Ye Hai-Guo v. Shanghai Maritime Affairs Bureau

Updated：2004-03-16 Views：1903 
SHANGHAI MARITIME COURT

PEOPLE??S REPUBLIC OF CHINA

ADMINISTRATIVE JUDGMENT



                                         No.hu hai fa xing chu 1(2001)



Plaintiff: Ye Hai-Guo, born on March16,1963, of Han nationality, ID No:330921196303160015, 

Domicile: Village No.1, Gaoting Town, Daishan County, Zhejiang Province, China.

Agent ad litem: Ma Guo-Hai, attorney-at-law of Zhejiang Minhong Law Office

Agent ad litem: Shi Feng, attorney-at-law of Shanghai Shangda Law Office.



Defendant: Shanghai Maritime Affairs Bureau, the People??s Republic of China

Domicile: No. 190, Si Ping Road, Shanghai

Legal Representative: Wang Zhi-Yi, Head of Shanghai Maritime Affairs Bureau

Agent ad litem: Li Lin-Jie, officer of Shanghai Maritime Affairs Bureau

Agent ad litem: Li Da-Ze, officer of Shanghai Maritime Affaires Bureau



The Plaintiff, Ye Hai-Guo sued the Defendant before this court on November 26, 2001 on the grounds that he did not agree with Shanghai Maritime Affairs Bureau about the Maritime Administrative Penalty Decision (No. gang jian fa 1002016 (2001) ) made by the said Bureau on September 6, 2001.  This court, after examining the case, registered it on November 29, 2001 and served copy Plaint and Notice to Reaction to the Defendant on November 29, 2001. The Defendant submitted  to this court a Defense Statement and part of the evidence on December 11, 2001.  This court then formed a  collegial bench, and on December 26, 2001 the collegial bench gave a pre-trial directive to both parties and instructed the parties to exchange evidence and to cross-examine the evidence that had been submitted by each party.   On January 23, 2002, this cases was publicly tried and those who appeared in court were: the Plaintiff, Ye Hai-Guo and his Agents ad litem, Ma Guo-Hai and Shi Feng;  the Defendant, Shanghai Maritime Affairs Bureau and its Agents ad litem, Li Lin-Jie and Li Da-Zhe. Now the trial of the case has been concluded.



    The Maritime Administrative Penalty Decision (No.gang jian fa 1002016 (2001) ) made by the Defendant Shanghai Maritime Affairs Bureau on September 6, 2001 thus decided: 

    The Plaintiff Ye Hai-Guo steered a ship named ?°ZHE ZHOU 606?± in the sea area near the floating light at the mouth of Yangtze River at 2020 hours on November 30, 2000.  He did not steer in due course and failed to do what he could to rescue and command the ship in danger, causing the ship to sink and resulting in a grave accident.  The Plaintiff should take full responsibility for this grave accident.  The Defendant decided that the Plaintiff??s negligent steering had violated the stipulations of Article 9 of ?°the Law on Safety of Transportation at Sea of the PRC ?±. The Defendant thus decided to impose an administrative penalty on the Plaintiff and to withdraw the Plaintiff??s Certificate of Qualification in accordance with the stipulations of Article 12 Item 2 and Article 58 Item 1 of ?°the Regulations on Administrative Penalty on Safety Supervision at Sea of the PRC?±.



    The Plaintiff alleged:

    At 1130 hours on November 28, 2000, m/v ZHE ZHOU 606 was bound for Wenzhou from Dalian with 5,593 tons of cargo on board.  At around 2000 hours on November 30, when she was being steered to the sea area near the floating light at the mouth of Yangtze River, she was sunk because of the bad weather and poor sea conditions.  The Plaintiff alleged that the shipping company and its executives were liable for the sinking of the ship and this was the fundamental cause of the accident. The Maritime Administrative Penalty Decision (No. gang jian fa  1002016(2001)) made by the Defendant Shanghai Maritime Affairs Bureau on September 6, 2001 was groundless and wrong not only in the findings of facts but also in its application of the relevant regulations. Therefore, the Plaintiff claimed to this court to withdraw the said Maritime Administrative Penalty Decision (No. gang jian fa 1002016 (2001) ) made by the Defendant Shanghai Maritime Affairs Bureau and to order the Defendant to bear the legal cost.



    The Defendant argued thus:

    The Plaintiff as the captain was not a fully qualified one under such bad sea conditions. His capability of being prepared for the emergency was inadequate and the ship under his command was in a state of chaos. Besides, he couldn??t properly foresee the danger and it was too late when he became aware of the imminent danger. Also the poor self-rescue operations and bad command of the ship in danger had contributed to render the ship losing its floatage, thus resulting in its sinking, with nine crew members died and five missing, constituting a grave transportation disaster at sea. What testified to the breach of the relevant regulations by the plaintiff were:a Letter on Forwarding the Investigation Report on the Sinking of m/v.ZHE ZHOU 606 ?± by the Maritime Affairs Bureau of the PRC; ?°Report on Transportation Accident at Sea?± by the Plaintiff Ye Hai-Guo; Relevant Data Calculation Report on m/v.ZHE ZHOU 606 and Maritime Accident Investigation Notes. It was only after a series of effort-making, comprehensive, and careful investigations and analyses, that the Defendant made its penalty decision, taking into full consideration of the wrong-doing of the Plaintiff and judging by the principles of law. The Defendant??s decision on penalty was made on the basis of clear facts, conclusive evidence and correct application of law. Therefore, the Defendant claimed to affirm the original Maritime Administrative Penalty Decision made by Shanghai Maritime Affairs Bureau.



    During the hearing, the Defendant Shanghai Maritime Affairs Bureau submitted the following evidence to substantiate the facts based on which their administrative action was taken:

1.	?°Weather report on a gale along the sea coast of Shanghai ?± on November 11, 2000 by Shanghai Central Observatory on December 6, 2000 and ?°wind-force record at Dajishan Station?± on November 30, 2000 by Shanghai Ocean Conditions Forecast Center under the National Bureau of Oceanography to indicate that there was no force majeure, nor any causation between the climate, sea conditions and the accident;

2.	The maritime investigation inquiry notes by an investigation group on the sinking of m/v.ZHE ZHOU 606 on January 3, 2001, to prove that during the course of the accident, the sinking ship was under the control of the Plaintiff Ye Hua-Guo, and the Plaintiff should take full responsibility therefor;

3.	A technical data calculation report on m/v.ZHE ZHOU 606 by Zhejiang Ship Surveyors Bureau on February 14, 2001; a ?°Report on Transportation Accident of ??ZHE ZHOU 606?? at Sea?± submitted to Shanghai Harbour Superintendency by the Plaintiff Ye Hai-Guo on 1400 hours of December 28, 2000; the investigation notes made by the investigation group on the  sinking of m/vZHE ZHOU 606 on the basis of the inquiries made to the 4th engineer Jin Yang-Huan, able-body seaman Li Jia-Kai on the said ship on January 4, 2000, January 5, 2000 and December 2, 2000; investigation notes on Ye Hai-Guo at 2046 hours of December 2, 2000 at Chensi Supervision Station under Ninbo Harbour Superintendency, to prove that the Plaintiff, as the captain of the ship, made a wrong judgment, commanded the ship badly, inadequately assessed the danger impending, and lost the chances for rescue operations, thus causing such a grave accident of ship-sinking and loss of lives;

4.	On September 4, 2001 the Maritime Affairs Bureau of the PRC issued a ?°Letter forwarding the Investigation Report on the Sinking of m/v ZHE ZHOU 606?±, which was a conclusive report on this accident and was legally binding. The Report testified to the cause of the accident and stated what kind of responsibility the Plaintiff should take;

5.	On July13, 2001, the Defendant Shanghai Maritime Affairs Bureau made a report on the  ?°Investigation on the sinking of m/v ZHE ZHOU 606?± (No.hu hai tong hang 330 (2001) ), showing the process of the investigation.  However, this was a confidential report to its senior leadership and should be signed and issued after the confirmation by the senior leadership;

6.	The crew list and the Certificate of Minimal Safety Manning Scale of the m/vZHE ZHOU 606, showing the number of crew on board m/v ZHE ZHOU 606 and the actual casualty, and that the manning of the said ship did not come up to the standard laid down in the Certificate of Minimal Safety Manning Scale of the ship;

7.	Visa  report of m/v ZHE ZHOU 606,  showing that the captain was Ye Hai-Guo, chief mate was Mao Wen-Lin, second mate was Wang Jian-Jun, third mate was Xu Da, operator was Xu Da, chief engineer was Zhang Yun-da, second engineer was Fu Zhong-Guo, third engineer was Zhang Ping-Bo and fourth engineer was Jin Yang-Huan, altogether being nine persons, who were not the same as the officers and engineers actually on board. This showed that the Plaintiff did not truthfully make the declaration of the crew list in Dalian.

8.	The 24-hour ship communication log on November 30, 2000, to prove that the Plaintiff did not take proper preventive measures when m/v ZHE ZHOU 606 was in danger.

9.	The Ship Safety Examination Report at Zhoushan Harbour, Zhejiang on October 30, 2000, to indicate that m/v ZHE ZHOU 606 had safety defects.



To the above evidence, the Plaintiff Ye Hai-Guo made his cross-examination as follows:

Evidence No.1 . No objection to its authenticity, but it was not relevant, and could not prove that the Plaintiff shall take full responsibility.

Evidence No.2. No objection to its authenticity, but the inquiry notes could only serve as a statement of the Plaintiff on the happening of the accident, and could not be treated as the report or conclusion of the supervisory authorities, nor could it be deemed as a foundation to be based on. Besides, such inquiry notes could not prove that the Plaintiff shall take full responsibility.

Evidence No.3. No objection to the authenticity of the technical data calculation report for m/vZHE ZHOU 606, but it could not prove that the Plaintiff shall take full responsibility; and no objection to the ?°Report on Transportation Accident of ??ZHE ZHOU 606?? at Sea?±, but the main points of this report could boil down to a statement of the ship??s condition and a description of the accident. Thus, it could not take the place of accident investigation report, nor could it prove that the Plaintiff shall take full responsibility. There was no objection to the authenticity of the inquiry notes on Jin Yang-Huan, Li Jia-Kai, Huang Song-Guo and the Plaintiff himself, but the contents of these evidence could not prove that the Plaintiff shall take full responsibility, either.

Evidence No.4. No objection to the authenticity of the ?°Letter on Forwarding an Investigation Report on the Sinking of m/vZHE ZHOU 606?± issued by the Maritime Affairs Bureau of the PRC. However, the penalty imposed on the Plaintiff shall be based on the report from the Defendant Shanghai Maritime Affairs Bureau.  

The Defendant??s report said this accident was caused by various reasons. Since the investigation and penalty was initiated by the Defendant Shanghai Maritime Affairs Bureau, the report made by the initiator shall be taken as the basis. Even so, the penalty imposed by the Maritime Affairs Bureau of the PRC was not justified. The report by the Maritime Affairs Bureau of the PRC decided that the Plaintiff should take direct responsibility instead of full responsibility.  In this regard, the Maritime Administrative Penalty Decision was wrong,

Evidence No.5. No objection to the authenticity of the report on ?°Investigation on the sinking of m/v ZHE ZHOU 606?± (No.hu hai tong hang 330(2001)) made by the Defendant Shanghai Maritime Affairs Bureau on July13, 2001. However, the Penalty shall be based on the causes ascertained in the same report.  This report asserted that the said accident was caused by a number of different reasons. The decision made by the Defendant in its Maritime Administrative Penalty Decision was self-contradictory to the causes established by itself.

Evidence No.6. No objection to the authenticity, but it was irrelevant.

Evidence No.7-9. No objection to the authenticity, but they were irrelevant to 

this case and could not prove that the Plaintiff shall take full responsibility.



The Defendant provided the following ex-officio evidence:

Evidence No.10. ?°Notice on Setting-up Shanghai Maritime Affairs Bureau of the PRC?± by the Ministry of Communications on June 15, 1999 (No.jiao lao fa 292[1999])

Evidence No.11.?°Letter of December 26, 2000 by the Ministry of Communications of the PRC on the Investigation Group Heading for Zhoushan to make an Investigation on the Sinking of m/v ZHE ZHOU 606 .

Evidence No.12.Articles 3, 42 and 43 of ?°the Law of the PRC on Transportation Safety at Sea ?±.

Evidence No.13.Articles 2 and 17 of the ?°Ordinance on Investigation and Settlement of Transportation Accidents at Sea?±, effective from March 3, 1990.

Evidence No.14.Article 4 of the ?°Regulations of the PRC on Administrative Penalties regarding Supervision of Safety on Water (provisional)?± issued by the Ministry of Communications of the PRC on September 2, 1998.



The Plaintiff had no objection neither to the authenticity of all the above evidence, nor to the qualifications of the Defendant in implementing the law.  However, as to Evidence No.11, he alleged that it could not prove that the investigation group was dispatched by the Maritime Affairs Bureau of the PRC, as the Defendant Shanghai Maritime Affairs Bureau itself was competent enough to conduct  such kind of investigation.



The Defendant listed the following laws and regulations that they applied in its penalty decision:

Evidence No.15. Article 9 of the ?°Law of the PRC on Transportation Safety at Sea?±.

Evidence No.16. Article 12 Item 2 and Article 58 Item 1 of the ?° Regulations of the PRC on Administrative Penalties(provisional) regarding Supervision of Safety on Water?± issued by the Ministry of Communications on September 2, 1998.

Evidence No.17. Article 32 of the Regulations on Statistics on Transportation Accidents of Ships ?± issued by the Ministry of Communications on June 16, 1990 concerning accidents involving liability.

Evidence No.18.  Articles 35 and 38 of the ?°Maritime Law?± of the PRC on the duties of shipmasters in maritime accidents.

Evidence No.19. Articles 13 and 14 of the ?°Regulations of the PRC on Seamen-On-Duty on Sea-Going Vessels?± issued by the Ministry of Communications on October 20, 1997 concerning the requirements on seamen when on duty.

Evidence No.20. Article 17 of the ?°Regulations of the  PRC on Ship Visa Administration?± issued by the Ministry of Communications on May 17, 1993, requiring faithful reports to the authorities in charge thereof.

Evidence No.21.?°Regulations of the PRC on Ship??s Minimal Safe Manning Scale?± issued by the Ministry of Communications on September 24, 1997, stipulating that minimum manning should be guaranteed for the seaworthiness of vessels.



The Plaintiff had no objection to the authenticity of the above evidence. However, he alleged that none of the above could prove that the Plaintiff should take full responsibility. The Plaintiff alleged that evidence 16 dealt with combined punishment, i.e. not only to withdraw the certificate of qualification, but also to fine the Plaintiff.  However, in fact, the Defendant Shanghai Maritime Affairs Bureau only withdrew the Plaintiff??s qualification certificate, but no fine was imposed on him.  Thus, the Plaintiff alleged that the Penalty Decision was wrong and it should be withdrawn.



The Defendant Shanghai Maritime Affairs Bureau defended that they had the authority to make a proper Penalty decision within the statutory framework.  Apart from that, to withdraw the Plaintiff??s qualification certificate indicated the principle of ?°combining punishment with education?±.  The Penalty on the Plaintiff was a lenient one. Therefore, the alleged Penalty was lawful and justified.



The Defendant provided the following evidence to prove that the procedures for their implementation of law were legally sound :

Evidence No.22. A letter from the Plaintiff on July 23, 2001 to request an evidence hearing.

Evidence No.23 Notice on Evidence Hearing by the Defendant Shanghai Maritime Affairs Bureau on August 10, 2001.

Evidence No.24. Maritime Administrative Penalty Decision (No.gang jian fa  1002008[2001]) by the Defendant Shanghai Maritime Affairs Bureau on July 12, 2001.

Evidence No.25. Withdrawal of Administrative Penalty Decision (No. hu haI che  001 (2001) ) by the Defendant Shanghai Maritime Affairs Bureau on August 10, 2001.

Evidence No.26. ?°Receipt of the Service of Maritime Administrative Penalty Decision?± signed by Ye Hai-Guo on August 15, 2001.

Evidence No.27.An administrative penalty hearing record made by the Defendant on August21, 2001 while the Plaintiff Ye Hai-Guo was absent from the court.

Evidence No.28. Maritime Administrative Penalty Decision (No.gang jian fa  1002016(2001)) by the Defendant Shanghai Maritime Affairs Bureau on September 6, 2001.

Evidence No.29. Receipts signed by the Plaintiff Ye Hai-Guo on September 19, 2001 on ?°Receipt for Maritime Administrative Penalty Decision?±. 

Evidence No.30. ?°Letter of September 28, 2001 on Withdrawal of Qualification Certificate of Ye Hai-Guo?± sent by the Defendant Shanghai Maritime Affairs Bureau  to Zhejiang Maritime Affairs Bureau. 

Evidence No.31. The ?°to be kept by the Sender?± of EMS receipt about service of notice of evidence hearing by the Defendant submitted at court.



The Plaintiff made his cross-examination as follows:

Evidence No.22. No objection.

Evidence No.23. No objection to its authenticity, but it was irrelevant.

Evidence No.24. It was withdrawn being irrelevant to this case.

Evidence No.25. No objection to its authenticity, but irrelevant.

Evidence No.26-29. No objection.

Evidence No.30. Objection to its legality. 

Evidence No.31. Denied. The issuing date of notice of evidence hearing was August 10, 2001. However, the date when the Plaintiff received the notice was August 15, 2001,while the date of evidence hearing shall be the date on which the Plaintiff received the notice, instead of the date when the notice was sent out.



    Besides, the Plaintiff alleged that in accordance with Article 42 of the  ?°Law of the PRC on Administrative Penalty?± that ?°Administrative authorities shall hold evidence hearing with a 7-day prior notice to the party involved?±, thus the Defendant Shanghai Maritime Affairs Bureau should have held the evidence hearing on August 22, 2001. However, in fact, the Defendant held the evidence hearing on August 21, 2001, which was obviously in breach of the said stipulation, and was an illegal administrative execution. Therefore, it should be withdrawn.



    The Defendant Shanghai Maritime Affairs Bureau argued that they sent out the notice for evidence hearing on August 10, 2001 and notified the Plaintiff that the evidence hearing was on August 21, 2001 . The procedures for sending the notice conformed with the stipulation that the parties shall be given a 7-day prior notice before the evidence hearing is held. However, the Plaintiff was absent during the evidence hearing without any justified reason, which should be deemed as a waiver.  In this regard, the procedure was legal.



    Apart from the above allegation, the Defendant Shanghai Maritime Affairs Bureau alleged that the Maritime Administrative Penalty Decision (No. gang jian fa  1002016(2001)) was served to the Plaintiff on September 19, 2001, while the Plaintiff Ye Hai-Guo sued to this court on November 26, 2001.  His plaint was beyond the litigation limitation set forth in Article 45 of the ?°Law of the PRC on Transportation Safety at Sea?± reading: ?°Should the parties involved be not satisfied with administrative penalty of fine or withdrawal of career certificates, they shall sue to court within 15 days after they receive the notice on penalty?±. Thus, the Defendant pleaded to this court to revoke the Plaintiff??s claims. To this allegation, the Plaintiff argued that the Defendant only told him of the time for administrative review and he was not informed of the time for bringing a suit to court.  As an administrative authority, when they imposed a penalty on a relevant party, they were not only obliged to clearly  inform the parties involved of the time for administrative review, but the time of litigation as well.  For this reason, the Plaintiff alleged that Article 39 of the  ?°  Administrative Procedural Law of the PRC?± instead of Article 45 of the ?°Law of the PRC on Transportation Safety at Sea?± should be applicable.



    In order to support his claims, the Plaintiff submitted to this court the following evidence:

1.The original Maritime Administrative Penalty Decision (No. gang jian fa 1002016 (2001)) made by the Defendant Shanghai Maritime Affaires Bureau on September 6, 2001 to prove the specific administrative action.

2.?°Notice on Clarification on Issues regarding Imposition of Administrative Penalties on Those Involved in an Accident and Liable Therefor?± issued by Maritime Affairs Bureau of the PRC on December 30, 1999, to prove that the Defendant Shanghai Maritime Affairs Bureau should make its decision on the basis of the investigation report and its findings.



The Defendant Shanghai Maritime Affairs Bureau admitted Evidence No.1 above. As to Evidence No.2, it had no objection to its authenticity, but alleged that the said document was only an internal regulatory document, so it was very suspicious about the way by which such document had been procured by the Plaintiff. Besides, the Defendant itself did decide on the penalty in accordance with this Regulation.



Based on all the above evidence submitted to this court by both parties involved, this court asserted:

With respect to Evidence Nos. 1-9 submitted by the Defendant, they were objective, authentic, and relevant to the facts found by the Defendant.  They were collected through legal procedures, and the Plaintiff had no objection to their authenticity, so they were accepted by this court.  The Defendant??s Evidence No.1 proved that this accident was not a force majeure.  The Defendant??s Evidence Nos.2-9 proved that at 2020hrs on November 30, 2000, the Plaintiff Ye Hai-Guo steered m/v ZHE ZHOU 606 on the sea area near the light ship at the mouth of Yangtze River.  During the accident, when the Plaintiff Ye Hai-Guo was aware of the slopleft of the ship, the Plaintiff ordered to inject water into the second and fourth starboard holds without a clear knowledge of the causes thereof. This not only wasted time but increased the ship??s load.  Under such strong gale, the Plaintiff did not order to checked the holds sealing. When water was found in the holds , the Plaintiff did not know that the ship was in danger of sinking.  He did not organize an effective self-rescue.  The ship was not ordered to get into a state of emergency.  Before the ship sank, the Plaintiff ordered wrong steering by making two full-steers to starboard and portside, which made the ship sink faster when the ship was submerged in water.  The Plaintiff thus should take full responsibility in this accident due to his improper operation, poor command in danger and bad rescue operation. Besides, the Plaintiff did not fulfill his legal responsibilities as a captain, as he concealed the fact of insufficient manning of the ship, and untruthfully went through the the ship visa process. So he should definitely be fully liable for the sinking of the ship.



Regarding Evidence Nos.10-14 submitted by the Defendant in support of its authority in collecting the evidence, the Plaintiff admitted them, so they were accepted by this court.



Regarding Evidence Nos.15-21 submitted by the Defendant to prove the applicable law, the Plaintiff had no objection to their authenticity.  Since Evidence Nos. 15-21 submitted by the Defendant were the same applicable regulations applied by the Defendant when they made the said decision, they were accepted by this court.



As to Evidence Nos.22-31 submitted by the Defendant to prove the legality of the procedures under which the said Maritime Administrative Penalty Decision was made,  after the cross-examination by the Plaintiff and the Defendant respectively, this court found out that the process of working out the procedures for the Maritime Administrative Penalty in this case was as follows:

On July 12, 2001, the Defendant Shanghai Maritime Affairs Bureau made a ?°Maritime Administrative Penalty Decision?± (No. gang jian fa  1002008 (2001) ).  On July 23, 2001, the Plaintiff Ye Hai-Guo sent a letter to request for an evidence hearing.  On August10, 2001, the Defendant Shanghai Maritime Affairs Bureau issued an order of withdrawal to withdraw the Administrative Penalty Decision (No. hu hai che  001 (2001) ).  On the same day, the Defendant Shanghai Maritime Affairs Bureau sent out a notice for evidence hearing to notify the Plaintiff thereof .  On August 15, 2001, the Plaintiff signed on the receipt of the Maritime Administrative Penalty Decision. On August 21, 2001, the Defendant Shanghai Maritime Affairs Bureau held the evidence hearing on Maritime Administrative Penalty.  The Plaintiff was absent from court, and the Defendant made a hearing record.  On September 6, 2001, the Defendant Shanghai Maritime Affairs Bureau made a Maritime Administrative Penalty Decision (No. gang jian fa 1002016(2001)) to withdraw the Qualification Certificate of Captain Ye Hai-Guo.  On September 19, 2001, the Plaintiff Ye Hai-Guo received the Maritime Administrative Penalty Decision and signed on the Service Receipt of Maritime Administrative Penalty Decision.  On September 28, 2001, the Defendant Shanghai Maritime Affairs Bureau sent  a ?°Letter on Withdrawl of the Qualification Certificate of Ye Hai-Guo?± to Zhejiang Maritime Affairs Bureau, showing that an action of administrative penalty to withdraw the Plaintiff??s Qualification Certificate was already taken.



It was the view of this court that:

The Defendant Shanghai Maritime Affairs Bureau was qualified to impose  an administrative penalty on the Plaintiff Ye Hai-Guo for m/v ZHE ZHOU 606??s accident.  It was stated in the said decision that at 2220hrs on November 30, 2000, the Plaintiff Ye Hai-Guo steered m/v ZHE ZHOU 606 in the sea area near the light ship at the mouth of Yangtze River. Because of his improper operation, poor rescue effort and bad command of the ship in danger, the ship sank. These facts were supported by the Defendant??s Evidence Nos.1-9. The Defendant made the penalty decision on the basis of clear facts and sufficient evidence. The Plaintiff??s allegation that the determination of the liability for the accident was wrong had no supporting facts and the evidence submitted by the Plaintiff was not strong enough to substantiate  his allegation, thus it was not accepted by this court.



The Defendant, as the entity to impose administrative penalty, shall strictly abide by the procedures set forth by law.  In accordance with Article 41 of  the ?° Explanations on Several Issues in implementing Administrative Procedural Law of the PRC by the Supreme People??s Court?±, the Defendant should clearly notify the Plaintiff of his right to litigation or the time limitation for litigation. However, the Defendant??s notice that the Plaintiff ?°may apply for administrative review within 60 days after receipt of this Decision on Penalty or bring a suit to the people??s court directly?± in its Decision on Penalty was not clear enough to indicate that the Defendant had clearly notified the Plaintiff of his right to litigation or the time limitation for the right to litigation. The Plaintiff, as the relevant party subject to an administrative penalty, brought a suit against the Defendant in accordance with the ?°Administrative Procedural Law of the PRC?± under such circumstances. His action was affirmed.  The allegation of the Defendant that the Plaintiff had brought a suit against the Defendant beyond the time limitation allowed was not acceptable to this court.



In serving the notice for evidence hearing to the Plaintiff in accordance with Article 42 of the ?°Administrative Penalty Law of the PRC?±, the Defendant should notify the Plaintiff 7 days before the evidence hearing.  The Plaintiff received the notice on August 15, 2001, while the Defendant held the evidence hearing on August 21, 2001.  The calculation of the time of service shall start from the day when the party involved received the notice and the days on the way shall not count.  The point held by the Defendant Shanghai Maritime Affairs Bureau that the time of service shall start from the day when they sent the notice was not acceptable. The way to hold an evidence hearing without a 7-day prior notice to the Plaintiff obviously ran counter to the relevant requirements.



The penalty on the Plaintiff in withdrawing his Qualification Certificate by the Defendant violated the provisions of Article 58 of the ?°Regulations of the PRC on On-Water Safety Supervision Administrative Penalty?±. The Defendant was wrong in that they withdrew the Plaintiff??s Qualification Certificate only, instead of imposing fine on the Plaintiff as well.  This did not conform to the statutory requirements for imposing penalty. In applying the principle of ?°combining punishment with education?± to make a relatively lenient punishment decision, the Defendent should do so within the framework of the same kind of punishment as set forth by law, instead of  reducing one kind of punishment or the other. The Defendant??s allegation that its maritime administrative penalty was in line with the principle of ?°combining  punishment with education?±, that it was a lenient punishment, and that  its punishment  was legal and suitable, was not acceptable.



Based on all the above, the Defendant Shanghai Maritime Affairs Bureau was qualified to make a maritime administrative penalty decision against the Plaintiff Ye Hai-Guo.  The Maritime Administrative Penalty Decision (No. gang jian fa 1002016(2001).) made by the Defendant against the Plaintiff was done on the basis of clear facts and sufficient evidence.  However, the Defendant Shanghai Maritime Affairs Bureau was wrong in respect of the administrative procedures for implementation in holding the evidence hearing and the substance of the maritime administrative penalty was not in conformity with the relevant legal stipulations.  Thus, in accordance with Article 54 Item 2 of the ?°Administrative Procedural Law of  the PRC?±, Article 42 Item 2 of the ?°Administrative Penalty Law of the PRC?± and Article 58 Item 1 of the ?°Regulations of the PRC on Administrative Penalties  regarding Supervision on Safety On-Water?±, this court decides as follows:

To cancel the Maritime Administrative Penalty Decision (No. gang jian fa 1002016 (2001) ) made by the Defendant Shanghai Maritime Affairs Bureau of the People??s Republic of China on September 6, 2001.

The court fee of RMB100.00 yuan shall be borne by the Defendant Shanghai Maritime Affairs Bureau of the People??s Republic of China.



Should any party be not satisfied with this judgment, it may submit to this court a request for an appeal to the Higher People??s Court of Shanghai within 15 days of the service of this judgment, together with a copy for each of the opposing party.



Presiding Judge: Kang Wei-Qi 

Judge        : Lv Xiao-Hua 

Deputy Judge : Tian-Wei Zheng







 March 26, 2002





Certified true copy

 





Clerk        : Jie Zhu