XIAMEN MARITIME COURT 

PEOPLE??S REPUBLIC OF CHINA

CIVIL JUDGMENT


ACTION NO.029 OF 1998


Plaintiff (as Defendant in the counterclaim): Guangzhou Maritime Transport (Group) Co.,Ltd

Domicile:  20th floor, 308 Binjiang Road, central, Guangzhou, China

Legal Representative: Xu Zu Yuan, General Manager

Agent ad litem : Chen Hao Jie, lawyer from Guangzhou Bo Wen Law Firm, China

Agent ad litem :Wu Qi, Male, served as a marine superintendent in aforesaid Co. 

Domicile: No.16 south street Dongcheng, Dongchuan Avenue, Guangzhou City, China

  

Defendant (as Plaintiff in the counterclaim): MEDITERRANEAN SHIPPING CO.S.A.

Domicile: 40 Avenue Eugene Pittrd, 1206 Geneva, Switzerland 

Legal Representative: A.BLANC


Defendant (as Plaintiff in the counterclaim): JICINIA HOLDING INC.

Domicile: Calle50. *102EDIF, Universal PANAMA

Legal Representative: ANTONNIA GONZALEZ PEREZ


Agent ad litem of the two Defendants: 

Wang Jie, lawyer from Hai Jie Law Office, Fuzhou, China



On 3 December, 1998, Guangzhou Maritime Transport (Group) Co., Ltd. (plaintiff) (hereinafter referred to as G.H Group) brought a lawsuit of collision damage claim against MEDITERRANEAN SHIPPING CO.S.A.(defendant) (hereinafter referred to as SHIPPING CO.) and JAGINIA HOLDING INC.(defendant) (hereinafter referred to as SHIPPING INC) before this court. After accepting this case, this court formed a collegial bench for a public hearing at the first time on 19 July, 1999. Both defendants filed counterclaims on 13 August, 1999, this court accepted them and jointly held public hearings on 13 September and 22 December of 1999 respectively. Cheng Haojie, Wu Qi (agents ad litem of plaintiff) and Wang Jie (agent ad litem of defendants) attended the hearings. This cases has been concluded now.


The plaintiff claimed as follows:

On 22 January, 1998, m/v ?°Jian Chi?± which belonged to G.H Group (hereinafter referred to as ?°Jian Chi?±) was on her voyage from Fuzhou to Dalian. At about 2015hrs, while the vessel was navigating at the southwest of Dongsha Island in Taiwan Strait, the third mate on duty at the starboard side of the bridge saw a vessel overtaking from behind and caught sight of the aft mastlight of the overtaking vessel. At about 2025, the left ARPA radar of ?°Jian Chi?± plotted the overtaking vessel being 3 miles away, with a true bearing of 200 degree and a course of 40 degree, and the third mate saw the fore and aft mast lights and the portside red light of the overtaking vessel. ?°Jian Chi?± continued to plot the movement of that vessel, and kept her course and speed. At 2035, the distance between the two vessels became closer and closer. However, the overtaking vessel didn??t take any action to avoid collision. In order to avoid collision, ?°Jian Chi?± threw a strong searchlight on her hull and main deck to call attention of that vessel. At 2039, while it was impossible to avoid collision, ?°Jian Chi?± made a hard portside so as to turn left and prevent interaction or collision with her oil tank. While the vessel turned left, she steered hard starboard immediately to keep her stern clear from the overtaking vessel. At 2040, however, because of the fast speed of the overtaking vessel without taking any action to avoid collision in advance, ?°Jian Chi?± collided with her on the left stern at the position of 25??55.3??N, 120??16.7??E. At the moment of collision, ?°Jian Chi?± was heading to 68 degree with the speed of 12 knots, the other vessel was full ahead, and the angle of the two vessels was about 10 to 15 degrees. After the collision, ?°Jian Chi?± reported to the Harbor Superintendency Administration (HSA) of Fuzhou in time and required the other vessel to stop and go together to settle this accident in HSA (Fuzhou), but the other vessel was still on her voyage to Shanghai after informing her name, call sign and home port. Having anchored at the entrance of Min Jiang River and checked the damage to her hull, ?°Jian Chi?± left for Shanghai at 0830 on January 23 for handling the accident. This collision accident caused the plaintiff (G.H Group?±) the repair cost of ?¤727,176.88 (RMB, same hereafter), survey fee of ?¤6,610, cost of tank washing ?¤300,000, loss of revenue of operation of ?¤1,249,872.20. As a result, the plaintiff applied to the court for ordering the two defendants to compensate for the total economic losses of?¤2,283,659.00 and the interest of ?¤349,399.83 thereof (from 25 January, 1998 to 23 November, 1998, at the interest rate of 5/10000 per day).


The defendant (Holdings Co.) defended as follows: 

According to the chart work, while the distance between the two vessels was 3 miles, ?°MSC RAFAELA?± could catch sight of the starboard green light and masthead light of "Jian Chi". Therefore,  the two vessels were involved in crossing situation instead of overtaking. ?°Jian Chi?± was a give-way vessel, while ?°MSC RAFAELA?± was a stand-on vessel. At 2015, the distance between them was 5 miles: it was impossible to catch sight of the sternlight of "Jian Chi" by " MSC RAFAELA", so it couldn't be said that it was overtaking. The speed of ?°MSC RAFAELA?± was 21 knots and not 19 knots at that time. The main causes of the collision were the gross negligence of ?°Jian Chi?± in looking-out and systematic observation and plotting of radar, and altering her course to hard starboard in the accident which obviously violated her obligations as a give-way vessel. In addition, the losses claimed by the plaintiff (G.S. Group) was unreasonable, some repair work was beyond the scope of damage resulting from the collision, and the cost was too high. The method of calculating the loss of revenue from operation was unreasonable, the tank washing expense was also too high and the calculation of the interests was groundless.


The other defendant (shipping Co.) defended that as a managing agent of the said vessel, he should not assume any liability for compensation. He withdrew from the defense on August 14, 1999.


The counterclaim plaintiff (Shipping Co. and Holding Inc) claimed as follows:

On 21 January, 1998, m/v ?°MSC RAFAELA?±, of which the owner was HOLDING INC. and the demise charterer was SHIPPING CO. was on her voyage from Hong Kong to Shanghai. During the voyage, she collided with ?°Jian Chi?± because the latter altered hard starboard in the accident. After being assured that the other vessel was in safe condition, m/v ?°MSC RAFAELA?± proceeded to Shanghai. On 23 January, she arrived at Shanghai and submitted sea protest to the Harbor Superintendency Administration of the P.R.C in Shanghai (hereinafter referred to as H.S.A. Shanghai) in time, then asked the Classification Society and other relevant institutions to carry out damage survey and requested temporary repair. According to the opinions of the Classification society, m/v ?°MSC RAFAELA?± carried out permanent repair at Antwerp from 15 May to 5 June, 1998. The counterclaim plaintiffs considered that it was wrong for m/v ?°Jian Chi?± to alter her course to starboard as the two vessels came closer and then alter to portside upon sighting the approaching vessel. These actions seriously violated the relevant rules of  the International Convention for Preventing Collisions at Sea, 1972 (hereinafter referred to as the Convention), so she should be held 80% liable for the collision. Therefore, they lodged the counterclaim against the defendant (GH Group) to compensate for loss of time of operation and expenses incurred, being USD 432,044.88 and the  repair cost of USD 368,359.67 as well as the   interest for the above costs covering the period from the day the losses incurred to the day of actual payment.


The counterclaim defendant defended as follows: 

The statement on the collision by the counterclaim plaintiff (SHIPPING CO. and HOLDING INC.) was baseless. There were no records of radar plotting on the logbook and sea protest, which showed that their statement on the movement of m/v ?°Jian Chi?± was groundless. The collision occurred under the situation of overtaking, which had been explicitly admitted in the sea protest by the master of m/v ?°MSC RAFAELA?±. The basic cause of the collision was that the navigator of the m/v ?°MSC RAFAELA?± was seriously negligent in keeping proper look-out and was not abided by the obligations of the give-way vessel. The loss of time and repair cost claimed by the counterclaim plaintiffs (SHIPPING CO. and HOLDING INC.) were much beyond the amount certified by Shanghai Double Hope Maritime Development Co., Ltd. (hereinafter referred to as Maritime). Therefore such defense shall be rejected.


After the trial, according to the statements presented by both parties and the evidence provided by them or obtained by this court which had been cross-examined and defended before this court, the court determined the facts of this case as follows:



I.	There was no dispute on the following facts, so they could be confirmed by this court that:


(1), m/v ?°Jian Chi?±

Port of registry: Guang Zhou

Name of ship owner: Guangzhou Maritime Transport (Group) Co., Ltd.

Classification: CCS, steel tanker

Gross tonnage: 18,918

Dead Weight tonnage: 31031

Main engine: diesel

Service Power: 10600 kW

Max. Speed: 12 knots

Number of crew (those holding qualification certificates): 33

The said voyage was from Fuzhou to Dalian at1500 hrs on 22 January, 1998.


(2) m/v ?°MSC RAFAELA?±

Port of registry: Panama

Name of ship owner: Holdings Inc.

Type of vessel: container vessel

Gross-tonnage: 42307

Year Built: 1996

Type of main engine: diesel

Service power: 18350KW

Max. Speed: 22 knots

Number of crew (those holding qualification certificates): all ready 

 The said voyage was from Hong Kong to Shanghai at 2300 hrs on 21 January, 1998.


(3) At 2040-2050 hrs on 22 January, 1998, m/v ?°Jian Chi?± collided with m/v ?°MSC RAFAELA?± at the area near the entrance of Min River at the approximate position of 25??55??N, 120??17??E. Each vessel informed its name and port of registry to the other. After being assured that m/v ?°Jian Chi?± was in safe condition, m/v ?°MSC RAFAELA?± rejected the requirement of ?°Jian Chi?± to deal with the collision in Fuzhou harbor, and sailed to Shanghai directly.  THE m/v ?°Jian Chi?± also sailed to Shanghai for settlement of the accident the next day.


(4) In the sea protest provided to HSA Shanghai on 24/01/1998, the master of "MSC RAFEALA" said that on 22 January, at 2050, while m/v ?°MSC RAFAELA?± was overtaking a vessel at her portside, the vessel Jian Chi altered her course to starboard suddenly and collided with m/v ?°MSC RAFAELA?± at the portside poop deck, damaging the main deck, boat deck and machine room  where the ship??s position was 25??55??N, 120??19??E.


On 5/2/1998, the master of the m/v ?°Jian Chi?± submitted the sea protest to HSA Shanghai, which stated that on 22 January, at about 2040, m/v ?°Jian Chi?± collided with m/V ?°MSC RAFAELA?± resulting in the damage to the starboard upper deck and hull ,where the ship??s position was 25??55.3??N, 120??16.7??E.


With regard to the above mentioned sea protests, HSA Shanghai accepted and sealed on them to prepare for investigation.


While submitting the sea protests, both parties provided the relevant logbooks and charts to HSA Shanghai.


(5) According to the requirements of the People??s Insurance (property) Company, Shanghai and Guangdong Branches, the Maritime Co. asked the surveyor to carry out survey for damage on board m/v ?°MSC RAFAELA?±. After the survey, it was found that the portside shell plating was damaged from frame 17# to 43# due to the collision with m/v ?°Jian Chi?±. The surveyor considered that the repair of m/v ?°MSC RAFAELA?± in Shanghai would cost USD 78,000, and would take 12 working days for repairing afloat.


On 26 January, 1998, the Maritime Co. carried out the damage survey on m/v ?°Jian Chi?±. After the survey, it was found that the starboard shell plating was damaged from frame 10# to 24# due to the collision with m/v ?°MSC RAFAELA?±. The surveyor considered that it would take 15 working days for repairing afloat and he estimated that it would cost ?¤580,000. On the same day, CCS Shanghai Branch also assigned surveyor to carry out survey on m/v ?°Jian Chi?±. According to the invoice issued by this Classification Society, the survey fee was ?¤6,610.


(6) Requested by Shanghai Hua Tai Insurance Agency Consultant Service Ltd. and authorized by the North England P&I club, the Shanghai Fair Consultant Co., Ltd. (hereinafter referred to as Consultant Co.) who on behalf of the hull underwriter sent someone to carry out the damage survey together with the surveyors from Maritime Co. and Classification Society. The surveyors of the Classification Society suggested carrying out temporary repair immediately, and asked m/v ?°MSC RAFAELA?± to be repaired within one month. On 5 February, the surveyor of the Classification Society carried out temporary survey on m/v ?°MSC RAFAELA?± again in Singapore, and suggested that the vessel carry out permanent repair on 12 May. On 22 February, the Classification Society surveyed the vessel at Genoa to determine the damage caused by the collision and to estimate the repair expenses, as well as to examine the invoices provided by the ship owner to support the claim


On 26 January,1998, the Consultant Co., on behalf of the hull underwriters of "Jian Chi", carried out a survey regarding the losses resulting from the collision on m/v ?°Jian Chi?± together with the surveyor from Maritime Co. After the survey, the Consultant Co. confirmed that the repair cost of m/v ?°Jian Chi?± was estimated to be ?¤403,413, and the time of berthing for repair was about six working days. 


(7) Because it was necessary to have the tanks of m/v ?°Jian Chi?± cleaned before examination and repair, on 26 January, 1998, G.H Group and Tai Hua Oil Shipping Branch concluded a contract of tank cleaning with Shanghai Gong He Ship service Co., Ltd. Both parties agreed that Gong He Ltd. should be in charge of cleaning off the sludge and dirt at the bottom of the oil tanks. The cleaning fee was ?¤300,000 which included the cost as followed: fuel and water used to warm the cleaning water, barge and dispose of the slop from cleaning ,payments for cleaning the oil tanks , pump room and the oil tank of the engine room, and transport of slops by lighter and disposing of same, applying to H.S.A. for cleaning tank and transporting oil slops, etc. On 18 March, GH Group paid the aforesaid costs.


(8) After collision, the m/v ?°Jian Chi?± anchored at the entrance of Liu River at 1350 on 25 January, 1998, then carried out vessel survey and prepared for cleaning tanks. On 27 January, tank-cleaning workers arrived and went on board at 0600 and left at 1825 on 31 January. The vessel berthed at the Li Feng Shipping dock of Shanghai Shipping United Docks Co., Ltd. for repair. The repair completed at 1800 on 13 February.


(9) On 28 September, 1999, the certificate of marine casualty issued by Shanghai H.S.A certified that on 22 January, 1998, m/v ?°MSC RAFAELA?± collided with m/v ?°Jian Chi?± at sea outside Taiwan Strait. According to the sea protest submitted by m/v ?°MSC RAFAELA?±, she collided with m/v ?°Jian Chi?± when she was overtaking the latter.


(10) Records from both parties?? logbooks:


The logbook of ?°Jian Chi?± on the 48th page on 22/01/1998 showed that at 1735, the position of the vessel was 25??48??N, 120??E TC 068??. At 2000, the position was 25??48.8??N, 120??7.8??E. At 2155, the course of the vessel was 248??, the visibility at 2000 was in 6th class. The record on this page in the column of important matters was as follows: the vessel used ARPA to plot a vessel overtaking from behind her starboard side with a true bearing of 200??. The distance between them was 3 miles. The overtaking vessel??s course was at 40??, it sailed at 18 knots. From the starboard side the crew caught sight of the fore-aft masthead lights and the portside red light. Through VHF 16 ?°Jian Chi?± received no calling from the overtaking vessel. ?°Jian Chi?± kept sailing without altering her speed and course. At 2035, the overtaking vessel proceeded close to ?°Jian Chi?± to create an emergent situation. ?°Jian Chi?± switched on the searchlight focusing the starboard hull and main deck, warning the overtaking  vessel. Meanwhile, it steered hard portside to avoid the overtaking vessel. Due to the high speed of the overtaking vessel, ?°Jian Chi?± failed to avoid collision in time. At 2040, the overtaking vessel seriously damaged the stern of "Jian Chi". The position of the collision was 25??55.3??N, 120??16.7??E. At the time of the collision, ?°Jian Chi?± headed to 68??, with a speed of 12 knots . The other vessel was full ahead. During the hearing, the agent ad litem of the plaintiff acknowledged that the statement under the column of important matters was made after the collision. There was no record of observation by radar in the logbook.


The record in the logbook of ?°MSC RAFAELA?± showed: At 0100, the vessel finished with engines and it was bound for Shanghai. The vessel was full ahead as the weather was fine. At 1100, the average speed was 21.54 knots. After sailing 237 miles, the position was 23??40??N, 117??59??E, wind was NE force 6 Beaufort Scale. After sailing 553 miles, the sky was overcast, the vessel sailed at medium speed. At local time 2050 (Greenwich mean time 1250), ?°MSC RAFAELA?± was overtaking a vessel at portside at 25??55??N, 120??19??E. Suddenly, the vessel altered her course, going starboard and collided with the poop deck of our portside. The true course at that time was 030??, with a speed of 21 knots. The record in the logbook of 22/01/1998 showed that at 1430, the position of the vessel was 24??15??N, 118??44.5??E, TC 046?? degree. From 12 to 16 hours, there was fog in the first one hour . The visibility was about 3 miles. Two radars were in operation. VHF 16/2182 was switched on. From 1600 to 2000 the radars were still in operation. The visibility reduced. At 1845 the position was 25??19.5??N, 119??55.4??E, the vessel changed course to TC 29??. The details of radar observation were not recorded in the aforesaid logbook.


II??The parties had different views over the following facts, and this court ascertained the facts according to the evidence provided by the two parties or collected by this court , together with the statements made by the parties during the court hearing:


A.	The relationship between the defendant "Shipping Co" and ?°MSC RAFAELA?± 


On 09/07/1998, the defendant MEDITERRANEAN SHIPPING CO.S.A. stated to this court that he was just a managing agent of ?°MSC RAFAELA?±, but he withdrew the above statement before he filed a counterclaim. During the hearing of the counterclaim, he submitted a copy of the demise C/P to indicate that he was a demise charterer of ?°MSC RAFAELA?±. 


The plaintiff GH group considered that the statements made by the defendant Shipping Co were self-contradictory and the defendant produced no evidence to support what he claimed. The copy of the demise C/P had no function to provide evidence. The identity of the defendant should be confirmed on the basis of the records of the Classification Society.


The court held that: according to the survey report issued by the Classification Society and provided by the counterclaim plaintiff Shipping Co, she was ?°MSC RAFAELA?± vessel??s operator. Under ordinary circumstances, the record made by the surveyor was on the basis of the certificate of registry of the vessel, which was provided by the shipowner. The counterclaim plaintiff refused to submit the evidence in his possession to prove the relationship between himself and ?°MSC RAFAELA?±. As there was no relative evidence to substantiate the facts, the copy of the demise C/P provided by Shipping Co. couldn??t be deemed as evidence to support the claim. The statement that Shipping Co. was a demise charterer of ?°MSC RAFAELA?± was rejected by this court.


B.	The situation before the collision


The plaintiff GH group stated: At about 2015 the third mate on duty saw a vessel overtaking from behind starboard side of the bridge, and the stern masthead light was also in sight. At about 2025, the radar ARPA in the portside of ?°Jian Chi?± plotted that the position of the overtaking vessel was TC 200?? with 19 knots speed, course 040 degree. The distance between the two vessels was 3 miles. The third mate saw the fore and aft masthead lights and the portside red light of the overtaking vessel from the starboard side of the bridge. ?°Jian Chi?± kept sailing and observation without changing the course and speed. At 2035 the two vessels proceeded closer and closer, involving in an exigency situation, but the overtaking vessel still took no measure to avoid collision. In order to avoid collision, ?°Jian Chi?± switched on searchlight to illuminate the starboard side hull and the main deck to call the attention of the other ship. At 2039 when the collision was inevitable, ?°Jian Chi?± steered hard to portside to make the fore turn left, to prevent the oil tank from being collided. When the fore turned left, ?°Jian Chi?± steered hard to starboard side immediately to let the aft clear off the overtaking vessel. Due to the high speed of the other vessel, as well as its not taking measures to avoid collision, the stern of starboard side of ?°Jian Chi?± collided with the stern of portside of the other vessel. At 2040, 25??55.3??N, 120??16.7??E. at the time of collision, ?°Jian Chi?± was heading to 68?? with a speed of 12 knots, the other ship was at full speed ahead. The angle between the fore of two vessels was about 10?? to 15??. At 2155, ?°Jian Chi?± was at 25??58??N, 120??25??42??E  with course of 248??. She sailed to Fuzhou port for a survey of the damage made. In order to certify the above facts, the plaintiff submitted the logbook, engine logbook, sea protest and chart work analysis of the collision and the chart. 


The defendant stated: The time of the collision recorded by ?°Jian Chi?± was 2040, but 2050 by ?°MSC RAFAELA?±. There was 10 minutes difference. At 2015 (for ?°Jina Chi?±, while for ?°MSC RAFAELA?± at 2025) the distance between them was 5.5 miles. ?°MSC RAFAELA?± was in the direction of 85 degree to the starboard side of ?°Jian Chi?±, when ?°Jian Chi?± was at its 2025, ?°MSC RAFAELA?± was in the direction of 75 degree to the starboard side of ?°Jian Chi?±. The distance between them was 3 miles. Therefore, the position   when ?°MSC RAFAELA?±  approached ?°Jian Chi?± into the visibility range of stern light, was less than 22.5?? abaft the beam of ?°Jian Chi?±, instead of more than 22.5?? abaft the beam of ?°Jian Chi?±. There was only the starboard sidelight in sight instead of the stern light. The situation before collision was a crossing one instead of overtaking. In order to prove the above facts, the defendant submitted the logbook, engine logbook, sea protest and chart work analysis of the collision and the chart.


The court held that according to Rule 13 of the International Convention for Preventing Collisions at Sea, 1972 (hereinafter referred to as Convention), a vessel shall be deemed to be overtaking when coming up with another vessel from a direction more than 22.5 degrees abaft her beam. That is, in such a position with reference to the vessel she is overtaking that at night she would be able to see only the stern light of that vessel but neither of her sidelight. So the overtaking situation consists of three conditions: (A) the overtaking vessel is in a direction more than 22.5 degrees abaft her beam. (B) The overtaking vessel is coming up with the overtaken one. (C) The distance between the two vessels is in the scope of the sternlight of the overtaken vessel. With respect to this case and according to Rule 22 of the Convention, the stern light of ?°Jian Chi?± should be visible at 3 miles range. The plaintiff GH group alleged that the distance between the two vessels at 2025 was 3 miles, at 2015 was over 3 miles. This court held it??s wrong for the crew on duty of plaintiff??s vessel to deem it as an overtaking situation. With reference to the sea protest submitted by ?°MSC RAFAELA?±, Shanghai H.S.A certified that the collision occurred during ?°MSC RAFAELA?± overtaking ?°Jian Chi?±. The master of ?°MSC RAFAELA?± used the word ?°overtaking?± in the logbook and the sea protest. However, there were different understandings about the word "overtaking". The situation before collision should be determined on the basis of logbook, chart or other similar evidence, as well as chart work analysis instead of relying on the statements made by the parties alone. According to the logbook or other relevant evidence, ?°Jian Chi?± proceeded at the course of 68 degree, 12 miles. ?°MSC RAFAELA?± was at the course of 29 degree, 21 miles. ?°MSC RAFAELA?± was at the position less than 22.5 degrees abaft the beam of ?°Jian Chi?±. ?°MSC RAFAELA?± could catch sight of the green right side light of ?°Jian Chi?±. Therefore, the situation should be deemed as a crossing as per Rule 15 of the Convention.


C.	Damage resulted from collision


a.	Repair cost of ?°Jian Chi?± 


The plaintiff GH group claimed for the repair cost of ?°Jian Chi?± RMB 727,176.88 based on the invoice issued by Li Feng shipyard and the receipt issued after examination and acceptance.


 The defendant expressed the opinion that Li Feng shipyard and the plaintiff GH group were both under China Shipping Group, so they had common interest. The receipt couldn??t be used as evidence. Being short of contract of ship??s repair, the price had no basis for calculation. It was only the damaged stern deck of starboard side of ?°Jian Chi?± resulted from the collision. The plaintiff increased the items of the repair.


The court held that the receipt provided by the plaintiff GH group was a document printed by computer on 12/04/1999 without bearing the stamps of the Li Feng shipyard and the plaintiff GH group. The truthfulness and the legality of the receipt couldn??t be confirmed. Therefore the effectiveness of the evidence couldn??t be determined. There was not any other evidence but the invoice to certify the plaintiff GH group??s claim for the ship??s repair cost. It was impossible to checked out whether or not the items of repair were reasonable. Even if according to the receipt, the repair items stated in the receipt differed from the items stated in the survey report issued by Maritime Co. The amount the plaintiff claimed for couldn??t be determined. Maritime Co. carried out survey on the vessel requested by the Hull underwriter of ?°Jian Chi?±. The estimated ship repair cost was about RMB 580,000 in the survey report issued by Maritime Co, and the defendant accepted that amount. Therefore the ship??s repair cost resulted from collision should be fixed at RMB 580,000.


b.	The tank cleaning expense of ?°Jian Chi?±


The plaintiff GH group alleged that ?°Jian Chi?± was in need of tank cleaning and gas free test before repair. Therefore, it took them RMB 30,000 to carry out that work. In order to certify the facts and the expense incurred, he provided the invoice and the agreement on tank cleaning.


 The defendant??s opinion was: he would accept it, if tank cleaning and gas free test were needed on account of the repair. Nevertheless, clearing off sludge from the tank, pump room and the engine room weren??t resulted from the collision. The costs should be excluded or be reduced in proportion.


The court held that, being an oil tanker, ?°Jian Chi?± was in need of gas free test before repair. The tank cleaning expense was a reasonable one incurred after collision and should be borne by the defendant. However, the cleaning items included clearing off sludge which was not caused by the collision. Therefore, the cleaning costs should be reduced in proportion to RMB 280,000.


c.	Loss of use of ?°Jian Chi?±


The plaintiff stated that he had appointed Hua Tong accountant office to conduct a special audit on the loss of use of the ship resulted from the collision. The accountant office issued an audit report No. 3 HHSZ 1998. The report came to a conclusion based on the transport contract, list of report of voyages and other data. The conclusion showed that the average profit per day was RMB 58,569.46. With reference to the report, the plaintiff alleged that the time for loss of use of ?°Jian Chi?± was 21.34 days, and the loss of use of ?°Jian Chi?± in monetary terms reached RMB 1,249,872.20. The plaintiff submitted the above said audit report as evidence.


 The defendant??s view was that the loss of use should be certified by submitting transport contracts, the proof of the freight earnings and the daily cost. It couldn??t be accepted by providing the above mentioned evidence such as submitting the audit report only.


The court noted the audit report provided by the plaintiff attached with the certificate of qualification of the Accountant Office and the certificate of account, and held that though they were not attached with the original evidence concerning the revenues earned from the two voyages of Jian Chi (one was before the collision and the other was after ), yet, considering that Hua Tong accountant office was an independent firm, the audit report was issued on the basis of the two original proofs of profit of the two voyages, such audit report was legally effective. The report could be deemed as evidence with reference to the provisions of Art 10 under the ?° Regulations respecting Property Damage Compensation Resulted from Vessel Collision?± issued by the Supreme People??s court (hereinafter referred to as Compensation Regulations). However, as to the loss of use claimed by the plaintiff GH which included the time consumed in cleaning off sludge and in increasing the items of ship repair, same should be reduced, as appropriate, and the loss of use should be fixed at 19 days.


d.	Loss of use of ?°MSC RAFAELA?± 


The counterclaim plaintiff stated that ?°MSC RAFAELA?± arrived at Antwerp shipyard for repair on 18/05/1998. The repair was finished on 04/06/1998. She left the dock on 05/06/1998. According to the demise C/P between the counterclaim plaintiffs Shipping Co. and Jacinia, the hire of the vessel was USD 20.000 per day. The time spent in the dock for repair was 18 days. The loss of use was USD 360,000. In order to support what they claimed, they submitted the invoice of ship repair cost (which bore the time used for the repair) and the copy of the demise C/P.


The counterclaim defendant GH group was of the view that the counterclaim plaintiff should submit the original demise C/P, without which the loss of use couldn??t be determined. The case should be governed by the law of China. The loss of use claimed by the counterclaim Plaintiff should be rejected for failure of producing original evidence according to the above-mentioned ?°Regulations?±.


This court held that according to the provisions of Art. 10 of the ?°Compensation Regulations?±, the loss of use should be calculated on the bass of the average net profit of the two voyages before and after the collision. The demise C/P was concluded by the two counterclaim plaintiffs. Not only the original C/P was not available but also there was no other evidence to prove it. According to Art. 78 of the Opinions of the Supreme People??s Court on Some Issues Respecting Application of the Civil Procedure Law of the PRC, the legal effect of the demise C/P couldn??t be confirmed. Therefore, even if the counterclaim plaintiffs had the right to claim for loss of use, it should still be rejected due to the failure to provide sufficient evidence to prove it.


e.	Repair cost of ?°MSC RAFAELA?± 


The counterclaim plaintiffs stated that, ?°MSC RAFAELA?± was a container liner engaging in international shipping. In order to avoid increasing the loss, ?°MSC RAFAELA?± continued to operate after having a temporary repair at Shanghai. In May, ?°MSC RAFAELA?± was under repair in Antwerp, Belgium. The above-mentioned repair caused USD540,056.11. ?°Jian Chi?± should be held for 80% liability. The counterclaim defendant GH group should compensate the counterclaim plaintiffs USD 429,329.99. In order to certify the scope of damage, repair and the amount therefor, they submitted the original invoice of ship repair cost and the original survey report issued by Classification Society in Antwerp.


The counterclaim defendant GH group expressed the opinion that ?°MSC RAFAELA?± should be repaired at as near a place as possible. It was impossible to check whether it was reasonable by reference to only the invoice of repair cost that was available, without having access to the actual repair items. The repair cost was mush more than the one estimated by Maritime Co. after carrying out survey on it. The repair carried out four months after the collision should be deemed an ordinary repair. The court should accept the survey report issued by Maritime Co. due to its legal effectiveness.


The court held that the counterclaim plaintiffs only provided invoices of ship repair cost and survey reports of the ship Classification Society, to support their claims for the costs of ship repair and other expenses. In the absence of contract of ship??s repair, the budget summary of the repair, the settlement list of the ship??s repair or other evidence to certify the repair items, the scope of the repair and whether the repair cost was reasonable or not could not be confirmed. In consideration of the counterclaim plaintiffs?? not producing sufficient evidence to support what they claimed, the amount of ship repair cost couldn??t be determined as what they claimed. With respect to the counterclaim defendant acknowledging the survey on ?°MSC RAFAELA?±, carried out by Maritime Co and according to Art. 75 of the Opinions of the Supreme People??s Court on Some Issues relating to the Implementation of the Civil Procedure Law of the PRC, the cost of repair of ?°MSC RAFAELA?± could be fixed at USD78,000 as it was estimated in the survey report issued by Maritime Co.


The court held that the collision between ?°Jian Chi?± and ?°MSC RAFAELA?± occurred in the sea area near the entrance of Min Jiang River. Both of the parties quoted Chinese laws during the claim and defense. According to Art. 273 of the Maritime Code of the PRC, the law of China should be applied in settling the dispute.


Before the collision, ?°Jian Chi?± sailed at 12 knots, ?°MSC RAFAELA?± said at 21 knots. The two vessels didn??t take measures to reduce their speed and sail at a safety speed, thus violating Rule 6 of the 1972 Convention, viz. every vessel shall at all times maintain a proper look-out by sight and hearing as well as by making full use of other equipment and apparatus. Though the two vessels had been equipped with radar and the radar was in operation before the collision, they failed to make continuous observation and plotting to make a full appraisal of the risk of collision. They failed to take proper measures to avoid collision, in violation of  Rule 5 of the Convention. The situation between ?°Jian Chi?± and ?°MSC RAFAELA?± before collision was crossing instead of overtaking. ?°MSC RAFAELA?± was a stand-on vessel on the starboard side of ?°Jian Chi?±, while ?°Jian Chi?± was a give-way vessel. ?°Jian Chi?± violated Rule 15 of the Convention as it made a wrong appraisal of the situation. She failed to take early action to keep well clear of the other vessel. Although the actual situation before collision was crossing, ?°MSC RAFAELA?± considered herself as an overtaking vessel, where she should have taken the relevant actions as required, but acted as a stand-on vessel instead, in violation of Rule 13 of the Convention. Furthermore, even if ?°MSC RAFAELA?± were a stand-on vessel, she still violated Rule 17 in that she should have acted as will best help to avoid collision when she found the collision could not be avoided by the action of the give-way vessel alone. As a conclusion, this court held that ?°Jian Chi?± should take 50 percent liability for the collision to compensate for the repair costs of ?°MSC RAFAELA?±, While ?°MSC RAFAELA?± should take the other 50 percent liability to compensate for the plaintiff??s repair cost, tank cleaning expense, loss of use and survey fee.


The shipowner should take the civil liability for compensation incurred in the collision. Although, MEDITERRANEAN SHIPPING CO.S.A. as the operator was affected in the operation of the ship due to the collision, thus it was concerned with this case, yet the liabilities for the damage arising from the collision of the ships should not be imposed on her. Therefore, the claim lodged by G.H group against MEDITERRANEAN SHIPPING CO.S.A. was dismissed. The vessel??s survey fee incurred after collision claimed by GH group should be determined with reference to the cause of the accident. The defendant Jacinia??s nonpayment for the damages due to the one time uncertainty as to the liabilities for damages arising from the collision shouldn??t be deemed as payment overdue, so the plaintiff's claim for interest rate based on 5/10000 was without legal basis. The interest should be fixed on the basis of the corresponding loan interest rate issued by the People's Bank of China. Therefore the interest for overdue payment claimed by the plaintiff was rejected. 


Although the counterclaim plaintiff MEDITERRANEAN SHIPPING CO.S.A. acted as a ship operator and had interest to the case, but she was not the shipowner, thus that company had no right to claim against the counterclaim defendant G.H group for the damage to the vessel. The claim lodged by MEDITERRANEAN SHIPPING CO.S.A. in this regards was rejected.


According to Art. 237 and Art. 126, of the Civil Procedure Law of the PRC, Rules 5, 6,13,15 and 17 of the International Regulations For Preventing Collisions At Sea, 1972 and Art. 273, and Art. 169 of the Maritime Code of PRC, the judgment is rendered as follows:


I.	The defendant Jacinia should compensate the plaintiff GH Group, within ten days after this judgment comes into force, for the repair cost of RMB299,000.00, expenses for tank cleaning of RMB140,000.00, loss of use of RMB556,409.88, survey fee of RMB3,305.00 and the interest thereon calculated according to the loan interest rate issued by the People??s Bank of China, from 8th April, 1998 to the date of payment determined by this judgment .


II.	 Other claims by plaintiff GH group against the defendant are dismissed.


III.	The counterclaim defendant GH group should compensate the counterclaim Plaintiff Jacinia USD39,000 for the repair cost and the interest thereon. The interest should be calculated according to the corresponding loan interest rate as above- mentioned from 5th June, 1998 to the date of payment determined by this judgment. The above amount should be paid within 10 days from the day this judgment becomes effective.

IV. The other requests for the counterclaim by Jacinia are dismissed.

V. The requests for counterclaim by MEDITERRANEAN SHIPPING CO.S.A. are dismissed.


The court fee for the plaintiff's claim is RMB 24,000.00, of which the plaintiff shall pay RMB 14,979.00, the defendant shall pay RMB 9,021.00. The court fee for the counterclaim is RMB 43,107.00 of   which the counterclaim Plaintiff MEDITTERAN- EAN SHIPPING CO.S.A. and Jacinia shall pay RMB 41,007.00, while the counterclaim defendant GH group shall pay RMB2,100.00.


Should any of the parties refuse to comply with this judgment, the plaintiff GH group may within 15 days and the defendants within 30 days of the receipt of the judgments, file an appeal to the Higher People??s Court of Fujian Province. The application for appeal shall be submitted to this court with copies corresponding to the number of persons of the opponent party. .



Presiding judge: Liu Xin Ping

Judge: Zhou Cheng You

Judge: Lin Jing

Certified true copy

21, June 2000

Clerk: Hong Zhi Feng