[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 ΅γ at a speed of about 17.2 knots; the ship ΅°CHOU SHAN΅± headed toward about 233.5 ΅γ 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 ΅γ 30.76 ' N, 124 ΅γ 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.