White Paper of Tianjin Maritime Court 2018
Introduction
In 2018, Tianjin Maritime Court (“the Court”) took Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era as the guide, thoroughly learned and carried out the spirit of the 19th National Congress of CPC and President Xi Jinping’s requirement of “Three Efforts” for Tianjin, earnestly followed the spirit of the third, the fourth and the fifth meetings of the Eleventh CPC Committee of Tianjin, and carefully followed the guidance of the courts of upper levels. Taking the objective of “making the people feel fairness and justice in every judicial case”, it implemented strict disciplines, rules and regulations, enhanced the sense of responsibility, and fully fulfilled the function of maritime trial. With these efforts, trial and enforcement center had remarkable achievements, the systems and mechanisms were continuously improved, the officer team building was stably promoted, the level of standardization and informationization in all affairs of the Court was comprehensively enhanced, and strong judicial supports were provided for implementation of major national strategies such as coordinated development of Beijing-Tianjin-Hebei, the “Belt and Road” initiative, and marine power construction as well as the construction of “Modernized Tianjin in Five Aspects”.
I. Basic information on the cases handled in 2018
(I) Basic information on the cases
In 2018, the Court totally accepted 2,046 cases, with a year-on-year increase of 44.80%, and totally closed 2,474 cases, with a year-on-year increase of 74.46%; the number of pending cases is 441, with a year-on-year decrease of 49.20%; the case closing rate in the whole year is 84.84%, with a year-on-year increase of 23.16%; the case closing/acceptance ratio is 120.92%, with a year-on-year increase of 21.70%. The number of cases closed by the chief justice is 311, with a year-on-year increase of 48.09%; the per-capita number of cases closed by front-line regular judges is 127, with a year-on-year increase of 80.4%.
1. Newly accepted cases
Among the newly accepted cases, the number of first-instance maritime commerce cases is 1,399, with a year-on-year increase of 55.96%; the number of enforcement cases is 456, with a year-on-year increase of 12.04%; the number of maritime administration cases is 38, with a year-on-year increase of about 100%; the number of other cases such as non-litigation property preservation cases is 153, with a year-on-year increase of 68.98%. Among the first-instance maritime commerce cases, the number of freight forwarding contract disputes is 661, accounting for 47.25%; the number of marine freight transport contract disputes is 449, accounting for 32.9%; the number of voyage charter contract disputes is 43, accounting for 3.07%; the number of ship material supply contract disputes is 21, accounting for 1.50%; the number of ship repair contract disputes is 18, accounting for 1.29%; the number of sea development and utilization contract disputes is 18, accounting for 1.29%; the number of sailor employment contract disputes is 15, accounting for 1.07%; the number of port goods keeping contract disputes is 13, accounting for 0.93%; the number of personal injury compensation liability disputes is 13, accounting for 0.93%; the number of ship financial lease contract disputes is 12, accounting for 0.86%.
2. Closed cases
Among the closed cases, the number of first-instance maritime commerce cases is 1,678, with a year-on-year increase of 83.99% and including 659 by judgment (accounting for 39.27%), 434 by mediation (accounting for 25.86%), 529 by withdrawal (accounting for 31.53%), 34 by rejection (accounting for 2.03%), 18 by transfer (accounting for 1.07%), and 4 closed otherwise (accounting for 0.24%); the number of maritime administration cases is 38, with a year-on-year increase of 100% and including 29 closed by enforcement permission, 1 by judgment, 2 by withdrawal, 1 by rejection and 5 by non-acceptance; the number of other cases such as non-litigation property preservation cases closed in the year is 151, with a year-on-year increase of 36.04%. The number of enforcement cases is 607, with a year-on-year increase of 69.08% and including 431 performance cases (accounting for 71%), 65 preservation cases (accounting for 10.71%) and 111 objection cases (accounting for 18.29%).
(II) Basic characteristics of the cases in 2018
1. Significantly increased administrative cases and considerable concentration of claims of administrative counterparts
Totally 38 administrative cases were accepted in the whole year, which was twice the number of 2017. Among these cases, 2 ones were in relation to requests of administration counterparts for confirmation of illegality of administrative actions, and 36 ones were in relation to requests of administrations for enforcement review. So far, all these cases have been successfully closed, providing helpful reference for promoting the rule of law and properly resolving maritime administration disputes.
2. Substantially increased maritime tort cases
In 2018, the Court accepted 34 traditional maritime cases, including 9 ones relating to ship collision, 14 relating to personal injury, 6 relating to marine aquaculture damage, and 5 relating to other property damage. This number is nearly 200% higher than the number (12) of the previous year.
3. Relative concentration of maritime contract cases
In traditional maritime commerce cases dealt with by the Court, the numbers of freight forwarding contract dispute cases and transport contract dispute cases are respectively 661 and 449, with a year-on-year increase of 79.80% and 79.32% respectively, and totally accounting for 79.34% of all the first-instance cases. This reflects that, under the local macro-economic environment with many uncertainties, the market entities have strong expectations for right and interest safeguarding through lawsuit.
4. More obvious effect of enforcement efforts
The year 2018 is the final year of the special efforts made by the courts in China to basically solve the problem of difficult enforcement. While the number of enforcement cases was substantially increased, the Court took diversified actions, such as bringing into full play the function of enforcement command platform, organizing online judicial auction, punishing bad-faith parties subject to enforcement, and checking and controlling involved properties through Internet, to effectively safeguard the lawful rights and interests of the enforcement applicants.
5. Substantially increased cases handled by detached tribunals
The three detached tribunals totally accepted 622 cases, with a year-on-year increase of 74.22% and accounting for 40.10% of the total civil cases accepted by the whole court (this proportion is 4% higher than the corresponding proportion in the previous year). The number of cases closed by these detached tribunals is 587, with a year-on-year increase of 70.63% and accounting for 31.93% of the total civil cases closed by the whole court (this proportion is basically equal to the corresponding proportion in the previous year).
II. Basic information on the maritime trials in 2018
1. Effectively enhanced judicial service level
The Court adhered to the principle of “justice for the people” and innovatively developed a convenient litigation mode. It promoted case filing by means of mailing and Internet to save the legal cost of the litigants. In 2018, 57.8% of the cases accepted by the Court were filed by means of mailing and Internet. It tried checking the identity information of the litigants by means of WeChat video, email and so on to solve the problem of non-local litigant check and to effectively lighten the burden of the litigants. It persisted in the procedures of quick filing, quick transfer, quick closing, flexible and efficient application of preservation before litigation, and early enforcement for cases involving the people’s livelihood. In the whole year, it totally accepted 417 cases involving the people’s livelihood, and recovered indemnities and labor remunerations amounting to RMB 41,646,400 for vulnerable groups such as fishermen and sailors. It continued going to the circuit points of trial in remote areas such as fishing villages and docks as well as inland dry ports for case accepting, dispute resolution and law related publicity, so that the “last mile” of maritime judicial services was unblocked and the influence and radiation effect of maritime justice were significantly enhanced.
2. Steadily promoted judicial system reform
According to the requirements and objectives of judicial system reform, the Court strictly implemented the judicial accountability system. It standardized the practices in case allocation and handling, authorization, case combination, and case distribution by complexity, and detailed the judicial power of the regular judges and the supervisory power of the chief justice; it organized 10 trial teams to further implement the principle of “judgment by judges and accountability of judges”; it completes rank reform for judge assistants and court clerks, and strengthened the dispatch system for personnel management; it organized professional judge meetings, brought into full play the functions of such meetings, and selected and recommended outstanding trial and judgment secretaries; it established a judge assessment committee to further improve daily assessment and management of regular judges; it established a judge right protection committee to effectively safeguard the rights and interest of judges.
3. Made remarkable achievements in the enforcement campaign
Focusing on the core goals of “three 90%s and one 80%”, the Court made full efforts to implement well the campaign of “basically solving the problem of difficult enforcement”. It enhanced the staffing for enforcement, improved enforcement equipment, and established and put into use a new enforcement command center; it further standardized online judicial auction procedures, successively formulated the Management Regulations for Auction and the Implementation Plan for Online Auction, and totally organized 21 online auctions in 2018, with an online auction application rate of 100% and the highest premium rate of 300% in ship auctions; it strengthened joint enforcement and cross-regional judicial cooperation, and the enforcement bureau of the Court successfully detained a person subject to enforcement in Huanghua with assistance from the court of Huanghua, Hebei Province in May 2018, which was a breakthrough of the Court in non-local detention; it made the best of media and platforms in enforcement publicity, and presented a feature film of eight episodes entitled A Documentary on the Campaign of “Basically Solving the Problem of Difficult Enforcement” of Tianjin Maritime Court, and the enforcement case on “Rongxiang 1” ship handled by the Court was mentioned in CCTV’s 20-episode documentary entitled Record of Punishment for Bad-faith Parties.
4. Comprehensively implemented “Smart Court” construction
The Court installed voice-to-script transfer system in the conference room of the Party organization, two courts and the judge’s office, and purchased and installed judge self-service integrated machine, so that the daily office efficiency was greatly improved; it built and put into use an independent enforcement command center, so that remote real-time monitoring and dispatching of enforcement activities was realized and the informationization level of maritime enforcement was enhanced; it built a video conference system, and realized synchronous interaction between the three detached tribunals and the home office in important affairs such as office meetings and trial committee meetings; it installed additional large-scale multifunction electronic displays in the hall of the trial building to display pictures and videos on justice related hot spots and publicity information; it improved informationization security facilities for the detached tribunals, completed the construction of technology tribunal in Caofeidian, and installed information inquiry touch screens in the three detached tribunals.
5. Deeply implemented the high-quality case strategy
The Court implemented strict trial procedures and case closing management, strengthened trial deadline control and clearing of accumulated cases, and worked out the Guidelines for Judges 2018; it promoted the chief justice trial system, paid close attention to the demonstration and driving effect of the chief justice in dealing with major, difficult and complicated cases, and achieved a year-on-year increase of 48.09% in the annual number of cases handled by the chief justice; it effectively organized trial of major and key cases, and successfully closed many influential major cases including the series cases of “ConocoPhillips Oil Leakage”, which set a benchmark for handling of similar cases and helped to further enhance the credibility of maritime justice. In 2018, the marine freight transport contract dispute case among China Merchants Logistics Group (Tianjin) Co., Ltd., ZIM Integrated Shipping Services Ltd. and Hefei Salt Chemical Co., Ltd. tried by the Court was selected as one of the ten typical maritime cases in China in 2017, and two cases tried by the Court, including the maritime personal injury liability dispute case between Man Xiaolong and others as a party and Won Shan Fishery Company as the other party, were selected into the civil volume and maritime volume of the Overview of Trial Cases in China in 2015.
6. Achieved remarkable outcomes in maritime judicial research
The Court closely followed the leading theories and practices in maritime justice, encouraged the officers to make efforts in research and investigation, created good atmosphere of research, exchange and learning, and achieved many excellent research outcomes that had both theoretical depth and practical value. In 2018, papers of the officers of the Court won the second prize of the 30th academic symposium of the courts in China, the first prize of the 13th Bohai-rim law forum, and the second prize of the annual meeting 2018 of the maritime committee of China Trial Theory Research Association, and more than 30 research papers won prizes on national and local forums or were published on law journals and books; the Court actively participated in the compilation of the Guidance for Judges, a guidance book for court trial in Tianjin, and 24 questions asked by the officers of the Court were adopted in the book; the Court actively offered suggestions on legislation, and the suggestion brought forward by a research team of the Court based on considerable investigation and research efforts about adding passenger safety assistance obligations in passenger transport contract was adopted in original text by the Breakdown Volumes of Civil Code (Draft).
III. Information on the supports provided for national strategies and Tianjin’s economic development in 2018
1. Fully supported the coordinated development of Beijing-Tianjin-Hebei and the planning and construction of Xiongan New Area
The Court worked out the Implementation Opinions on Providing Judicial Services and Supports for the Coordinated Development of Beijing-Tianjin-Hebei; it brought into full play the functions of the tribunals in Qinhuangdao and Caofeidian and the Huanghua circuit tribunal in directly serving the local development, and these three detached tribunals totally closed 661 cases in the year, accounting for 40.10% of the civil cases closed by the whole court; it further strengthened the construction of 14 circuit points in Beijing-Tianjin-Hebei area to enhance the radiation effect of maritime justice in this area; it further enhanced the interaction and cooperation with Party committees, governments, courts and maritime administrations in Beijing-Tianjin-Hebei area; it actively linked itself with Xiongan New Area, and investigated and studied the maritime judicial demands of Xiongan New Area in the current planning and construction period in terms of international trade and sea transportation to lay a foundation for future targeted services.
2. Safeguarded the “Belt and Road” initiative and served the national opening-up
As a point of support for the junction of the silk road economic belt and the 21st century maritime silk route, Tianjin has obvious advantages and remarkable functions in the “Belt and Road” initiative. The Court continuously enhanced its ability in dealing with foreign party involved maritime cases, and equally safeguarded the lawful rights and interests of Chinese and overseas litigants. In 2018, the Court totally tried 395 cases relating to the “Belt and Road” initiative, which involved more than 30 countries and regions such as Saudi Arabia, Iran, Greece, Egypt, Singapore, Italy, Cyprus and Vietnam, had total underlying value of RMB 662 million, and covered many fields such as marine freight transport, ship material supply, marine pollution, marine aquaculture damage indemnification, and so on. Besides, the Court worked out the Implementation Opinions on Providing Judicial Services and Supports for the “Belt and Road” Initiative, and two cases handled by the Court, including the marine freight transport contract dispute case between Hebei Tianbo Industrial Trade Co., Ltd. and ZIM Integrated Shipping Services (China) Co., Ltd., were selected as typical cases of serving the “Belt and Road” initiative by court services in Tianjin.
3. Strengthened judicial protection of marine environment and supported the comprehensive management of the Bohai Sea
Taking the method of separated judgment and enforcement for the first time, the Court successfully resolved 34 administrative non-litigation enforcement cases concerning sea reclamation, which involved illegal use of more than 400 hectares of sea areas and total investment of more than RMB 3 billion, so that the marine ecological safety of the Bohai Sea was effectively safeguarded; it worked out the Implementation Opinions on Strengthening Trial of Marine Environment and Resource Related Cases to Provide Judicial Supports for Green Development to promote standardization of trial of marine environment and resource related cases; it undertook the key research project of Tianjin Court entitled Study on Legal Issues Concerning Marine Pollution Prevention and Control for the Bohai Sea, and actively promoted commercialization of research findings.
4. Brought into full play the function of financial trial and promoted sound development of maritime financial industry
The Court strengthened trial of maritime financial cases. In 2018, it accepted 12 additional ship financial lease cases, and closed 11 of them, with total underlying value of RMB 355 million, so that the normal order of the ship financial lease market was effectively maintained; it participated in the 4th China Maritime Finance (Dongjiang) International Forum and chaired a high-end law seminar on maritime finance to discuss about the legal issues on maritime finance such as ship asset disposal; it held a specific press conference on trial of ship financial lease cases, released the White Papers on Trial of Ship Financial Lease Dispute Cases (2013 - 2018), published some typical cases on ship financial lease, made efforts in interpretation of relevant laws and risk warning, and actively safeguarded the reform and innovation of maritime finance.
5. Safeguarded legitimate rights and interests of enterprises and optimized the business environment
The Court tried enterprise involved cases fairly and efficiency. In 2018, it properly closed 2,356 enterprise involved dispute cases, providing a good legal environment for the marine economic development; it worked out several specification documents on economic development service such as the Implementation Opinions on Bringing into Full Play the Maritime Trial Functions and Actively Building Good Legal Environment for Business, the Implementation Opinions on Providing Judicial Services and Supports for the “One Base and Three Areas” Construction of Tianjin, and the Implementation Opinions on Providing Judicial Services and Supports for the Construction of Tianjin to an International Air Transport Core Area in North China; it comprehensively implemented the “Eight Rules of Tianjin” and the “Promoting Development by Service” campaign, and in this aspect teams led by leaders of the Court successively visited more than 40 marine related authorities, institutions and enterprises in 2018 and provided law publicity and consulting services for more than 190 enterprises.
IV. Typical cases in 2018
1. The marine freight transport contract dispute case among China Merchants Logistics Group (Tianjin) Co., Ltd., ZIM Integrated Shipping Services Ltd. and Hefei Salt Chemical Co., Ltd.
[Case brief]
ZIM Integrated Shipping Services Ltd. (“ZIM”), an Israeli company, signed a booking agreement with China Merchants Logistics Group (“CMLG”), based on which CMLG engaged ZIM as carrier of its import and export goods in Tianjin. According to the agreement, if no one picks up the goods at the destination, CMLG and the consigner will bear joint and several liabilities for all the liabilities, consequences, costs and expenses caused thereby to ZIM. In August 2014, CMLG entrusted ZIM to transport a loaded 20-feet container from Tianjin New Port to Odessa Port in Ukraine. ZIM issued an order B/L, which indicated that the consigner was Hefei Salt Chemical Co., Ltd. (“Hefei Salt”) and specified the free use period of the container and the demurrage rate. After the goods arrived at the destination, no one picked up them upon original B/L. Later, the goods were destroyed at the port of destination, and ZIM paid destruction cost, storage cost, loading/unloading cost and other costs and expenses incurred at the port of destination due to such destruction. Thus, ZIM claimed that CMLG and Hefei Salt should indemnify jointly and severally the costs and expenses incurred at the port of destination, the container demurrage and other damages amounting to USD 20,310 and the interest of this amount. During the trial of this case, ZIM and CMLG agreed to resolve this dispute in accordance with Chinese laws.
[Judicial decision]
In the first-instance judgment made by Tianjin Maritime Court, it was ordered that CMLG should indemnify ZIM for the costs and expenses of goods disposal at the port of destination and the container demurrage calculated based on purchase cost, amounting to RMB 66,152.52 in total, and the associated interest, and other claims of ZIM were rejected. CMLG refused to accept such first-instance judgment and filed an appeal. Tianjin Higher People’s Court rejected the appeal in the second-instance judgment and upheld the original judgment.
[Significance]
This case is a marine freight transport contract dispute case occurred in a country along the “Belt and Road” due to non-taking of goods at the port of destination. It has the following typical significance: Firstly, it clarified the liable party for the loss incurred to the carrier due to non-taking of goods at the port of destination. In the event of such non-taking of goods, the carrier has the right to claim against the consigner based on the marine freight transport contract. Secondly, it clarified that the lien of the carrier over the goods as provided for in Article 87 and Article 88 of the Maritime Law should not be a precondition for the claim against the consigner. Goods taking and holding is only one of the means usable by the carrier to safeguard its right, and the carrier’s failure to hold the goods does not affect its right to claim associated costs and expenses from the consigner. Thirdly, notarization or certification was not used as the only criterion for effectiveness of overseas evidences, but the empirical rule and logical reasoning was used to comprehensively evaluate the effectiveness of the overseas evidences based on several factors such as particular case, type of the evidence, fact to be proved, and cross-proving with other evidences. This fully showed the trial and judgment level of the people’s court in foreign party involved commercial and maritime cases under the background of the “Belt and Road” initiative. This case was selected as one of the ten typical maritime cases in China.
2. The voyage charter contract dispute case between Zhenhua Logistics Group Co., Ltd. and Zhongyou BSS (Qinhuangdao) Petropipe Co., Ltd.
[Case brief]
On January 12, 2016, the controlling shareholder (a company in Baoji) of Zhongyou BSS (Qinhuangdao) Petropipe Co., Ltd. (“Zhongyou BSS”) started bid invitation for sea transport of pipes for a foundation pipe project in Egypt and the associated port operation and pipe binding. On January 22, 2016, Zhongyou BSS issued a letter of acceptance to Zhenhua Logistics Group Co., Ltd. (“Zhenhua Logistics”), but the two parties did not sign a written contract. On February 15, 2016, totally 68 pipes with total weight of 2,868.499 tons were loaded to the “CARIBBEAN ID” ship in Qinhuangdao Port. According to the bill of lading, the port of unloading is Port Said in Egypt. This port is located on the bank of the Mediterranean on the north of the Suez Canal, and consists of the east part and the west part separated by the estuary of the Suez Canal. After the ship left the port of loading, Zhongyou BSS instructed to unload the goods in the east part of Port Said. Zhongyou BSS confirmed that, if it was instructed to unload the goods in the east part of Port Said, Zhongyou BSS should bear all the port expenses incurred in the east part that exceeded the port expenses to be incurred in the west part, should provide by itself appropriate unloading tools, and should ensure unloading of the goods within 24 hours after the ship arrived at the port. Zhongyou BSS further confirmed that Zhongyou BSS should pay indemnity for any losses such as those arising from ship delay and suspension of unloading not attributable to the ship after expiration of the 24-hour free period, except those caused by weather factors.
At 19:30 on March 20, 2016, the “CARIBBEAN ID” ship arrived at Port Said. Due to the tight berth in the east part of Port Said, the ship dropped anchor in the west part of the port. The unloading of the goods was started at 14:30 on April 1 and completed at 21:50 on April 3, and the ship left the port on the very day when the unloading was completed. The costs and expenses incurred during the above unloading process included barge rent of USD 90,000, crane cost of USD 36,000, port charge for barge of USD 23,264.64, and Suez Canal charge of USD 10,278.05. As Zhongyou BSS refused to pay these costs and expenses, Zhenhua Logistics started a lawsuit in Tianjin Maritime Court on July 13, 2016, requesting the court to order Zhongyou BSS to pay the freight, port charges, demurrage charges and other costs and expenses amounting to RMB 5,127,083.
[Judicial decision]
In the judgment made by Tianjin Maritime Court on December 27, 2016, it was ordered that Zhongyou BSS should pay Zhenhua Logistics sea transport freight of USD 344,219.88, binding cost of RMB 119,656.53, port charge of RMB 774,341.92, and ship demurrage charge of USD 129,500, amounting to USD 473,719.88 and RMB 893,998.45 in total, and the associated interest; other claims of Zhenhua Logistics were rejected.
[Significance]
The coordinated development of Beijing-Tianjin-Hebei is an important strategy set by the CPC central committee centered by Xi Jinping under the new historical conditions. It is clearly required in the Opinions of the Supreme People’s Court on Providing Services and Supports for the Coordinated Development of Beijing-Tianjin-Hebei to bring into full play the unique advantages of Tianjin Maritime Court in professionalism and cross-region jurisdiction, and to promote the opening-up of Beijing-Tianjin-Hebei area, the construction of the pilot free trade zone, and the development of industries such as sea transport, logistics and warehousing by performing trial duties according to law. This case is a dispute occurred in sea transport and logistics activities of enterprises in Beijing-Tianjin-Hebei area. The two parties had a major dispute concerning the nature of the contract. Considering the main contents of the underlying contract in this case, and after analyzing the difference between freight forwarding contract and marine freight transport contract, the collegiate panel finally determined that the underlying contract was a voyage charter contract under marine freight transport contract in nature. The judgment of this case has certain value of reference for standardizing sea transport practices, resolving logistics disputes and promoting sound development of relevant industries.
3. The case in which the oceanic bureau of Caofeidian District, Tangshan City applied for enforcement of administrative adjudication
[Case brief]
The oceanic bureau of Caofeidian District, Tangshan City, the enforcement applicant in this case, issued a letter of administrative decision numbered Tang Cao Hai Zhi Chu Fa [2017] No. 001 on January 20, 2017 to Lanhai Caofeidian Co., Ltd. (“Lanhai”) due to the construction of the second phase sea wall project in the southeast section of Caofeidian Industrial Park by Lanhai without obtaining an authorization for sea area use. According to this letter of administrative decision, the following administrative punishment was imposed to Lanhai: 1. Returning the illegally occupied sea area and recovering the sea area to the original state; 2. Paying a fine of RMB 433.116 million. After Lanhai received this letter, it did not initiate an administrative lawsuit and paid the fine according to the Item 2 of the punishment. However, it failed to perform the Item 1 of the punishment. On September 20, 2017, the enforcement applicant urged Lanhai to perform the Item 1 of the punishment within a specified period. However, Lanhai failed to perform the Item 1 within the period. Thus, the enforcement applicant applied to the Court on October 19, 2017 for enforcement of the Item 1 of the punishment.
[Judicial decision]
After examination, the Court considered that letter of administrative decision numbered Tang Cao Hai Zhi Chu Fa [2017] No. 001 was issued by the applicant according to legal procedures, with adequate evidences and based on correct applicable laws. Thus, the Court made the decision on April 23, 2018 that the letter of administrative decision numbered Tang Cao Hai Zhi Chu Fa [2017] No. 001 should be enforced, and authorized the oceanic bureau of Caofeidian District, Tangshan City to organize the enforcement.
[Significance]
Strengthening marine environment protection is an important part of the “marine power” strategy of China, and the Party central committee and the state council attach great importance to the environment protection and management for the Bohai Sea. It is clearly required in the Opinions of the State Council on Comprehensively Strengthening Ecological Environment Protection and Pollution Control (Zhong Fa [2018] No. 17) to perform well the comprehensive management of the Bohai Sea and to quicken the resolution of key ecological environment problems in the Bohai Sea. Illegal sea reclamation is a key problem in the comprehensive management of the Bohai Sea. However, as most sea reclamation works involve ports, pipelines, factories or other projects and have high investment and large sea area use, the courts are incapable in enforcement relating to such projects. In addition, some illegal sea reclamation projects belong to historical problems occurred during local development, so it is not appropriate for the courts to simply demand demolishing of the works before launch of unified disposal policies. In this case, after fully investigating the underlying sea reclamation project and relevant national management regulations, and based on the actual needs in case handling, the Court innovatively used the approach of “separated decision and enforcement” for the underlying illegal project, that is permitting the enforcement and authorizing relevant government departments to organize the enforcement. The proper closing of this case safeguarded the implementation of national marine environment protection policies and orders and the seriousness of marine administration enforcement, and developed feasible approach for resolution of illegal sea reclamation enforcement cases, providing effective judicial support for protection of the ecological environment of the Bohai Sea and high-quality development of marine economy, and achieving unification of legal effect and social effect.
4. The case in which Huanghua Subbranch of Bank of Cangzhou Co., Ltd. applied for enforcement against Cangzhou Bohai New Area Rongxiang Shipping Co., Ltd., Tianjin Rongxiang Logistics Co., Ltd., Zhou Sunrong and Zhou Sunyi
[Case brief]
For the ship mortgage dispute between Huanghua Subbranch of Bank of Cangzhou Co., Ltd. (“the Huanghua Subbranch”), the enforcement applicant in this case, as a party and Cangzhou Bohai New Area Rongxiang Shipping Co., Ltd. (“Rongxiang Shipping”), Tianjin Rongxiang Logistics Co., Ltd. (“Rongxiang Logistics”), Zhou Sunrong and Zhou Sunyi as the other party, the Court had issued a paper of civil mediation numbered [2017] Jin 72 Min Chu No. 499. However, after that paper became effective, the debtors refused to pay the principal and interest confirmed in the paper of civil mediation, so the Huanghua Subbranch applied for enforcement. During the enforcement, the Court seized the mortgage ship “Rongxiang 1” owned by Rongxiang Shipping. However, in fact Rongxiang Shipping had lost the actual control over the ship, and the ship was possessed and used by a third party by force, which turned off the AIS system on the ship or took other actions to evade from searching and enforcement by court.
[Enforcement result]
During the enforcement, it was found that the “Rongxiang 1” ship was bought collectively by more than 100 villagers in Pingtan, Fujian Province, and was used for operation simply under the name of Rongxiang Shipping. The fishers who contributed to the purchase of the ship possessed the ship by force in order to avoid enforcement of effective legal instrument, and rejected the enforcement of the instrument. On August 10, 2018, after learning that the ship would berth in Jingtang Port for goods loading, the enforcement officers of the Court immediately initiated the ship seizure procedures, continuously worked for five days and nights, properly resolved the problems on the salary of the sailors and the reasonable claims of the contributing fishers, and successfully transferred the ship from Jingtang Port to Tianjin Port, so that a foundation was laid for the successful closing of this case. In the next three months after that, the enforcement officers actively performed in-depth investigation on the case, learned the difficulties of the private enterprises, the concerns of the contributing fishers and the claims of the bank, accurately grasped the point of balance among the interests of the parties concerned, and urged the parties to settle the dispute through reconciliation. At last, with the efforts of the Court, the third party repaid the bank loan on behalf of the debtors, and the private enterprises, the contributing fishers and the third party signed a ship trusteeship agreement to repay the debt by installment with freight, so that the dispute was settled properly. On November 14, 2018, the principal and interest of the underlying loan in this case was fully repaid.
[Significance]
The task of “solving the problem of difficult enforcement” is related to the interests of the people and the sound social and economic development. The year 2018 is the final year of the campaign of “basically solving the problem of difficult enforcement”. With great efforts, courage, confidence and cooperation of the officers, the Court successfully resolved many major, difficult and complicated enforcement cases. During the enforcement of this case, the enforcement judge adhered to the judicial concepts of protecting the rights and interests of the winning party according to law, considering the interests of vulnerable groups and supporting sustainable development of enterprises, persisted in the principle of combination of force and modesty, and successfully resolved the dispute through compromise of the parties concerned after repeated coordination and reconciliation instead of rough procedures, so that the potential damage to the third party arising from auction was avoided, all the rights and interests of the enforcement applicant were quickly realized, the contributing fishers kept their ship, and the private enterprises involved tided over the difficulties. Such practice of the enforcement judge led to a win-win situation among the bank, the enterprises and the fund contributors, achieved organic unification of legal effect and social effect, won acceptance of all the parties concerned, and became a model for handling of similar ship enforcement cases. A special report on this case was made in the CCTV’s documentary entitled Record of Punishment for Bad-faith Parties.
5. The maritime dispute case among Chinaland Shipping Agency Co., Ltd., Tianjin Tiangang International Trade Co., Ltd. and Conor Shipping Co., Ltd. arising from a letter of guarantee
[Case brief]
On March 6, 2015, Chinaland Shipping Agency Co., Ltd. (“Chinaland Shipping”) signed a voyage charter contract with Conor Shipping Co., Ltd. (“Conor Shipping”), owner of the “ILIANA” ship. On March 14, 2015, Tianjin Tiangang International Trade Co., Ltd. (“Tiangang”), the consigner indicated on the bill of lading, exported some deformed steel bars, which were transported by the “ILIANA” ship from Tianjin New Port to the Damietta Port in Egypt. During the loading of the goods, it was found that there were slight rusts on the goods. Thus, Tiangang issued a letter of guarantee with the title of “To: Chinaland Shipping & owner of the ILIANA ship”, and the shipping agency issued a clean bill of lading on behalf of the captain. After the goods arrived at the port of destination, the consignee found rusts of different degrees on the goods, which were not caused by sea water according to the test report. After Conor Shipping and the consignee reached a compromise on the goods damage, Conor Shipping initiated an arbitration in London according to the voyage charter contract between Conor Shipping and Chinaland Shipping. The arbitral tribunal made two arbitral awards successively on the cause of the damage and the amount of the loss. According to the arbitral awards, Chinaland Shipping should bear 100% liabilities for the loss and indemnify Conor Shipping for the loss of the goods, the shipping period loss, the legal cost arising from the arbitration, and other associated losses. Chinaland Shipping paid the indemnity to the ship owner according to the arbitral awards. Then, Chinaland Shipping claimed against Tiangang for indemnification based on the letter of guarantee issued by Tiangang.
[Judicial decision]
In the judgment made by the Court on November 29, 2018, it is determined that, while the underlying goods had some rusts at the time of loading and the rusts increased naturally during the shipping, Chinaland failed to perform its due diligence obligations in the keeping and care of the goods, which was one of the causes of the serious rusts on the goods at the port of destination. Thus, it is ordered that Tiangang should bear 50% of the indemnification liabilities.
[Significance]
Reform and opening-up is a basic national policy of China. During the more than 40 years of opening-up, international trade and marine shipping have developed quickly, which promoted the national economic development on one hand and brought new challenges and requirements for foreign party involved trials on the other hand. In this case, two rules were clarified during the examination and liability determination processes, and have certain value of reference for handling of similar cases: Firstly, when using arbitral award made by foreign arbitral body as evidence in a related case, even if such award is recognized by the court, the court should still examine the facts stated in the arbitral award by itself instead of directly quoting such facts; secondly, even if there is an agreement on bearing of legal costs such as cost of indemnification, it should not be simply judged that such costs shall be solely borne by a party if the other party is also liable for the accident, and the liability ratio between the two parties should be considered when determine how should the costs be shared.