Zhejiang is a large oceanic province with developed ocean shipping and fishing industries. For vessels sailing along the North-South Face route and a number of international routes, the East China Sea is the only way to get to their destinations. With numerous vessels to and from the East China Sea, the density of vessels sailing and operating on the East China Sea is increasing. Collision between vessels and allision between vessels and piers or other facilities or obstacles account for a relatively large percentage of maritime accidents, and have direct impact on the safety of vessels, cargos and human life and constitute typical cases of disputes over maritime tort and one of the main types of cases accepted by maritime courts. Through a review of the cases of disputes over liability for damage caused by vessel collision or allision that were concluded by Ningbo Maritime Court in the past five years, this White Paper on Maritime Trials puts forward suggestions based on different accidents and reasons for such disputes, thereby making positive efforts to strengthen the maritime traffic safety management, protect the marine ecological environment and promote the construction of a "Safe Zhejiang".
Basic Information About Disputes over Liability for Damage Caused by Vessel Collision/Allision
In the period from January 1, 2011 to December 31, 2015, the court accepted 156 cases of disputes over liability for damage caused by vessel collision or allision, which accounted for about 1% of the total number of cases accepted by us for that period, with the total amount of the subject matters involved in such cases being 784 million Yuan, accounting for about 2.8% of the total amount of all cases accepted for that period. 138 cases were concluded, accounting for about 0.91% of the total number of cases concluded by us for that period, with the total amount of subject matters involved in such concluded cases being 308 million Yuan, the ratio of cases concluded being 88.46% and the average number of days for trials being 134.8. Among others, such cases show the following characteristics:
(I) Types of cases accepted were mainly disputes over vessel collision that are prone to result in a series of disputes
The past five years witnessed a "gusher-like" growth rate of the total number of accepted cases of maritime disputess, but the number of cases of disputes over liability for damage caused by vessel collisionor allision roughly remained still. In the five years from 2011 to 2015, the number of cases accepted was 32, 27, 28, 33 and 36, respectively, and 14, 29, 29, 27 and 39 respectively for the concluded. In terms of the types of cases accepted, the number of cases resulting from vessel collision was 116, which was more than that of cases of other types and 2.9 times that of cases resulting from vessel allision (see Figure 1). Data show that there is still considerable risk of two vessels colliding with each other and vessels alliding with bulwarks of piers, trestles and other facilities, therefore safety management should not be overlooked. Once vessel collision or allision accidents occur, the vessels often end up sinking, claiming people¡¯s lives or making people injured. In the case of leakage of oil or accidents that occur in coastal waters or areas with intensive navigation and complex fairways or areas adjacent to ports, in addition to the property damage and personal injury, the accidents may lead to blockage of fairways, pollution of the sea waters, damage to port facilities, death of or reduction in the production of farmed aquatic plants and animals and other consequences. Therefore, an accident tends to give rise to a series of disputes. Take the case of dispute over liability for damage caused by vessel collision between the plaintiff, ROCKWELL SHIPPING LIMITED and the defendants, CMA CGM S.A. and Provence Ship-owner 2008-1 Limited as an example, the collision accident involved in the case gave rise to 139 series of cases of disputes over contracts for salvage operations, affirmation of maritime claims, etc.
(II) The amounts of the subject matter in the disputes involved in the cases were large, and there was a high proportion of cases that are concluded through conciliation or by claimants¡¯ withdrawal
The amounts of the subject matters involved in the cases of disputes over liability for damage caused by vessel collision and allision were large. Over the past five years, we accepted 87 cases wherein the amount of subject matter each exceeded 1 million Yuan, accounting for 55.77% of the total number of cases accepted, 9 cases where the amount of the subject matter each exceeded 10 million Yuan, including 2 cases where the amount of subject matter each exceeded 100 million Yuan, accounting for 5.77% of the total number of cases accepted (see Figure 2). As far as annual distribution is concerned, the amounts of the subject matter involved in such cases began to increase in 2012, peaked at 270 million Yuan in 2013 and began to decline thereafter. In terms of methods for settlement of cases, during the aforesaid period, there were 46 cases concluded by handing down a judgment, accounting for 33.33% of the total number of cases concluded for that period, 46 cases concluded in mediation, accounting for 33.33% of the same, and 32 cases concluded by claimants¡¯ withdrawal or credited as withdrawn by claimants, accounting for 23.19% of the same. The average case conciliation and withdrawing rate was 56.52%, which was 3.95% higher than the case withdrawing rate of all cases of first instance tried by us in the past five years (52.57%).
(III) Great hardship was experienced in the trial, and the period of trial was relatively long
Cases resulting from vessel collision and allision are characterized by a high degree of specialization and complexity, difficulty in securing evidence and many others. It is the common sense of all parties involved in maritime litigation that it is very difficult to try such cases. It is hard to maintain the original state of the scenes of vessel collision accidents for the accidents occur on the high seas and the scenes are affected by wind and ocean currents. Moreover, evidence is vulnerable to man-induced or natural factors and often involves professional issues such as navigation, shipbuilding, etc. These increase the difficulty in accident investigations and identifications of liabilities. The property damages resulting from vessel collision and allision accidents are generally heavy. In determining the amounts of losses, it is required in most cases to authorize professional institutions to assess and accredit the losses, and there are many accreditation items which entail a time consuming accreditation process. In addition, in some cases resulting from vessel collision and allision, there exist such complicated issues as difficulty in service of legal instruments, need for notarization of authorization and authentication of extra-territorial evidence for the vessels that leave the scenes of accidents caused by them to evade responsibilities are foreign vessels. Among the cases resulting from vessel collision and allision that were accepted in the past five years, 43 cases involved foreign elements, Hong Kong, Macao and Taiwan, accounting for 27.56% of the total number of such cases. Objectively speaking, the efficiency of trial of cases resulting from vessel collision and allision is bottlenecked and the period of trial prolonged by the foregoing problems. The average number of calendar days for the trial of cases resulting from vessel collision and allision was 110 more than that for trial of general maritime cases.
(IV) Most of the accidents arose from man-induced factors
As a high-risk industry, marine operation is greatly influenced by external factors such as the weather and marine environment. Not surprisingly, most of the vessel collision/allision accidents were caused by severe weather. However, with continuous improvement of the level of navigation, shipbuilding and weather forecasting, the contribution of harsh natural conditions to the occurrence of safety accidents has been reduced. In terms of the causes of this type of cases accepted by us, collision/allision accidents caused by man-induced factors account for a high proportion. Among the 46 collision/allision cases concluded by handing down a judgment in the past five years, 38 cases were completely caused by man-induced factors, accounting for 82.61% of the total. These man-induced factors included violation of navigation rules, negligence in observation, traveling beyond the speed limit, unqualified crew members, adventurous sailing due to over-confidence, etc.
2. Legal Issues and Suggestions Related to Disputes over Liability for Damage Caused by Vessel Collision/Allision
(I) Identification of parties responsible for disputes over liability for damage caused by vessel collision/allision
The risk of registered vessel owners being asked to attend court hearing. In accordance with Article 4 of <Italic>the Provisions of the Supreme People¡¯s Court on Several Issues Concerning Trials of Cases of Disputes over Vessel Collision</Italic>, the damages resulting from vessel collision shall be borne by ship owners. If a ship collided with is in the bareboat charter period and has been registered in accordance with the law, the damages shall be borne by the bareboat charterer. Pursuant to the regulations on administration of vessel registration, the ownership of vessels shall be registered for the vessels as a type of special movable property. However, in shipping practice, some ship-owners go through fake vessel registration formalities for their vessels or make their vessels affiliated with other duly registered vessels in order to avoid operating risks and obtain business qualifications, creating some difficulties in vessel management and dispute resolution. In the event that a de facto ship-owner is not the same person as the registered ship-owner, the registered ship-owner shall not be held liable to the extent that it does not take infringing actions in a vessel collision accident, nor if the accident occurs through its fault and the civil liabilities arising from the accident shall be assumed by the de facto ship-owner. However, the parties whose vessels are collided or allided with will still argue that the registered ship-owners are the defendants and make the registered ship-owners become involved in litigation when they do not know the facts or they want to better ascertain the facts despite knowing the facts. In addition, if a vessel causes personal injuries and property damage during its operation due to its infringing actions and the rightful owner concerned claims maritime lien, the competent court will take the registered ship-owner concerned as the defendant and rule that the plaintiff shall have the maritime lien on the vessel registered in the name of the defendant. We suggest that the relevant parties should avoid being registered as the shipowners if they want to eliminate latent risk of being sued. If a party is registered as s ship-owner, it should enter into a claim agreement with expressed terms and conditions with the de facto ship-owner, such that it may recover the litigation costs and damages assumed by it from its insurer or the de facto shipper after paying the same.
Identification of parties responsible for disputes arising from vessels in sea trials. There are different opinions about who should assume the liability for damage resulting from collisions that occur during sea trials of vessels. One of the opinions is that the relevant shipbuilding contracts should be consulted and the shipowners should assume the liability for damage in accordance with the stipulations of the parties to the contracts about the ownership of the vessels being built. Another opinion is that the principle of ¡°The party who controls the vessel should take the risks¡± should be adopted. The arguments of this opinions are that according to the risk control cost theory, the shipbuilders within the nearest distance away from risks shall take the risks, and this arrangement is conducive to the maximization of the interests of such ship-owners and prevention of risks as much as they can. Meanwhile, the costs of risks arising therefrom are at the lowest level; otherwise, ethical risks may be given rise to. In addition, it is not fair for such ship-owners to leave the articles in their control unattended and let other persons to take the risks and bear the losses. In case of a dispute over liability for damage caused by vessel collision between the plaintiff, Shao, and the defendants, Zhoushan Dingheng Shipyard Co., Ltd. and Shanghai Dingheng Shipping Co., Ltd. for collision damage dispute case, the Court adopted the second opinion. The Court holds that Zhoushan Dingheng company Shipyard Co., Ltd. is the shipbuilder of the ship "Ding Heng 9" and the ship was actually in its possession and control during the sea trial; Zhoushan Dingheng company Shipyard Co., Ltd. was registered on the tentative certificate of registry of the ship as the operator of the ship; the ship "Ding Heng 9" was in the control of Zhoushan Dingheng company Shipyard Co., Ltd. during the seal trial, and the risks arising during the sea trial shall be taken by Zhoushan Dingheng company Shipyard Co., Ltd. Therefore, Zhoushan Dingheng Company Shipyard Co., Ltd. shall be liable for the damage which the owner of the ship "Zhe Xiang 988" sustained in the vessel collision accident. It is noteworthy that if the injured party claims maritime liens, in view of its statutory right of security, maritime claims due to collision and after the accident, obtain the ownership of the ship owner and from this perspective, the owner as security interests should still bear the legal risk. We suggest that litigants should expressly specify the parties who shall assume the aforementioned liability, methods for assuming such liability and proportion of the liability to be assumed in the relevant shipbuilding contracts to avoid controversies and disputes over assumption of the liability resulting from the accidents that occur during sea trials.
(II) Proper preservation and collection evidence to facilitate identification of responsibilities for accidents
Paragraph 1, Article 169 of the Maritime Law of the People's Republic of China provides that if both the colliding ship and the collided ship are in fault, each ship shall be liable for property damage in proportion to the degree of their respective faults; if the collision causes loss of life or personal injury to a third party, both the ships shall be jointly and severally liable therefor. Article 167 of the Maritime Law provides that neither party shall be liable to the other party if the collision is caused by force majeure or for other reasons not attributable to either party or if the cause thereof cannot be ascertained. We can come to a conclusion based on an analysis of the foregoing provisions that the doctrine of liability fixation adopted in vessel collision cases is fault-based liability. If the plaintiff cannot adduce sufficient evidence demonstrating the causes of the collision, nor can the competent court ascertain such causes through trial, it will be ruled that no party shall be liable to the other party for damage. Hence, whether or not the parties involved in a collision accident have promptly collected and retained the relevant evidence is significant to subsequent analysis of the causes of the accident and determination of responsibilities for the accident. Due to difficulty in keeping the scenes of vessel collisions and vulnerability of the evidence on such scenes to loss, collection and accreditation of the evidence related to vessel collision has become one of the difficulties in trying the cases resulting from vessel collision. During trials, we become aware that some vessels¡¯ navigation and operating records are too brief and some of them are even blank or there is some indication that some of them are altered, which is extremely prejudicial to the judgment of the causes of accidents and determination of the responsibilities for the accidents. In accordance with the relevant provisions of the Laws of the People's Republic of China on Special Procedures Concerning Maritime Litigation, a maritime court will not attach the relevant evidentiary materials to the complaints or pleadings served by it on the litigants, and the plaintiff or the defendant shall truthfully complete a Maritime Accident Investigation Form when filing a lawsuit or defending itself. Litigants shall finish adducing their evidence prior to court hearings, and they may not apply for consulting the relevant factual evidentiary materials related to vessel collision until finishing adducing their evidence. Litigants shall not overthrow the representations they have made in the Maritime Accident Investigation Forms and the evidence they have adduced, except to the extent that they have new evidence and good reasons to support their argument that the new evidence could not be presented during the time limit for adducing evidence. These special systems for evidence are quite different from the procedures of ordinary civil proceedings. Therefore, litigants shall pay adequate attention to them when participating in the proceedings to avoid unnecessary passivity.
Given the above, we suggest that (1) shipping companies should enhance their internal management systems, require their captains and crew members to make full records of and keep the relevant information during the voyages of their vessels, emphasize the importance of making records, and regularly check and reserve the navigational logs and documents on board; (2) shipping companies with good conditions should require their captains and crew members to send navigational logs to their offices for filing on a regular basis during the voyages of their vessels, such that copies of such evidence will still be provided when the original evidence is not available due to involvement of their vessels in accidents; and (3) where the cases are referred to courts for litigation, the relevant shipowners should truthfully and actively adduce evidence and restrain themselves from not adducing evidence that can safeguard their rights until a court session begins or even a judgment is pronounced.
(III) Qualitative analysis of and lessons from collisions with multiple vessels
The criteria for determining whether an accident in which multiple vessels collide with each other constitutes one accident or several collision accidents independent from each other are whether a continuous urgent situation is given rise to and whether there is enough time to avoid the accident(s). Specifically speaking, the first criterion is whether chronological continuity exists and the second criterion is whether there is a causal relationship between the two collisions. If the first collision has not resulted in a subsequent urgent situation, or although it has resulted in a subsequent urgent situation but the second collision can be avoided by virtue of good seamanship and prudent treatment, the colliding vessel collides with another vessel once again or with a pier or other facilities, the first collision and the second one shall be deemed as two collisions independent from each other. As far as the latter case is concerned, given the fact that there was no causal relationship between the two collisions, and the second collision occurred through no fault of the other party, nor was the other party involved in the second collision, the causal relationship between the first collision and the second one did not exist, and therefore the other party is not required to assume the liability for the damage. In case of a dispute over liability for damage caused by vessel collision between the aforementioned plaintiff, Shao, and the defendants, Zhoushan Dingheng Shipyard Co., Ltd. and Shanghai Dingheng Shipping Co., Ltd., after colliding with "Ding Heng 9", the ship "Zhe Xiang 988¡± collided with the ship "Zhou Hai You 9". Although the first collision was the main reason for the sinking of the ship "Zhe Xiang 988", there was only a 2-minute interval between the first collision and the second one, and there was chronological continuity and a causal relationship between the two collisions. Hence, the two collisions constituted chain collisions.
To sum up, we suggest that (1) shipowners should strengthen their efforts to train their crew members in good seamanship and require their crew members to operate vessels in accordance with the rules for avoiding collision and regulations on navigation, so as to avoid sailing in violation of the relevant regulations; and (2) shipowners should perform survival exercises and collision drills on a regular basis, so as to minimize consequential accidents that may occur due to panic that rises when an accident really occurs and avoid or minimize vessel collision accidents.
(IV) Loss of the right to limitation of liability for maritime claims
The systems for limitation of liability for maritime claims are established with a view to protecting shipping market players. In the event of a vessel collision/allision, responsible persons tend to mitigate their liabilities for damage by claiming for limitation of liability for maritime claims. According to relevant provisions of the Maritime Law of the People¡¯s Republic of China, owners, lessees, operators, salvors, employees, insurers, etc. of ships shall be entitled to the right to limitation of liability for maritime claims in the event of a maritime accident. But principles entail exceptions and the exceptions of limitation on liabilities for maritime claims are set forth in Article 209 of the Maritime Law of the People¡¯s Republic of China, which is also applicable to cases heard by the Court. In the case of dispute over liability for damage caused by vessel collision between the plaintiff, Zhu, and the defendant, Shen, the defendant who is the captain of ¡°Zhe Feng Yu 16027¡± quickly withdrew the ship and left the scene of accident when the ship ¡°Zhe Feng Yu 16027¡± was embedded in the cabin of the plaintiff¡¯s ship at right angles and then turn off the signal of AIS, such act constitutes a hit and run. The defendant rashly ordered the ship to drive off the site, with the knowledge that fleeing the scene of an accident could result in casualties and property losses, such act directly brought about a quick sinking of the plaintiff¡¯s ship and death of people who fell into the water as no rescue is provided to them in a timely manner and constituted a rash omission both intentionally and subjectively. The Court holds that the defendant is not entitled to the right to limitation of liability for maritime claims. The case shows that if the offending ship losses the right to limitation of liability for maritime claims due to misconduct, it will assume full liability for the damage based on actual loss. In this regard, we recommend that ship-owners and crew members should drive in strict compliance with navigation regulations to avoid accidents; in case of accidents, they should make every effort to save lives and avoid escapes or other subjectively rash acts, which result in further expansion of losses.
(V) Management of safety of anchored ships
Lack of awareness of the importance of prevention of collision between anchored ships. In the case of dispute over liability for damage caused by vessel collision between the plaintiff, Marte Rickmers Navigation Limited, and the defendant, Fang, the driver of fishing boat failed to comply with navigation regulations and collision avoidance rules, drove the fishing boat at full speed in thick fog, neglected to observe and collided with the ship anchored at the port of Zhoushan. In the case of dispute over liability for damage caused by vessel collision between the plaintiff, Zhang, and the defendant, Bao, the fishing boat owned by the plaintiff, Zhang, was at anchor and rest and the collision avoidance alarm system was not normally opened, when the accident took place, all the crew members were dining, leaving the cab unattended, and the defendant, Bao, failed to keep adequate lookout and a safe speed in intensive areas of fishing boats, both parties have violated the collision avoidance rules, resulting in a collision. We recommend that ship owners and crew members should build up the awareness of security risks, operate in strict compliance with specifications, especially paying attention to the avoidance of collisions between and safety management of their ships and other ships when they are at anchor.
Inadequate Supervision over the Safety of Marine Operation and Navigation by Authorities
In the case of dispute over liability for damage caused by vessel collision between the plaintiff, G.O.D.shipping S.A., and the defendants, Ye and Daishan He Yu Ren Fishery Cooperatives, the anchoring position selected by the ship ¡°Venice Bridge¡± owned by the plaintiff was an anchorage without informal planning, and in access routes with intensive fishing boats, having impact on the navigational safety of passing ships, however, before the collision took place, the security management department of the navigation port failed to inform the defendant of transferring the ship to a safe anchorage, revealing the weak links in administrative supervision, which are recommended to be improved. In addition, we recommend that: (1) functions should work by division of labor, forming a joint force of marine supervision over safety. Supervision over ship inspection, registration, training and assessment of crew members, ship navigation management, safety inspection and other aspects should be strengthened, so as to eliminate accident hazards as much as possible; and (2) ship affiliation should be governed by operating with the law. Daily management and personnel training of affiliated companies should be supervised to ensure that operators comply with the requirements of operating qualification certificates and security regulations, and work in a safe area.
The construction of ¡°Safety in Zhejiang" is a systematic project, and the protection of navigational safety is inseparable from the protection provided by maritime judicial services. In recent years, in order to give full play to marine trial functions, the Court has attached great importance to trials for the cases of disputes over liability for damage caused by vessel collision and allision. By standardizing the standards for judgment, the Court actively carries out research and passes pre-judgment on new situations and new problems, achieving accurate and sustained force, and has achieved sound legal and social effects by properly hearing a large number of cases of disputes over liability for damage caused by vessel collision and allision. However, all matters involved with maritime security are significant, only by enhancing the awareness of production safety and risk prevention, carrying out scrutiny on safety hazards on a regular basis, and implementing safety responsibilities early and pragmatically, can ports, shipping, shipyards, other related market players and maritime practitioners share long-term benefits and a secure environment brought about by production safety.
Attached: Seven Typical Cases Resulting From Vessel Collision/Allision Tried by Ningbo Maritime Court
Seven Typical Cases Resulting From Vessel Collision/Allision Tried by Ningbo Maritime Court
Driving in violation of rules leads to a collision accident, running away to evade responsibilities after the accident leads to loss of limitation of liability
[Case Brief] On March 21 2011, 20:10 PM, the ship ¡°Zhe Feng Yu 16027¡± where Shen was on board was sailing in the water to the east of Lujiazhi. Suddenly, Shen saw the ship ¡°Zhe Dai 75218¡±, which was about 10 meters away right before the ship driven by him. As nothing happened after he tried to drive the ship back, the bow area of the ship ¡°Zhe Feng Yu 16027¡± collided with the front end of the 6th cargo loading area on the starboard of the ship ¡°Zhe Dai 75218¡±, After the collision, the ship ¡°Zhe Feng Yu 16027¡± was driven back and ran away from the scene, resulting in the sinking of the ship ¡°Zhe Dai 75218¡± after a large quantity of water intruded into the hull through the broken areas of the ship ¡°Zhe Dai 75218¡± and loss of lives of 5 crew members. After hearing the case, the Court held that the owner of the ship ¡°Zhe Feng Yu 16027¡± failed to maintain adequate care and strengthen observation, and the steersman did not see the ship ¡°Zhe Dai 75218¡±, which anchored before the ship ¡°Zhe Feng Yu 16027¡±, until the ship ¡°Zhe Feng Yu 16027¡± was driven to an area where collision was inevitable, resulting in a right-angled insertion of the bow of the ship ¡°Zhe Feng Yu 16027¡± into the cofferdams on the starboard of the ship ¡°Zhe Dai 75218¡±. It was particularly outrageous that the ship ¡°Zhe Feng Yu 16027¡± was not used to hold out against the broken areas of the ship ¡°Zhe Dai 75218¡± after the collision but was driven back to withdraw from the scene, leading to the sinking of the ship ¡°Zhe Dai 75218¡± after sea water burst into the cofferdams of the ship ¡°Zhe Dai 75218¡±. The crew members of the ship ¡°Zhe Feng Yu 16027¡± ran away from the scene without rescuing the ship ¡°Zhe Dai 75218¡± after the collision, leading to injury or death of the people who fell into the sea water from the ship ¡°Zhe Dai 75218¡± as no timely rescue was provided, violating the provisions of Article 166 of the Maritime Code on crew members¡¯ obligation to render assistance as far as they can. The ship ¡°Zhe Dai 75218¡± did not have crew members on duty when it anchored in the anchorage, resulting in failure of the crew members to identify the risk of collision as earlier as possible and send alarm signals by blowing horns or otherwise. In light of the degree of fault lying with and the measures taken after the accident by the crew members of the aforesaid ships, the Court determined that the liability for fault on the part of the owner of the ship ¡°Zhe Feng Yu 16027¡± and that on the part of the owner of the ship ¡°Zhe Feng Yu 16027¡± accounted for 90% and 10% of the total liability for fault respectively. As the captain of the ship ¡°Zhe Feng Yu 16027¡±, Shen quickly exited from his cabin and drove the ship away from the scene of the accident after the bow of the ship ¡°Zhe Feng Yu 16027¡± inserted into the cabins of the ship ¡°Zhe Dai 75218¡± at a right angle to those cabins, and then shut down the AIS signals to intentionally conceal the collision and ran away to evade his responsibilities for the accident and did not fullfill the obligation to save people¡¯s lives, and therefore was not entitled to limitation of liability for maritime claims. Based on these facts, the Court ruled that Shen, the defendant, should compensate Zhu, the plaintiff, for losses of 2,343,230 Yuan. Shen filed an appeal as he did not submit to the judgment. But as he did not prepay the case acceptance fees for the case of second instance, the court of second instance ruled that the appeal should be deemed to have been automatically withdrawn.
[Typical Significance] The case is a case of dispute over liability for damages caused by vessel collision that has caused severe damage and has very strong alarming warning significance. The ship causing the collision accident was negligent in observation, and did not notice the ship with whom it later collided until the latter was about 10 meters away from it. The former was hastily driven away from the scene of the collision accident, leading to the sinking of the latter after sea water burst in. Therefore, occurrence of the accident was the result of the obvious negligence on the part of the former. All these indicate that during marine operation there is no awareness of navigational safety among some crew members, and there is serious shortage of knowledge and skills in collision avoidance among the crew members, which requires strengthening of the training of the relevant crew members in professional skills by the relevant authorities. What made it worse was that the ship causing the collision accident turned a blind eye to the collided ship which was in danger, and it ran away from the scene in an attempt to evade the responsibility for the collision instead of rescuing the collided ship and the crew members on board, which was not only against the professional ethics for navigation, but also against the rescue obligation prescribed by the maritime law, and the owner of the ship causing the collision accident therefore lost the right to limitation of liability for maritime claims which he would have been entitled to.
A ship collided with underwater rocks, and the company throwing stones into the sea water in violation of the relevant regulations took the primary responsibility
[Case Brief] On December 28, 2008, the plaintiff, Xia, purchased the ship ¡°Zhe Yu Yu 5358" from Sun et al., the original owners of the vessel, and has been the actual operator of the vessel since then, but no transfer registration formalities have been went through by him. On November 19, 2011, Xia steered the vessel en route to Zhejiang Daishan Qushan. At 19:30 PM that day, the vessel went through the bridge gate waterway. Due to harsh tides, the vessel ran aground after alliding with riprap in the outside waterway near the defendant, Zhejiang Eastern Shipyard Co., Ltd. (hereinafter referred to as "Eastern Shipyard"). On February 28, 2012, the Yuhuan Fishing Port Supervision Station issued a maritime statement, asserting that "In the waters near Eastern Shipyard, the ship ¡°Zhe Yu Yu 5358" ran aground after alliding with the underwater riprap, causing its hull seriously damaged and a lot of water burst into the cabins.¡± Eastern Shipyard did not establish navigation marks or any other warning signs in the aforesaid waters, nor did it apply to MSA for sending navigational notices, and the waters were outside the scope of construction established by the waters use right license of Eastern Shipyard.
[Typical Significance] After the accident, Xia reported to the local fishing port regulatory authority, but the competent administrative organ did not initiate an investigation, nor did it determine the responsibility for the accident. The Yuhuan Fishing Port Supervision Station simply issued a maritime notice. Hence, the determination of the causes of the accident and the responsibility in this case has certain typical significance.. Eastern Shipyard argued that it did not carry out the ripraping operations, and the navigable waterway was very wide, while the sea reclamation job site was on the west side, which did not affect the normal navigation. The vessel involved in the accident would not have run aground if it did not sail into the construction area, and the location where the vessel ran aground was within the area permitted by Eastern Shipyard's construction license. As a local person, Xia ought to know that construction was underwent in the said waters. After review, the Court holds that as clearly shown by the photos of the vessel ran aground that were provided by the parties to this case, the vessels ran aground on the riprap that was connected with the stones thrown by Eastern Shipyard's construction activities. In addition, the maritime certificate issued by the Yuhuan Fishing Port Supervision Station also shows that the vessel was stranded after alliding with the underwater riprap. On the other hand, Eastern Shipyard has no evidence demonstrating that the vessel ran aground for other reasons. Hence, the Court affirms that there was a causal link between the vessel's running aground and Eastern Shipyard's throwing stones. The use right license for the waters involved in this case clearly defines the scope of sea reclamation operations. It is found out through point-to-point comparison on an online map of the longitude and latitude of the vessel ran aground with the longitude and latitude of the farthest north and the farthest west of the red line on the map defining the scope that the location where the vessel ran aground was more than 100 meters away from the permitted construction scope. In this regard, Eastern Shipyard has no evidence for rebuttal. Therefore, it can be certain that the location where the vessel ran aground was beyond the lawful construction area of Eastern Shipyard, meaning that Eastern Shipyard shall be principally liable for the accident. According to the testimony of the captain involved in this case, combining the photos representing the accident, the Court holds that Xia was guilty of improper steering and determines that Xia and Eastern Shipyard shall share the responsibility by 30% and 70% respectively.
Both to blame, the liability for personal injury shall be assumed on a joint and several basis
[Case Brief] The defendant, He Yu Ren Fishery Cooperatives, is the owner of the ship "Zhejiang Dai Yu Yuan 03333", and the defendant, Sun, is the owner and captain of the ship "Shen Yu Ji 223". At 10:00 am, February 28, 2013, the plaintiff, Zhuang and other 4 crew members took on lease of the "Shen Yu Ji 223" driven by Sun for transportation of materials. Around 10:50, after finding "Zhejiang Dai Yu Yun 03333" coming from the back, only 10 meters away from "Shen Yu Ji 223", Zhuang shouted "there is a ship behind us", with other people on board giving a hint to "Zhejiang Dai Yu Yun 03333". However, "Zhejiang Dai Yu Yun 03333" took no measures and kept sailing at the original speed. After hearing the cry, Sun looked back to observe what happened, and immediately shifted the helm to make the stern of "Shen Yu Ji 223" to slightly shift left, however, the left side of the stern was hit by "Zhejiang Dai Yu Yun 03333", with 6 people falling into the water immediately after the boat capsized. Zhuang was sent to hospital for treatment and diagnosed with his right leg twisted from a rolling injury and traumatic amputation which constituted a sixth level of disability. Two other crew members on "Shen Yu Ji 223" who fell into the water died. On March 4, 2013, the survey report issued by the Fishing Port Supervision Station in Putuo District determined that the ship of "Zhejiang Dai Yu Yun 03333" shall be primarily responsible for the incident, and "Shen Yu Ji 223" shall be secondarily responsible therefor. After hearing the case, the Court held that the collision between the two ships resulted by contributory negligence, the ship owners He Yu Ren Fishery Cooperatives and Sun shall be jointly and severally liable for the losses sustained by Zhuang.
[Typical Significance] Paragraph 3, Article 169 of the Maritime Law of the People's Republic of China provides that "If both the colliding ship and the collided ship are in fault, each ship shall be jointly and severally liable for loss of life or of personal injury to a third party. 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) at fault.¡± The plaintiff in this case suffered personal injury during his ride of the ship "Shen Yu Ji 223", which collided with the ship "Zhe Dai Yu Yun 03333". Unless one of the ships is at no fault in the collision accident, the owners of the two ships shall bear joint and several liability for the losses to the plaintiff.
Collisions involving three vessels gave rise to disputes, and the number of accidents is worth further discussing
[Case Brief] The ship ¡°Ding Heng 9" anchored somewhere to the east of Yuanshan Island and to the north of Fodu Channel. After the anchorage, the relevant personnel were arranged to go on duty on navigation bridge. The visibility distance on the sea surface at that time was less than 1 nautical mile, and the second mate of the ship did not sound the foghorn, get the engine ready and put additional observers in place as required, nor did he notify the captain to come to the navigation bridge. At 10:00 am, April 19, 2010, the ship ¡°Zhe Xiang 988" made its way to the waters near Xi Mo Pan at the north of Niu Bi Shan Channel where the visibility distance on the sea surface was about 1 nautical mile. No one on the ship sound the foghorn and get the engine ready as required, nor additional observers were put in place or navigation lights were turned on. When the ship "Ding Heng 9" was identified on the radar screen, the distance between the two ships was approximately 2.0 nautical miles, but the "Zhe Xiang 988" failed to take any measures for avoidance of collision until the port side of its hull collided with the center-left part of the bow of "Ding Heng 9". Thereafter, the ship "Zhe Xiang 988" continued to move forward due to the effect of inertia, and collided with the bow of the ship "Zhou Hai You 9". At 12:01, the ship "Zhou Hai You 9" discovered that "Zhe Xiang 988" was driven transversely from the direction of its bow, less than 0.3 nautical miles away from it. A collision cannot be avoided after the "hard aport" is ordered. The report on investigation of a maritime traffic accident issued by the maritime administrative authority determined that the ship "Zhe Xiang 988" shall assume primary responsibilities for its collision with the anchored ship "Ding Heng 9" and the latter shall assume secondary responsibilities; and the ship "Zhe Xiang 988" and the ship "Zhou Hai You 9" shall assume equal responsibilities for the collision between them. After hearing the case, the Court held that the ship "Zhe Xiang 988" collided with "Zhou Hai You 9" about two minutes after its collision with the ship "Ding Heng 9", resulting in the sinking of the ship "Zhe Xiang 988". In the event that crew members were in panic and intervals between collisions were short, the majority of crew members generally cannot avoid the accident of collisions between ships at their normal levels and seamanship, therefore, the collisions involving the three ships had a causal link and constituted chain collisions, it was held that "Zhe Xiang 988", "Zhou Hai You 9" and "Ding Heng 9" shall respectively assume 45%, 45% and 10% responsibilities in this vessel collision accident. After the judgment of the first instance was made, Zhoushan Dingheng Shipyard Co., Ltd. filed an appeal against the judgment. The court of second instance dismissed the appeal in accordance with the law and affirmed the original judgment.
[Typical Significance] When collisions involving multiple vessels occur, the key points of the standards for determination of whether the collisions constitute one collision accident or several collision accidents independent from each other are: whether there is chronological continuity and whether there is causal link between two collisions. If the first collision has not resulted in a subsequent urgent situation, or although it has resulted in a subsequent urgent situation, the second collision can be avoided by virtue of good seamanship and prudent treatment, the colliding vessel collides with another vessel once again or with a pier or other facilities, the first collision and the second one shall be deemed as two collisions independent from each other. As far as the latter case is concerned, given the fact that there was no causal link between the two collisions, and the second collision occurred through no fault or involvement of the other party, the causal link between the first collision and the second one did not exist, and therefore the other party is not required to assume the liability for damage. It is true that there was chronological continuity when the two collisions occurred, so that it was impossible for crew members on the ships to avoid the second collision by virtue of the crew members' normal seamanship as the two collisions occurred at short intervals and the crew members were in panic. Accordingly, the Court ruled that there was a casual link among the three collisions which constituted chain collisions.
A ship allided with the trestle of an expressway, and the ownership of temporary facilities gave rise to disputes13
[Case Brief] The ship "Guo Liang 298" was registered as the property jointly owned by the defendant Wuhu Haishun Shipping Co., Ltd. and Chen in proportion to their respective shares. In the evening of August 19, 2012, the ship allided with the trestle of the Feiyun River Bridge along the expressway parallel with the Ningbo-Taizhou-Wenzhou Expressway due to the failure of its steering gear and other factors, resulting in the losses incurred in the repairs and reconstruction of the trestle and other losses. The pier engineering was constructed by Road & Bridge International Co., Ltd. (hereinafter referred to as ¡°The Road & Bridge Company¡±) on September 27, 2011, and the owner unit is Zhejiang Wenzhou Shenyang-Haikou Expressway Co., Ltd. (hereinafter referred to as Shenyang-Haikou Expressway). On February 23, 2012, China Communications Construction Co., Ltd. established its wholly-owned subsidiary China Communications Road & Bridge Construction Co., Ltd. (hereinafter referred to as China Communications Company) after merging the shares of its wholly-owned subsidiary ? the Road & Bridge Company. On August 23, 2012, the China Communications Company applied to our court for arresting the ship "Guo Liang 298". Then the China Communications Company brought a lawsuit against this case in accordance with the law and the detention state of the ship was continued. The total tonnage of the ship is 2651, and the limitation of its liability for maritime claims is 526217 special drawing rights by calculation, equivalent to 5035423.09 Yuan according to the exchange rate announced by IMF on August 20, 2012. Because the ship "Guo Liang 298" is engaged in the cargo transportation among ports in our country, thus the limitation of liability for maritime claims enjoyed by the shipowner is 2517711.55 Yuan. During the proceedings of this case, both parties voluntarily reached a settlement agreement, and the ship "Guo Liang 298" was put into operation again.
[Typical Significance] In terms of its form, the trestle involved in the case is immovable property, but it is different from such immovable property as bridges, property and other buildings and facilities, mainly in the absence of registration of their ownership status, as well as its temporariness. The trestle involved in the case is the temporary project of Feiyunjiang super large bridge, which is specially built for the smooth construction of Feiyunjiang super large bridge. As a temporary project, the trestle involved will complete its mission and be dismantled after the FeiyunJiang super large bridge is completed. In terms of function, the trestle has a certain degree of subsidiarity, existing only attached to the main project. In terms of the related party of the involved trestle, the Shenyang-Haikou Expressway and the Road & Bridge Company have established an assumed contractual relationship. What is different from the general assumed contract under which the raw materials provided by the hirer was that the trestle was constructed by the Road & Bridge Company. The Road & Bridge Company has experienced the process from scratch and its ownership production mode belongs to "original acquisition". In the case where the contract does not specifically stipulate the owner of the trestle in the construction, from the angle of fairness, the Shenyang-Haikou Expressway as the owner of the project and the hirer of the contractor shall enjoy ownership of the completed and delivered trestle. As the contractor of the project and the accepter of the contract, the Road & Bridge Company shall enjoy ownership of the trestle prior to its completion and delivery. Because Shenyang-Haikou Expressway enjoys ownership of the completed and delivered trestle and does not care about the loss of the trestle during the construction, thus Shenyang-Haikou Expressway did bring a lawsuit to the court after the accident occurred. As the owner of the trestle in the construction, the Road & Bridge Company shall be entitled to the litigant qualification in accordance with the law for the losses of the trestle caused by the allision of ship ¡°Guo Liang 298¡± that belongs to the two defendants.
Dispute Caused by a Japanese Ship¡¯s Allision with a New Terminal of Tonnage of 450,000 settled in Compensation of 55 Million Yuan through Mediation14
[Case Brief] Approximately at 11:16 on May 18, 2012, the Japanese ship "Gao Ling" allided the 0.45 million tons terminal which belongs to the plaintiff Ningbo Shihua Crude Oil Terminal Co.Ltd. (hereinafter referred to as Ningbo Shihua) during the process of berthing due to improper operation, resulting in damage to the terminal. Immediately, the terminal was required to stop production by the administrative organ of the port. After the accident, our court arrested the offending ship "Gao Ling¡± in accordance with the application of Ningbo Shihua. On May 31, 2012, China Reinsurance (Group) Corporation provided a total guarantee of 63 million Yuan to the plaintiff for the two defendants with respect to the accident involved, and recognized the defendant, Burney Japanese Co., Ltd. as the ship-owner of the ship ¡°Gao Ling¡± and the defendant Burney International Co., Ltd. was the bareboat charterer of the ship ¡°Gao Ling¡±. Then our court released the arrested ship "Gao Ling". On June 27, 2012, the Ningbo Shihua brought a lawsuit to our court and requested our court to order the two Japanese defendants to jointly compensate the losses of 116 million Yuan arising from the repair and idling period of the terminal. Upon the organization and mediation by our Court, Ningbo Shihua reached a mediation agreement with the two defendants that the two defendants paid a total amount of 55 million Yuan to Ningbo Shihua for its losses.
[Typical Significance] This case is about the dispute over liability for damage caused by vessel allision with terminals by Japanese foreign ship and is concerned by all parties due to its big social influence. The terminal (jointly built by Sinopec and Ningbo Port Group) involved in the case of vessel allision is located at East Coast, Daxie Island, Ningbo, which is the largest crude oil terminal in Asia, and is also the only ultra-large type crude oil terminal in our country. It is designed for an annual throughput capability up to 17 million tons, which can effectively relieve tension of crude oil unloading and berth capacity of Yangtze River Delta and areas along the Yangtze River, and better meet the fast-growing demand for regional imported crude oil. The time of allision occurred on the third day after the official opening of the terminal and the vessel involved in the case was just the first foreign ship berthed. As the special court of the place where the vessel was arrested and the accident occurred, Ningbo Maritime Court's fair and equitable settlement of the dispute has a great practical significance for protecting the actual losses of operators of terminals and building a port judicial environment with equality and rule of law. During the trial, there is a big controversy between both parties regarding the allision accident with or without fault, the calculation of the terminal's operation cost and the rationality of the restoration and reinforcement program for the terminal. In order to reduce losses and fix the amount of compensation, our Court organized the parties and their respective commissioned experts to conduct a public hearing. The plaintiff shall actively carry out the restoration and reinforcement work for the terminal to restore the terminal¡¯s original design capacity on the basis that both parties have no objection to the terminal¡¯s damage detection conclusion. The strengthening project of terminals involved in the case began on May 15, 2013, and was organized for acceptance on September 11, 2013, with an audit cost of 7,433,316 Yuan. Finally, on the basis of a solid investigation of the case facts, the court explained the litigation risk to both parties and guided both parties to continue to narrow their cognitive gaps. Eventually, an agreement was reached where the two defendants were recognized to compensate the plaintiff for a total amount of 55 million Yuan for the terminal allision losses, which was approved by the parties, and the case achieved good legal effect and social effect. People's Court Daily, China Water Transport, China Communications News, Zhejiang Legal News as well as provincial and municipal television stations, radio stations and other major medias all have reported the case in a timely manner.
Both Parties Were at Fault for Two collision Avoidances and the Bareboat Charterer of Foreign Ship Was tried to Compensate 11.26 Million Yuan
[Case Brief] At about 21:30 on March 16, 2013, the ship "CHOU SHAN" in ballast (hereinafter referred to as the Ship ¡°CHOU SHAN¡±) owned by the plaintiff ROCKWELL SHIPPING LIMITED unberthed Qinhuangdao Shanhaiguan shipyard, planning to sail for ABBOT POINT port in Australia. At about 16:12 on March 18, the "CMA CGM FLORIDA" (hereinafter referred to as the ship "FLORIDA") owned by the defendant, Provence Shipowner 2008-1 Limited, and rented and operated by CMA CGM S.A. (hereinafter referred to as "CMA CGM") as the bareboat charterer left Shanghai Yangshan Port for the Port of Busan, South Korea carrying 2,681 TEU containers. Approximately at 00:05 on March 19, the current second mate of ship FLORIDA found a ship (namely the ship ¡°CHOU SHAN¡±) by radar about 12 nautical miles away from the port of the bow, heading across its ship. When the two ships were about 5.9 nautical miles away, the ship ¡°CHOU SHAN¡± made a conversation via VHF: "Would you please pass by from my stern, OK?¡± The second mate of ship FLORIDA replied, "I'll avoid small fishing boats first and then will turn around after passing by small fishing boats.¡± The ship ¡°CHOU SHAN¡± replied: "OK, thank you". It was approximately 00:27:45, when the two ships were 2.3 nautical miles away, the second mate of ship FLORIDA contacted ship ¡°CHOU SHAN¡± the second time via VHF: "CHOU SHAN, CHOU SHAN, please wait for the red light, I cannot pass by behind you because fishing boats are still here.¡± The second mate of the ship ¡°CHOU SHAN¡± answered: "You can pass by behind me, if you cannot, I will adjust a little bit more to the left.¡± The second mate of ship FLORIDA replied: "our captain requires us to pass by when the red light lights up.¡± The second mate of the ship ¡°CHOU SHAN¡±: "Then I'm going to have a big angle now.¡± The second mate of ship FLORIDA: "Both you and me turn around, and then you can pass by when the red light lights.¡± The second mate of the ship ¡°CHOU SHAN¡±: "OK, fine.¡± At approximately 00:32:40, the ship FLORIDA headed toward about 115 ¡ã at a speed of about 17.2 knots; the ship ¡°CHOU SHAN¡± headed toward about 233.5 ¡ã at a speed of about 9.2 knots. The medium and posterior positions of the port of ship FLORIDA collided the port of the bow of ship ¡°CHOU SHAN¡± (location: about 31 ¡ã 30.76 ' N, 124 ¡ã 53.55 ' E). After the collision occurred, no casualties were found by both parties. On March 21, 2013, the ship ¡°CHOU SHAN¡± arrived at Zhoushan port for repair, resulting in a repair cost of 13,968,156 Yuan. Because both parties failed to reach an agreement through consultation concerning the compensation matters, thus the ROCKWELL SHIPPING LIMITED brought a lawsuit with Ningbo Maritime Court, claiming for the vessel repair cost loss, shipment loss and other relevant costs arising therefrom amounting to about USD 5 million, the claim of 70 million Yuan proposed by Shanghai Maritime Safety Administration for its organization and implementation of public emergency disposal measures therefor due to the relevant maritime pollution caused by the collision, the claim of 20 million Yuan for fishery resource damages and cost losses proposed by East Sea Fishery Administration, the claim proposed by the owner of the damaged cargos of ship FLORIDA, etc. Upon review, the Court found that ROCKWELL SHIPPING LIMITED had suffered a total loss of 22,524,379.22 Yuan in connection with the ship collision accident, and ordered CMA CGM S.A. shall pay ROCKWELL SHIPPING LIMITED a compensation of 11,262,189.61 Yuan according to its 50% collision liability.
[Typical Significance] This case is about the dispute over liability for damage caused by vessel collision due to the improper performance of the agreement on preventing collisions by the two foreign ships within Chinese sea areas. After accepting the dispute, the defendant Provence Shipowner 2008-1 Limited and CMA CGM S.A. once proposed an objection to jurisdiction, claiming that they had initiated proceedings in connection with the collision accident involved in the case and had applied for arresting the ship ¡°CHOU SHAN¡± in an Australian court, therefore, Ningbo Maritime Court no longer has jurisdiction. But the Court holds that the place where the ship FLORIDA involved in the case was arrested is within the jurisdiction of Ningbo Maritime Court, therefore, as the place where the injured vessel was arrested, Ningbo Maritime Court shall be entitled to assume jurisdiction over the dispute in accordance with Article 30 of the Civil Procedure Law of the People's Republic of China. There are no mutual legal assistance treaties between China and Australia, nor has China acceded to any relevant international conventions. But in accordance with Article 306 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China, although the two defendants had brought a lawsuit over the accident involved in the case in Australia, Ningbo Maritime Court may also accept the case.
Among other things, the dispute in this case is over the degree of fault and the percentage of responsibility on the part of the ship FLORIDA and that of the ship ¡°CHOU SHAN¡± for the occurrence of the collision accident. On the basis of the following facts, the Court holds that both parties are equally in fault: (1) Both ships were negligent in observation and did not keep a safe speed. Although having noted that there were several fishing boats nearby and its course ran across with those of several merchant ships, the ship ¡°CHOU SHAN¡± did not slow down and still navigated at a speed of about 11 knots until 2 minutes prior to the collision, and the ship FLORIDA did not stop navigating at a speed of about 20 knots until about 1 minute prior to the collision, which was in violation of the provisions of Article 5 (Observation), Article 6 (Safe Speed) and Article 7 (Risk of Collision) of the International Regulations for Preventing Collision at Sea 1972; and (2) after reaching the agreement on preventing collision, both parties did not properly performed the agreement, nor did they take effective actions to prevent the collision based upon actual situations, hence, the collision accident occurred by negligence on the part of both parties.
With respect to the party who shall ultimately bear the damages resulting from the vessel collision, although the plaintiff, ROCKWELL SHIPPING LIMITED, argued that the registered ship owner, Provence Ship-owner 2008-1 Limited, and the bareboat charter, CMA CGM S.A., should be the joint defendants, in accordance with Article 4 of the Provisions of the Supreme People¡¯s Court on Several Issues Concerning Trials of Cases of Disputes over Vessel Collisions, if a ship in collision is in the bareboat charter period and has been registered in accordance with the law, the damages resulting from vessel collision shall be borne by the bareboat charterer. Accordingly, the Court held that CMA CGM S.A. should assume the liability for the damage.