(continued)

By checking, the Monitoring Center holds the effective first rate Work Qualification for Survey and Appraisal of Fishery Pollution Accidents issued by Fishery Administration and Fishing Harbor Superintendence Bureau of the People??s Republic of China, in which the assured appraisal area is Guagndong Province. On December 9, 2002, Lu Chaohua, researcher of ocean fishery environment, and Li Huiquan, researcher of fishery resource were allocated by the Monitoring Center to be presented in court accepting address inquires by the parties. The said researchers had participated in the pollution survey as vise researchers at that time and been awarded researcher qualification by Personnel Department of Guangdong Province on August 28 2002.

 (2). Follow Report on Monitoring Loss of Fishery made by the Monitoring Center on November 29, 2002, shows: after one year of the leaking oil accident of ?°Tongtianshun?±, the monitoring data from the resources trend monitoring ship ?°Yuehuilai 41365?± reflect that from August 2001 to September 2002, the rate of fish obtaining of polluted sea area at Huilai changed in the range of 22.30-51.44kg/hour which still has a great gap with the average rate (around 100kg/hour) of the background rate before the accident happened. It is estimated that the damage to the fishery resource needs at least two years to basically restore to the original level of the resource quantity, which is hard to achieve in more than one year. The middle and long-term effects should be considered in calculating the loss of fishery resources, thus, the calculation basis in full reason to get the lowest rate as 3 times of the direct loss of the aquatic products. 

 (3). The data of wind form and weather provided by Guangdong Oceanic Forecasting Station on July 2, 2001, shows: On June 21-25, 2001, flurries of east wind, southeaster, northwester and southwester blew through the seacoast of Huilai.   

 (4). The list of surveying fees shows: on September 19, 2001, the plaintiff paid the Monitoring Center RMB427, 600 as the fees for surveying and monitoring.

 (5). 10 pieces of Work Qualification of Pollution Survey show: the vice researcher Lu Chaohua, Li Huiquan, etc. and assistant engineer Huang Zeqiang, Yang Yuming, etc., totally ten people from the Monitoring Center, participating the pollution survey in this cases have effective Work Qualification for Survey and Appraisal of Fishery Pollution Accidents issued by Fishery Administration and Fishing Harbor Superintendence Bureau of the People??s Republic of China  

 (6). Annual Report Form for Monitoring & Counting The Fishery Resources on The North Fishery Yard of South Sea in Year 2001 and in Year 2002 provided by Huilai County Ocean and Fishery Bureau confirms the analysis data in Follow Report on Monitoring Loss of Fishery. 

2). Evidences provided by the defendant Tianshun Co.

In order to proof the inexistence of oil pollution damage existing in the sea are of the accident happened, the defendant Tianshun Co. provides six evidences and the relevant contents are as fllowing:

 (1). The Searching and Blocking Report states: Guangzhou Sea-Salvage Bureau searched and blocked the neaped ?°Tongtianshun?± on June 25-60, 2001. The seabed under the sunken ship is rock geology. Oil dirt phenomenon appears in the air pipe of the oil cabin and outside the engine room while searching and a few oil drops appears with wave nearby the sunken ship. After blocking, workers did not find oil pollution around the sunken ship by repeating examination and checking.

 (2). The Agreement of Pollution-Clean, the Agreement of Oil Pumping, the Scheme of Oil Pumping and the Completion Report of Oil Pumping state: on July 6, 2001, Tianshun Co. signed the Agreement of Pollution-Clean with China Ocean Shipping Agency, Shantou, entrusting the agency to clean the oil dirt at the sinking port of ?°Tongtianshun?±. On July 5, 2001, Tianshun Co. signed the Agreement of Oil Pumping with Dali Under-water Project Ltd., Co., Donghai County, entrusting the company to pump the oil from the sunken ship ?°Tongtianshun?±. The concrete pumping job was done by No. 92213 Crops of the Chinese People??s Liberation Army. The army started working on July 8 and finished the oil-pumping job on July 24. The Technology Scheme of Oil-pumping made by the crops on July11, states: ?°No oil leaking from the oil cabin has been found in according with recent searching job under water.?± The Completion Report of Oil Pumping made on July 28, states: except 100tonss heavy oil and 30tonss light oil which were pumped out in this work, no sea pollution is found. 

3). Evidences provided by the defendant Yuyang Co., Kobe Co. and China Shipowners?? P&I Association 

Aim at the objectivity of the Survey Report of Fishery Loss, three defendants, Yuyang Co., Kobe Co. and China Shipowners?? P&I Association, provide three counterevidence together, the relevant contents are as following:

 (1). Evaluation Suggestion by He Ruiqiang holds: (i) ?°Tongtianshun?± carried heavy oil around 100tonss, No. 0 diesel oil around 30tonss and lubricant around 6tonss while the collision accident happened. After the accident, the air pipes of the oil cabin on this ship has been blocked and around 100tonss heavy oil and around 30tonss light oil have been pumped out the oil cabin on this ship. With limited oil leaking from the ship, a large scale of pollution accident is impossible to happened; thus ?°black and brown oil belt?± described in the Survey Report of Fishery Loss is probably fictive; (ii) the Survey Report of Fishery Loss does not indicate clearly the function of the water area the accident happened, for the standard of water quality of fishery is different with that of shipping intensive area and water area of harbor; (iii) the researchers of the Monitoring Center only collected the water sample on the surface( less than 10m), but not the sample from the middle and the bottom of the water, which did not accord with regulations. The fishery loss evaluated by the Survey Report of Fishery Loss is not limited to the fishery resource on the surface, for the monitoring result of the surface cannot reflect vertical change of the petroleum underwater and cannot be the basis of assessing real criticality of the petroleum to the oceanic organism; (iv) the Monitoring Center ascribed the petroleum in the water to the oil leaking from ?°Tongtianshun?± without making ?°Finger Identification?± to petroleum hydrocarbons, which is unfair. The number of the water samples is insufficient to reflect the actual pollution degree. The Survey Report of Fishery Loss does not indicate the petroleum concentration in the water before the accident.  (v) Due to self-purification function of seawater, the damage of the petroleum of the same concentration on open sea would be greatly lower than the result surveyed in laboratory. Moreover, different oil produces different toxicity to the fish, thus the analogy way used in the Survey Report of Fishery Loss is inappropriate, in which does not indicate the category of the oil referring in this case and the duration of the pollution effect; (vi) The Monitoring Center set up only three surveying stages in the surveying area, and has not calculated the death amount of marine organisms and the amount of marine organisms appearing serious poisoned symptom, which dose not accord with Regulation of Calculation Fishery Loss of Pollution Accident in Water Area by the Ministry of Agriculture. Based on the regulation, the round-up survey should set up 8-10 representative points in the survey area and calculate the actual damage on the dead fish amount of poisoning; (vii) Due to the incorrect calculation of the loss of the natural aquatic product, the loss of natural fishery resource calculated on it is also incorrect. The degree of the middle and long-term effect of fishery resource in a pollution accident should be determined by real situation of the catalogue of oil leaking, weather and the state of the sea, but not be calculated on a simple formula and multiples. Suppose the pollution effect lasts a long time, the real result would be concluded only by continuing flowing and monitoring the state in duration. In conclusion, the way of survey used by the Monitoring Center and the conclusion in the Survey Report of Fishery Loss are discussing and should not be adopted directly by the court.

He Yueqiang (age 72) has retired from the Evaluation Office of Environmental Infection, Institute of Nan Hai Oceanology, Chinese Academic of Science. On December 9, 2002, he presented in court to accept address inquires by the parties and affirmed that he himself had never been to the scene of the pollution accident. He Yueqing did not provide qualification proofs with respect to himself and his original work unit the Evaluation Office of Environmental Infection, Institute of Nan Hai Oceanology, Chinese Academic of Science.

 (2) Communiqu¨? of Marine Environmental Quality of Guangdong Province in 2001, which has been verified by this court, issued by the plaintiff on April 1, 2002 shows: in 2001, the water quality of important seawater cultivation bay, Marine Organism Nature Reserve and main oceans in Guangdong Province can basically satisfy the use function and the water quality is worst, on seacoast area at part of bayous infected greatly by drain contamination from the land. The mainly contaminations in seawater are still inorganic nitrogen and phosphate. In 2001, the evaluating result of monitoring the water quality of the sea area along shore of Guangdong Province, including Shantou and Jieshi Bay, shows that mainly items exceeding the standard in the monitoring area are inorganic nitrogen and phosphate and other items basically reach the requires of first rate stipulated in the Standard of Sea-Water Quality, within which the content of petroleum has obviously changes. The content of petroleum of the sea areas, except Guishan Bay, along shore in Guagndong Province is below 0.05mg/L, according with the water quality standard of first and second rate. In the same year, three enormously oil leaking accidents happened in the sea area of Guangdong Province, causing the fishery resource loss of around RMB40, 000, 000. Amount the accidents, ?°Tongtianshun?± collided with ?°TianShen?± in the sea area of Jin Hai, Huilai County, Jieyang. The water area that the titer of petroleum exceeding 10 times of the Water Quality of Fishery of our country is around 130 sq. km., with the loss of fishery resource on RMB13, 730, 000, which was caused by the fuel leaking from ?°Tongtianshun?±. The fishery resource of the fish yeard Taiqian-Yuedong in presented a downward trend year by year since 1994. Although the fish operations was suspended and the obtaining rate of fishing has presented obvious improvement for a time in 1999, it dropped to the level before suspending fish operations, even lower, in the following 2000 and 2001. While from the annual changed graph of the obtaining fishing rate of stern trawler in No.13 Communique Form, the obtaining fishing rate of stern trawler of Taiqian-Yuedong has obvious improvement in 2001, which is higher than those in 1999 and 2000. 10 Marine Organism Nature Reserves listed in the Communique that have been build in Guagngong Province do not involve the sea area from Shenquan to Jiazi, Huilai County. 

 (3) The introduction of units directly under the plaintiff and the Monitoring Center published on the website of the plaintiff, which has been verified by this court, shows: the Monitoring Center is the direct government-sponsored institute under the plaintiff, mainly in charge dynamic monitoring on oceanic fishery resource and serious and acute dead fish event caused by various pollution accidents and providing to relevant departments technology report and expert??s conclusion on dealing with serious dead fish event.

4). Evidences transferred from Shantou Maritime Safety Administration

Applied by the defendant Tianshun Co., this court transfers documents of the oil pollution accident of ?°Tongtianshun?± inspectd by Shantou Maritime Safety Administration, including Reconnaissance Report of The Scene of Ship Pollution Accident, Report of Ship Pollution, Report of Eyewitnesses of The Pollution, Report of Witnesses and Five copies of Record of Inspect and Inquiries, etc. All the said evidences focus on the situation that at time 0635, June 21, 2001, ?°Tongtianshun?± collided with ?°TianShen?± in the sea area of Shantou; at time 0755, the captain of ?°Tongtianshun?± claimed to derelict, then the ship grounded. The hull sunk into the water, except the superstructure and the deck of the front ship. After time 1200, oil was found on offing nearby. The next day, Shantou Maritime Safety Administration inspected the scene of oil pollution accident, finding that the offing pollution was caused by oil leaking from ?°Tongtianshun?±. Several oil film belts offing and the oil film area wafted to southwest from the sunken port in length 1.5 NM and width 200m. The investigation conclusion is: it is unable to measure the amount of the oil polluting the sea area, however, by estimating, it should be less than 1tonss. According with the report of Wu Weiliang, chief engineer of the ship, to Shantou Maritime Safety Administration, ?°Tongtianshun?± carried 100tonss heavy oil, 26tonss light oil, 3tonss lubricating oil, 3tonss cylinder oil and 4tonss lubricating oil for complementing machine at that time; therefore, the oil pollution maybe caused by sewage under the cabin of the ship and oil leaking from the air pipe of the oil cabin.

The recode of enquiring Yao Xibo, section chief of Pollution-prevent Department of Shantou Maritime Safety Administration, by judges of this court, shows that Yao Xibo was enquired by inquirers in this court on August 23, 2001. He stated: no oil leaking was found at time 7am.-8am., June 21, 2001 while the accident happened, then the oil pollution appeared on the surface of the sea at time 13. The oil excursed to southeast at the very beginning, then to northwest at time 1430. There were 3 oil film belts total with the widest 3.5m and 2km long. An effective pollution-clean was achieved and the oil pollution did not diffuse. The oil drops appeared from the air hole on the oil cabin under No. 3 cabin of ?°Tongtianshun?± by the act of wave and water pressure. By leaking search, it is found that the crew did not properly shut down the air hole on the oil cabin while derelict.

5). Judicial Expertise Analysis Report of Documentary Evidences and Exhibits by Guangdong Huanan Maritime Center of Judicial Expertise

The Judicial Expertise Analysis Report of Documentary Evidences and Exhibits provided to this court by Guangdong Huanan Maritime Center of Judicial Expertise, after analyzing the Survey Report of Fishery Loss by the Monitoring Center, shows: based on the information of the appearance color and the square of the oil leaking from the ship (dark brown oil pollution belt of 5 sq. km.) and the square of the sea area with oil content exceeding the standard 10times and relevant technology literatures, the total amount of oil leaking in the oil pollution accident of ?°Tongtianshun?± can be calculated around 567.5tonss, which does not accord with the total oil, 154.06tonss, carried by the ship, as ?°Tongtianshun?± stating. Suppose the actual amount of oil leaking can be asserted, the loss of fishery calculated in the Survey Report of Fishery Loss should be changed correspondingly. The means of expert??s evaluation adopted in the Survey Report of Fishery Loss is logical and reasonable.    

By comprehensive checkup and estimation to the evidences of the five aspects mention above, the collegiate bench holds that both the Monitoring Center and Guangdong Huanan Maritime Center of Judicial Expertise have several qualification of appraisal and the expert??s conclusions made separately have definite science basis; therefore, under the situation that not enough counterevidence to negate, both expert??s conclusions can be regarded as the fact basis on asserting the oil pollution damage in this case. Although the Judicial Expertise Analysis Report of Documentary Evidences, the evidences provided by the four defendant and the evidences transferred by this court are adverse to the Survey Report of Fishery Loss, they cannot reverse the fact of oil pollution damage caused by oil leaking after the collision accident of ?°Tongtianshun?± in the report. Therefore, due to no effect counterevidence, the direct economical loss RMB3, 307, 300 of the swimming organisms in the sea area of the accident and survey fee of the loss caused by pollution RMB427, 600, which has been stated in the Survey Report of Fishery Loss made by the Monitoring Center for the oil pollution accident in this case, should be believed and adoped.  

The economical loss of natural fishery resource in the Survey Report of Fishery Loss by the Monitoring is RMB9, 921, 900, calculated on the basis of 80 sq. km. heavy pollution area and 3 years to restore the fishery resource. However, from aspects of the amount of oil leaking, the pollution degree of the sea area and the change of obtaining rate of fishing, which have been made effective counterevidence to the loss of natural fishery resource in the Survey Report of Fishery Loss in the said evidences provided by the four defendants, the evidences transferred by this court and the Judicial Expertise Analysis Report of Documentary Evidences and Exhibits provided by Guangdong Huanan Maritime Center of Judicial Expertise, the pollution degree of the sea area of the accident has been proved not as serious as that reflect in the Survey Report of Fishery Loss, specified as follows: (1) All states in the six evidences provided by the defendant Tianshun Co., evidences from Shantou Maritime Safety Administration and the Judicial Expertise Analysis Report of Documentary Evidences and Exhibits provided by Guangdong Huanan Maritime Center of Judicial Expertise indicate that the amount of oil leaking in the accident is much less then that can seriously pollute 80 sq. km. sea area;  (2) Communiqu¨? of Marine Environmental Quality of Guangdong Province in 2001 provided by the plaintiff shows that the petroleum content of Yudong  seaarea in the year of the pollution accident happened (year 2001) abides by the water quality standard of the first and second rate; thus the pollution accident in this case does not make long-term effect to the water quality which had already restored to normal in that year. Further, from the annual changed graph of the obtaining fishing rate of stern trawler in No.13 Communique Form, the obtaining fishing rate of stern trawler of Taiqian-Yuedong had obvious improvement in 2001, which is higher than the rates in 1999 and 2000. It shows that the pollution in this case does not cause the middle and long-term effect to the fishery resource in the accident sea area and the pollution is actually an exception of the normal discipline that the fishery resource needs at least 3 years to restore. The plaintiff??s claim on the economical loss of nature fishery resource RMB9, 921, 900 lacks evidences and should not be asserted by the collegiate bench. 

4. Evidences and fact of the Guarantee Correspondant of the defendant China Shipowners?? P&I Association 

The Copy of Ship Initiation Certificate and the Copy of Guarantee Correspondent confirmed by the parties shows that the defendant China Shipowners?? P&I Association accepted Tianjing Shipping Co. (the operator of the ship) and Kobe Co. (the possessor of the ship) as members of the Association and become the insurer of ?°TianShen?± , bearing the compensation liability caused by ?°TianShen?± in according with the insurance term of the Association. The limitation of compensation liability of oil pollution caused by the ship is USD1 billion per accident. On July 19, 2001, under the request of Yuyang Co., China Shipowners?? P&I Association issued the Guarantee Correspondant to the plaintiff to avoid the apply of the plaintiff for detaining ?°TianShun?± or other ships possessed or operated by the shipowner. It guarantees to bear the compensation liability caused by the collision between ?°TianShun?± and ?°Tongtianshun?±, which should be born by the shipowner of ?°TianShen?± in according with compromissary agreement reached by the plaintiff and the shipowner of ?°TianShen?± or final arbitration rule made by arbitration court or final judgment made by the court with jurisdiction; however, the highest compensation liability, plus the interest and fees, born by the Association should not exceed RMB 4,000,000. The colleigh bench asserts withal. 

5. Facts of attachments in this case

During the litigation of this case, the plaintiff applied the attachment on July 2, 2001, asking the court to block the insurance compensation (limited in RMB8,000,000), which the People??s Insurance Company of China, Nantong Branch should pay the defendant Tianshun Co. By the guarantee of the plaintiff, this court ruled to permit the attachment of the said property on July 25 and service the notice to assist in enforcement to the People??s Insurance Company of China, Nantong Branch, ordering  no insurance payment to ?°Tongtianshun?±. To apply this attachment, the plaintiff paid to this court the applying fee RMB40,520 and the charges of enforcement RMB10,000.

On November 15, 2002, the plaintiff applied the attachment to this court again, asking this court to order Kobe Co. and Yuyang Co. to transfer to the account appointed by this court the ship collision compensation RMB2,545,056.61 plus interest and the litigation fee RMB41,155 that should be compensate to Tianshun Co. jointly and severally, confirmed in the Civil Judgment (2001 GMF No. 109) and the Civil Judgment (2001 GMF No. 163). By the guarantee of the plaintiff, this court ruled to permit the attachment of the said property on November 21. And on December 27, this court enforced the rule of attachment and the guarantee of Yuyang Co., China Pacific Insurance (group) Co. Ltd, Nanjing Branch transferred the said attachment fee to the account of this court, as the agent of Yuyang Co.. To apply this attachment, the plaintiff paid to this court the applying fee RMB13,451 and the charges of enforcement RMB20,000. 

   The members of the collegiate bench are identical at the point that this case is a dispute over oil pollution compensation caused by ship collision. The fault collision between ?°Tongtianshun?± and ?°TianShen?± at the sea area near Shibei Mountain, Yuedong littoral caused the oil carried by ?°Tongtianshun?± leaked into the sea, polluting the sea area from Jinghai to Shenquan, Yuedong and damaging the fishery resources. Based on the facts mentioned above, the claim brought up by the plaintiff belongs to dispute over torts compensation.

Resources in the marine sea of the People??s Republic of China belong to the country. Being the representative in specified area of the country, the People??s Governments at all levels have obligation to prevent the country??s resources from damage in their popedoms. Based on the second paragraph of Article 90 of Marine Environment Protection Law of the People's Republic of China, for any damages caused to marine ecosystems, marine aquatic resources or marine protected areas that result in heavy losses to the State, the interested department empowered to conduct marine environment supervision and control shall, on behalf of the State, claim compensation to those held responsible for the damages. Based on Article 6 of Fisher Law of the People??s Republic of China, the fishery administration department of the local People??s Court above the county level in charge the fishery work in its district. Article 3 and the forth paragraph of Article 25 of Implement of Fishery Administration of Guangdong Province issued by the Standing Committee of the Guangdong People??s Congress on March 23, 1990, stipulate separately: ?°the fishery administration department of the local People??s Court above the county level is the function department of the People??s Court at the same level, in charge the implement and supervision of Fishery Law and detail rules and the Implement.?± ?°Any person or unit pollutes the water area of fishery, damaging fishery resources of fishery work, should bear compensation liability. The compensation fee of damaging fishery resource owned by the whole people should be used to proliferate and protect the fishery resource by the fishery administration department, which cannot be diverted to other use?±. As the function department in Guangdong People??s Government charging the comprehensive administration of sea and fishery all over the Province, the plaintiff can brought up civil damage litigation to the person liable, according to law while the state assets and resources under its domination have been infringed. Therefore, the plaintiff is the proper subject to claim the oil pollution damage in this case. 

Based on Article 124 of General Principles of the Civil Law of the People??s Republic of China, ?°any person who pollutes the environment and causes damage to others in violation of state provisions for environmental protection and the prevention of pollution shall bear civil liability in accordance with law?±, and Article 117 on anyone who encroaches on the property of the state bearing liability of returning the property or reimbursing its estimated price, the person liable in the oil pollution accident should compensate the plaintiff the direct economical loss of nature aquatic products RMB3,307,300 caused by the oil pollution. The person liable should compensate the plaintiff the loss from the day of the oil damage accident happened, which is June 21, 2001, in order that the plaintiff can restore the polluted environment. The interest of RMB3,307,300 is  required while overdue, which should calculated from June 21, 2001 to the pay day determined in this judgment in accordance with the interest rate of loan of circulating fund of People??s Bank of China in the corresponding period. The loss, plus the interest, would be handed in to the exchequer while the plaintiff repaid. After the accident, it was very necessary for the plaintiff to entrust the Monitoring Center to survey the loss of pollution and the survey fee relating toe the loss was caused oil-leaking accident. Although the survey fee RMB427,600 paid by the plaintiff was mainly used on the direct economical loss of nature aquatic products RMB3,307,300 and the economical loss of nature fishery resource RMB 9,921,900 which is calculated on the mode of 3 timing the direct economical loss of nature aquatic products has been denied by this court, due to not enough evidence, the survey fee is basically for surveying the direct economical loss of nature aquatic products, which is necessary and reasonable fee caused by the oil pollution accident in this case. Thus, the person liable should compensate the plaintiff the survey fee of RMB 427, 600 for pollution damage. The interest of the survey fee has no directly cause-and-effect relationship with the pollution accident in this case, thus the interest loss claimed by the plaintiff cannot be supported by this court. 

After the collision, under the danger situation at that time, the captain of ?°Tongtianshun?± adopted to ground that is necessary to safe the ship, cargoes and the crew. In this case, no evidences prove that the crew of ?°Tongtianshun?± had enough time to block the pipe system on the oil cabin before leaving the ship. It is unimpeachable that the crew had not time to block the pipes while ?°Tongtianshun?± sunk during beaching, which directly endanger the safety of the crew??s lives. The beach, ground and oil leaking are a serious events following up the collision caused by the fault only on sailing of both parties, belonging to this collision accident. The pollution damage caused by oil leaking from ?°Tongtianshun?± is the property loss caused by ship collision. Based on the second paragraph of Article 169 of Maritime Code of the People??s Republic of China, the ships in fault causing the damage of the property of a third party shall not exceed the proportion it shall bear. The Civil Judgment (2001 GMF No. 109) and the Civil Judgment (2001 GMF No. 163) which have taken effect have determined ?°TianShen?± should bear the fault liability of 40% and ?°Tongtianshun?± 60% in this collision accident. 

As the possessor of ?°Tongtianshun?±, Tianshun Co. should bear compensation liability to the fault of ?°Tongtianshun?± based on law. While the collision happened, Yuyang Co. chaptered ?°TianShen?± as a bareboat, controlling allocation and management, thus, Yuyang Co. should bear fault liability of the collision of its crew. Based on Article 6 of Ship Registration Rule of the People??s Republic of China, the fact of this bareboat charter cannot oppose the third party; therefore, Kobe Co. should bear relevant compensation liability to the third party, the plaintiff, on the reason that the bareboat charpter did not register to the ship registration office. Based on the fault percentage of the collision, Tianshun Co. should compensate the plaintiff 60% of the oil pollution loss, that is, the direct economical loss of nature aquatic products RMB1,984,380, plus interest, and the pollution survey fee RMB256,560. Kobe. Co. and Yuyang Co. should compensate the plaintiff 40% of the oil pollution loss jointly and severally, that is, the direct economical loss of nature aquatic products RMB1,322,920, plus interest, and the pollution survey fee RMB171,040.   

Based on the first paragraph of Article 97 of Special Procedure Law of Maritime of the People's Republic of China, an aggrieved party may claim for oil pollution damage caused by a ship either directly against the insurer who is answerable for the liabilities of the owner of the ship causing oil pollution damage, or against the person who provides financial security therefore. The oil pollution insurer of the possessor of the ship has legal liability to compensate the victim of the oil pollution directly by request of the victim. On the reason that ?°TianShen?± is one of the ships caused the oil pollution damage in this case, the possessor of ?°TianShen?±, Kobe Co., should bear the oil pollution damage liability, further, China Shipowners?? P&I Association is the insurer of the pollution damage liability of Kobe Co. Article 97 of Special Procedure Law of Maritime of the People's Republic of China does not qualify the liability subject in oil pollution damage ?°the insurer who is answerable for the liabilities of the owner of the ship causing oil pollution damage?± as ?°the insurer who is answerable for the liabilities of the owner of the ship leaking oil?± thus, it has no legal basis to be tenable that the plea of not bearing compensation liability submitted by China Shipowners?? P&I Association on the reason that it is not the insurer of the oil pollution liability of the possessor of ?°Tongtianshun?± that leaked oil. The oil pollution compensation liability of Kobe Co. is within the limit of the compensation liability of USD1 billion born by China Shipowners?? P&I Association, thus the Association should bear the joint and several liability of the oil pollution compensation liability born by Kobe Co. in accordance with the law.

In sum, based on the second paragraph of Article 117 and Article 124 of General Principles of the Civil Law of the People??s Republic of China, the second paragraph of Article 169 of Maritime Law of the People's Republic of China and the first paragraph of Article 97 of Special Procedure Law of Maritime of the People's Republic of China, this court judges as follows:

1. The defendant Tianshun Co. compensates the plaintiff Guangdong Provincial Oceanic and Fishery Administration the direct economical loss of nature aquatic products RMB1,984,380, plus interest(calculated from June 21, 2001 to the actual pay day determined in this judgment on the interest rate loan of circulating fund of People??s Bank of China in the corresponding period), and the pollution survey fee RMB256,560, within which the direct economical loss of nature aquatic products, plus interest, would be handed in to the exchequer after the plaintiff being repaid;

2. The defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association compensate the plaintiff Guangdong Provincial Oceanic and Fishery Administration jointly and severally the direct economical loss of nature aquatic product RMB1,322,920 plus interests (calculated from June 21, 2001 to the actual pay day determined in this judgment on the interest rate loan of circulating fund of People??s Bank of China in the corresponding period) and the pollution survey fee RMB171,040, within which the direct economical loss of nature aquatic products, plus interest, would be handed in to the exchequer after the plaintiff being repaid.

The case acceptance fee is RMB88,304, which the plaintiff should pay RMB64,154, the defendant Tianshun Co. should pay RMB14,490 and the defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association should pay RMB9,660 jointly and severally. The applying fee of attachment is RMB53,971 and the charges for enforcement is RMB30,000, which the defendant Tianshun Co. should pay RMB50,383 and the defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association should pay RMB33,588 jointly and severally. The fee for investigating and collecting evidences is RMB3,000 and the fee for entrusting the Judicial Expertise is RMB28,000, which the plaintiff should pay RMB22,522, the defendant Tianshun Co. should pay RMB5,087and the defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association should pay RMB3,391jointly and severally. The case acceptance fee, the applying fee of attachment and the charges for enforcement have been paid by the plaintiff in advantage. The defendant Tianshun Co. has paid the fee for investigating and collecting evidences RMB3,000 in advantage and the fee for entrusting the Judicial Expertise RMB28,000 has been paid by the plaintiff and the four defendants RMB5,600 each in advantage. The litigation fees mentioned above is total RMB203,275, which the plaintiff should pay RMB86,676, the defendant Tianshun Co. should pay RMB69,960 and the defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association should pay RMB46,639 jointly and severally. The litigation fees paid by each party in advantage would not be returned and after setting off, thus, the defendant Tianshun Co. should pay the plaintiff RMB61,360 and the defendant Kobe Co., Yuyang Co. and China Shipowners?? P&I Association should pay the plaintiff RMB29,839 jointly and severally. 

   	The payment obligation should be fulfilled in 10 days since the judgment taken effect. 

If any party takes exception to the judgment, an appeal paper can be submitted to this court within 15 days after the service day of the Judgment, appealing to Guangdong Supreme People??s Court, in addition, any party submits the appeal paper shall provide the copies according to the number of the other party.



Presiding Judge:   Zhan Simin

Judge:   Xu Yuanping

Judge:   Cheng Shengxiang




November 11, 2003




Assistant:   Yu Xiaohan

Clerk:   Zhu Mingfang