Case of Dispute over Towage Service Contract filed by Guangzhou Maritime Rescue and Salvage Bureau against Ju Ye Far East Ltd.

Updated：2013-09-29 Views：2976 
                                        Guangzhou Maritime Court of the PRC



                                                  Civil Judgement



                                                                               (1999)GHFSZ No.71



Plaintiff: 	Guangzhou Maritime Rescue and Salvage Bureau

Address:		No.536, Bin Jiang Dong Road, Guangzhou

Legal Rep.:		Zhao Jiaqi, director

Agent ad Litem:	Liu Lei, lawyer of Guangzhou Zhongcheng Law Firm

Agent ad Litem: 	Zhang Yixin, deputy manager of No.1 Fleet Commerce Department 

of Guangzhou Maritime Rescue and Salvage Bureau



Defendant: 		Ju Ye Far East Ltd.

Address:		11/F, Feng Shun Commercial Building, No.591, Nathan Road, 

Mongkok, Kowloon, Hong Kong

Legal Rep.:		Liu Zhenming, director and general manager

Agent ad Litem:	Xu Guangyu, lawyer of Guangdong Maritime Law Firm



With respect to the case concerning the dispute over the towage service contract between the Plaintiff Guangzhou Maritime Rescue and Salvage Bureau and the Defendant Ju Ye Far East Ltd., this court accepted the case on July 16, 1999 and constituted the collegiate bench according to law. The court summoned the relevant parties to conduct exchange of evidences prior to trial respectively on May 8 and May 15, 2000 and held open court hearing on July 6. Liu Lei and Zhang Yixin, agents ad litem of the Plaintiff, Liu Zhenming, the legal representative of the Defendant, Xu Guangyu, the agent ad litem of the Defendant, attended the court hearing. Now the case has been finalized. 



The Plaintiff Guangzhou Maritime Rescue and Salvage Bureau alleged that: on December 23, 1998, the Plaintiff and the Defendant concluded a Towage Contract, which stipulated that the Plaintiff would dispatch a tugboat to tow the Floating Crane ?°OHI5000?± owned by the Defendant from Shanghai to Guangzhou with the commencing date from January 15 to 18, 1999, and the port demurrage charge was USD7,000 per day. At 1920 hours on January 15, the tugboat dispatched by the Plaintiff arrived at Shanghai. At 2315 hours on January 19, the tugboat towing the Floating Crane ?°OHI5000?± departed from Shanghai. According to the contractual provisions, the Defendant delayed commencement of the towage for 3 days 3 hours and 55 minutes, therefore it should pay the Plaintiff the demurrage charge of USD37,956. On January 27, the Plaintiff towed the Floating Crane ?°OHI5000?± to the destination Guangzhou and requested the Defendant to pay the balance of the towage fee in USD91,200, the demurrage charge in USD37,956 and the cost of the accompanying crew members in USD960, but the Defendant refused the request. On the same date, the Defendant requested the Plaintiff to dispatch a tugboat and four crew members to guard the Floating Crane ?°OHI5000?±, and confirmed the guard fee of the tugboat was USD1,800/day and that of the crew members USD30/day/person. On March 31, the Defendant requested the Plaintiff to additionally supply four crew members to guard the Floating Crane ?°OHI5000?±. Up to June 11 when the Defendant took over the Floating Crane, the Defendant owed the Plaintiff the ship guard fee in USD243,000 and the crew guard fee in USD24,720. During the ship guard period, as confirmed by the Defendant, the Plaintiff replenished 150 tons of oil and 50 tons of fresh water to the Floating Crane ?°OHI5000?± worthy of RMB315,000 plus USD450. The Plaintiff urged the Defendant to pay for the above expenses many times, but the Defendant refused payment. The court was requested to order the Defendant to pay: 1. The towage fee of USD91,200, the demurrage fee of USD37,956, the crew guard fee of USD960 and the interest on the demurrage in arrears (calculated from January 28, 1999 to the date of actual payment at the annual rate of 8.5%); 2. The ship guard fee of USD243,000, crew guard fee of USD24,720, replenished oil fee of RMB315,000, replenished water fee of USD450 and the interest on the above expenses (calculated from June 12, 1999 to the date of actual payment at the rate of 0.04% daily), and to undertake the court fees in this case. 



The Defendant Ju Ye Far East Ltd. contended that: the Plaintiff released the tow lines after having towed the Floating Crane ?°OHI5000?± to the anchor position 22o07??N/113o47??E (in the vicinity of Guishan Anchorage). The said anchor position was neither the destination as agreed in the contract ¨C Guangzhou, nor the destination expressly stated in the contract ¨C 22o10??N/114o07??E (Nanya Anchorage of Hong Kong). To mitigate any loss, on February 25, 1999, the Defendant suggested the Plaintiff to move the Floating Crane ?°OHI5000?± some 2 nautical miles southeastward (22o06??N/113o49??E), so that the tugboat ?°Mai Po?± owned by HONGKONG SALVAGE & ASSOCIATION arranged by the Defendant could take over and continue the towing operation. The Defendant also agreed with the Plaintiff??s request to pay the relevant expenses in sum of USD182,400. However, the Plaintiff refused the suggestion and insisted that it had fully performed the Towage Contract, therefore it had the right to charge for all the expenses without recourse to any pre-conditions. On June 11, the Plaintiff moved the Floating Crane ?°OHI5000?± some 4 nautical miles southeastward (22o06??N/113o51) and delivered it to the Defendant. To sum up: 1. The Plaintiff did not tow the Floating Crane ?°OHI5000?± to the destination as agreed in the contract, therefore it has no right to request the Defendant to pay for the balance of the towage fee; 2. There does not exist the legal relationship of ship guard between the Plaintiff and the Defendant, therefore the Defendant shall not undertake the guard fee, water and oil replenishment fees arising from the Plaintiff??s breach of contract and unjustifiably refusing the Defendant??s reasonable suggestion for mitigating the loss; 3. The Defendant has not notified the Plaintiff of the commencing date of towing the Floating Crane ?°OHI5000?±, therefore the last date of the time limit for the towing operation prescribed in the contract, i.e. January 18, is the commencing date of towing the Floating Crane. Plus considering one cost-free day at the place commencing the towage as agreed in the contract, therefore departure of ?°OHI5000?± under tow on Jan. 19 from the above place did not exceed the date of commencing the towage as allowable in the contract. The demurrage claimed by the Plaintiff is factually baseless. The court is requested to reject the litigation requests filed by the Plaintiff. 



Upon trials, it has been ascertained that:



(I)	With regard to the conclusion of the contract



After cross-examination at the court hearing, the Plaintiff and the Defendant had no objection to the following facts: in December, 1998, through negotiations with Fuji Trading (Marine) BV, Guangzhou Office, the Defendant intended to entrust the Plaintiff to tow the Floating Crane ?°OHI5000?± owned by the Defendant. Finally, both parties concluded a Towage Contract. The contract states that: the contract was concluded on December 23, 1998, the tugowner is the Plaintiff, the tow party is the Defendant, the tugs are ?°De Shun?±, ?°Sui Jiu 206?± and ?°Sui Jiu 209?±, the tow is the Floating Crane ?°OHI5000?± owned by the Defendant; the place of commencement of towage is 30o40??N/122o45??E, Shanghai, the destination is 22o10??N/114o07??E, Guangzhou; the exact place of destination should be the place where the tug and the tow could safely and easily enter, maneuver and the tug could safely depart, and where the tug is allowed to deliver the tow according to the local or other regulations; it should be approved by the tugowner and should not be rejected without justifiable reasons; the period of commencement of the towage is from January 15 to 18, 1999, the tow party should get prepared to leave the place of commencement of the towage within such period. The tow party should give a three-day prior notice to the tugowner with regard to the commencement of the towage. Otherwise, the date of commencement of the towage should be the last day of the period of commencement; the cost-free day at the place of commencement of the towage and the destination was one day respectively, and such cost-free time was granted for the purpose of connecting and releasing the tug and other relevant purposes. The cost-free time should be calculated from the time the tug arrives at the pilot station at the place of commencement of the towage, or the tug and the tow arrive at the pilot station or anchorage at the destination, or arrive at the usual waiting waters outside the said places. If the cost-free time is exceeded, port demurrage shall be calculated on basis of USD7,000 per day for the time after the tug and the tow depart from the place of commencement or before the tug, after releasing the tow line and departs from the destination. The tow party shall pay the demurrage under the contract to the tugowner immediately after the tugowner issues the invoice; the lumpsum award for the towage service was agreed at USD228,000, the tow party shall pay USD45,600 at the time of signing the contract, pay USD91,200 when the towage commences, and pay USD91,200 when the tug and the tow arrive at the destination. If the tugowner man accompanying crew on the tow, all the expenses shall be undertaken by itself. If the crew on the tow are manned by the tow party, all the expenses shall be undertaken by the tow party; the tow party shall provide the tugowner with all licenses, letters of authorization and permits necessary for the tug and the tow to undertake and accomplish the contractual voyage as well as the necessary certificates when the tow enters or leaves all ports of call or ports of refuge during the planned voyage. Otherwise, any losses and expenses sustained by the tugowner for this reason shall be indemnified by the tow party. The tow party shall additionally compensate the tugowner for any demurrage for any delayed time arising therefrom. If the payments prescribed in the contract fail to be fulfilled within the time limit, an interest shall be calculated at the annual rate of 8.5% from the maturity date. This contract shall be construed according to the English laws and governed thereby. The above facts have been ascertained by the collegiate bench. 



(II)	With regard to performance of the contract



After cross-examination at the court hearing, the Plaintiff and the Defendant had no objection to the following facts: after the Towage Contract was concluded, ?°Sui Jiu 206?±, ?°Sui Jiu 209?±, ?°De Shun?± departed from Guangzhou and arrived at the place of commencement of the towage, i.e. 30o40??N/122o45??E(Shanghai), at 1200 hrs of January 14, 1999, 1627 hrs of January 15 and 1900 hrs of January 15 respectively, and got ready for the operation. At 2315 hrs of January 19, the said tugs actually started the towage service for the Floating Crane ?°OHI5000?± and towed it away from the place of commencement. At 2230 hrs of January 27, ?°Sui Jiu 209?± towed the Floating Crane to 22o07??N/113o47??E (in the vicinity of Guishan Anchorage) and released the tow lines. At 1635 hrs of June 11, ?°De Shun?± moved the Floating Crane some 4 nautical miles southeastward (22o06??N/113o51??E) and delivered it to the Defendant. The Defendant has not paid the last installment of the towage fee in USD91,200 to the Plaintiff. The above facts have been ascertained by the collegiate bench. 



The Plaintiff alleged that after receiving the notice of commencing the towage service from the Defendant, it dispatched tugs to the place of commencement. However, the Plaintiff has not submitted the relevant evidences. The Defendant raised dissention in this respect and held that the Defendant had never issued the notice of commencing towage service to the Plaintiff. The collegiate bench holds that: the Plaintiff has not adduced evidences to prove that it has received the commencing notice from the Defendant, therefore it should be ascertained that the Defendant has not issued the notice of commencing the towage service to the Plaintiff before the tugs dispatched by the Plaintiff arrive at the place of commencement. 



The Plaintiff and the Defendant respectively submitted 59 copies and 33 copies of the faxes exchanged between them from the time of signing the contract to the time of delivering the Floating Crane. Both parties had no objection to the truthfulness of the said faxes. The said faxes can attest to the following facts: on January 20, 1999, the Defendant requested the Plaintiff to tow the Floating Crane ?°OHI5000?± to the No.5 Anchorage of Shajiao, Guangzhou. On January 21, the Plaintiff suggested the Defendant to release the tow lines and delivered the tow at 22o07??N/113o47??E (in the vicinity of Guishan Anchorage). On January 25, the Defendant faxed the relevant certificates of towworthiness of the Floating Crane, such as the registration certificate, insurance certificate and ship survey report, to the Plaintiff. On January 27, the Plaintiff towed the Floating Crane ?°OHI5000?± to the position 22o07??N/113o47??E (in the vicinity of Guishan Anchorage) and released the tow lines, and requested the Defendant to pay the balance of the towage fee, the demurrage and the cost for the accompanying crew in line with the commercial invoice posted by the Plaintiff. The Defendant was also requested to confirm whether it needed the tugs to guard the Floating Crane. The tug guard fee was USD1,800/day and the crew guard fee was USD30/day/person. On the same day, the Defendant confirmed acceptance of the price for the guard service of the tugs, and requested the Plaintiff to tow the floating crane to 22o46??N/113o37??E (Shajiao Anchorage) and to drop her anchor and release the tow lines. With regard to the Defendant??s requests, the Plaintiff informed the Defendant that the Plaintiff had fulfilled the Towage Contract, therefore the towage service from Guishan Anchorage to Shajiao Anchorage should be contracted anew on basis of new quotation. On January 29 and 30, the Defendant insisted that the Plaintiff should tow the Floating Crane to Shajiao Anchorage as Guishan Anchorage was not the destination stipulated in the contract. The Plaintiff was also requested by the Defendant to file the application and submit the tow plan to the customs on its behalf. On February 1, the Plaintiff informed the Defendant that the Plaintiff was only obliged to tow the Floating Crane to the pilot station or the anchorage at the destination; as Guishan was the anchorage within Guangzhou, so the Plaintiff had fulfilled the contract; furthermore, the formalities for the Floating Crane to enter the port had not been completed, therefore it could not be towed to Shajiao Anchorage; furthermore, the Plaintiff had no obligation to file application to the customs for the continued tow operation on the Defendant??s behalf, as the contract provided that the Defendant should free of charge provide the Plaintiff with all licenses, letters of authorization and permits necessary for the tugs and the tow to undertake and accomplish the contractual voyage. On February 2, the Defendant informed the Plaintiff that the Defendant had entrusted Penavico Guangzhou Nansha Branch to handle the customs formalities for in-going of the Floating Crane on its behalf and the Plaintiff could contact with Liang Dezhao, deputy general manager of Penavico Guangzhou Nansha Branch. The Plaintiff was also requested to quote price for the towage service from Guishan Anchorage to Shajiao Anchorage as soon as possible. On February 3, the Plaintiff quoted the towage award at RMB580,000 (including the cost for auxiliary tugs) or RMB400,000 (not including the cost for auxiliary tugs; such cost would be charged according to the fact). On February 5, the Defendant informed the Plaintiff that: before the Floating Crane ?°OHI5000?± was towed to Guishan, the Defendant had entrusted Penavico Guangzhou to apply for the Anchorages 5 and 7 at Shajiao for berthing the crane there; as when the Plaintiff??s tugs proceeded from Guangzhou to Shanghai to tow the Floating Crane, the Plaintiff had not completed the out-going formalities at Guangzhou so that it could not directly tow the Floating Crane into Guangzhou, and the tugs had to drop anchor at Guishan Anchorage; the Plaintiff should complete the customs formalities for the tugs as soon as possible, and tow the Floating Crane to Shajiao Anchorage designated by the Defendant or to the location stipulated in the contract ¨C 22o10??N/114o07??E (Nanya Anchorage of Hong Kong). The Plaintiff refused the Defendant??s request. On February 22, the Defendant once and again requested the Plaintiff to tow the Floating Crane ?°OHI5000?± to the location stipulated in the contract, i.e. 22o10??N/114o07??E, and requested the Plaintiff to fax the customs clearance paper of the tugs, which the Defendant??s agent would need for the use of in-going declaration. On February 24, the Plaintiff sent a fax to the Defendant, stating that the Plaintiff towed the Floating Crane ?°OHI5000?± to Guangzhou as per the Defendant??s requests; now that Guishan Anchorage was the anchorage belonging to Guangzhou for pilotage, quarantine inspection and joint inspection, so the Plaintiff had accomplished the carriage contract; the Plaintiff??s tugs were on a domestic voyage when they proceeded from Guangzhou to Shanghai, therefore the joint inspection with the customs was unnecessary; the Defendant failed to complete the formalities for in-going the Floating Crane and even did not obtain the certificates for the export from Japan, much less go through the relevant formalities for the Plaintiff??s tugs, so that the Floating Crane failed to enter into Guangzhou port. On February 25, without prejudice to the right to claim against the Plaintiff for the relevant losses, the Defendant suggested the Plaintiff to move the Floating Crane some 2 nautical miles southeastward (22o06??N/113o49??E) from Guishan Anchorage, so that the Tug ?°Mai Po?± owned by HONGKONG SALVAGE & ASSOCIATION arranged by the Defendant could continue towing, and agreed to pay USD182,400 to the Plaintiff in the form of bank check according to the Plaintiff??s fax dated February 24. On February 26, the Plaintiff refused the Defendant??s suggestion, and insisted that it had fully performed the Towage Contract. Therefore, it had the right to charge for all the expenses without recourse to any pre-conditions. On March 29, the Plaintiff suggested sending four more crew members to join the four on board so as to ensure the safety of the Floating Crane. The cost for the crew??s guarding service would still be calculated on basis of USD30/day/person. On March 31, the Defendant sent a written confirmation on the guarding service of the Floating Crane by eight crew members. On June 7, the Plaintiff informed the Defendant that, to mitigate the loss of both parties, the Plaintiff requested the Defendant to confirm the new and reasonable place of handover as soon as possible. On June 10, the Plaintiff and the Defendant decided to move the Floating Crane ?°OHI5000?± some 4 nautical miles southeastward (22o06??N/113o51??E) for the handover. The above faxes and the facts supported thereby have been ascertained by the collegiate bench. 



The Customs Clearance List for the Floating Crane ?°OHI5000?± issued by the Japanese customs on January 9, 1999 and submitted by the Defendant stated that: the Floating Crane ?°OHI5000?± departed from Furusawa Steel Nohmi, Japan at 1120 hrs. on January 9, and sailed to Shanghai, China finally. The Defendant alleged that before it entrusted the Plaintiff to tow the Floating Crane ?°OHI5000?± from Shanghai to Guangzhou, the crane was exported from Japan to Shanghai, and the Defendant had completed the customs clearance formalities in Japan. The Plaintiff had no objection to the truthfulness of the Customs Clearance List for the Floating Crane ?°OHI5000?±. This evidence and the facts supported thereby have been ascertained by the collegiate bench. 



The fax of Guangzhou United International Shipping Agency Co. Ltd. to the Defendant on January 19, 1999 submitted by the Defendant states that: at the entrustment of the Defendant, Guangzhou United International Shipping Agency Co. Ltd. completed the joint inspection formalities for in-going of the Floating Crane ?°OHI5000?± on the Defendant??s behalf; the port would arrange the Floating Crane to drop anchor at the Anchorage No.5 at Shajiao; the Defendant should pay the expenses such as the berthage, port charges and quarantine fee to the account designated by Guangzhou United International Shipping Agency Co. Ltd.. The Defendant alleged that it transferred the said fax to the Plaintiff on January 20, informing the Plaintiff that the Anchorage No.5 of Shajiao had been arranged for the Floating Crane ?°OHI5000?±. The Plaintiff confirmed receipt of the said fax and had no objection to its truthfulness. However, it held that the fax could only prove that the port approved of the Floating Crane??s dropping anchor at Anchorage No.5, but it could not support that the customs also approved of the action. Furthermore, the Defendant could not prove that it had paid the berthage, port charges and quarantine fee etc. and had completed the formalities at the port authorities and customs. However, the Plaintiff has not submitted any contrary evidences. The collegiate bench holds that: under the circumstance that the Plaintiff has not provided evidences to the contrary of the above, it shall be deemed that Guangzhou Port Authority has approved of the Floating Crane??s dropping anchor at the Anchorage No.5 of Shajiao. 



The Witness Statement issued by Zhang Zhan, the staff member at the Guangzhou Office of Fuji Trading (Marine) BV and submitted by the Plaintiff states that: approximately on January 25, 1999, the Defendant orally agreed with the Plaintiff to tow the Floating Crane ?°OHI5000?± to the position 22o07??N/113o47??E, i.e. the Guishan Anchorage, for handover. The Plaintiff claimed that during the course of performance of the contract, the Plaintiff and the Defendant had an oral agreement that the destination of the towage service was the Guishan Anchorage of Guangzhou. In this regard, the Defendant raised dissension, alleging that the Defendant had never approved the Guishan Anchorage of Guangzhou as the destination and the so-called ?°oral agreement?± alleged by the Plaintiff had no factual basis. The collegiate bench holds that: according to Article 70 of the Civil Procedure Law of the PRC, witness has the obligation to testify at the hearing; where the witness has difficulty to appear at a hearing, he may present written testimony upon the permission of the people's court. The Plaintiff could not prove that Zhang Zhan had actual difficulty to appear at the court hearing, therefore, in the circumstance that there is not other supporting evidence, his Witness Statement submited without the permission of the people??s court could not be taken as the basis for adjudicating the case. In view that the faxes between the Plaintiff and the Defendant cannot prove that the Defendant has approved the Guishan Anchorage of Guangzhou as the destination, the above allegation of the Plaintiff will not be confirmed. 



The Plaintiff alleged that as the Floating Crane ?°OHI5000?± had a deep draught, it was not safe to drop anchor at the Shajiao Anchorage. However, the Plaintiff did not provide the relevant evidences. The Defendant held dissension in this respect. The collegiate bench holds that the Plaintiff has not provided the relevant evidences to support its allegation. Under the circumstance that the Defendant holds the dissension, the Plaintiff??s allegation will not be adopted. 



The Plaintiff alleged that during the period the Floating Crane ?°OHI5000?± was at anchor at Guishan Anchorage, to ensure safety, the Plaintiff requested the Defendant to provide a written confirmation on entrusting the Plaintiff to provide oil and water to the Floating Crane. The Defendant confirmed respectively on January 28, February 11, February 25, March 19, April 17, May 14, 1999 that it entrusted the Plaintiff to provide oil to the Floating Crane respectively in the amount of 20 tons, 20 tons, 20 tons, 30tons, 30 tons, 30 tons at price RMB2,100/ton, that is, RMB315,000 in total; and it confirmed on April 20 that it entrusted the Plaintiff to provide 50 tons water to the Floating Crane at USD9/ton, that is, USD450 in total. The Defendant had no dissension on the above fact, but alleged that the above confirmation was to ensure the safety of the Floating Crane and the crew members and to mitigate the loss, and that the Plaintiff could not provide evidence to prove that it had actually provided oil and water to the Floating Crane. For this reason, the Plaintiff provided the List of Internal Transfer of Material of Guangzhou Maritime Rescue and Salvage Bureau in order to prove that it had provided oil and water to the Floating Crane. The Defendant held that the evidence unilaterally produced by the Plaintiff may not be taken as the basis for adjudicating the case. The Defendant has not provided contrary evidences. The collegiate bench holds that: under the circumstance that the Defendant has not provided the contrary evidences, it shall be deemed that during the period the Floating Crane was at anchor at Guishan Anchorage, upon approval of the Defendant, the Plaintiff has provided oil in 150 tons and water in 50 tons to the Floating Crane.



The Plaintiff has not adduced evidence within the prescribed time limit to prove that the Defendant should pay USD960 to the Plaintiff as the cost for the accompanying crew members. 



(III)	Other facts



The Defendant raised dissension from jurisdiction during the period of defence, requesting for rejecting the claim filed by the Plaintiff. On August 27, 1999, this court rendered the Civil Ruling (1999)GHFSZ No.71, ruling that the dissension raised by the Defendant be dismissed. The Defendant was unsatisfied with the result and lodged a claim with Guangdong Provincial Higher People??s Court. Guangdong Provincial Higher People??s Court handed down the Final Instance Ruling (2000)YFJEZZ No.18 to dismiss the appeal filed by the Defendant and maintain the ruling of first instance.



On the ground that the Towage Contract was governed by the English laws, the Defendant insisted that the English laws should be applied to handle the dispute in this case. However, it did not provide the relevant English laws within the time limit prescribed by the court. On December 18, 2000, this court decided to engage Chinese and foreign legal experts to provide relevant English laws for the dispute in this case, and issued the Civil Notice (1999)GHFSZ No.71, informing the Defendant to prepay the relevant expenses for the experts?? legal service to this court within 5 days upon receipt of the notice. The Defendant did not prepay the above expenses within the time limit prescribed by this court. 



The collegiate bench holds that: this is a case concerning the dispute over towage contract.



In this case, the Towage Contract provides that the contract shall be interpreted and governed by the English laws. During the course of the trial, the Plaintiff was willing to choose Chinese laws as the governing law. The Defendant insisted that this case should apply the governing law stipulated in the Towage Contract, that is, the English laws. Pursuant to Article 193 of Opinions of the Supreme People??s Court on Certain Issues Concerning Implementation of General Principles of the Civil Law of the PRC, the Defendant is obliged to provide the English laws to this court, but it has not provided the same to this court within the prescribed time limit. Therefore, it is in compliance with the law for the court to invite Chinese and foreign legal experts to find out the relevant English laws for settling the dispute in this case. In view that the Defendant has not prepaid the relevant expenses for the legal service provided by the Chinese and foreign legal experts within the prescribed time limit, this court decided to apply the laws of the PRC to settle the substantive dispute in this case. 



The Towage Contract concluded between the Plaintiff and the Defendant is the true and unanimous expression of will between the Plaintiff and the Defendant. It does not run against the current legal provisions, therefore, it is legally effective and binding upon both parties. 



In this case, there are two destinations in the Towage Contract: one is 22o10??N/114o07??E (Nanya Anchorage of Hong Kong), the other is Guangzhou. According to the contract, the Defendant has the right to choose the exact location of the destination on the precondition that it undertakes that the tugs and the tow can safely and easily enter and maneuver therein, the tugs can safely depart therefrom, and the tugs are allowed to hand over the tow at the location. The Plaintiff shall not reject it without justifiable reasons. In this case, on the next day after the Plaintiff??s tugs towing the Floating Crane departed from the place of dispatch, the Defendant notified the Plaintiff that the destination of the voyage in this case was Shajiao Anchorage of Guangzhou. In view that Shajiao Anchorage of Guangzhou is an anchorage beyond the boundary of Guangzhou port for the joint inspection of Guangzhou customs, frontier defence, harbor superintendence and quarantine inspection, therefore the Plaintiff shall not unreasonably refuse the Defendant??s request that the Floating Crane be towed to the Shajiao Anchorage of Guangzhou. The Shajiao Anchorage of Guangzhou is actually the destination of the voyage in this case. It is without factual basis for the Plaintiff to have alleged that the Plaintiff and the Defendant had an oral agreement on changing the destination to Guishan Anchorage of Guangzhou, therefore the allegation will not be adopted. 



The Plaintiff??s tugs released the tow lines after towing the Floating Crane to Guishan Anchorage. It shall be deemed that the Plaintiff failed to fulfill the Towage Contract and has violated the contract. During the course of the dispute settlement proceeding, the Defendant confirmed to pay the tugs?? guarding fee, crew??s guarding fee, replenished oil and water expenses, and requested the Plaintiff to quote price for the towage service from Guishan Anchorage to Shajiao Anchorage. However, it was the Defendant??s choiceless declaration of will in the circumstance that the Floating Crane had been released by the Plaintiff. The declaration was to ensure the safety of the Floating Crane and to prevent the loss from enlarging. Merely on basis of the above declaration which was not the true expression of will of the Defendant, it cannot be ascertained that the Defendant has agreed to change the port of destination to the Guishan Anchorage of Guangzhou. On the contrary, in the fax addressed to the Plaintiff, the Defendant once and again insisted that the Plaintiff should tow the Floating Crane to the Shajiao Anchorage of Guangzhou. The Shajiao Anchorage of Guangzhou only was the destination of this voyage. The Plaintiff held that the Defendant neither completed the customs clearance formalities for the export of the Floating Crane from Japan nor went through the  relevant formalities for the tugs towing the Floating Crane to Shajiao Anchorage, so that the Plaintiff could not tow it to the Shajiao Anchorage of Guangzhou. In view that the Defendant has provided evidence to prove that the Japanese customs has approved of the departure of the Floating Crane and Guangzhou Harbor Bureau has agreed with the Floating Crane to drop anchor at Shajiao Anchorage of Guangzhou, the above allegation of the Plaintiff will not be supported. 



According to the Towage Contract in this case, the tow reward that the Defendant should pay to the Plaintiff is a lumpsum. Before the Floating Crane towed by the Plaintiff arrived at the destination ¨C Shajiao Anchorage of Guangzhou, the Plaintiff had the obligation to ensure the safety of the Floating Crane and had no right to request the Defendant to undertake the expenses that the Plaintiff had paid for the safety of the Floating Crane before it arrived at the destination. Therefore, the claim filed by the Plaintiff in respect of the ship guarding fees as well as oil and water expenses shall be rejected. 



Before the Plaintiff??s tugs arrived at the place of commencement, the Defendant had not given notice to the Plaintiff for the commencement of the towage service. According to the Towage Contract, the date when the towage service was commenced in this case shall be the last day of the time limit of the commencement, that is, January 18, 1999. In view that the Plaintiff??s tugs commenced the tow operation on January 19, 1999, which has not exceeded the one cost-free day, the Plaintiff??s claim for the port demurrage charge is without factual basis and shall be rejected. 



The Plaintiff has not provided evidence within the prescribed time limit to prove that the Defendant should pay the Plaintiff the cost of the accompanying crew members in amount of USD960, therefore such claim of the Plaintiff shall be rejected. 



Through negotiations between the Plaintiff and the Defendant, on June 10, 1999, both parties finally decided to move the Floating Crane some 4 nautical miles southeastward (22o06??N/113o51??E) for the handover. Such fact has constituted the change of the destination of the voyage in this case. On June 11, 1999, the Plaintiff moved the Floating Crane to 22o06??N/113o51??E and delivered it to the Defendant, thus the Plaintiff fulfilled the Towage Contract. The Defendant should pay the Plaintiff for the outstanding the towage reward in amount of USD91,200. The Plaintiff??s claim with respect to the towage reward of USD91,200 shall be supported. According to the Towage Contract, the loss of interest shall be calculated and paid at the annual rate of 8.5% from June 11, 1999. 



To sum up, according to Article 57 of the General Principles of the Civil Law of the PRC and Article 64 of the Civil Procedure Law of the PRC, the judgement is given as follows: 



I.	The Defendant Ju Ye Far East Ltd. shall pay the towage reward of USD91,200 and the accrued interest (at the annual rate of 8.5%, starting from June 11, 1999 until the date this judgement takes effect) to the Plaintiff Guangzhou Maritime Rescue and Salvage Bureau;

II.	Other litigation requests raised by the Plaintiff Guangzhou Maritime Rescue and Salvage Bureau against the Defendant Ju Ye Far East Ltd. shall be rejected. 



With regard to the case acceptance fee in this case in sums of USD12,260.24 and RMB7,240, the Plaintiff shall undertake USD8,780.24 and RMB7,240, and the Defendant shall undertake USD3,480. The said costs prepaid by the Plaintiff will not be refunded by this court. The Defendant shall directly pay to the Plaintiff the part that it should undertake. 



The above payment obligation shall be fulfilled within 10 days after this judgement takes effect. 



If any of the parties objects to this judgement, the party concerned shall submit the statement of appeal to this court within 15 days from the day when this judgement is served, together with the quantity of copies corresponding to the number of the opposite party. The appellate court shall be Guangdong Provincial Higher People??s Court.







Presiding Judge: 	Zhan Weiquan

Acting Judge:   	Huang Qingnan

Acting Judge: 	Song Weili

December 26, 2000

Court Clerk:		Yu Liqiong