including damage to harbor works, basins and waterways and aids to navigation occurring on board or in direct connection with the operation of the ship or with salvage operations, as well as consequential damages resulting therefrom;
(2) Claims in respect of loss resulting from delay in delivery in the carriage of goods by sea or from delay in the arrival of passengers or their luggage;
(3) Claims in respect of other loss resulting from infringement of rights other than contractual rights occurring in direct connection with the operation of the ship or salvage operations;
(4) Claims of a person other than the person liable in respect of measures taken to avert or minimize loss for which the person liable may limit his liability in accordance with the provisions of this chapter, and further loss caused by such measures.

    All the claims set out in the preceding paragraph, whatever the way they are lodged, may be entitled to limitation of liability. However, with respect to the remuneration set out in sub-paragraph (4) for which the person liable pays agreed upon in the contract, in relation to the obligation for payment, the person liable may not invoke the provisions on limitation of liability of this Article.

    Article 215 Where a person entitled to limit its liability under the provisions of this chapter has a counter-claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this chapter shall only apply to the balance, if any.

    Civil Procedure Law of People¡¯s Republic of China

    Article 64 A party shall be responsible for providing evidence in support of his or her allegations.

    Article 253 If a person subject to execution fails to perform his obligation to pay within the time limit specified in a judgment, ruling or other legal document, he shall pay twice the amount of interest on the debt for the period during which the performance is deferred. If a person subject to execution fails to perform any other obligations within the time limit specified in a judgment, ruling or other legal document, he shall pay a finer or deferred performance.

    Article 259 This Division shall apply to civil actions within the territory of the People¡¯s Republic of China involving foreign parties. For matters not addressed in this Division, the other relevant provisions of this law shall apply.

 


 

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