White Paper of Tianjin Maritime Court 2019
Introduction
In 2019, Tianjin Maritime Court (“the Court”) took Xi Jinping’s thought of socialism with Chinese characteristics in the new era as the guide, thoroughly learned and carried out the spirit of the 19th national congress of CPC, the second, third and fourth plenary sessions of the 19th central committee of CPC, and the fifth, sixth and seventh plenary sessions of the 11th municipal CPC committee of Tianjin, and comprehensively carried out the spirit of the political and legal work conference of central committee of CPC, the political and legal work conference of municipal CPC committee, the national conference of presidents of higher people’s courts, and the municipal conference of court presidents. Taking the objective of “making the people feel fairness and justice in every judicial case”, it fully fulfilled the function of maritime trial, made efforts to enhance the quality and efficiency of trial and enforcement, strictly implemented the requirements of judicial system reform, stably promoted the construction of smart court and information system, and strived to build an efficient and convenient modern maritime litigation service system. With these efforts, the Court had remarkable achievements in all aspects and provided effective judicial services and supports for implementation of major national strategies such as coordinated development of Beijing-Tianjin-Hebei and the “Belt and Road” initiative as well as the “construction of modernized Tianjin in five aspects”.
I. Basic information on the cases handled
(I) General information on the cases
In 2019, the Court totally accepted 2,267 cases, with a year-on-year increase of 221 cases and 10.80% in percentage; it totally closed 2,546 cases, with a year-on-year increase of 72 cases and 2.91% in percentage; the case closing rate is 94.02%, with a year-on-year increase of 9.18%. The total underlying value of the accepted cases is RMB 8.047 billion, with a year-on-year increase of 17.15%; the total underlying value of the closed cases is RMB 2.732 billion, with a year-on-year increase of 57.86%.
1. Newly accepted cases
Among the newly accepted cases, the number of maritime civil and commercial cases is 1,300, with a year-on-year decrease of 98 cases and 7.01% in percentage; the number of enforcement cases is 643, with a year-on-year increase of 39.04%; the number of maritime administration cases is 12; the number of other cases such as non-litigation property preservation cases is 131; the number of retrial application cases is 189. Among the maritime civil and commercial cases, the number of contract disputes on freight transport by sea or sea related waterways is 332, with a year-on-year decrease of 21.88%; the number of freight forwarding contract disputes is 305, with a year-on-year decrease of 52.99%; the number of sailor employment contract disputes is 45, with a year-on-year increase of 200%; the number of voyage charter contract disputes is 33, with a year-on-year decrease of 23.25%; the number of mariculture damage liability disputes is 243, with a year-on-year increase of 3950%; the number of personal injury liability disputes is 12, with a year-on-year decrease of 14.28%; the number of ship collision liability disputes is 2, with a year-on-year decrease of 77.78%.
2. Closed cases
Among the closed cases, the number of maritime civil and commercial cases is 1,545, with a year-on-year decrease of 133 cases and 7.93% in percentage; the number of enforcement cases is 655, with a year-on-year increase of 48 cases and 7.91% in percentage; the number of maritime administration cases is 9; the number of other cases such as non-litigation property preservation cases is 146; the number of retrial and review cases is 191.
(II) Basic characteristics of trial quality and efficiency
1. Improvement in trial quality and efficiency. In 2019, the Court made great efforts to enhance quality and efficiency of trial and enforcement, so that the case handling quality and efficiency was comprehensively improved, and the three major indicators, respectively number of newly accepted cases, number of closed cases and case closing rate, reached a historical high; the rate of case closed within statutory period reached 99.61%; many indicators of the Court, such as mediation rate, withdrawal rate, first-instance settlement rate, and judicial document online availability rate, are better than the average level of Tianjin; there was no re-judgment case or judicial compensation case throughout the year.
2. A new leap in trial and enforcement efficiency. In 2019, under the circumstances of a historically high number of newly accepted cases and increased pressure in case handling, the Court made efforts to improve the trial and enforcement efficiency by strengthening trial deadline management and settlement of accumulated cases. The average number of case trial days in 2019 is 137.25, with a year-on-year decrease of 101.31 days; the average number of case enforcement days is 81.61, with a year-on-year decrease of 101.11 days; the average number of trial and enforcement days was reduced by more than 50%. The number of cases pending for long period was reduced to the lowest point in the past ten years, and the number of cases pending for three or more years remained zero.
3. Significant increase in cases involving foreign parties, and parties from Hong Kong, Macao and Taiwan. In 2019, the number of newly accepted cases involving foreign parties and parties from Hong Kong, Macao and Taiwan is 346, with a year-on-year increase of 253 cases and 276.04% in percentage. There are 331 cases involving foreign parties and 15 cases involving parties from Hong Kong. The number of closed cases involving foreign parties and parties from Hong Kong, Macao and Taiwan is 393, with a year-on-year increase of 15 cases and 3.93% in percentage. These facts indicate that the Court has played a more important role in serving the opening-up of China and maintaining international shipping and trade order.
4. Continuous increase of cases handled by detached tribunals. The detached tribunals, including Qinhuangdao Tribunal, Caofeidian Tribunal and Circuit Tribunal, totally accepted 673 cases, with a year-on-year increase of 51 cases and 8.20% in percentage, and accounting for 47.03% of the total civil cases accepted by the Court (this percentage is 6.93% higher than that in the previous year). These tribunals totally closed 711 cases, with a year-on-year increase of 184 cases and 31.35% in percentage, and accounting for 45.59% of the total civil cases closed by the Court (this percentage is 13.66% higher than that in the previous year).
II. Basic information on the maritime trials
1. Steadily promoted construction of modern litigation service system. According to the objective of “intensiveness and efficiency, diversified dispute resolution, convenience and benefit for the people, smartness and precision, openness and interaction, integration and sharing”, the Court strived to build an efficient and convenient maritime litigation service system. It incorporated construction of litigation service center into the key tasks of the year, and worked out the Implementation Plan of Tianjin Maritime Court on Further Promoting the Modernization of Litigation Service Mechanism; it improved the construction of litigation service platform, promoted the application of informatization modules such as mobile micro court, online preservation center and online mediation center, and achieved full coverage of online and offline services for procedures such as case filing, payment, preservation and pre-litigation mediation; it carried out cross-region filing and litigation service reform, and promoted cross-region linked handling of litigation service matters, an example of which was the first cross-region filing of maritime litigation case in China completed by Tianjin Maritime Court and Shanghai Maritime Court in August 2019, as reported by more than 10 major media including People’s Daily Overseas Edition; it developed diversified maritime dispute resolution mechanism, and signed an authorized mediation agreement for maritime dispute with China Maritime Arbitration Commission in July 2019, so that the connection among the maritime litigation, arbitration and mediation procedures was closer and smoother.
2. In-depth implementation of the high-quality law enforcement and case handling strategy. The Court adhered to the thought of high-quality maritime trial, improved the maritime trial mechanism, and comprehensively enhanced the quality of maritime trial and the judicial credibility in Tianjin. It strengthened specialized maritime trial team building, scientifically allocated trial resources, established two specialized collegiate benches respectively for marine environment pollution disputes and marine construction works disputes, and implemented specialized trial of similar cases and meticulous trial of complicated cases; it made good disposition for major cases, released the Work Measures for Coordinated Disposition of Major Sensitive Cases, and properly and stably closed 327 cases of lawsuit filed by fishermen and farmers in Hebei Province against Bureau of Geophysical Prospecting INC., China National Petroleum Corporation concerning aquaculture damage, leading to good legal effect and social effect; it strengthened interaction with universities, signed cooperation agreement with three universities, respectively Nankai University, Tianjin University and Tianjin University of Finance and Economics, invited law professors to attend specialized judge meetings, and promoted in-depth integration of maritime judicial theory and practice; it improved the high-quality case cultivation mechanism and actively selected and reported typical cases, in which, the insurance contract case between an individual surnamed Chen and defendants including PICC Gaochun Subbranch, handled by the Court, was selected as one of the top ten typical cases of maritime trial in China in 2018, and the lawsuit filed by Tianjin Zhizhen Chemical Technology Development Co., Ltd. against Beijiang Maritime Safety Administration and Tianjin Maritime Safety Administration was selected as one of the top ten influential cases of the courts of Tianjin in 2019.
3. Continued high-pressure situation on enforcement. The Court deepened the achievements of “basically solving the problem of difficult enforcement”, improved the long-term mechanism to solve the problem of difficult enforcement, and firmly moved towards the goal of “effectively solving the problem of difficult enforcement”. It implemented enforcement campaigns, and solved a batch of “difficult cases” with special efforts. During the enforcement of the Ship “Lanhai 300” case, the Court resolved the difficulties one by one, such as channel blockage and enforcement interference, and finally secured the delivery of the ship. It strengthened linked enforcement, realized composition of forces in enforcement, and effectively implemented the Opinions on Linked Control of Objects of Enforcement signed by the higher courts in Beijing, Tianjin and Hebei with the railway public security bureau of Ministry of Public Security; it implemented a linked enforcement with the railway public security bureau, which was the first of such enforcement in the court system of Tianjin and indicated further enriched means of enforcement collaboration. It strengthened enforcement related publicity, and enhanced social recognition of enforcement; the feature film entitled The Missing Freighter presented based on the Ship “Rongxiang 1” case handled by the Court was broadcasted on CCTV and received favorable comments of Li Jing, president of Tianjin Higher Court.
4. Remarkable results of judicial investigation and research. The Court grasped the frontier hotspots of maritime judicial theory and practice, effectively enhanced the actual effects and pertinence of judicial investigation and research, and made efforts to create a wide investigation and research layout of the whole court. In 2019, 2 papers of the Court won the second prize of the Third Beijing-Tianjin-Hebei Judicial Forum, 1 paper won the second prize of the 27th National maritime Trial Symposium, 6 case study reports were selected in the case collection event organized by the supreme court and Tianjin Higher Court, and more than 30 papers and case study reports won prizes in national or local academic forums or were published on legal journals; according to the difficult problems in maritime trial, the Court worked out 7 investigation and research plans, organized 8 judicial investigation and research campaigns with the theme of “remaining true to the original aspiration and keeping the mission firmly in mind”, and further aroused the investigation and research enthusiasm of the staff.
5. Comprehensive implementation of “Smart Court” construction. The Court steadily promoted the construction of “Smart Court”, enhanced the informatization result application level of the people’s court, and quickened the modernization of the maritime trial system and the trial capability. It built and put into use the Internet technology based court, realized online remote connection and remote court session, and enhanced the intelligence level of trial; it completed the upgrading and reconstruction of the archives, built a new file storage and introduced automatic positioning and access system, ambient temperature and humidity control system and security monitoring system, and achieved more intelligent and standardized management of files and CD archives; it purchased self-service machines for judges and realized online completion of litigation file preparation and printing, leading to higher efficiency in daily auxiliary affair handling and higher level of convenience; it set integrated media smart terminals in the hall of the Court, so that the parties of lawsuits could conveniently search laws and regulations, consult judicial data, watch live broadcasting of court session, access various document formats and enjoy other integrated services by virtue of the diversified media integrating website, pictures and texts and videos as well as modules such as judicial publicity and intelligent Q&A.
6. Continuously deepened judicial publicity. The Court made efforts to enhance the maritime judicial width and depth, actively broadened the channels of judicial publicity, and enhanced the publicity effects. In order to increase the international influence of the maritime justice of Tianjin and to provide convenience for foreign parties of lawsuits, the Court launched the English version of its official website, which consisted of seven modules including typical cases, academic exchange, laws and regulations, and so on. It strengthened communication and interaction with news media, and effectively carried out news release; in the whole year it totally held three press conferences to timely disclose the important work processes and judicial dynamics of the Court to the public, and released the annual white papers of trial affairs to the public in both Chinese and English for the first time. It made efforts to promote online availability of judicial documents. Totally 2,624 documents were made available online through the document direct reporting system, with an online availability rate of 137.96%, and 251 documents were disclosed in forms other than the Internet, so that the judicial judgment information was more open and transparent to the public. It paid close attention to construction of its We Media platform, and appointed specialists for management and operation of the We Media platform; it formally settled on the Kuaishou short video platform in July 2019, and comprehensively utilized its MicroBlog account, WeChat public account, and new media to guide the public opinions, transfer positive voices and respond to social concerns.
III. Information on the Court’s supports provided for national strategies and Tianjin’s economic development
1. Fully supported the coordinated development of Beijing-Tianjin-Hebei and the construction of Xiongan New Area. The Court worked out the Opinions on Political Work in Further Enhancing the Supports for the Coordinated Development of Beijing-Tianjin-Hebei to provide strong political support for the coordinated development of Beijing-Tianjin-Hebei; a delegation led by the leaders of the Court went to the office of Tianjin Leader Group for the Coordinated Development of Beijing-Tianjin-Hebei for linking-up of work; the Court deepened the judicial collaboration in Beijing-Tianjin-Hebei region, signed a judicial cooperation agreement with the intermediate court of Xiongan New Area, and realized local trial and settlement of cases outside Tianjin with the help from the court of Haidian District of Beijing and the court of Qiaoxi District of Shijiazhuang; it strengthened setting of circuit points of trial in Beijing-Tianjin-Hebei region, and set a circuit point of trial in Anxin County, Hebei Province in December 2019 to provide efficient and convenient judicial services for the construction of Xiongan New Area; it effectively overcame the barriers of administrative division, and signed legal support agreements with the justice bureau of Qinhuangdao City, the justice bureau of Laoting County, and the justice bureau of Huanghua City to promote cross-region maritime legal aid mechanism, so that the maritime legal aids were effectively extended to the jurisdictions of the three detached tribunals.
2. Safeguarded the “Belt and Road” initiative and maintained international shipping and trade order. As a point of support for the junction of the Silk Road economic belt and the 21st century maritime silk route, Tianjin has combined advantages in port, industry and opening-up and takes an important position in the “Belt and Road” initiative. The Court attached great importance to enhancing the foreign parties involved maritime trial capabilities, and made efforts to safeguard the participation of maritime enterprises in the initiative. In 2019, the Court totally tried 272 cases relating to the “Belt and Road” initiative and closed 34 of them. These cases involved 25 countries and regions including Saudi Arabia, Bangladesh, Greece, Egypt, Singapore, Italy, Vietnam, and Denmark, and the total underlying value reached RMB 2.969 billion. At the same time, in response to the in-depth implementation of the inland dry port strategy of Tianjin Port and the rise of the sea-rail combined transportation, the Court took its initiative to extend the circuit trial services, actively promoted the forward movement of service interfaces relying on the circuit points of trial in dry ports in inland areas such as Beijing, Hebei, Shanxi and Inner Mongolia, provided door-to-door judicial services for inland export enterprises, and further smoothened the passages from inland areas to the sea.
3. Strengthened judicial protection of marine environment and supported the comprehensive management of the Bohai Sea. The Court worked out the Implementation Opinions on Providing Judicial Service and Support for Enhanced Comprehensive Management of the Bohai Sea to provide comprehensive guidance for supporting the comprehensive management of the Bohai Sea. It strengthened the linkage between government and court, actively built liaison mechanism with marine environment administrations of Tianjin and Hebei, and organized several forums to discuss legal issues such as public interest litigation and enforcement of marine environment related penalties. It carried out investigation and study on marine environment and resource related trials and several suggestions on the comprehensive management of the Bohai Sea composed by the Court in 2019 were apprieciated by superiors. The Court successfully assisted CNOOC Marine Environment and Ecological Protection Public Welfare Fund in determining the intention of investing in Binhai New Area, and actively promoted the link-up between relevant organs and CNOOC, laying a solid foundation for the future projects of the fund.
4. Carried out the new development concept and continuously optimized the business environment. The Court visited maritime enterprises to know their judicial needs and solve actual problems. Throughout the year, teams led by the leaders of the Court visited more than 20 port, shipping, warehousing and freight forwarding enterprises, and the departments of the Court conducted law related publicity activities to more than 200 maritime enterprises. It actively performed its duties in judicial suggestion, enhanced its capability in social governance participation, and offered more than 10 suggestions for maritime enterprises throughout the year based on the market risks and operation defects identified in trial practice. Among these suggestions, the Judicial Suggestion on Legal Issues Concerning Sailor Management was selected as one of the excellent judicial suggestions of courts in Tianjin. It consciously accepted the supervision of the people’s congress, and actively strived for supports from the standing committee of the municipal people’s congress. In September 2019, some leaders of the standing committee of the municipal people’s congress visited a circuit tribunal of the Court, listened to the work report of the Court about its service for private economy, and gave favorable comments. The Court strengthened trial of maritime financial cases, and totally tried 15 disputes involving ship financing lease, ship operation borrowing and the like in 2019, with total underlying value of RMB 1.269 billion and promoting the stable and orderly development of the maritime financial market. It sent representatives to attend the fifth China Maritime Finance (Dongjiang) International Forum and give a themed speech, and participated in organization of high-end legal seminars on maritime finance to discuss resolution of legal issues relating to maritime finance such as ship asset disposal, receiving wide favorable comments in the maritime finance sector.
IV. Typical cases
1. The insurance contract dispute case on transport by sea related waterways between an individual surnamed Chen as plaintiff and the defendants including PICC Gaochun Subbranch
[Case brief]
Chen effected an all-risk insurance for ship transport by coastal inland river for the Ship “Ninggaopeng 3368” he owned from PICC Gaochun Subbranch, with an insurance policy issued by PICC Nanjing Branch. According to Paragraph 1, Article 3 of the insurance clauses, the insurer will bear no compensation liability for any damages, liabilities and expenses incurred because the underlying ship is not seaworthy or tow-worthy (including damages, liabilities and expenses of the towed ship caused by the towing activity of towboat and all damages, liabilities and expenses caused by towing activity of any ship that is not a towboat, due to technical status, manning, loading and other conditions of the ships). On March 13, 2016, the Ship “Ninggaopeng 3368” had a collision accident during transport, and at the time of the incident none of the three sailors on the ship had any certificate of competence. According to the conclusion of Yueyang Maritime Safety Administration, the direct cause of the accident was the regulation violating steering and improper operation of the on-duty steerer, who did not hold a Certificate of Competence for Crew of Inland River Ships, and the ship should bear all the liabilities for the accident by itself. Chen claimed insurance compensation from PICC Gaochun Subbranch with respect to the accident. In the opinion of PICC Nanjing Branch, improper operation of sailor was the direct cause of the collision accident, the sailors had no certificate of competence, and the ship did not meet minimum manning standards, so the insurer had the right to reject the compensation claim on the ground that unseaworthy ship is excluded from compensation liability.
[Judicial decision]
In the first-instance judgment made by Tianjin Maritime Court, the claim of the plaintiff was rejected. The plaintiff appealed, but Tianjin Higher People’s Court upheld the original judgment in the second-instance judgment.
[Significance]
For a long time, many enterprises and individuals engaged in inland river freight transport have hired sailors holding no certificate of competence or failed to employ crew for the ships according to the minimum manning standards in order to reduce cost, resulting in high safety risk to inland river transport and adverse impact on the sound and orderly development of inland water transport economy. In 2016, the Supreme People’s Court issued the Opinions on Providing Judicial Services and Guarantees for the Development of the Yangtze River Economic Belt, in which it was proposed to guide various market participants to compete on an orderly and benign basis, to guide port, shipping and shipbuilding enterprises to effectively enhance safety awareness and quality awareness, and to provide strong judicial support for the construction of safe and sound “golden waterway”. In this case, it was determined according to law that the underlying ship was not seaworthy as it had no sailor holding certificate of competence, and that the insurer did not have to bear compensation liabilities according to the insurance clauses on the ground that there was causal relationship between the unseaworthiness of the ship and the accident. Such judgment is of great significance for enhancing the inland river transport safety awareness and promoting the high-quality development of inland river transport economy. This case was selected as one of the top ten typical cases of maritime trial in China in 2019 released by the Supreme People’s Court.
2. The administrative lawsuit case between Tianjin Zhizhen Chemical Technology Development Co., Ltd. as the plaintiff and Beijiang Maritime Safety Administration of the People’s Republic of China and Tianjin Maritime Safety Administration of the People’s Republic of China as the defendants
[Case brief]
In January 2018, Tianjin Zhizhen booked space from Quanzhou Antong Logistics Company for two containers of cargoes to be transported from Tianjin Port, with the declared cargo name of “ceramic frit”. On January 17, Beijiang Maritime Safety Administration inspected the cargos and collected samples for test. According to the Test Report and the Hazardous Properties Classification and Identification Report, the main ingredient of the sample was sodium hydroxide, which should be stored and transported as hazardous chemical. On March 23, Beijiang Maritime Safety Administration issued a Decision of Maritime Administrative Penalty according to relevant regulations on the ground that Zhizhen falsely declared hazardous chemical as ordinary cargo for shipment, imposing an administrative penalty of RMB 109,000. Zhizhen refused to accept such penalty and applied to Tianjin Maritime Safety Administration for administrative review. Tianjin Maritime Safety Administration issued a Decision of Administrative Review to Zhizhen and upheld the administrative penalty imposed by Beijiang Maritime Safety Administration. Zhizhen still refused to accept the decision and filed a lawsuit to Tianjin Maritime Court.
[Judicial decision]
In the first-instance trial, Tianjin Maritime Court held the opinion that the underlying administrative penalty and the decision of review were issued according to legal procedures based on correct applicable laws and regulations, and rejected the plaintiff’s claim for cancellation of the penalty and the decision. The plaintiff appealed, but Tianjin Higher People’s Court upheld the original judgment in the second-instance judgment.
[Significance]
It is an important guarantee for maintaining the overall social stability and achieving high-quality economic development to improve the ability of risk prevention and control and to focus on major risk mitigation. In marine cargo transport, the carrier’s transport of dangerous goods as ordinary goods due to misrepresentation of dangerous goods by the cargo owner may easily cause major safety hazards. In this case, the plaintiff Zhizhen insisted that under similar law violation circumstances, the amounts of penalties imposed by other local maritime administrations in China were less than that imposed by Beijiang Maritime Safety Administration, with a problem of “different punishment in similar cases”. The collegiate bench, after strict examination of administrative penalty and in combination with the specific violation circumstance in this case, determined that it was not improper for Beijiang Maritime Safety Administration to impose a penalty of RMB 109,000 within the range of “RMB 100,000 to RMB 200,000” specified in the Regulations on the Control over Safety of Dangerous Chemicals. This case was selected as one of the top ten influential cases of the courts in Tianjin in 2019.
3. The sea development and utilization dispute case between Tianjin Shenggang Construction Engineering Co., Ltd. as plaintiff and the defendants including Cangzhou Port Group and China Ocean Engineering Construction General Bureau
[Case brief]
In 2012, Cangzhou Port Group signed a construction contract with China Ocean Engineering Construction General Bureau through bidding. The works were divided into four parts and then subcontracted to Tianjin Jinshui Dredging Engineering Co., Ltd. and Tianjin Binhai Yulishi Construction and Installation Engineering Co., Ltd.. Tianjin Shenggang Construction Engineering Co., Ltd. actually completed the main parts of the construction project. The project was completed and accepted in September 2014, but the interim payment of more than RMB 36 million and the final payment of more than RMB 85 million were not settled in time. In February 2016, Tianjin Shenggang Construction Engineering Co., Ltd. filed a lawsuit in Cangzhou Intermediate Court against the employer, the general contractor and the opposite party under the contract in the project with respect to the interim payment and the final payment. After the first-instance judgment of the interim payment case, Hebei Higher Court ordered a re-trial. After examination, Cangzhou Intermediate Court found that these two cases concerning the project should fall within the jurisdiction of maritime court, and transferred them to Tianjin Maritime Court.
[Judicial decision]
After two court sessions and subsequent mediation, the five parties in this case and other two parties not involved in the case successfully reached a reconciliation agreement, and the payment amounting to RMB 121 million in the case has been fully settled.
[Significance]
The five parties in this case were from different places, respectively Beijing, Tianjin and Hebei, and the facts were complex, so it was rather difficult to handle. During mediation, the collegiate bench invited the creditors of two defendants under other two enforcement cases handled by other courts to participate in the mediation, and at last the seven parties reached a mediation agreement, so that two additional cases, which were pending for several years, were settled together with this case. Besides, during handling of this case, the collegiate bench took the action of prior enforcement, so that the migrant workers involved got their wages before the Spring Festival, leading to good effect in maintaining social stability and guaranteeing people’s livelihood. This case was selected as a typical case of courts of Tianjin for supporting the coordinated development of Beijing-Tianjin-Hebei.
4. The marine and sea connected navigable waters engineering construction dispute case between Fujian Xinggang Port Co., Ltd. as plaintiff and the defendants including Qinhuangdao Branch of Hainan Zhongshuilong Construction Engineering Co., Ltd., Hebei Port Group Port Engineering Co., Ltd., No. 5 Engineering Co., Ltd. of CCCC First Harbor Engineering Co., Ltd., and Qinhuangdao Qinhuang Tourism Culture Investment Co., Ltd.
[Case brief]
In May 2013, Qinhuang Tourism Culture Investment Co., Ltd., as the employer, signed a construction contract with No. 5 Engineering Co., Ltd. of CCCC First Harbor Engineering Co., Ltd. through bidding procedures. In August 2013, No. 5 Engineering Co., Ltd. subcontracted a part of the works to Hebei Port Group Port Engineering Co., Ltd., which had corresponding qualification. In April 2014, Hebei Port Group Port Engineering Co., Ltd. subcontracted a part of the works to Qinhuangdao Branch of Zhongshuilong Construction Engineering Co., Ltd.. In June 2014, Qinhuangdao Branch of Zhongshuilong authorized a representative surnamed Ma to sign a construction contract with the plaintiff Fujian Xinggang Port Co., Ltd. and to handle all matters concerned. After the signing of the contract, the plaintiff started construction using its Ship “Xinggangjun 66”. During the construction, the payment proportion of Qinhuang Investment was 57%. In May 2017, No. 5 Engineering Co., Ltd. of CCCC First Harbor Engineering Co., Ltd and Hebei Port Group Port Engineering Co., Ltd. carried out the completion settlement, with the payment proportion of 82%. In May 2017, Hebei Port Group Port Engineering Co., Ltd. settled with Qinhuangdao Branch of Zhongshuilong, with a payment proportion of 90%. In order to collect the outstanding payment, the plaintiff filed a lawsuit to Tianjin Maritime Court.
[Judicial decision]
The first-instance judgment of Tianjin Maritime Court is as follows: Qinhuangdao Branch of Zhongshuilong should pay the construction cost of RMB 1,991,600 and corresponding interest to the plaintiff; Qinhuang Investment should bear payment liability for the aforesaid debt, and after Qinhuang Investment performs the liability, the corresponding portion of the debt with respect to the construction cost among the parties under the project should be eliminated. Qinhuang Investment appealed, but Tianjin Higher People’s Court upheld the original judgment in the second-instance judgment.
[Significance]
It is not uncommon for marine construction projects to be subcontracted level by level. Such cases often involve a large number of parties and have complex legal relations, making it more difficult for actual constructors to safeguard their legitimate rights and interests, and for courts to handle the cases fairly and efficiently. In this case, the Court accurately grasped the spirit of the relevant judicial interpretations of the Supreme Court, and clarified the responsibility bearing conditions and ways for each “employer” under each subcontracting. It has reference significance for handling of similar cases: firstly, Article 26 of the Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Cases Involving Project Construction Contract Disputes and Article 24 of the Further Interpretation of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Cases Involving Project Construction Contract Disputes strengthens the protection of the rights of the actual constructors and the migrant workers behind them without increasing the responsibilities of the employer, and should be applicable to the cases involving multi-level illegal subcontracting; secondly, to determine the scope of liability of the employer, the outstanding payment under each illegal subcontracting contract should be considered, and the liability of the employer should not exceed the minimum outstanding amount under all the contracts, otherwise it will damage the rights of the debtor under the contract; the mode of liability bearing should be supplementary liability; thirdly, “employer” is a relative concept, and the general contractor and illegal subcontractors that have no direct contractual relationship with the actual constructor should also bear the liabilities of “employer” in case of overdue payment of construction cost.
5. The case of other maritime dispute between Tianjin Zhongshun Lida Coal Sale Co., Ltd. and Tianjin COSCO Shipping Lines Co., Ltd.
[Case brief]
In 2016, Zhongshun Lida Company authorized Xinyan Company and Banghai Company, through Haiyongwang Company, to book space from Tianjin COSCO, and then 361 containers of cargos were transported by a ship operated by PANASIA. After the cargos arrived at the port, PANASIA detained the containers for the reason that Xinyan Company had arrears. The evidences showed that Zhongshun Lida had paid the freight. On November 3, November 22 and November 30, 2016, in order to solve the problem of container detention, Zhongshun Lida, as Party B, signed three agreements with Tianjin COSCO, Fujing company and Qinhuangdao COSCO as Party A, in which it was agreed that “as Banghai company and Xinyan company failed to pay freight and port charges to Party A according to agreement, Zhongshun Lida agreed to pay RMB 2,361,063 on their behalf”. Later, Zhongshun Lida paid the above-mentioned sum and retrieved the detained containers by November 30, 2016 in succession. On July 20, 2018, Zhongshun Lida filed a lawsuit to Tianjin Maritime Court on the ground that the payment made was not for its debt and it had no choice but to pay when the container was detained, claiming to cancel the three agreements mentioned above.
[Judicial decision]
In the first-trial judgment of Tianjin Maritime Court, the claim of the plaintiff was rejected. The plaintiff appealed, but Tianjin Higher People’s Court upheld the original judgment in the second-instance judgment.
[Significance]
This is a typical case involving a contract of cargo transport by sea under which the carrier detains the cargos of the shipper due to delayed payment of freight and other related expenses. In this case, the Court held the opinion that PANASIA had no right to detain the cargos, and its detention of the cargos, without any factual and legal basis, constituted intimidation. The agreement signed by Zhongshun Lida under such circumstance had a good reason for cancellation. However, Zhongshun Lida should exercise the right of cancellation within one year from the date of end of the intimidation, otherwise such right should be eliminated. This case has the following significance: firstly, it is clarified that the carrier should exercise the legal lien according to law, and should not cause loss to the cargo owner by abusing such right; secondly, it is clarified that the law does not protect those who fail to exercise their rights during the scheduled period, so as to guide the right holders to exercise their rights on a timely basis.
6. The labor contract dispute cases between sailors including Zhang as plaintiffs and Ganghai (Tianjin) Construction Co., Ltd. as defendant
[Case brief]
From March 21, 2011 to December 13, 2016, sailors including Zhang successively signed a labor contract with the defendant Ganghai Company, and held various sailor positions on the ships of Ganghai. Since August 2017, Ganghai had been in arrears with the payment of the sailors’ remuneration, so Zhang and other sailors terminated their labor contracts with Ganghai, and claimed that Ganghai should pay them the wages, traffic expenses, cooling expenses and economic compensation. Ganghai held the opinion that it had paid the overdue salary to the sailors in January 2019, and the overdue payment was due to financial difficulties rather than malice, so there was no legal and factual basis for Zhang and other sailors to claim economic compensation.
[Judicial decision]
The first-instance judgment of Tianjin Maritime Court ruled that Ganghai should pay the corresponding economic compensation, traffic expense and cooling expense to the sailors. Both the plaintiffs and the defendant accepted the judgment.
[Significance]
This case is a dispute concerning the sailor employment contract, and has the following significance: after sailors terminate the labor contract in accordance with Item 2, Paragraph 1, Article 38 of the Labor Contract Law (failure to pay labor remuneration in full and in time), and the ship company should pay economic compensations to the sailors. In judicial practice, there are exceptions to the above provisions. According to Article 4 of the Supplementary Provisions on Relevant Issues Concerning the Interim Provisions on Wage Payment (Lao Bu Fa [1995] No. 226) and the relevant guidelines of Tianjin Higher People’s Court, if the employer fails to pay the labor remuneration in full and in time due to natural disasters, business difficulties, production suspension and other similar reasons, and it has obtained consent from the labor union or employees’ representatives, such failure should not be deemed “defaulting remuneration without good reason”, and the employees should not claim economic compensation on the ground of the failure to pay. In this case, although Ganghai had entered into the reorganization procedure according to law, and had objective difficulties in production and operation, it failed to provide sufficient and effective evidence to prove that its default of sailors’ labor remuneration had been consented to by the labor union or the employee representatives, and its failure to pay did not constitute an exclusion of “default without good reason”. Thus, Zhang and other sailors had the right to claim economic compensation from Ganghai according to law. The judgment in this case can be used for reference in determining the payment of economic compensation under a labor contract dispute and in protecting legal rights and interests of sailors.
7. The case of enforcement application by Nantong Branch of COSCO Shipyard Engineering Service (Dalian) Co., Ltd. against Zhongshuo Yihui Ship Management Co., Ltd.
[Case brief]
Nantong Branch of COSCO Shipyard Engineering Service had a ship repair contract dispute with Zhongshuo Yihui Ship Management. As the whereabouts of Zhongshuo Yihui was unknown, Tianjin Maritime Court made a default judgment that Zhongshuo Yihui should pay repair expenses to Nantong Branch of COSCO Shipyard Engineering Service. Later, Nantong Branch of COSCO Shipyard Engineering Service applied to the court for enforcement. However, the enforcement personnel found that the whereabouts of Zhongshuo Yihui was unknown and there was no property for enforcement, so the enforcement was suspended. On the evening of December 11, 2019, the enforcement management platform of Tianjin Maritime Court received from the enforcement command center of the municipal higher court a message that Wei, the legal representative of Zhongshuo Yihui, would take a train at Tianjin West Railway Station at 20:40 that night to go to Zhenjiang City, Jiangsu Province. Then, the Court quickly initiated an enforcement plan. The enforcement personnel rushed to Tianjin West Railway Station and sent the enforcement document to the joint command center of Railway Public Security Bureau at the same time. At 19:40, the enforcement personnel arrived at the station, and carried out monitoring together with the policemen of the station. At about 20:00, they controlled Wei and announced the detention decision on the spot. Under the strong deterrence of justice, Wei confessed the illegal acts to the court and paid up the outstanding amount on the spot.
[Significance]
Since the defendants’ whereabouts are unknown, the cases with default judgments often become “dead cases” in the enforcement process. The enforcement of this case benefited from the implementation of the Opinions on Joint Investigation and Control of Persons Subject to Enforcement jointly signed by the higher courts of Beijing, Tianjin and Hebei and the Railway Public Security Bureau of the Ministry of Public Security in June 2019. The Opinions established a linkage mechanism among the courts and the railway public security bureaus in terms of investigation and control of persons subject to enforcement, and provided effective assistance in solving the problem of “investigation” during enforcement by virtue of the linkage between enforcement command center and investigation and control command center of public security bureaus as well as the joint efforts of the enforcement judges and the policemen. As the first case of joint investigation and control for enforcement implemented by the courts of Tianjin, this case has a good result.