Applicant for Reconsideration: Inter-aegis Association for China Shipping Owners

    Domicile: 5/F, Paul Whit Collar Building, 38, Chaowai Av. Chaoyang District, Beijing

    This court accepted and heard the cases of conservation of maritime evidence of Mine Transportation Ltd. and Inter-aegis Association for China Shipping Owners. The applicant for reconsideration, taking exception to the Civil Ruling (File 2002MGLB No.36-1) rendered by this court, lodged an application for reconsideration to this court on August 5th, 2002, asking this court to modify the Civil Ruling (File 2002MGLB No.36-1) to remove the conservation of maritime evidence of Inter-aegis Association for China Shipping Owners and Mine Transportation Ltd. to bear economic losses of Inter-aegis Association for China Shipping Owners made by wrongly application.   

    Main reason for reconsideration of the applicant of reconsideration, Inter-aegis Association for China Shipping Owners, is that there were disputes occurred on a voyage charter of ?°Yun Cheng?± signed by Xiamen Ocean Shipping Company and Mine Transportation Ltd and the two said companies had brought arbitrations respectively to China Maritime Arbitration Committee in accordance with the arbitration term agreed by both parties. Based on Article 22 of ARBITRATION RULES ?°When a party applies for taking interim measures of protection of evidence, the Arbitration Commission shall submit the party's application for a ruling to the maritime court in the place where the evidence is located; when a party applies for taking interim maritime of protection of evidence after beginning the arbitration procedure, the party shall submit to the maritime court in the place where the evidence is located in accordance with Chapter Five of SPECIAL PROCEDURE FOR MARITIME LITIGATION OF THE PEOPLE??S REPUBLIC OF CHINA.?± Based on the Arbitration Rules, if Mine Transportation Ltd. applies for taking interim measures of protection of evidence after the arbitration procedure beginning, it shall first submit an application to the Maritime Arbitration Committee and then the Maritime Arbitration Committee submits the application to the Maritime Court. Before submitting an application to the Maritime Arbitration Committee, it has no right to directly submit the application for conservation of maritime evidence to the court. Until the end of the trail, Mine Transportation Ltd. and Xiamen Ocean Shipping Company had exchanged evidences and went through procedures of cross-examination and debate and both parties exchanged the last attorneys?? opinions. The arbitration court confirmed the latest date of adducing evidence according to the Arbitration Rules. During the procedure, Mine Transportation Ltd. had never submit the application of conservation of evidence to China Maritime Arbitration Committee, however, it directly applied to the maritime court for conservation of evidence on July 29th , 2002, which obviously violated the Arbitration Rules. Whereas Mine Transportation Ltd. has no right to directly apply to the maritime court for conservation of evidence, thus asks the court to modify the ruling and remove the measures taken to Inter-aegis Association for China Shipping Owners for consideration of evidence.  

The applicant further claims that: even if Mine Transportation Ltd. has right to apply the conservation of evidence, it should conserve the evidence-if there is necessary to conserve evidences related to indemnity problem between Inter-aegis Association for China Shipping Owners and Xiamen Ocean Shipping Company-according to the problem that if the party of arbitration procedure, Xiamen Ocean Shipping Company, should get the indemnity or not, but not the person, Inter-aegis Association for China Shipping Owners, other than involved in the arbitration case, on the ground that Inter-aegis Association for China Shipping Owners is not a party involved in the arbitration case.

The reason that Mine Transportation Ltd. applies for conservation of evidence is that: in the arbitration case, Mine Transportation Ltd. and Xiamen Ocean Shipping Company have dispute on the problem that whether the Protection and Indemnity Association had indemnified Xiamen Ocean Shipping Company. Mine Transportation Ltd. holds that Xiamen Ocean Shipping Company has already received the indemnity from the Protection and Indemnity Association, thus if Xiamen Ocean Shipping Company asked the indemnity from Mine Transportation Ltd., its act might constitute to be maritime fraud, which would make the case go beyond the arbitration scope and a new action might form; thus, Mine Transportation Ltd. applies the conservation of evidence before the institution of an action according to law, asking the court to obtain the evidence related to the indemnity Inter-aegis Association for China Shipping Owners gave to Xiamen Ocean Shipping Company, which has no relationship with the ongoing arbitration and which will not be provided to the arbitration court to prove the facts of the arbitration case. 

    Through examining, this court holds that, the disputes occurred on the voyage charter of ?°Yun Cheng?± signed by Mine Transportation Ltd and Xiamen Ocean Shipping Company is in arbitrating of the China Maritime Arbitration Committee now, based on Article 22 of ARBITRATION RULES ?°When a party applies for taking interim measures of protection of evidence, the Arbitration Commission shall submit the party's application for a ruling to the maritime court in the place where the evidence is located; when a party applies for taking interim maritime of protection of evidence after beginning the arbitration procedure, the party shall submit to the maritime court in the place where the evidence is located in accordance with Chapter Five of SPECIAL PROCEDURE FOR MARITIME LITIGATION OF THE PEOPLE??S REPUBLIC OF CHINA.?± Thus if the application of conservation of evidence applied by Mine Transportation Ltd. is to be provided to the arbitration court to prove the facts of the arbitration case, it shall submit an application to the Maritime Arbitration Committee first, then the Maritime Arbitration Committee submits to the Maritime Court. Before submitting the application of the conservation of evidence to the Maritime Arbitration Committee, it shall not submit the said application to the court directly; however, Mine Transportation Ltd. has already stated that the evidence it applied to conserve is not used to prove the facts of the ongoing arbitration case and will not be provided to the arbitration court during the trail of the arbitration case. Thereby, based on regulations of SPECIAL PROCEDURE FOR MARITIME LITIGATION OF THE PEOPLE??S REPUBLIC OF CHINA, the application of conservation of evidence before institution of the action submitted by Mine Transportation Ltd. does not belong to applications during the arbitration procedure and has no relation to the case brought to arbitration by both parties. The case of conservation of evidence accepted by this court does not apply to Article 22 of ARBITRATION RULES, thus this reason for reconsideration of the applicant, Inter-aegis Association for China Shipping Owners, cannot be sustained.   

    Regarding to the reason of reconsideration that the applicant of reconsideration, Inter-aegis Association for China Shipping Owners, is not a party in the arbitration case and the application of conservation of evidence shall be submitted as Xiamen Ocean Shipping Company as the other party, but not involved the person other than involved in the case, this court holds that SPECIAL PROCEDURE FOR MARITIME LITIGATION OF THE PEOPLE??S REPUBLIC OF CHINA stipulates that a claimant of applying conservation of evidence is a party of maritime claim and a requested person is a person related to the evidence applied to conserve. Based on this regulation, as long as a person related to the conserved evidence, he can become a party of the case of conservation of evidence, even though he is not a party in a maritime claim. To this case, the evidence applied to conserve by Mine Transportation Ltd. is the evidence whether Inter-aegis Association for China Shipping Owners has indemnified Xiamen Ocean Shipping Company on not, thus Inter-aegis Association for China Shipping Owners is the person related to the evidence applied to conserve, further, it is the party in the case of conservation of evidence. Thereby, its reason for reconsideration cannot be sustained. The claim of Inter-aegis Association for China Shipping Owners on asking Mine Transportation Ltd. to bear economic losses made by the wrongly application cannot be supported on the ground that there is no evidence to prove. By the reasons forgoing, the reasons for reconsideration of Inter-aegis Association for China Shipping Owners cannot sustain and the original ruling shall be maintained, thus, based on Article 69, Paragraph 1 of SPECIAL PROCEDURE FOR MARITIME LITIGATION OF THE PEOPLE??S REPUBLIC OF CHINA, this court decides as follows:    

      Dismiss the application of reconsideration of Inter-aegis Association for China Shipping Owners.