Case of dispute over damage compensation arising from ship collision filed by Hiro Shipping Inc. against Nanjing Channel Engineering Bureau of Changjiang River and Guangdong Yudean Shipping Co., Ltd.

Updated：2015-03-23 Views：2948 
Guangzhou Maritime Court of the People??s Republic of China 



Civil Judgment



(2007)Guang Hai Fa Chu Zi No.259

Plaintiff 1:		Hiro Shipping Inc.

Address:		80 Broad Street, Monrovia, the Republic of Liberia

Legal Rep.:		Yusuke Hashiguchi, director and president

Agent ad litem: 	Chen Xiangyong, attorney-at-law, Wang Jing & Co. Law Firm

				Cao Yanghui, attorney-at-law, Wang Jing & Co. Law Firm



Plaintiff 2:		Yuma Maritime S.A.

Address:	53rd Street, Urbanizacion Obarrio, Torre Swiss Bank 16th Floor, Panama, the Republic of Panama

Legal Rep.:		Masaki Hara, director and deputy general manager

Agent ad litem: 	Chen Xiangyong, attorney-at-law, Wang Jing & Co. Law Firm

				Cao Yanghui, attorney-at-law, Wang Jing & Co. Law Firm



Defendant 1:	Nanjing Channel Engineering Bureau of Changjiang River

Address:	#9, Jiangbian Road, Xiaguan District, Nanjing, Jiangsu

Legal Rep.:		Yuan Yakang, director

Agent ad litem: 	Chen Longjie, attorney-at-law, Greenleaf Law Firm Shenzhen Office

				Liu Yun, attorney-at-law, Greenleaf Law Firm Shenzhen Office



Defendant 2:	Guangdong Yudean Shipping Co., Ltd.

Address:	Room 1388, 13/F, Labor Building, Hong Hua Yuan, Nanshan District, Shenzhen, Guangdong

Legal Rep.:		Liang Jian, chairman of the board

Agent ad litem: 	Yang Yunfu, attorney-at-law, Yang & Lin Co. Law Firm

				Zhu Weikang, attorney-at-law, Yang & Lin Co. Law Firm



With respect to the case of dispute over damage compensation arising from ship collision filed by the Plaintiffs, Hiro Shipping Inc. (hereinafter referred to as ?°Hiro?±) and Yuma Maritime S.A. (hereinafter referred to as ?°Yuma S.A.?±) against the Defendants, Nanjing Channel Engineering Bureau of Changjiang River (hereinafter referred to as ?°Nanjing Channel Engineering Bureau?±) and Guangdong Yudean Shipping Co., Ltd. (hereinafter referred to as ?°Yudean?±), this Court, after accepting the case, formed a Collegial Panel according to law, and called upon parties hereto to exchange evidence before trial on January 22, March 19 and April 23, 2008, convened pretrial conferences on June 3 and 4, and heard the case in public on August 6, 7, 8 and 12. Chen Xiangyong and Cao Yanghui as agent ad litem jointly entrusted by the Plaintiffs, Hiro and Yuma S.A., Chen Longjie and Liu Yun as agents ad litem entrusted by the Defendant Nanjing Channel Engineering Bureau, and Yang Yunfu and Zhu Weikang as agents ad litem entrusted by the Defendant Yudean, attended the pretrial evidence exchange and the pretrial conference, and appeared at the Court and participated in the lawsuit. Zhang Jin as the accountant applied for by the Plaintiffs Hiro and Yuma S.A., Lu Daonan, Huang Guangming and Xu Jiangping as the accountants applied for by the Defendant I Nanjing Channel Engineering Bureau, and Tang Qiujin as the accountant applied for by the Defendant II Yudean, appeared at the Court to be questioned. The trial of this case has been closed.  



The plaitiffs, Hiro and Yuma S.A., jointly alleged: On March 14, 2007, M/V ?°YUE DIAN 2?± collided with M/V ?°HANG JUN 11?± in Lingding channel of Guangzhou Port and subsequently M/V ?°HANG JUN 11?± collided with M/V ?°SUMIRE?±. The three vessels were damaged to different extends. The aforesaid accident of collision mainly resulted from the faults and mistakes of M/V ?°YUE DIAN 2?± and M/V ?°HANG JUN 11?±, so the two Defendants should be liable to indemnify the Plaintiffs for the losses. Hiro is the registered ship-owner of M/V ?°SUMIRE?± and Yuma S.A. is the demise charterer of M/V ?°SUMIRE?±, therefore, both the Plaintiffs are entitled to claim for damages for the losses of M/V ?°SUMIRE?± arising from the accident of collision to. Yudean is the registered ship-owner of M/V ?°YUE DIAN 2?± and Nanjing Channel Engineering Bureau is the registered ship-owner of M/V ?°HANG JUN 11?±, therefore, both the Defendants shall indemnify both the Plaintiffs for the losses. It is hereby requested to order both the Defendants to indemnify the Plaintiffs: 1. USD262,000 as repair cost of M/V ?°SUMIRE?±; 2. USD1,200 as paint repair cost of M/V ?°SUMIRE?±; 3. USD160,947.92 as loss of hire of M/V ?°SUMIRE?±; 4. USD44,980.12 as clean-up cost and anti-fouling cost; 5. USD160,947.92 as classification society survey fee; 6. USD151,451.67 as case handling fee, guarantee fee and survey fee; 7. USD 31,367.27 as additional port agency fee. All amounts to USD 681,924.98. Both the Defendants shall pay both the Plaintiffs the interest on the above mentioned losses (interest shall be calculated at the loan interest rate of working capital of enterprises for the contemporary period of time of bank from March 15, 2007 to the date when both the Defendants pay all the reparations). The litigation costs shall be borne by both the Defendants.



Both the Plaintiffs have jointly presented the following evidential materials within the time limit for adducing evidence: 1. Certificates of M/V ?°SUMIRE?±, including Statutory Certificate of Register, International Tonnage Certificate, International Loading Certificate, International Oil Pollution Prevention Certificate, Cargo Ship Safety Radio Certificate, Cargo Ship Safety Equipment Certificate, Cargo Ship Safety Construction Certificate, Certificate of Minimum Manning, Safety Management Certificate, and Statutory License for Radio; 2. Bareboat Charter, Time Charter, Rent Statement; 3. Deck Logbook, Engine Logbook, Bell Book and Pilot Card of M/V ?°SUMIRE?±; 4. Crew List of M/V ?°SUMIRE?±; 5. Maritime Accident Investigation Form; 6. Bill and payment voucher of repair costs; 7. Shipyard??s statement; 8. Bill and particulars for costs of paints; 9. Invoice and payment voucher of survey fee; 10. Note and payment voucher of agency fee; 11. Payment invoice of oil pollution prevention fee and cleanup fee; 12. Survey report on damage of M/V ?°SUMIRE?± arising from the collision issued by China Marine Services Company Ltd. (hereinafter referred to as ?°CMS?±); 13. Legal Opinion from a lawyer in Panama.



The Defendant Nanjing Channel Engineering Bureau defended: The collision alleged by both the Plaintiffs was absolutely resulted from the faults and mistakes of M/V ?°YUE DIAN 2?± and M/V ?°SUMIRE?±, so Nanjing Channel Engineering Bureau should not bear any liability. Both the Plaintiffs have not provided any valid evidence which can prove the existence of the asserted loss, and the amount of loss pledged by the Plaintiffs was unreasonably exaggerated. It is hereby requested to overrule the claim of both the Plaintiffs against Nanjing Channel Engineering Bureau. The litigation costs shall be borne by both the Plaintiffs.	



The Defendant Nanjing Channel Engineering Bureau presented the following evidential materials within the time limit for adducing evidence: 1. Certificate of Vessel??s Nationality, Classification Certificate for Hull, Certificate of Vessel??s Inspection, Certificate of Load Line, Certificate of Oil Pollution Prevention, Certificate of Tonnage, Certificate of Seaworthiness of M/V ?°HANG JUN 11?±; 2. Certificate of Competency of Master Chen Wu, Certificate of Competency of Master Chen Xiping, Certificate of Competency of 2nd Officer Yu Gang, Certificate of Competency of Duty Officer Chen Chunhai, Certificate of Competency of Chief Engineer Qian Ming, Certificate of Competency of Second Engineer Dai Yongqing; 3. Permits for operation above and under water, Notice to Mariners; 4. Logbook; 5. Accident Report, Table of Investigation of Marine Accidents, Nautical Chart.



The Defendant Yudean alleged: After the occurrence of the subject accident, Guangdong Maritime Safety Administration of P.R.C. (?°Guangdong MSA?±) conducted an investigation and produced the Investigation Report of the Collision Accident, which affirms that, with respect to the first collision, m/v ?°Yu Dian 2?± shall bear the primary liability and M/V ?°HANG JUN 11?± shall bear the minor liability; with respect to the second collision, M/V ?°SUMIRE?± shall bear the primary liability and M/V ?°HANG JUN 11?± shall bear the minor liability. Yudean agreed with the Guangzhou MSA on the ascertainment of the liability for the accident. Based thereon, there is no causation between the fist collision and the second collision, and the close quarters situation of the second collision was formed after the first collision, due to that M/V ?°SUMIRE?± continued chasing and finally overtook M/V ?°HANG JUN 11?± without receiving any reply therefrom on whether overtaking was allowed or not, and that M/V ?°HANG JUN 11?± reversed fast in a blind way, therefore, Yudean should not bear any liability for the second collision. Furthermore, the losses asserted by both the Plaintiffs are unreasonable. According to the survey report presented by Yudean, the average repair cost should be USD51,767, and the time for repair shall not exceed 5 days. It is hereby requested to overrule the claim of both the Plaintiffs against Yudean. The litigation costs shall be borne by both the Plaintiffs.



The Defendant Yudean presented the following evidential materials within the time limit for adducing evidence: 1. Business License; 2. Certificate of Nationality, Certificate of Ownership, Interim Classification Certificate, Cargo Ship Safety Construction Certificate, Cargo Ship Safety Equipment Certificate, International Tonnage Certificate, International Load Line Certificate, Cargo Ship Safety Radio Certificate, International Oil Pollution Prevention Certificate, Interim International Ship Security Certificate, Certificate of Compliance, Certificate of Exemption, and Minimum Safe Manning Certificate of M/V ?°YUE DIAN 2?±  ; 3. Crew List of M/V ?°YUE DIAN 2?±, Certificates of Competency of Crew onboard M/V ?°YUE DIAN 2?±, Seaman??s Record Books of Crew onboard M/V ?°YUE DIAN 2?±; 4. Marine Accident Report; 5. Deck Logbook, Engine Logbook, Deck Bell Book, Engine Bell Book of M/V ?°YUE DIAN 2?±; 6. Survey Report of M/V ?°SUMIRE?±; 7. Supplementary Appraisal Report of Statement of Repair Cost of M/V ?°SUMIRE?±.



This Court has obtained the following evidential materials from Guangzhou MSA: 1. Collision Accident Investigation Report issued by Guangdong MSA; 2. Maritime Traffic Accident Report (two pieces) and Maritime Accident Report of M/V ?°YUE DIAN 2?±; 3. Deck Logbook, Engine Logbook, Deck Bell Book, and Engine Bell Book of M/V ?°YUE DIAN 2?±; 4. Interview records taken by Guangzhou MSA of some crews of ?°Yue Dian 2?±, including interview records of Master Jiang Feng, of second officer Cao Junlong, of third officer Qiu Weizhong, of chief engineer Chen Wenqiang, of first engineer Xu Weihe, of third engineer Li Huaxu (two pieces), of A/B Huang Jingqing, of A/B He Jianming; 5. Logbook, Engine Logbook and Maritime Traffic Accident Report of M/V ?°HANG JUN 11?±; 6. On-the-spot Accident Investigation Records on M/V ?°HANG JUN 11?± produced by Guangzhou MSA; 7. Interview records taken by Guangzhou of some crews of M/V ?°HANG JUN 11?±, including interview records of chief officer Chen Xiping (two pieces), of second officer Chen Jiesong, of second officer Yu Gang, of chief engineer Qian Ming, of first engineer Dai Yongqing, of A/B Chen Haichun, of A/B Xielei, of machinist on duty Wang Daohai, of machinist Qi Fei; 8. Interview records taken by Guangzhou MSA of Song Gentong, the project manager of Guangzhou Seaward Passage Project of Nanjing Channel Engineering Bureau; 9. Certificate of Register, Safety Manning Certificate, and Certificate of Competency of crews of M/V ?°SUMIRE?±; 10. Marine Accident Report of M/V ?°SUMIRE?±; 11. Ship Manoeuvring Parameter List and Side View of Bow Structure of M/V ?°SUMIRE?±; 12. Average Survey Report of M/V ?°SUMIRE?± produced by Classification society; 13. Interview records taken by Guangzhou MSA on pilot Zhao Bingxun (two pieces); and 14. Interview records taken by Guangzhou MSA of the Master (two pieces), of the third officer, of the chief engineer, and of the A/B of M/V ?°SUMIRE?±.



Based on the joint application filed by the Plaintiffs and Defendants, this Court organized parties to this case to watch VTS video at Guangzhou MSA, and to copy the sound recordings of conversations, and the written records thereof were submitted by the parties to this case. : At the pre-trail conference, both the Plaintiffs and the Defendant Nanjing Channel Engineering Bureau believed that the written record of the sound recording of conversations in VTS submitted by the defendant Yudean Co. is comparatively accurate and confirmed the authenticity of the said written record.



Upon hearing and cross-examination, and in combination of the evidences and opinions on cross-examination submitted by parties to the case and statement of accounts, the Collegial Panel ascertains the following facts through investigation:



I. Particulars of Ships involved in the Accident



M/V ?°HANG JUN 11?±: Gross Tonnage 2,691 tons, Net Tonnage 807 tons, Deadweight Capacity Indication 2,457 tons, Length overall 84.75M, Breadth 15M, Depth 5.5M, Full Load Draft 4.5M; Kind of Vessel: Dredger; Material of Shell: Steel; Navigating Area: Offshore; Number of Watertight Transverse Bulkhead: Six; Port of Registry: Nanjing; Signal Letters: BTYS; Number of Registry: 060102000138; Classification society: CCS; Kind of Main Engine: Diesel Engine/6L28/32; Horse Power of Main Engine: 1,320KW??2; main engine manoeuvring being controlled by the navigation bridge. Where and when built: Hudong Zhonghua Shipbuilding Co.,Ltd, completed on October 26, 1998.



M/V ?°YUE DIAN 2?±: Gross Tonnage 36,559 tons, Net Tonnage 23,279 tons, Deadweight Tonnage 70,182 tons, Length overall 225M, Breadth 32.26M, Depth 18.3M, Speed of Vessel 14 Knots. King of Vessel: Bulk Carrier; Material of Vessel: Steel; Port of Registry: Shenzhen; Signal Letters: BRWL; IMO No.: 9077240; Classification society: CCS; Kind of Main Engine: Internal-combustion Engine/SULZER 6RTA62; Horse Power of Main Engine: 8,826KW; main engine manoeuvring being controlled by the engine room; Where and when built: Japan, SUMITOMO HEAVY INDUSTRIES, LTD., completed on July 14, 1994. The Defendant Yudean Co. is the registered ship owner and operator of the ship.



M/V ?°SUMIRE?±: Gross Tonnage 14,089 tons, Net Tonnage 7,023 tons, Deadweight Tonnage 17,732 tons, Length overall 163.6M, Breadth 26M, Depth 13.4M; Departure Draft: fore 5.78M, aft 6.82M; Kind of Vessel: Container Ship; Material of Hull: Steel; Speed of Vessel: 18.5 Knots; Port of Registry: Panama; Signal Letters: 3FTA7; IMO No.: 9153070; Kind of Main Engine: Internal-combustion Engine/SULZER 6RTA62; Horse Power of Main Engine: 8,826KW; main engine manoeuvring being controlled by engine room; Classification society: NK (Nippon Kaiji Kyokai); Where and When built: Japan, IMABARI SHIPBUILDING CO. LTD., completed on October, 1997. The Plaintiff Hiro is the registered owner of this ship. The Plaintiff Hiro and Yuma concluded a Bareboat Charter and a Purchase Contract on March 24, 1997, therein it was agreed that the Plaintiff Yuma hired M/V ?°SUMIRE?± in the way of bareboat charter, however, no registration of bareboat charter of M/V ?°SUMIRE?± had been conducted.



II. Details of the Accident

At 1910 hrs on 14 March 2007, M/V ?°YUE DIAN 2?± departed Guangzhou port in ballast condition, bound for Huang Ye Port. The draft at departure was: fore 3.4m, after 6.3m. Master, Jiang Feng, was in charge of commanding the vessel, the Third Officer was in charge of the engine bell operation and assisted in look-out, while two A/B took turn to operate the rudder and assisted in look-out. At 2228 hrs, M/V ?°YUE DIAN 2?± reported to VTS Guangzhou through VHF that she had passed Humen Bridge, and later this vessel entered into Lingding Channel and sailed full ahead. At 2335 hrs, M/V ?°YUE DIAN 2?± passed Buoy No.36. When passing between Buoy No.33 and No.34, the Master, by observing the radar, detected a vessel (namely M/V ?°HANG JUN 11?±) sailing before M/V ?°YUE DIAN 2?± along the channel. At that time M/V ?°HANG JUN 11?± was 4nm away from M/V ?°YUE DIAN 2?± with the speed of about 3knots. The Master judged that M/V ?°HANG JUN 11?± was an outbound dredger. The monitoring materials of VTS Guangzhou indicated that at 2340 hrs, M/V ?°YUE DIAN 2?± had already passed Buoy No.34, with the course at 162??, the speed of 16.5knots, and the position at the middle of the channel alongside the red buoy. The Master, by observing the radar, detected another ship (namely M/V ?°SUMIRE?±) sailing at the middle of the channel, with the distance of about 6.5nm away from M/V ?°YUE DIAN 2?± and the speed of about 15knots. At 2344 hrs, M/V ?°YUE DIAN 2?± just passed Buoy No.32, with the course at 163?? and the speed of 17knots, sailing alongside the red buoy. At 2345 hrs, the A/B took the shift, one person in charge of rudder operation and the other assisting in look-out. At about 2347 hrs, M/V ?°YUE DIAN 2?± just passed Buoy No.30, and the course and the speed of the vessel did not change. At 2348 hrs, M/V ?°YUE DIAN 2?± contacted M/V ?°HANG JUN 11?± through VIF for three times to communicate on the overtaking. M/V ?°HANG JUN 11?± made a reply to M/V ?°YUE DIAN 2?± and agreed M/V ?°YUE DIAN 2?± to overtake her from the port side. At about 2349 hrs, the Master of M/V ?°YUE DIAN 2?± order the vessel to make hard to port, and reported through VHF that she was turning to port. At 2350 hrs, M/V ?°YUE DIAN 2?± passed Buoy No.28 with the speed of 17knots. At about 2351 hrs, M/V ?°YUE DIAN 2?±, on the position of the back side of the starboard draft marks at the bow, collided with the bow of M/V ?°HANG JUN 11?± almost at a right angle. The GPS position of M/V ?°YUE DIAN 2?± at the time of collision was: 22??31??N, 113??44??.5E, heading about 136??, and speed at about 10knots. After collision, M/V ?°YUE DIAN 2?± clashed out of the channel, and grounded at the eastern side of the channel at about 0003 hrs in 15 March. The GPS position of M/V ?°YUE DIAN 2?± at the time of grounding was: 22??30??.7N, 113??45??.E. At about 0600 hrs, M/V ?°YUE DIAN 2?± was relieved from grounding by taking the chance of tide and under the assistance of two tugs.



At 2320 hrs on 14 March 2007, M/V ?°HANG JUN 11?± was carrying out dredging operation at Lingding Channel, the Second Officer, Yu Gang and the A/B went to the bridge for taking the duty. At 2325 hrs, the Second Officer ordered the A/B in charge of harrow operations to lift up the harrow, and sailed the vessel out of the eastern side of the channel, checked and cleaned the harrow tools for shift taking. After completion of shift turning outside the channel, the Second Officer, Yu Gang, who took the duty, was in charge of the manoeuvring of the vessel and the dredging operation. One A/B was in charge of rudder operation, and the other A/B was in charge of harrow operations. Two sets of ARPA radars at the bridge platform had been turned on, with the presentation of comparative movement, and the heading upward, and with the measurement distance separately set up at 1.5nm and 3nm. One set of depth sounder, AIS, GPS, and one set of DGPS, and 4 sets of VHF had been turned on. 2 sets of VHF were set up at Channel 9, while the other 2 sets of VHF were set up at Channel 16. The sailing lights had been turned on, displaying the sidelights on the starboard side and the port side, and the fore and after masthead lights, and stern lights, and vertically displacing three all-round lights of red, white and red colors. The two illuminative lights at deck had been turned on. At 2339 hrs, the Second Officer instructed M/V ?°HANG JUN 11?± to sail into the channel, and carried out operations along the channel at the place between the Green Buoy No.25 and No.27. Soon after the vessel carried out operation within the channel, the Second Officer first saw a coming vessel sailing near Buoy No.36 alongside the red buoy, displaying red and green side lights, and fore and after masthead lights. In accordance with the monitoring record of VTS Guangzhou, at about 2343 hrs, the course of M/V ?°HANG JUN 11?± was about 321?? with the speed of about 1.5knots. At 2346 hrs, the course of M/V ?°HANG JUN 11?± was about 341?? with the speed of about 2knots. At 2348 hrs, the course of M/V ?°HANG JUN 11?± was about 342?? with the speed of about 2knots. At this time M/V ?°HANG JUN 11?± receive the calling from M/V ?°YUE DIAN 2?± through VHF, and later the Second officer made a reply to M/V ?°YUE DIAN 2?±, agreeing M/V ?°YUE DIAN 2?± to overtake her from the port side. M/V ?°HANG JUN 11?± immediately lifted up the harrow, and stop the main engine to observe the movement of the coming vessel. At about 2349 hrs, the course of M/V ?°HANG JUN 11?± was about 342?? with the speed unchanged, and at this time, M/V ?°YUE DIAN 2?± called M/V ?°HANG JUN 11?± through VHF to inform that she was turning to port. The Second Officer on duty, Yu Gang, after knowing the coming vessel had already taken the action to turn to port, immediately ordered to move slow astern both then full astern both. Soon after the orders to move astern were given, at 2351 hrs, the starboard side at the bow of M/V ?°YUE DIAN 2?± collided with the bow of M/V ?°HANG JUN 11?±, with the collision angle at about 90??. The two vessels immediately separated from each other after collision, and the bow of M/V ?°HANG JUN 11?± turned to starboard and went astern to the port side of the entering channel. At about 2354 hrs, M/V ?°HANG JUN 11?± collided with an approaching vessel, M/V ?°SUMIRE?±, in the middle between the red buoy No.26 and No.28., to the edge of the channel. The bow of M/V ?°SUMIRE?± clashed into the part slightly before the midship at the starboard side of M/V ?°HANG JUN 11?±. The heading of M/V ?°HANG JUN 11?± at the time of collision was about 40??, and the vessel was moving astern at the speed of about 7knots.



At 1245 hrs on 11 March 2007, M/V ?°SUMIRE?±, laden with the container No.822TEU (7,282.7tons of cargos), departed from KOBE, Japan, and proceeded to Xinnansha Port in Guangzhou. At 2210 hrs in 14 March, M/V ?°SUMIRE?± arrived at Guishan Anchorage in Guangzhou for the pilot to embark the vessel. The pilot, Zhao Bingxun, embarked the vessel. After acquiring information on the engines and rudders from the Master, the pilot discussed with the Master and then decided to instruct the vessel to enter into the port by making the main engine stand by with the speed of rotation at 100RPM, and the speed of 15knots. The Master told the pilot that the maximum draft of the vessel was 6.8m. The pilot thought the channel was comparatively clean, and hence started to pilot the vessel to enter into Nansha Port, while the Master, the Third Office and one A/B in charge of rudder operation were all at the bridge. The pilot, Zhao Bingxun, gave instructions on the operation of the engine bell and the rudder to pilot the sailing, and the Third Officer was in charge of engine bell operation and assisted with look-out, while the A/B was in charge of rudder operation. Two sets of radar, GPS, AIS had been turned on. The pilot used the ARPA radar to observe the situation by alternating the range between 1.5nm and 3nm. The speed of the vessel was maintained at about 15knots. At 2240 hrs, the Master left the bridge. At about 2340 hrs, M/V ?°SUMIRE?± was near Buoy No.21 and No.22, with the speed of about 14knots and the course at 351??. The pilot saw a vessel in front near Buoy No.25 and No.26, placing three lights with the color of red, white and red in a vertical line. The pilot got the information through AIS that the name of the vessel in front was M/V ?°HANG JUN 11?±. The course of M/V ?°HANG JUN 11?± was 340??, and the speed was very slow, while M/V ?°HANG JUN 11?± was about 3.2nm away from M/V ?°SUMIRE?±. The pilot also detected through radar M/V ?°YUE DIAN 2?± near the position between Buoy No.31 and No.33, sailing towards the exit and alongside the red buoy at the main channel and with the distance of about 6.5nm away from M/V ?°SUMIRE?±. At about 2342 hrs, M/V ?°SUMIRE?± passed Buoy No.21 and No.22, with the course at 352?? and the speed of 15.1knots. The pilot visually saw that there was no obvious change in the sailing movement of both M/V ?°HANG JUN 11?± and M/V ?°YUE DIAN 2?±. At 2344 hrs, the pilot ordered M/V ?°SUMIRE?± to lower the speed. The monitoring material of VTS Guangzhou showed that the speed of the vessel was about 14knots. The Master immediately went to the bridge after he felt that the speed of the vessel had changed. At 2347 hrs, M/V ?°SUMIRE?± was sailing near Buoy No.23, and the course was changed into 343??, and at this time the speed was about 14knots, while M/V ?°SUMIRE?± was about 1.7nm away from M/V ?°HANG JUN 11?±. The pilot considered to come across first with M/V ?°YUE DIAN 2?±, which was sailing toward the exit, and then passed M/V ?°HANG JUN 11?± from her port side. At about 2349 hrs, M/V ?°SUMIRE?± informed M/V ?°HANG JUN 11?± through VHF of her overtaking intention, and requested M/V ?°HANG JUN 11?± to maintain her course. M/V ?°HANG JUN 11?± replied and expressed her agreement. Soon after the VHF communication, the pilot saw the bow of M/V ?°YUE DIAN 2?± obviously turn to port, and the pilot found that there was a collision risk between M/V ?°YUE DIAN 2?± and M/V ?°HANG JUN 11?±. At the same time, the pilot heard through VHF that M/V ?°YUE DIAN 2?± kept changing her order between hard to port and hard to starboard. The pilot felt that M/V ?°YUE DIAN 2?± was quite nervous. At that time, the distance between M/V ?°SUMIRE?± and M/V ?°HANG JUN 11?± was about 1.2nm. VTS Guangzhou had reminded M/V ?°SUMIRE?± to slow the engine for 4 times within one minute, and to pay attention to the vessel sailing towards the exit and the dredger in front. At about 2351 hrs, M/V ?°YUE DIAN 2?± collided with M/V ?°HANG JUN 11?±, while M/V ?°YUE DIAN 2?± clashed out of the channel. At such time, the course of M/V ?°SUMIRE?± was 343??, with the speed of 15.3knots, and M/V ?°SUMIRE?± had already approached Buoy No.26, about 0.8nm away from the position where the aforesaid two vessels collided, while M/V ?°HANG JUN 11?± did not stop moving astern, and M/V ?°SUMIRE?± intended to overtake M/V ?°HANG JUN 11?± from the stern of M/V ?°HANG JUN 11?±. At about 2352 hrs, when finding M/V ?°HANG JUN 11?± moving astern sideling at a high speed towards the port side of the entering channel, the pilot immediately called M/V ?°HANG JUN 11?± through VHF, telling her not to move astern, and the pilot also ordered M/V ?°SUMIRE?± to make port 10??. When M/V ?°SUMIRE?± turned her course to 320??, the pilot found M/V ?°HANG JUN 11?± still moving astern, and then he ordered M/V ?°SUMIRE?± to make hard to port, later immediately changed the order to make hard to starboard, and to stop the main engine. At about 2353 hrs, the distance between M/V ?°SUMIRE?± and M/V ?°HANG JUN 11?± was already less than 0.2nm. At about 2354 hrs, the bow of M/V ?°SUMIRE?± clashed into the part slightly before the starboard midship of M/V ?°HANG JUN 11?±, with the collision angle of about 70??. The heading of M/V ?°SUMIRE?± at the time of collision was about 330??, and the speed was about 10.2knots. According to the monitoring record of VTS Guangzhou, the position where the two vessels collided was 22??31??N, 113??44??.4E. After collision, the two vessels did not separate from each other immediately and M/V ?°SUMIRE?± dispatched two cables to M/V ?°HANG JUN 11?± to fasten the two vessels. At about 0040 hrs in 15 March, water came into the fore hold and the engine room of M/V ?°HANG JUN 11?±. At about 0108 hrs, M/V ?°SUMIRE?± grounded. At 0410 hrs, M/V ?°SUMIRE?± separated from M/V ?°HANG JUN 11?±. At 0535 hrs, M/V ?°HANG JUN 11?± grounded at the western side of Buoy No.24 under the assistance of two tugs, with the grounding position at 22??28??.5N, 113??43??.5E. At about 0730 hrs, M/V ?°SUMIRE?± got refloated.



At the time of the occurrence of the accident: overcast, visibility 4 to 5nm, easterly wind with the force of 4, ebb tide, and current speed about 1.5knots.



After occurrence of the accident, Guangdong MAS carried out investigations thereto in accordance with the law, and issued the Investigation Report on the Collision Accident among M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, which presented the following opinions: this was an accident involving three vessels respectively with two collisions under a special circumstance; for the first collision between M/V ?°YUE DIAN 2?± and M/V ?°HANG JUN 11?±, M/V ?°YUE DIAN 2?± shall bear the major liability, while M/V ?°HANG JUN 11?± shall bear the minor liability; for the second collision between M/V ?°HANG JUN 11?± and M/V ?°?±SUMIRE, M/V ?°?±SUMIRE shall bear the major liability, while M/V ?°HANG JUN 11?± shall bear the minor liability;



III. Losses Claimed by Both Plaintiffs



After the accident, M/V ?°SUMIRE?± berthed alongside CSSC Guangzhou Huangpu Shipbuilding Co., Ltd (hereinafter referred to as ?°CSSC?±) for average repair on 4 July 2007, and left CSSC after completion of the average repair on July 17, 2007. With respect to the losses claimed by both the Plaintiffs arising from the subject accident, the Collegial Panel ascertains each plainitff??s losses separately as follows:



?¨I??Repair Cost and Paint Repair Cost of M/V ?°SUMIRE?±



Both the Plaintiffs alleged that the repair cost of M/V ?°SUMIRE?± was USD262,000 and the paint cost was USD1,200, and presented the invoice and the payment voucher of repair cost, the certificate issued by CSSC and the Inspection Report issued by CMS as evidences. Invoice of repair cost was issued by CSSC on July 18, 2007 to confirm that the final amount of the repair cost of M/V ?°SUMIRE?± is USD460, 000 and to request Kitaura Kaiun Co., Ltd. to remit the repair cost into the account of the CSSC. As recorded on the payment voucher, SEA GREEN SHIPPING S.A. altogether paid USD460, 000 on July 13 and September 14, 2007, and the information of remittance indicates th Kitaura Kaiun Co., LTD., M/V ?°SUMIRE?±. CSSC issued a certificate on December 18, 2007 which indicated that USD460,000 had been paid by M/V ?°SUMIRE?±. As recorded on the Inspection Report issued by CMS, surveyors Zhang Jian and Guo Xinyu of CMS entrusted by Huatai Insurance Agency Co, Ltd., went to Guangzhou Nansha Port on March 15, 2007, to Guangzhou Gangshajiao Anchorage on 20th March, and to CSSC on 7th July to carry out inspection on M/V ?°SUMIRE?± and issued the Inspection Report on May 15, 2008. Surveyors believed that permanent repair shall be carried out for the damage of M/V ?°SUMIRE?± arising from the subject accident, and the time limit for the repair shall be 8 working days, and that, upon assessing the final statement issued by CSSC, the reasonable repair cost for the damage arising from the accident shall be USD263,200, including an amount of USD1,200 as paint cost needed for repairing the bulbous bow of M/V ?°SUMIRE?±. Surveyor Zhang Jian stated in the Inspection Report and when being interrogated before the Court that: Before arriving at CSSC, M/V ?°SUMIRE?± requested the shipyard to prefabricate bulbous bow, and finally replaced the whole bulbous bow, thereby shortened the time of stopping for repairing. Furthermore, due to that the bulbous bow was double curcature plate, the flexivity whereof is large and the technology whereof is complicated, the difficulty of technology of sectional repair and replacement is lager than that of overall replacement, and the quality of welding is difficult to guarantee. Therefore, the Inspection Report confirms that the prefabrication and the replacement of bulbous bow conducted by the ship-owner are proper and reasonable. 



Neither of the Defendants acknowledged the losses claimed by both the Plaintiffs and both believed that the bulbous bow need not be replaced and that it was unreasonable to have 8 days for repairing. The Defendant Yudean submitted the Average Inspection Report of M/V ?°SUMIRE?± and the Appraisal Report on the Final Statement of Average Repair of M/V ?°SUMIRE?± as rebuttal evidence. As recorded in the Average Inspection Report of M/V ?°SUMIRE?±, surveyors went to Shajiao Anchorage to conduct investigation on M/V ?°SUMIRE?± on March 20, 2007 and issued an Inspection Report on January 11, 2008. The Inspection Report states that the damage caused to M/V ?°SUMIRE?± need not to be repaired in shipyard and that the time for the repairing should be about 3 working days and the costs should be about RMB 82,000. As stated in the Appraisal Report on the Final Statement of Average Repair of M/V ?°SUMIRE?±, upon appraising the final statement of repair cost, both the Defendants believed that the reasonable cost of average repair of M/V ?°SUMIRE?± should be USD 51,767.



The Collegial Panel believes that the invoice and the payment voucher of repair cost and the certificate issued by CSSC fully demonstrate that the M/V ?°SUMIRE?± was repaired in CSSC and an amount of USD460,000 was actually paid as the repair cost. CMS was qualified to conduct relevant appraisal, and since surveyors of this company had carried out investigations on M/V ?°SUMIRE?± for three times, the Inspection Report submitted whereby was issued based on sufficient evidences, and the explanation on the replacement of bulbous bow was more persuasive and shall be adopted, therefore, it is ascertained that the repair cost arising from the subject accident is USD263,200, including an amount of USD1,200 as paint cost.



(II) Loss for Hire of M/V ?°SUMIRE?±



Both the Plaintiffs presented evidences such as Logbook, Time Charter and Settlement Statement to claim that the loss of hire of M/V ?°SUMIRE?± was USD160,947.92. Time Charter was concluded by and between the Plaintiffs Yuma S.A. and the charterer Nippon Yusen Kaisha on October 22, 1997. On September 5, 2002, the Plaintiff Yuma S.A., Nippon Yusen Kaisha and Tokyo Senpaku Kaisha jointly concluded an agreement to provide that Nippon Yusen Kaisha assigned the Time Charterer to Tokyo Senpaku Kaisha on October 1, 2002, and that all the rights and obligations before the assignment of contract shall be enjoyed and borne by Tokyo Senpaku Kaisha. The rent agreed on by both the Plaintiff Yuma S.A. and the charterer Nippon Yusen Kaisha on December 16, 1997 was USD10,320 per day or to be calculated based on proportion, including overtime. As for two final statements in favor of T.S.K. Line, the one dated April 19, 2007 states that an amount of USD 71,021.62 for the rent of the period from 2350hrs on March 14, 2007 to 2100hrs on March 21 (6.88194 days) was deducted for the collision with the dredger; the other dated September 18, 2007 states that an amount of USD 134,661.66 for the rent of the period from 1220hrs on July 4, 2007 to 1320hrs on July 17 (13.04861 days) was deducted for dry dock?? entry to Nansha, an amount of USD1,375.14 and that of USD5,991.16 was separately deducted for the FOI and DOI used during the repair period. The above-mentioned amounts add up to USD213,049.58. The Defendant Nanjing Channel Engineering Bureau believed that the loss for hire of charter claimed by both the Plaintiffs shall deduct savable costs, and the Defendant Yudean believed that the time needed for the average project of M/V ?°SUMIRE?± was less than that needed for ship-owner project, therefore, both the Plaintiffs had not suffered loss of hire, and even if there was losses for hire, such losses shall be calculated on the basis of 5 days.



The Collegial Panel believes, the evidence presented by both the Plaintiffs proves that the subject accident and the average repair of M/V ?°SUMIRE?± happened during the period of charter, the rent of which is USD10,320 per day, and that the charterer Tokyo Senpaku Kaisha deducted the corresponding rent. Though the repair of M/V ?°SUMIRE?± includes both the ship-owner project and the average project, the Plaintiffs do not forfeit their rights of claiming for the loss of hire of the average project. According to the report issued by CMS which is adopted by the Collegial Panel, the time for to the accident-related average repair of M/V ?°SUMIRE?± is 8 days, based thereon, it is ascertained that the loss of hire under the Time Charter of M/V ?°SUMIRE?± arising from the subject accident shall be the loss of hire of both the period of accident handling and the repair period, a total whereof is USD153,581.62. In addition the two plaintiffs claim the bunker expense which was deducted by the charterer. Such is the actual loss arising from the repair of M/V ?°SUMIRE?±. The charterer deducted an amount of USD7,366.30 in total as the bunker expense for 13.04861 days during the period of repair and off hire, therefore, an amount of USD4,516.22 is related to the subject accident (USD7,366.3??13. 04861days??8days). To sum up, the loss of hire of M/V ?°SUMIRE?± is ascertained as USD158,097.84.



(III) Expenses for Emergency Handling in relation to the Accidents such as Expenses of Pollution Clean-up and Prevention



The Plaintiffs presented the Settlement Agreement concluded by them and both the Defendants with Guangzhou MSA and the invoice issued by Guangzhou Port Pearl River Pollution Prevention Co., Ltd. to prove that the Plaintiffs had paid RMB337,126 as expenses of pollution clean-up and prevention. Both the Defendant had no objection to the said expenses and confirmed that the total amount of the said expenses arising from the subject accident was RMB 1,011,378 and that each party paid RMB337,126 averagely. The Collegial Panel believes that the Settlement Agreement concluded by the Plaintiffs and the Defendants with Guangzhou MSA which provides that such expenses is paid in advance under the circumstance that the proportion of liability is unclear is not the confirmation of the proportion of liability for the collision, therefore, the above-mentioned payment shall not affect the parties?? right of recourse according to the finally confirmed proportion of liability for the collision. Whereas the said expenses arising from the emergency measures such as salvation, pollution clean-up and prevention and precaution which were adopted after the grounding of M/V ?°HANG JUN 11?± is not related to the losses arising from her collision with M/V ?°SUMIRE?±, the said expenses is not to be treated in this case, which shall be borne by parties to this case according to the proportions of liability for the collision prescribed in (2007) GHFCZ No.127 and No. 184.



(IV) Class Survey Fee



Both the Plaintiffs presented three invoices and three remittance detail lists issued by Japanese Marine Corporation on March 30 and July 31, 2007 to prove that an amount of USD29,978 was paid as survey fee. Both the Defendants lodged objection to the relatedness between the said survey fee and the present case. The Collegial Panel believes that, since M/V ?°SUMIRE?± was damaged in the subject accident, it is necessary to have the classification society conduct a survey on M/V ?°SUMIRE?± to testify her seaworthiness. According to the invoices and remittance detail lists submitted by both the Plaintiffs, it can be ascertained that the Plaintiffs had paid an amount of USD29,978 to Japanese Marine Corporation as survey fee.



(V) Case-handling Fee, Guarantee Fee and Inspection Fee



Both the Plaintiffs presented the bill and receipt issued by Huatai Insurance Agency Co. Ltd, the Credit Notice and the Bill of Inspection Fee issued by Bank of China, and the receipt issued by CMS as evidences to prove that the Plaintiffs had paid inspection fee of USD42,000, China Re guarantee fee of USD95,371.67, agent fee for Huatai of USD 13,040, and other miscellaneous fees of USD1,040, all of which amounts to USD151,451.67. Neither Defendants had objection to the truthfulness of the evidence, nevertheless, they believed that neither Plaintiffs were entitled to claim for the above-mentioned fees. The Collegial Panel believes that, though the Plaintiffs had actually paid the above-mentioned fees, the China Re Guarantee fee, agent fee for Huatai and other miscellaneous fees claimed by the Plaintiffs are not inevitable losses arising from the subject accident, therefore, there is no basis for them to claim for the above-mentioned fees , so such claim is unsupported. Only the inspection fee of USD42,000 is ascertained.



(VI) Additional Port Agency Fee



Both the Plaintiffs presented two Omnibus Account Detail Lists issued by Sinotrans Shipping Agency Guangdong Co. Ltd., which separately record that the port charge and other fees incurred as M/V ?°SUMIRE?± berthed at Nansha Port from March 14 to 20, 2007 is USD20,287.24; the port charge and other fees incurred when M/V ?°SUMIRE?± berthed at Nansha Port from July 4 to 17, 2007 is USD11,080.03; the payment voucher records that SEA GREEN SHIPPING S.A. had paid the above-mentioned fees of USD31,367.27 to Sinotrans Shipping Agency Guangdong Co. Ltd., the remittance information whereof states Kitaura Kaiun Co., LTD., M/V ?°SUMIRE?±. The Collegial Panel believes that the additional port agency fee of M/V ?°SUMIRE?± arising from the accident shall be supported. According to the Inspection Report issued by CMS which is adopted by this Court, the period of average repair of M/V ?°SUMIRE?± incurred by the subject accident shall be 8 working days, which shall be calculated on the basis of USD849.13 per day, so the port charge and other fees for the said eight days shall be USD6,793.04. With respect to port charge incurred from March 14 to 20, 2007, since both the Plaintiffs failed to tell the charges for normal operation from additional fees arising from the subject accident, this Courts will not ascertain the said fees. 



To sum up, expenses and losses of M/V ?°SUMIRE?± arising from the subject accident shall be: repair charge of USD 263,200, loss of hire of USD158,097.84, survey fee of Classification society of USD29,978, inspection fee of USD42,000 for CMS Ltd., and additional port agency fee of USD6,793.04, all of which adds up to USD500,068.88 (excluding Emergency Handling Fee).



All members of the collegial panel believe that this case is a dispute over damage compensation arising from ship collision. Due to that the collision happened in China, according to Paragraph 1 of Article 273 of the Maritime Code of the People's Republic of China, laws of the People??s Republic of China shall be applied to deal with the substantive dispute. During the trial, parties to the case also agreed that laws of the People??s Republic of China shall be applied to deal with the dispute. 



M/V ?°YUE DIAN 2?± was sailing outward alongside the channel in ballast condition while M/V ?°HANG JUN 11?± was conducting dredging operation as sailing inward alongside the channel at low speed, and the vessels were sailing in opposite directions along their respective starboard side, in a head on situation. With three all-round lights being hanged vertically, M/V ?°HANG JUN 11?± was a ship with limit maneuvering capacity. M/V ?°SUMIRE?± laden with 7,282.7 tons of cargos was sailing inward along the channel after M/V ?°HANG JUN 11?±, and when the pilot discovered M/V ?°HANG JUN 11?± after M/V ?°SUMIRE?± entered the irradiation scope of the taillight of M/V ?°HANG JUN 11?±, she still sailed at the speed of 14 to 15 knots, and the circumstance of overtaking had been formed between the two ships, under which M/V ?°SUMIRE?± was the overtaking ship and M/V ?°HANG JUN 11?± was the overtaken ship.



When sailing outward along the channel, M/V ?°YUE DIAN 2?± should have used sight, hearing and all other effective means suitable for the environment and situation of the time to maintain proper lookout so as to make sufficient assessment on the situation and the risk of collision. However, the said ship failed to maintain the proper lookout, and when she sailed between the 33# and the 34# buoy, the master discovered M/V ?°HANG JUN 11?± which was sailing ahead of her by radar but mistook her as a dredger sailing in the same direction and required to ?°overtake?± her, and thereby caused the collision. Such should be the main reason for the collision. Since M/V ?°YUE DIAN 2?± was sailing within the channel, where the density of ships was large and the environment was complicated, she should have sailed at safe speed so as to adopt proper and effective actions for preventing the collision so that she could stop the main engine within the distance suitable for the environment and situation at that time. However, the ship did not use safe speed but still sailed at the high speed of 17 knots after she discovered M/V ?°HANG JUN 11?± and when the distance between the two ships was shortened, with the result that, after the close-quarter situation having been formed, she failed to stop the main engine within safe distance. After the head-on situation being formed between her and M/V ?°HANG JUN 11?±, M/V ?°YUE DIAN 2?± should have exercised good seamanship and actively and timely adopted proper measures to prevent collision so that both the ships might sail within safe distance. However, due to M/V ?°YUE DIAN 2?±??s neglect of lookout and misjudgment and her wrongful alteration of course to port side by hard-a-port for overtaking M/V ?°HANG JUN 11?± as she was sailing at high speed, close-quarter situation was formed between the two ships, which finally led to the collision accident. The above-mentioned acts of M/V ?°YUE DIAN 2?± is in violation of Articles 5, 6, 8 and 14 of International Regulations for Preventing Collision at Sea, 1992 (hereinafter referred to as ?°Regulations for Preventing Collision?±).



Since M/V ?°HANG JUN 11?± was conducting dredging operation along the channel where ships were crowded, her operation ability was limited, therefore, she shall take full advantage of all effective means to strengthen her lookout, watch the movement of entering and departing ships and keep communication and contact with them to understand their real intentions. Especially for those vessels sailing in her vicinity, she should take necessary precautions to avoid any collision with them. However, M/V ?°SUMIRE?± did not maintain normal lookout, and without finding out the specific position of M/V ?°YUE DIAN 2?± which was communicating with her on VHF, she recklessly mistook M/V ?°YUE DIAN 2?± as a ship sailing inward after her and agreed the ship to ?°overtake?± her on her port side, thus misleading M/V ?°YUE DIAN 2?± to further believe that both ships were in the situation of ?°overtaking?±. When the close-quarter situation arose as M/V ?°YUE DIAN 2?± turned to port to ?°overtake?± the ship, M/V ?°HANG JUN 11?± failed to use good seamanship, and actively and timely adopted correct preventing measures to prevent collision, but just stopped engine and then reversed engine only when the two vessels were extremely close to each other and it was too late to prevent the collision. The above-mentioned acts of M/V ?°HANG JUN 11?± is in violation of Articles 5 and 8 of Regulations for Preventing Collision. 



As a overtaking ship, M/V ?°SUMIRE?± shall perform the obligation of giving way, and shall take full advantage of all effective means to maintain proper lookout and keep a close eye on the movement of the overtaken ship and the changing of ship positions so as to make sufficient assessment on the situation and the danger of collision. During the overtaking, she shall sail at safe speed, especially when she overtook other ships at narrow channel and shall take into good consideration of the situations of crowded ships and complicate circumstances, and have the overtaking speed under control so as to adopt proper and effective collision preventing actions when danger of collision emerged and to stop the main engine within appropriate distance at the time. However, M/V ?°SUMIRE?± failed to maintain proper lookout or safe speed, and at about 2349 hrs, soon after she communicated with M/V ?°HANG JUN 11?± on VHF coordinating the overtaking, the pilot had discovered that M/V ?°YUE DIAN 2?± was turning to port and that there was danger of colliding with M/V ?°HANG JUN 11?±, and VTS Guangzhou had warned her to slow down the engine and to pay attention to the ship and the dredger sailed outward before her for four times, however, M/V ?°SUMIRE?± did not pay enough attention thereto and failed to make full assessment of the danger of collision that may exist but still believed that it was able to overtake the ship and the dredger sailed before her and kept sailing at the speed of 15knots to overtake M/V ?°HANG JUN 11?±, thereby she failed to take the measures such as stopping engine or slowing down in ample time to reduce the speed, and finally led to the collision between her and M/V ?°HANG JUN 11?± . This should be the main reason for the accident. When M/V ?°YUE DIAN 2?± collided with M/V ?°HANG JUN 11?±, M/V ?°SUMIRE?± was 0.8 nm away from the position of collision. According to the environment at the time of the collision, if M/V ?°SUMIRE?± had adopted the collision-prevention measures such as stopping engine or moving astern in a prompt way, she would have prevented the collision between her and M/V ?°HANG JUN 11?± or have brought the loss of collision to the least. However, M/V ?°SUMIRE?± was so confident that she believed she might overtake M/V ?°HANG JUN 11?± on the port side, so she still sailed at high speed when she was obstructed by M/V ?°HANG JUN 11?± as the latter ship moved to port after by adopting measures of moving astern for the purpose of avoiding M/V ?°YUE DIAN 2?±, and adopted measures of turning to port for the purpose of overtaking M/V ?°HANG JUN 11?± on her port side. When she was in immediate danger, her adoption of collision-prevention measures such as hard starboard and stopping engine was useless for preventing the collision, so she finally collided with M/V ?°HANG JUN 11?± and brought serious damage to M/V ?°HANG JUN 11?±. The above-mentioned acts of M/V ?°SUMIRE?± are in violation of Article 5, 6, 8 and 13 of Regulations for Preventing Collision. 



In order to prevent her collision with M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± adopted measures such as stopping engine and moving astern, which is instinctive behavior for preventing collision and gives little cause for criticism. However, after M/V ?°YUE DIAN 2?± overtook her stern subsequent to the collision between them, M/V ?°HANG JUN 11?± shall be aware of the danger of collision with M/V ?°SUMIRE?± which was overtaking her from her port side as she continued to retire, so at that time, she shall adopt effective measures such as stopping engine and moving ahead to stop the main engine so as to prevent her further moving astern, and she shall pay special attention to the avoidance of her moving astern to the left back of the channel which may obstruct the overtaking route of M/V ?°SUMIRE?±. As M/V ?°HANG JUN 11?± paid all attention to how to keep clear of M/V ?°YUE DIAN 2?± without giving due consideration to the serious consequence that may emerge as she adopted the measure of moving astern, she failed to take actions in favor of preventing collision such as stopping engine and moving ahead so as to maintain her position, which results in the moving astern of the ship to the left back of the outward channel and finally leads to her collision with M/V ?°SUMIRE?±. The above-mentioned acts of M/V ?°HANG JUN 11?± are in violation of Articles 8 and 17 of Regulations for Preventing Collision.



The two collisions among the three ships are two independent but related accidents. In the second collision accident, though M/V ?°YUE DIAN 2?± did not directly collided with M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, she did lead to the close-quarter situation between her and M/V ?°HANG JUN 11?± due to her default in adopting the measure of turning to port to overtake M/V ?°HANG JUN 11?±. To prevent her collision with M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± adopted prevention actions such as stopping and moving astern to retire to the left back of the outward channel, thereby caused her collision with M/V ?°SUMIRE?±. Therefore, there is indirect relationship between the two collision accidents, that is, the first collision is one reason of the second collision and M/V ?°YUE DIAN 2?± shall also bear the minor responsibility for the second collision.



When M/V ?°SUMIRE?± was overtaking M/V ?°HANG JUN 11?± along the entry of the channel as M/V ?°YUE DIAN 2?± turned to port by adopting hard aport, the close-quarter situation between M/V ?°SUMIRE?± and M/V ?°YUE DIAN 2?± had not yet formed, and M/V ?°YUE DIAN 2?± just turned left for the purpose of overtaking M/V ?°HANG JUN 11?± but not for avoiding M/V ?°SUMIRE?±. Therefore, the overtaking action of M/V ?°SUMIRE?± has no consequence on the first collision accident and M/V ?°SUMIRE?± did not have to bear responsibility for the first collision. 



The Investigation Report on the Collision Accident among M/V ?°YUE DIAN 2?±, M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?± issued by Guangdong MSA confirms that M/V ?°YUE DIAN 2?± shall shoulder the major responsibility for the first collision, and M/V ?°HANG JUN 11?± shall shoulder the minor responsibility for the first and the second collisions, and M/V ?°SUMIRE?± shall shoulder the major responsibility for the second collision. Though both the Plaintiff and the Defendants Hiro and Yuma challenged the above-mentioned liability apportionment, they failed to present evidence to overturn the above-mentioned verdict. Taking into consideration the degree of fault of each ship in operating and collision preventing, the Collegial Panel ascertains that, M/V ?°YUE DIAN 2?± shall shoulder 80% responsibility for the first collision and 5% percent responsibility for the second collision, and M/V ?°HANG JUN 11?± shall shoulder 20% responsibility for the first collision and 10% percent responsibility for the second collision, while M/V ?°SUMIRE?± shall shoulder 85% responsibility for the second collision.



Losses of M/V ?°SUMIRE?± arising from the collision accident includes repair cost of USD263,200, classification society survey fee of USD29,978, inspection fee for CMS of USD42,000, loss of hire of USD158,097.84, and additional port agency fee of USD6,793.04. The repair cost and survey fee mentioned above belong to property loss, while loss of hire and additional port agency fee belong to operating losses. The Plaintiff Hiro, as the registered ship-owner of M/V ?°SUMIRE?±, is entitled to claim for the property loss suffered by her arising from the collision accident. The Plaintiff Yuma S.A., as the bareboat charterer and the disponent owner of the time charter of M/V ?°SUMIRE?±, is the actual operator of M/V ?°SUMIRE?±. Though the bareboat charter of ?°Sumire?± has not been unregistered, the Plaintiff Yuma S.A.??s right to claim for loss of hire as the actual operator is not affected.



According to the provisions of Article 4 of Regulation of the Supreme People??s Court on Issues Concerning the Trial of Cases of Ship Collision Disputes, the liability for damage arising from ship collision shall be borne by the ship-owner. Since the Defendant Nanjing Channel Engineering Bureau is the registered ship-owner of M/V ?°HANG JUN 11?± and the Defendant Yudean is the registered ship-owner of M/V ?°YUE DIAN 2?±, both the Defendants shall be liable for damages arising from the subject collision and shall indemnify both the Plaintiffs for losses caused thereby. The losses of Hiro add up to USD335,178, and the losses of Yuma amount to USD164,890.88. Based on the above-mentioned proportions of liability arising from the collision accident between M/V ?°HANG JUN 11?± and M/V ?°SUMIRE?±, the Defendant Nanjing Channel Engineering Bureau shall indemnify the Plaintiff Hiro for her losses of USD33,517.80 the interest thereon and indemnify Yuma S.A. for her losses of USD16,489.09 and the interest thereon; the Defendant Yudean shall indemnify the Plaintiff Hiro for her losses of USD16,758.90 the interest thereon and indemnify Yuma S.A. for her losses of USD8,244.54 and the interest thereon. The principal amount shall be converted from USD to RMB at the exchange rate of 1:7.742 of the date of March 15, 2007, and the interest shall be calculated from March 15, 2007, the next day of the accident, to the payment day prescribed herein at the loan interest rate of working capital of enterprises for the same period as published by the People??s Bank of China. 



To sum up, according to Paragraphs 1 and 2 of Article 169 and Article 170 of Maritime Code of the People's Republic of China, it is hereby ruled as the following:



I.	The Defendant Nanjing Channel Engineering Bureau shall indemnify the Plaintiff Hiro for her losses of USD33,517.80 and the interest thereon and indemnify Yuma for her losses of USD16,489.09 and the interest thereon (the interest shall be calculated from March 15, 2007, the next day of the accident, to the payment day prescribed herein at the loan interest rate of working capital of enterprises for the same period as published by the People??s Bank of China);



II.	The Defendant Yudean shall indemnify the Plaintiff Hiro for her losses of USD16,758.90 and the interest thereon and indemnify Yuma for her losses of USD8,244.54 and the interest thereon (the interest shall be calculated from March 15, 2007, the next day of the accident, to the payment day prescribed herein at the loan interest rate of working capital of enterprises for the same period provided by the People??s Bank of China); and



III.	Other claims filed by the Plaintiffs Hiro Shipping Inc. and Yuma Maritime S.A. are hereby overruled.



The litigation fee of this case is RMB44,224, among which RMB39,359.45 shall be borne by the Plaintiffs Hiro Shipping Inc. and Yuma Maritime S.A., RMB3,243.03 by the Defendant Nanjing Channel Engineering Bureau, and RMB1,621.52 by the Defendant Yudean. The litigation fee of RMB4,864.55 prepaid by the Plaintiffs Hiro Shipping Inc. and Yuma Maritime S.A. shall be returned, and the Defendants Nanjing Channel Engineering Bureau and Yudean shall pay their respective proportion of the acceptance fee to this Court.



The obligations of paying the above-mentioned amounts shall be fulfilled within ten days as of the effectiveness of this Judgment. Where any party fails to perform the obligation of paying above-mentioned amounts within the period prescribed herein, such party shall, in accordance with Article 229 of Civil Procedure Law of The People's Republic of China, double pay the interest for the period of delayed performance.



In event of dissatisfaction with this Judgment, the Plaintiffs Hiro Shipping Inc. and Yuma Maritime S.A. may, within 30 days upon service of this Judgment, and the Defendants Nanjing Channel Engineering Bureau and Yudean may, within 15 days upon service of this Judgment, file an application with this Court for review, with duplicates being submitted in terms of the number of the other parties, to lodge an appeal with the Guangdong Higher People??s Court. 





















Presiding Judge		Zhan Simin

Acting Judge		Xiong Shaohui

Acting Judge		Zhang Kexiong



(Official Chop of Guangzhou Maritime Court affixed)



June 11, 2009



Certified as true to the original 



Assistant Judge	Gu Enzhen

Clerk		Liang Xiaolei







The translation is provided by Wang Jing & CO.