Guangzhou Maritime Court


Civil Judgement


(2001)GHFCZ No.109

(2001)GHFCZ No.163


Plaintiff (Defendant in the counterclaim): Nantong Tianshun Shipping Co. Ltd. 

Address: No.50, Qing Nian Road, Nantong, Jiangsu Province

Agents ad Litem: Lin Yihua, Chen Yusheng, lawyers of Guangdong Yong Hang Law Firm


Defendant (Plaintiff in the counterclaim): Yangzhou Yuyang Ocean Shipping Co. Ltd.

Address: No.32, Si Wang Ting Road, Yangzhou, Jiangsu Province

Legal Representative: Song Xingting, chairman of the board of directors

Agent ad Litem: Liao Hong, lawyer of Guangdong Pacific Law Firm

Agent ad Litem: Yuan Gang, staff of Guangdong Pacific Law Firm


Defendant: Tian Shen International Shipping Co. Ltd.

Address: Er Men, No.70, Xi Hao Road, He Ping District, Tianjin

Legal Representative: Song Xingting, chairman of the board of directors

Agent ad Litem: Liao Hong, lawyer of Guangdong Pacific Law Firm

Agent ad Litem: Yuan Gang, lawyer of Guangdong Pacific Law Firm



With respect to the dispute over compensation for ship collision damage, the Plaintiff Nantong Tianshun Shipping Co. Ltd. filed a claim against the Defendants Yangzhou Yuyang Ocean Shipping Co. Ltd. (hereinafter called ?°Yuyang Co.?±), Tian Shen International Shipping Co. Ltd. (hereinafter called ?°Tian Shen Co.?±), and the Defendant Yuyang Co. counterclaim against the Plaintiff. This court accepted the cases respectively on July 30 and September 3, 2001 and constituted the collegiate bench according to law. The court convened all parties concerned to conduct pre-trial exchange of evidences on September 12, and held open court hearings respectively on September 13 and October 23. Li Yihua and Chen Yusheng, the agents ad litem of the Plaintiff, Liao Hong and Yuan Gang, the agents ad litem jointly appointed by the Defendants Yuyang Co. and Tian Shen Co. attended the court hearing. Now the case has been finalized. 


The Plaintiff claimed that: on June 16, 2001, M/V ?°Tong Tian Shun?± owned by the Plaintiff carried plaster stone in 7,390 tons from Lanshan port, Shandong to Sanya, Hainan. At the time of departure, the vessel was seaworthy, the relevant certificates were valid, and the crew on board were qualified. On the morning of June 21, M/V ?°Tong Tian Shun?± arrived at the Shantou waters. At 0600 hrs, the GPS position of M/V ?°Tong Tian Shun?± was 22058??.0N/116039??.1E, on the course 2430 and at the speed of 10.5 knots. At that moment, the visibility was about 0.5 nautical mile. The bridge ordered the engine room to get the engine ready and changed automatic steering to manual steering. At 0620 hrs, the radar of M/V ?°Tong Tian Shun?± detected  two northward ships sailing on her portside 50 in a distance of 4 nautical miles and one northward ship sailing on her starboard 50 in a distance of 5 nautical miles. She then contacted the ship on starboard side by VHF for many times, but there was no response. After consecutive observation by radar, M/V ?°Tong Tian Shun?± found that she had a distance of 0.5 nautical mile with the ships on her port side and a distance of 0.7 nautical mile with the ship on her starboard side. She kept on sailing at the same speed and on the same course. When the northward ship on her starboard was 0.4 nautical mile away from M/V ?°Tong Tian Shun?±, the radar of M/V ?°Tong Tian Shun?± detected there was slight change of its course and the distance between the ships became shorter. In the meantime, the two northward ships on port side were already 0.5 nautical miles to her port side abeam. M/V ?°Tong Tian Shun?± then steered hard port in order to increase the distance from the northward ship on starboard side. She sounded two short blasts and continued to contact the opposite ship by VHF. However, there was no response from the opposite ship. M/V ?°Tong Tian Shun?± continued steering hard port, and the opposite ship kept approaching. When the opposite ship was on a course perpendicular to that of M/V ?°Tong Tian Shun?±, M/V ?°Tong Tian Shun?± sounded two short blasts as warning. At 0635 hrs, the port side of the bow of the opposite ship (at that moment it was found that the name of the ship was ?°Tian Shen?±) hit the starboard No.2 hold of M/V ?°Tong Tian Shun?±. ?°Tong Tian Shun?± stopped engine. The body of ?°Tian Shen?± hit again the starboard stern of ?°Tong Tian Shun?±. The master of ?°Tong Tian Shun?± immediately came to the bridge, and found that ?°Tian Shen?± was about 200 meters to the starboard quarter of ?°Tong Tian Shun?± with her bow heading to the same course as ?°Tong Tian Shun?±. When ?°Tong Tian Shun?± requested ?°Tian Shen?± to render assistance, ?°Tian Shen?± answered that she had not changed to use of the diesel oil and was unable to change and stop the engine. At that moment, ?°Tong Tian Shun?± listed to starboard quickly. Upon examination, it was found that the No.4 double-bottom starboard tank and topside No.2 tank and starboard Hold No.2 had serious ingress of water. Then she took measures to pump out the water immediately, and reported the case to MSA Shantou at the same time. Due to the ingress of water, the vessel was in danger of capsizing. To save the vessel and the crew, the master of ?°Tong Tian Shun?± had no choice but to beach. Finally, the vessel ran aground at a spot 0.5 nautical mile right east of Shi Bei Shan Corner. The vessel sunk after declaring abandoning the ship. Due to sinking of the vessel, the Plaintiff suffered losses of the ship and losses in respect of earnings, expenses for probing and sealing hull, anti-pollution measures, crew??s personal articles, ship??s supplies and articles as well as the losses of spare parts, inspection fees, case handling cost and crew repatriating fee etc., in total of RMB12,265,260.66. The Plaintiff held that the collision was caused because ?°Tian Shen?± was negligent in lookout in poor visibility and had not sailed at a safe speed and with prudence so that a pressing situation was caused and the regulations on ship navigation and prevention of collision had been violated. The Defendants, i.e. Tian Shen Co. as the owner of M/V ?°Tian Shen?± and Yuyang Co. as the demise charterer of M/V ?°Tian Shen?±, should undertake the major responsibility for the collision. The court was requested to order the two defendants to undertake joint and several liability to compensate the Plaintiff for the above losses in amount of RMB12,265,260.66 arising from the collision and sustained by ?°Tong Tian Shun?± and the interest counted from June 21, 2001 to the actual payment on basis of the loan interest rate announced by the People??s Bank of China for the same period, and to undertake the liability for compensating the oil pollution damages arising from sinking of ?°Tong Tian Shun?± as well as the court fees in this case. 


Before completing the explanation report on the evidences, the Plaintiff provided the following evidences: 1. Sea Protest of M/V ?°Tong Tian Shun?±; 2. The evaluation report and survey report issued by Guangdong Maritime Engineering Consultation and Survey Company, one copy for each; 3. The Charter-party concluded between the Plaintiff and Nantong Huateng International Freight Forwarding Co. Ltd. (hereinafter called ?°Nantong Huateng Co.?±); 4. The Agreement on Underwater Probing and Sealing between the Plaintiff and Guangzhou Maritime Rescue and Salvage Bureau; 5. The Confirmation between the Plaintiff and Yuyang Co.; 6. The invoice for the salvage award issued by Guangzhou Maritime Rescue and Salvage Bureau; 7. The copy of the Report on Probing of ?°Tong Tian Shun?± and Temporary Sealing of the Air Pipes and Sounding Tubes issued by Guangzhou Maritime Rescue and Salvage Bureau (hereinafter called ?°Report on Probing and Sealing?±); 8. The Agreement on Oil Extracting Operation between the Plaintiff and Donghai County Da Li Underwater Engineering Co. Ltd. (hereinafter referred to as ?°Da Li Co.?±); 9. The letter of Yuyang Co. to the Plaintiff confirming the Agreement on Oil Extracting Operation; 10. Explanation by Da Li Co. on Additional Payment for the Oil Extracting Operation on board ?°Tong Tian Shun?± to the Plaintiff; 11. The Agreement on clearance of pollutants for ?°Tong Tian Shun?± between the Plaintiff and Shantou Ocean Shipping Agency Service Company; 12. The Report on Claiming for the Expenses for Clearing the Spilled Oil issued by Shantou Ocean Shipping Agency Service Company, the expenses for clearing oil pollution, the list of calculation and the invoice for the cost of clearing oil pollution; 13. 25 copies of Statement of Losses sustained by the crew of ?°Tong Tian Shun?±; 14. 2 copies of the list of ship??s supplies and provisions; 15. 28 copies of the lists of ship??s spare parts, purchase invoices and purchase contracts; 16. 2 copies of invoices of lubricating oil; 17. 6 copies of lists of newly added fixed assets on board and the invoices; 18. One copy of oil replenishment invoice; 19. 2 copies of the debit notes for the services issued by Guangdong Maritime Engineering Consultation and Survey Company; 20. List of repatriating expenses for crew of M/V ?°Tong Tian Shun?±; 21. 3 tables of crew??s salaries and subsidies issued by the Plaintiff (from July to September); 22. One copy of the list of travel expenses for handling the accident and 1,036 copies of bills therefor; 23. 3 copies of special-purpose bills for the payment of port charges issued by Shangdong Province Lanshan Port Authority; 24. One copy of the receipt for port charges issued by MSA Rizhao; 25. One copy of the notice on pre-paid litigation fees for the preservation of maritime claim prior to proceedings; 26. Table of investigation of maritime accident for M/V ?°Tong Tian Shun?±.


After completing the explanation report on the evidences, the Plaintiff provided the following evidences: 1. Certificate of Vessel??s Nationality of M/V ?°Tong Tian Shun?±; 2. Ship Inspection Certificate Book of M/V ?°Tong Tian Shun?±; 3. Certificate of Lowest Safety Manning of M/V ?°Tong Tian Shun?±; 4. Copies of the Certificates of Competence of 10 crew members; 5. Certificate of Ship??s Engagement in Transportation (Provisional) for M/V ?°Tong Tian Shun?±; 6. Certificate of Registry of Ship??s Ownership for M/V ?°Tong Tian Shun?±; 7. Investigation Report on the Collision between ?°Tong Tian Shun?± and ?°Tian Shen?± issued by MSA Shantou (hereinafter referred to as ?°Investigation Report?±); 8. 14 copies of invoices of salvage charges.


The Defendant Yuyang Co. contended that: 1. The occurrence of this accident is resulted from M/V ?°Tong Tian Shun?± sailing in high speed and she did not maintain a proper lookout, did not sound the fog signal in line with the relevant regulations on sailing in fog and violated the regulations on prevention of collision, and did not exercise good seamanship. Without the radar plotting, M/V ?°Tong Tian Shun?± suddenly turned the course to port in close quarter blindly and at a large angle, so that a pressing situation was caused to M/V ?°Tian Shen?±. At the emergent situation, M/V ?°Tian Shen?±, in accordance with the relevant regulations on prevention of collision and by applying good seamanship, reasonably turned hard starboard. However, due to the pressing of time and the too close a distance, the two vessels collided with each other finally. As to the occurrence of the accident, M/V ?°Tong Tian Shun?± shall undertake 90% of the liabilities at least. 2. After the accident, M/V ?°Tong Tian Shun?± did not sustain serious damage and she could still be afloat on the water. However, due to the fault of the crew, M/V ?°Tong Tian Shun?± ran aground, aggravating the ingress of water. Finally, the vessel sunk. The facts reveal that the sinking of M/V ?°Tong Tian Shun?± and the loss arising therefrom were attributed to the cause that the crew members did not have good seamanship. The fault of the crew of M/V ?°Tong Tian Shun?± was the cause for the vessel??s running aground and also the proximate cause for the sinking of the vessel. Therefore, the sinking of M/V ?°Tong Tian Shun?± was not due to the ship collision but the fault of the crew members. The crew??s fault further enlarged the damage. The enlarged loss of M/V ?°Tong Tian Shun?± arising from the crew??s fault should be separated from the loss arising from the collision and should be undertaken by the Plaintiff itself. M/V ?°Tian Shen?± should only undertake the compensation liability for the loss directly arising from the collision on basis of proportion of blame. If the court holds that the compensation liability that should be undertaken by each party shall be calculated on basis of the proportion of blame and the loss arising from the collision, the court should take into consideration the factors such as the crew of M/V ?°Tong Tian Shun?± had no good seamanship, the vessel ran aground and sunk due to the crew??s fault and the loss has not been mitigated. Those factors should be taken as the basis for adjudicating that the Plaintiff should undertake most of the liabilities for the collision. 3. The spot that M/V ?°Tong Tian Shun?± collided with M/V ?°Tian Shen?± were all at hull plates of the cargo holds. After the collision and when M/V ?°Tong Tian Shun?± ran aground, no spillage of oil was found. The spillage of oil from M/V ?°Tong Tian Shun?± was attributed to the cause that the vessel listed to one side after running aground, and the crew was negligent in shutting off the fuel pipe system. Therefore, the alleged spillage of oil in this case was due to the negligence and fault of the crew of M/V ?°Tong Tian Shun?± and nothing to do with the collision liabilities. The Plaintiff should undertake the liabilities for the oil spillage by itself. Furthermore, the Plaintiff was not the holder of right with regard to the loss arising from the oil pollution in this case, and it has not actually suffered any loss. Therefore, it has no right to claim against Yuyang Co. for the oil pollution. 4. The evaluation report provided by the Plaintiff with regard to the ship??s value does not bear the legality, objectivity and relevance, which are the requirements for an evidence, and the conclusion of the evaluation is obviously not objective and not in line with the standard for general vessel??s evaluation. Therefore, it cannot be taken as the evidence for ascertaining the facts in this case. The Time Charter Party provided by the Plaintiff is not related to this case and cannot be taken as the basis for claiming for the loss of earrings. The sealing costs and anti-pollution expenses claimed by the Plaintiff were given rise by the fault of the crew of M/V ?°Tong Tian Shun?± and shall be undertaken by the Plaintiff itself. The Plaintiff??s claim for the loss of crew??s personal articles is not in line with the provisions of law. The loss shall be subject to the limit of RMB800 per person. The evidences with regard to the losses such as provisions claimed by the Plaintiff are not sufficient, and the amounts of loss claimed by the Plaintiff for other relevant expenses are obviously too high. Therefore, they should not be supported. 


Apart from submitting the defensive arguments same as the above of Yuyang Co., the Defendant Tian Shen Co. also contended that: before occurrence of the collision accident, Tian Shen Co. had already demise chartered M/V ?°Tian Shen?± to Yuyang Co.. When the collision accident took place, M/V ?°Tian Shen?± was still under demise charter. According to the provisions of the Demise Charter Party, Yuyang Co. should be responsible for addressing of the disputes arising in the course of the operation of the vessel. After the collision accident, Yuyang Co. actively kept in close contact with the Plaintiff and all relevant parties all the time and discussed with them how to deal with the problems arising from the accident, and provided the court with the security required by the court. The above facts reveal that the Plaintiff already had an implied admission that Tian Shen Co. was not necessary to be responsible for the loss arising from the collision accident and Tian Shen Co. was not a relevant party to the collision liability. The court is requested to reject the litigation requests filed by the Plaintiff against the Defendant Tian Shen Co.. 


The Defendant Yuyang Co. counterclaim that: on June 21, 2001, Yuyang Co. demise chartered M/V ?°Tian Shen?± to carry 165 containers from Hong Kong to Shanghai. While passing Shi Bei Shan Corner, at about 0635 hrs, M/V ?°Tian Shen?± collided with M/V ?°Tong Tian Shun?±. The collision accident was caused by the fault of M/V ?°Tong Tian Shun?±, therefore M/V ?°Tong Tian Shun?± should undertake 90% of the liabilities at least. After the collision accident, M/V ?°Tian Shen?± sustained serious damage, resulting in the losses sustained by Yuyang Co. such as the repair cost, ship inspection fee, ship agency fee, travel expense, hire and fuel consumption during the suspension of the voyage in total amount of RMB586,254.87 as well as the loss of RMB25,068 arising from the too high a security amount required by the Plaintiff. In addition, Yuyang Co. also prepaid the anti-pollution cost in sum of RMB100,000. The court is requested to order the Plaintiff to compensate Yuyang Co. for the above losses of RMB711,322.87 arising from the ship collision as well as interest counting from June 21, 2001 to the date of actual payment on basis of the loan interest rate announced by the People??s Bank of China during the same period and undertake the court fees in this case. 


The Defendants Yuyang Co. and Tian Shen Co. provided the following evidences before issuing the explanation report on the evidences: 1. 16 copies of the certificates of M/V ?°Tian Shen?± such as the Certificate of Registry of Ship??s Ownership and the Certificate of Vessel??s Nationality; 2. The Demise Charter Party and the certificate issued by Tian Shen Co.; 3. Copies of the Certificates of Competence of 8 crew members of M/V ?°Tian Shen?±; 4. Sea Protest of M/V ?°Tian Shen?±; 5. Sheet for Investigation of Maritime Accident to M/V ?°Tian Shen?±; 6. Copies of Ship Steering Chart, Log Book, Engine Room Log Book and Telegraph Log Book of M/V ?°Tian Shen?± on June 21, 2001; 7. Tide Table at Haimen Waters in 2001; 8. One copy of the Survey Report and 2 copies of statement of account for M/V ?°Tian Shen?± issued by China Classification Society; 9. One copy of the contract for undertaking repair and 3 copies of the repair invoice for M/V ?°Tian Shen?±; 10. 3 copies of the accounts for travel expense and the corresponding invoices; 11. 2 copies of statements of account issued by Shantou Ocean Shipping Agency and the corresponding invoices; 12. The time charter party concluded between Yuyang Co. and Dong Hang Shipping Co. Ltd., and the correspondences with Wei Hang Shipping Co. Ltd.; 13. Letter of Authorization issued by Yuyang Co. to MSA Shantou for clearing the oil pollution; 14. Certificate for the telegraphic transfer of the anti-pollution fee advanced by Yuyang Co.; 15. Evaluation report on the value of M/V ?°Tian Shen?± issued by China Classification Society and the invoice for the evaluation; 16. One copy for each of the certificate and payment receipt issued by CITIC Industrial Bank Yangzhou Branch. 


With regard to the counterclaim filed by the Defendant Yuyang Co., the Plaintiff contended that: the loss of hire claimed by Yuyang Co. has no factual and legal basis. The allegation of the Defendant that loss arising from the too high a security required by the Plaintiff has no factual and legal basis either. The court is requested to reject the litigation requests of the Defendant Yuyang Co. against the Plaintiff. 


At the application of the Defendant Yuyang Co., this court collected the following evidences from MSA Shantou: 1. Sea protest and maritime accident report respectively for M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?±; 2. Copies of Log Book, Engine Room Log Book, Telegraph Records of the day and Sea Chart used on the day when the collision between M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?± took place; 3. Written record of inquiries to the master and some crew members of M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?±; 4. Report on Probing and Sealing; 5. Technical plan for oil extraction from the Sunken M/V ?°Tong Tian Shun?±, Oil-extration on-site record report and the accomplishment report; 6. The certificate issued by the external service department of Shantou Port Material Supplies Company; 7. Report on Claiming for the Costs of Oil Pollution Cleaning for M/V ?°Tong Tian Shun?± issued by Shantou Ocean Shipping agency Service Company, the list of calculation of pollution costs; 8. Certificate of telegraphic transfer of the anti-pollution cost advanced by Yuyang Co.; 9. Hand written record of investigation of this court to the chief of the risk control and pollution prevention department of MSA Shantou. 


The Plaintiff and the Defendants Yuyang Co. and Tian Shen Co. had no objection to the following facts. The collegiate bench confirmed acceptance of them: 


The owner of M/V ?°Tong Tian Shun?± was the Plaintiff. The port of registry was Nantong, Jiangsu. The vessel was a steel bulk carrier with 133.9 meters in length, 18 meters in breadth, 9.1 meters in depth. Her gross tonnage was 6,633 and net tonnage was 3,339. The main engine was internal combustion engine with the capacity of 4,027kw. The vessel was built by the Spanish shipyard, i.e. ASTILLEROS. DE. T. RU, on November 1, 1975. On the voyage involved in the accident, the vessel was fully manned with licensed crew members as per the requirement of lowest safety manning. The certificates of competence of the crew were all within the period of validity. The ship??s certificate of seaworthiness was valid until February 28, 2002. The owner of M/V ?°Tian Shen?± was the Defendant Tian Shen Co., the port of registry was Tianjin. She was a steel container vessel, 109.6 meters in length, 18 meters in breadth, 8.3 meters in depth. Her gross tonnage was 4,388 and net tonnage was 2,337. The main engine was internal combustion engine with the capacity of 4,310kw. The vessel was fully manned with licensed crew members as per the requirement of lowest safety manning. The certificates of competence of the crew were all within the period of validity. The ship??s certificate of seaworthiness was valid until March 16, 2004. The vessel acquired the Certificate of Compliance issued by China Classification Society on May 6, 1999 and the Certificate of Safety Management issued by China Maritime Safety Administration on October 27, 2001. The demise charterer of the vessel was the Defendant Yuyang Co., but the demise charter did not go through the registration formalities at the ship registration authority. 


On June 16, 2001, M/V ?°Tong Tian Shun v.13?± carried 7,390 tons of plaster stone from Lanshan port, Shandong to Sanya port, Hainan. At 0500 hrs on June 21, the vessel sailed to the waters adjacent to Shi Bei Shan, and the ship GPS position was 22003??.0N/116048??.5E. The compass course was 2400 and the ship speed was 10.3 knots. At 0600 hrs, the visibility began to worsen and the range of visibility was about 1,000 meters. The chief officer on duty ordered the engine room to get the engine ready, but did not ask the master to go to the bridge to give command. At that moment, the ship GPS position was 22058??.0N/116039??.1E, and the compass course was 2430. The ship speed remained unchanged. The radar of M/V ?°Tong Tian Shun?± did not have the ARPA function, but it could display the trail of the object under observation. At that moment, the radar??s range of measurement was 6 nautical miles in off-centered display. At 0615-0620 hrs, the radar detected that the approacing vessel, i.e. M/V ?°Tian Shen?±, was about 70 to the starboard of this vessel and in a distance of 6-7 nautical miles. It was observed that M/V ?°Tian Shen?± was sailing on the course nearly contrary to this vessel and at a faster speed. M/V ?°Tong Tian Shun?± continued the voyage at the same speed and course. According to the chief officer of M/V ?°Tong Tian Shun?±, there were many fishing boats nearby, which has influenced his decision of turning the course. When the distance between the two vessels was nearly 0.4 nautical mile, the chief officer found that the distance of approach between the two vessels became shorter. He immediately ordered hard port, without reducing speed. At about 0635 hrs, the starboard side of Hold No.2 of M/V ?°Tong Tian Shun?± for the first time contacted the portside bow of ?°Tian Shen?± where the name of M/V ?°Tian Shen?± was located. Then the starboard stern of ?°Tong Tian Shun?± contacted with the port midship of M/V ?°Tian Shen?± for the second time. At the time of first contact, M/V ?°Tong Tian Shun?± was on the course of about 1800 and the helm angle hard port, angle of blow was about 150. Not until the moment of collision did the chief officer ordered to stop engine. 


After the collision, the master of M/V ?°Tong Tian Shun?± went to the bridge. After examination, it was found that Cargo Hold No.2, Topside Tank No.2 and the double-bottom ballast tank No.4 had serious ingress of water. The master alleged that the vessel listed to starboard at a fast speed and estimated that there would be the danger of capsizing, so he decided to get the ship stranded. During the course of stranding, M/V ?°Tong Tian Shun?± ran aground at 22056??.62N/116030??.98E. As the vessel continued to go down after striking the rocks, the master declared to abandon the vessel at 0729 hrs. The crew left the vessel and boarded on two lifeboats. After two hours of guarding around the vessel, the crew were all rescued by the fishing boats in the vicinity. 


On June 20, 2001, M/V ?°Tian Shen v. 44?± carried 1,230.20 tons cargo in total of 165 containers from Hong Kong to Shanghai. At 0500 hrs on June 21, M/V ?°Tian Shen?± sailed to the waters close to Shi Bei Shan. The ship position then was 22048??.3N/116011??.5E, the compass course was 710, and the ship speed was about 13.5 knots. At that moment, the visibility began to worsen and the range of visibility was about 1-2 nautical miles. The chief officer on duty ordered the engine room to get the engine ready for sailing, and the master was asked to go to the bridge to give command. The main engine continued to use heavy fuel oil. According to the chief officer, he had carried out three experiments after he took up the post of chief engineer. He holds that it is still practicable to get the engine ready without using diesel oil. The master and the deck officer also approved and were used to such operation. At 0608 hrs, the GPS position of M/V ?°Tian Shen?± was at 22053??.3/116027??.3, with the course and the speed remaining unchanged. The radar of M/V ?°Tian Shen?± did not have the ARPA function either, but it could display the trail of the object under observation. At that moment, the radar??s range of measurement was 6 nautical miles and 12 nautical miles alternatively, in centered-off display. At 0615 hrs, the radar of M/V ?°Tian Shen?± detected that the coming up vessel ?°Tong Tian Shun?± was about 50 to her port side in a distance of about 7.8 nautical miles. It was observed that the bearing of the coming up vessel basically remained unchanged, and the transverse distance of approach was about 0.2 nautical mile. M/V ?°Tian Shen?± continued to sail at the same speed and course. According to the master, there were quite a lot of fishing boats around, which has affected his decision on not turning course at an early stage. At about 0633-0634 hrs, when the distance between the two vessels was about 0.4 nautical mile, M/V ?°Tian Shen?± found that M/V ?°Tong Tian Shun?± turned her course to port at a large angle. He immediately steered hard starboard and in the meantime ordered to stop engine and full astern. At 0635 hrs when M/V ?°Tian Shen?± collided with M/V ?°Tong Tian Shun?±, the helm angle of M/V ?°Tian Shen?± was hard starboard and the vessel was on a course of about 1100. The engine was already operating astern, but its rotating speed was not up to the full. When the collision between the two vessels took place, the state of the sea was: southeast wind in scale 3-4, dense fog, with the visibility about 1,000 meters. The place of collision was at about 22055??.0N/116033??.8E.


During the course of the litigation, MSA Shantou issued the Investigation Report with regard to the collision accident on September 14, 2001 after they conducted an investigation. The investigation report has determined the facts basically the same as those ascertained by the collegiate bench as mentioned above. In analyzing the cause of the accident and the relevant responsibilities, the report holds that M/V ?°Tong Tian Shun?± has committed the following faults: 1. In the circumstance that the visibility was restricted, the vessel was negligent in not sending a lookout to keep proper lookout. After seeing M/V ?°Tian Shen?±, the vessel was not conscious of the danger of collision between the two vessels, but blindly kept on sailing on the same course and at the same speed. Measures were not taken until there was only 0.4 nautical mile between the two vessels. 2. The vessel did not sail at the safe speed. She sailed at full speed in the circumstance that the visibility was not good and there were many fishing boats around. At the time of collision, her speed was still full ahead, thus Article 6 concerning safety speed of the International Regulations for Preventing Collisions at Sea, 1972 has been violated. 3. The measures of avoiding collision were taken improperly. The vessel did not take the measure of avoiding collision in time, but turned the helm to port at large angle to avoid the coming vessel at a close distance. Therefore, Article 19 of the International Regulations for Preventing Collisions at Sea, 1972 regarding the conduct of vessels in restricted visibility has been violated. M/V ?°Tian Shen?± has committed the following faults: 1. The vessel was negligent in keeping proper lookout under restricted visibility. After having the judgement on the trail of the radar echo that the transverse distance of approach between the coming vessel and this vessel was about 0.2 nautical mile, the master did not pay full attention in this regard, but let the vessel keep on the same course and at the same speed. He made no response until he found that the coming vessel turned her course to port side at a large angle. It means that he was inactive to take the action of avoiding the collision. 2. The vessel was not sailing at a safe speed. In the navigational environment that the visibility was restricted and there were many fishing boats around, the vessel still kept on sailing at full speed. Furthermore, the engine was not standby. The main engine was still using heavy fuel oil, which was detrimental to the operation of the machine. Finally, the vessel could not be brought to a halt even by stopping the engine and steering astern, therefore Article 6 and Article 19 of International Regulations for Preventing Collisions at Sea, 1972 regarding safe speed have been violated. 3. Measures to avoid the collision were taken improperly. The vessel did not take the measures of turning the course to avoid collision at an early stage. After finding that M/V ?°Tong Tian Shun?± turned her course to port at a large angle, M/V ?°Tian Shen?± turned the course to starboard so that the dangerous situation was unavoidable. To sum up, the cause of the collision accident was due to their low guard and negligent lookout of the two parties. The two parties failed to fully estimate the risk of collision, did not sail at a safe speed and did not take the measures of avoiding collision properly. The degree of faults committed by both parties are equal, therefore the blame proportion for each party is 50%. The Plaintiff and the Defendants have no objection to the facts ascertained in the investigation report, but the two Defendants hold that the report is wrongful in ascertaining that M/V ?°Tian Shen?± has not conducted radar plotting and has not got the engine standby. The cause of accident so determined is not consistent with the conclusion. The liability for fault that should be undertaken by M/V ?°Tian Shen?± has been obviously aggravated. It has been found  that when the master and the chief officer of M/V ?°Tian Shen?± was investigated by MSA Shantou, they both indicated that they judged the course and speed of the coming vessel according to the trail of the radar echo of the vessel. 


At the entrustment of the Plaintiff, Guangzhou Maritime Rescue and Salvage Bureau conducted probing of the sunken M/V ?°Tong Tian Shun?± and temporary sealing of the vessel??s air pipes and sounding tubes, and issued the Report on Sounding and Sealing on June 30, 2001. It was stated in the report that: M/V ?°Tong Tian Shun?± sustained damages as follows: at the bottom of the portside engine room, there was a crack of 0.8 meter long and about 3cm wide; at the central and forward part of Hold No.2 there was a crack of 2.3-2.5 meters long and about 3-10cm wide. The frogmen judged that the said two cracks were caused after the vessel ran aground. At a point in the port bow, which was about 3 meters backward from the starting point of the bilge keel, the hull plate of the vessel was dented, but no breakage was found. At the central and forward part starboard side of Hold No.2, there was a crack of 6-6.5 meters. The edge of the crack was relatively regular, and the hull plate of the crack was dented inward for about 40cm. The breach was about 10cm in width at both ends and the largest width in the middle was about 46cm. In the ascending direction, the crack was about 3 meters above the bilge keel. There was some plaster stone leaking from the crack. Guangzhou Maritime Rescue and Salvage Bureau carried out an examination on the vessel and conducted temporary sealing of the air pipes and sounding tubes of the oil tanks. 5 watertight doors of the engine room were closed and 11 lines of pipes were sealed off temporarily. At the entrustment of Guangdong Yong Hang Law Firm, Guangdong Maritime Engineering Consultation and Survey Company conducted an inspection on the cause, degree and extent of the damage, and issued the Inspection Report on July 11, 2001. The report holds that the damages sustained by M/V ?°Tong Tian Shun?± as stated in the said Report on Probing and Sealing by Guangzhou Maritime Rescue and Salvage Bureau and the crack at the central and forward part on starboard side can be reasonably attributable to collision accident as alleged by the master. The damages in other parts can be reasonably attributable to the stranding after the collision as alleged by the master. It is estimated that for the salvage and repair of M/V ?°Tong Tian Shun?±, the salvage would cost about RMB6,000,000, the temporary repair and towage service would cost about RMB1,000,000, and the repair would cost about 4,300,000. According to the Budget Report (Draft) attached in the Inspection Report on the Costs for Salvaging the Sunken Vessel ?°Tong Tian Shun?± a whole object produced by Da Li Co., the total cost for salvaging M/V ?°Tong Tian Shun?± is estimated to be about RMB7,000,000. 


At the application of the Defendant Yuyang Co., China Classification Society carried out on June 22, 2001 an inspection on the damage to M/V ?°Tian Shen?± after the collision at Shantou port, and issued the Inspection Report on June 26. The report stated that there were many dents on the hull of the vessel ?°Tian Shen?± or hull plates deformed, corrugated, cracked; the fender rails and air pipes were broken; the paint peeled off. Such damages could be reasonably attributable to the collision accident. According to the damages sustained by the vessel, and by reference to the Tariff for Repairing Domestic Vessels in Civil Use and taking the actual situation of Shantou district into consideration, it was estimated that the permanent repair would cost about RMB160,000. 


It was otherwise found that before the filing of the claim, the Plaintiff lodged an application for maritime preservation prior to proceedings. This court detained M/V ?°Tian Shen?± on June 24, 2001 according to law. After the Defendant Yuyang Co. provided a security of RMB8,000,000, this court lifted the arrest of M/V ?°Tian Shen?± on June 26. The Plaintiff prepaid the application fee of RMB5,000 and the execution fee of RMB20,000 to this court for the maritime preservation. During the course of litigation, at the application of the Defendant Yuyang Co., this court collected the relevant evidences from MSA Shantou. Yuyang Co. paid the investigation and evidence collection fees in sum of RMB3,000 to this court. In addition, with respect to the oil pollution caused by the sinking of M/V ?°Tong Tian Shun?±, the relevant parties has filed an separate action to this court, and the action has been accepted by this court. 


The losses claimed by the Plaintiff have been ascertained as follows: 


Regarding the loss in the value of M/V ?°Tong Tian Shun?±


At the entrustment of Guangdong Yong Hang Law Firm, Guangdong Maritime Engineering Consultation and Survey Company issued an Evaluation Report on the value of M/V ?°Tong Tian Shun?± on July 18, 2001. The report states that as M/V ?°Tong Tian Shun?± has sunken at the waters off Shantou, the examination could not be carried out on board. The ship surveyor of Guangdong Maritime Engineering Consultation and Survey Company has examined the relevant materials and certificates of the vessel, referred to the ship price quotations in the market, and taken the following factors into consideration: 1. The vessel possesses the effective certificates issued by the Register of Shipping of the PRC and has been in normal operation; 2. The value of the said vessel when scrapped and dismantled is about RMB4,000,000; 3. The vessel was built in 1975. According to the Provisions on Management of Old and Outdated Vessels promulgated by the Ministry of Communications, the age of compulsory scrapping of the said vessel is 33 years; 4. The owner said that the vessel had renewed or additionally installed two diesel engines, intermediate shaft, stern bearing, radar and DSC equipment in the value of about RMB750,000. The vessel was examined and repaired at Qinhuangdao Shanhaiguan Shipyard in November, 2001 and the repair cost was about RMB1,600,000. It is estimated that the market price of the vessel before June 21, 2001, i.e. the date of the accident, is about RMB8,000,000. The Evaluation Report is affixed with the chop of Guangdong Maritime Engineering Consultation and Survey Company and there is not the signature of the surveyor on it. In light of the report, the Plaintiff alleged that the loss of the value of the said vessel was in the amount of RMB8,000,000. The two defendants hold that the evaluation report does not have the three essential factors as an evidence, i.e. legality, objectivity and relativity, therefore it shall not be adopted. The reasons are as follows: 1. Guangdong Maritime Engineering Consultation and Survey Company is not an institution of evaluating ships authorized by the state nor an organ with the professional qualification in this field, therefore it has no qualification to evaluate the vessel. 2. The surveyor has not carried out the inspection on site by himself, thus the process of the evaluation is illegal. 3. The evaluation report does not have the signature of the ship surveyor. 4. The party who entrust the evaluation is Guangdong Yong Hang Law Firm, which do not have any interests with the accident in this case, therefore it has no right to entrust the relevant organ of evaluation to evaluate the vessel. 5. On the basis of calculating the value of the scrapped steel vessel to be RMB4,000,000, the evaluation report asserts without foundation that the value of the vessel is as high as RMB8,000,000, which is obviously not objective. The report is also not objective in taking the costs for ship renewals and supplement of equipments and the repair cost as the basis for estimating the value of the vessel, and it is not objective and in line with the standard for evaluating general ships. According to the Business License for the Legal Person of the Enterprise of Guangdong Maritime Engineering Consultation and Survey Company provided by the Plaintiff, the business scope of the company is engagement in technical inspection of ships, offshore facilities and onshore engineering, notarial survey for damages, consultation, claims arising from maritime accidents and non-maritime accidents, claim adjustment and claim recovery. However, Guangdong Maritime Engineering Consultation and Survey Company has not the professional qualification certificate for evaluation of ship??s value issued by the relevant authority of the state. Furthermore, according to the certificate of registry of ship??s ownership for M/V ?°Tong Tian Shun?± provided by the Plaintiff, the date when the Plaintiff acquired the ownership of the vessel was December 22, 1997 and the vessel??s value was RMB6,800,000. The collegiate bench holds that under the circumstance that Guangdong Maritime Engineering Consultation and Survey Company has neither boarded on the vessel to carry out an examination nor verified the relevant facts and the relevant expenses for the renewal or supplement of the equipment, regular examination and repair of the vessel have been taken as the factors in estimating the value of M/V ?°Tong Tian Shun?±, so that the conclusion of the evaluation is lack of sufficient basis. Therefore, under the circumstance that the two defendants refuse to confirm such expenses, the evaluation conclusion reached by Guangdong Maritime Engineering Consultation and Survey Company for the value of M/V ?°Tong Tian Shun?± will not be adopted. Under the circumstance that the market price of M/V ?°Tong Tian Shun?± and other similar vessels at that place of collision or at the port of registry at the time when the collision took place, according to Article 8 of the Regulations on Adjudication of Compensation for Property Damages Related to Vessel??s Collision and Contact Cases, the loss of the value of M/V ?°Tong Tian Shun?± can be calculated on basis of the building price or purchasing price of the original vessel after deducting the depreciation (the rate of depreciation is at about 4-10% per year). The certificate of registry of ownership of M/V ?°Tong Tian Shun?± states that the time when the Plaintiff acquired the right of ownership of the vessel on December 22, 1997 the vessel??s value is RMB6,800,000. Under the circumstance that the Plaintiff and the two defendants have not provided the building price or purchasing price of M/V ?°Tong Tian Shun?±, it can be ascertained that when the Plaintiff acquired the ownership of M/V ?°Tong Tian Shun?± on December 22, 1997, the value of the vessel was RMB6,800,000. To calculate on basis of depreciation rate of 7% per year, the loss of the value of M/V ?°Tong Tian Shun?± on June 21, 2001 when the vessel sank after collision should amount to RMB5,134,000.


II. The loss of earnings of M/V ?°Tong Tian Shun?±


According to the Charter Party provided by the Plaintiff, which the Plaintiff alleged that it was concluded with Nantong Huateng Co. on June 8, 2001, Nantong Huateng Co. chartered M/V ?°Tong Tian Shun?± from the Plaintiff for a period of six months. Nantong Huateng Co. might choose to continue the charter. The date of returning the vessel was temporarily arranged to be the first ten days of July, 2001. The specific time of delivery would be taken as the date of formal handover. The hire was RMB540,000 each month, or prorata if less than one day. The Plaintiff should supply food and pay salaries to the master, crew and sailors, and supply necessary articles to the deck and engine room, supply and pay for all the lubricating oil, pay the insurance premium and other expenses such as docking, repair and maintenance. On the ground of the two-month hire as stipulated in the contract, the Plaintiff claimed for the loss of earnings of M/V ?°Tong Tian Shun?± in amount of RMB1,080,000. The two defendants hold that they are doubtful of the truthfulness of the charter party and believe that the contract has not be performed, therefore it has nothing to do with this case. According to Article 10 of the Regulations on Adjudication of Compensation for Property Damage Related to Ship Collision and Contact Cases of the Supreme People??s Court, the highest claim amount of the loss of earnings is two-month net profit of the vessel. However, in this case, the Plaintiff time chartered M/V ?°Tong Tian Shun?± to Ningbo Qinning Shipping Agency Co. Ltd. at the hire of RMB450,000 each month. Therefore, the loss of earnings of M/V ?°Tong Tian Shun?± should be calculated on basis of the hire RMB450,000/month, deducting the necessary expenses such as the crew??s salaries, ship??s provisions, lubricating oil, ship??s insurance premium, depreciation fee and the operation expenses of the company etc.. According to the market situation at the material time, the net profit generally would not exceed 10% of the hire, that is, the Plaintiff could only claim for the loss of earnings in amount of RMB90,000. Upon examination, the Time Charter Party between the Plaintiff and Ningbo Qinning Shipping Agency Co. Ltd. provides that the lease term is one month and the hire is RMB450,000/month. Other clauses on rights and obligations are the same as that in the Time Charter Party concluded between the Plaintiff and Nantong Huateng Co.. The collegiate bench holds that: according to Article 10 of the Regulations on the Adjudication of Compensation for Property Damage Related to Ship Collision and Contact Cases of the Supreme People??s Court, if a vessel sustains total loss, the calculation of loss of earnings shall be for two months at most. Generally speaking, it shall be calculated on basis of the average net profit of two voyages before and two voyages after the collision accident. If these are not two voyages before and after the collision for reference, it shall be calculated according to the average net profit of other corresponding voyages. The Time Charter Party concluded between the Plaintiff and Nantong Huateng Co. has not been actually performed due to the sinking of M/V ?°Tong Tian Shun?±. Under the circumstance that the two defendants raised dissension from the authenticity of the charter party, the net profit of M/V ?°Tong Tian Shun?± can be calculated on basis of the hire of the time charter voyage at issue to which the Plaintiff and the two defendants had no objection, that is, RMB450,000/month as stipulated in the Time Charter Party concluded between the Plaintiff and Ningbo Qinning Shipping Agency Co. Ltd.. As the Plaintiff and the two defendants have not provided the relevant evidences for the costs that should be incurred by M/V ?°Tong Tian Shun?± during the time charter period, the net profit of the vessel cannot be calculated exactly. Under the circumstance that the plaintiff has not provided other contrary evidences, according to the general net profits of the vessels similar to M/V ?°Tong Tian Shun?± in the Chinese time charter market, the monthly net profit of M/V ?°Tong Tian Shun?± can be ascertained to be 10% of the monthly hire. The loss of earnings shall be calculated for two months, that is, RMB90,000.


III. Expenses on Underwater Probing and Sealing


On June 25, 2001, the Plaintiff concluded the Agreement on Underwater Probing and Sealing with Guangzhou Maritime Rescue and Salvage Bureau. Guangzhou Maritime Rescue and Salvage Bureau was entrusted to clear the oil pollutant floating around the vessel and to probe and to carry out temporary sealing of air pipes and sounding pipes on deck. The cost of the operation was about RMB290,000. On the same day, the Defendant Yuyang Co. and the Plaintiff signed a Confirmation to confirm that they had participated in the process of negotiating the said Agreement on Underwater Probing and Sealing and agreed with the Agreement. Guangzhou Maritime Rescue and Salvage Bureau performed the agreement. The Plaintiff paid Guangzhou Maritime Rescue and Salvage Bureau the costs of probing and sealing in amount of RMB290,000, and obtained the invoice issued by Guangzhou Maritime Rescue and Salvage Bureau. The two defendants had no objection to the expenses paid by the Plaintiff, thus it has been confirmed by the collegiate bench. 


IV. Cost for Clearing the Pollution


The Plaintiff concluded the Agreement on Clearing the Pollution for M/V ?°Tong Tian Shun?± with Shantou Ocean Shipping Agency Service Company on July 6, 2001. Shantou Ocean Shipping Agency Service Company was entrusted to clear the oil pollution around the place where M/V ?°Tong Tian Shun?± sank. The Agreement also provided for the specific items and standard for calculating the anti-pollution cost. After Shantou Ocean Shipping Agency Service Company completed the anti-pollution operation, it requested the Plaintiff to pay for the expenses such as anti-pollution cost in amount of RMB154,927.57 and the anti-pollution management fee of RMB15,492.76 which are to be collected on behalf of the competent maritime administrative department. The Plaintiff alleged that it had paid for the said expenses such as the anti-pollution cost in total amount of RMB170,420.33. However, it only provided the invoice for the anti-pollution management fee in the amount of RMB154,927.57. The two defendants had no objection to the above facts and evidences. However, they held that the said anti-pollution cost was too high. The collegiate bench holds that as the Plaintiff has not provided the evidence for the payment of the anti-pollution management fee, the anti-pollution fee shall be ascertained as RMB154,927.57. The Defendant contended that the said anti-pollution fee paid by the Plaintiff was too high, however it has not provided any supporting evidence. Therefore, its allegation will not be supported. 


V. Cost for Oil Extraction


On July 5, 2001, the Plaintiff signed an agreement with Da Li Co., entrusting Da Li Co. to extract oil from the sunken M/V ?°Tong Tian Shun?± and the charge for the oil extraction was RMB1,154,800. The Defendant Yuyang Co. addressed a letter to the Plaintiff to indicate that it had no objection to the clauses of the said agreement and to the cost of oil extraction in sum of RMB1,154,800. However, it reserves the right of further verification. The specific oil-extracting operation was carried out by Unit 92213 of the People??s Liberation Army. The Unit commenced the operation on July 8 and completed the oil extracting operation on July 24. A total of 130 tons of useless oil was extracted out. During the period of operation, Da Li Co. sent a letter to the Plaintiff. In the letter, it requested for an additional charge for the oil extracting in amount of RMB150,000 on the ground that unexpected difficulties were encountered in the operation due to the influence of typhoon, the vessel seriously listed and capsized and was seriously damaged on her starboard side, there was great difficulties in the sealing of opening of the oil tank and a large volume of auxiliary measures such as underwater electric cutting and removing ores underwater needed to be taken. It was confirmed by the Plaintiff with a seal on the letter. The Plaintiff received the invoice for the oil-extracting charge issued by Da Li Co. in the amount of RMB1,304,800. The two defendants had no objection to the above facts. However, they held that Da Li Co. had no right to charge for the oil-extracting charge as it was not qualified to carry out such operation. Furthermore, it was not in line with the provisions of the agreement for Da Li Co. to additionally charge for the cost of oil extracting in RMB150,000. The collegiate bench holds that the two defendants have not provided the relevant evidences in respect of the professional qualification necessary for oil extracting operation in this case. Da Li Co. has performed the obligation of extracting the oil according to the contract, therefore it has the right to request for the payment of the oil extracting charges. Although there is no evidence showing that the requirement of Da Li Co. for the additional oil extracting charge of RMB150,000 has been agreed by the two defendants in advance. However, the cost has been paid by the Plaintiff. In the circumstance that the two defendants had no sufficient evidences proving that it was unnecessary for the Plaintiff to pay for the cost, the additional charge for the oil extracting shall be supported. Therefore, the fact that the plaintiff has paid for the oil extracting charge of RMB1,304,800 has been confirmed. 


VI. loss of personal articles suffered by the crew of M/V ?°Tong Tian Shun?±


The Plaintiff has provided the breakdown of losses sustained by 23 crewmembers of M/V ?°Tong Tian Shun?± to prove that the loss of personal articles sustained by the said crewmembers amounted to RMB148,440 in total. Besides the articles for daily use, the crew??s articles stated in the said breakdown of losses also include cash and valuables such as gold and silver. The two defendants had no objection to the truthfulness of the loss of personal articles stated in the breakdown of loss. They held that according to the Regulations of the Supreme People??s Court on Adjudication of Ship Collision and Contact Cases Related to Compensation for Property Damages and Regulations on Handling of Marine Traffic Accidents of Guangdong Province, the losses of the valuable articles possessed by the crew such as currencies, gold and silver shall not be supported. The limit of the compensation for the loss of crew??s personal articles shall be ascertained on the basis of RMB800/person. The collegiate bench holds that according to items (7) and (8) of Article 9 of the Regulations of the Supreme People??s Court on Adjudication of Ship Collision and Contact Cases Related to Compensation for Property Damages, the loss of crew??s personal articles for daily use shall be compensated according to the actual amount of loss. The loss of currencies, gold and silver, jewelry, securities or other articles of value shall not be supported. The breakdown of losses provided by the Plaintiff in respect of the crew??s articles describes the items of the lost articles and the amount of loss, but there are not supportive evidences. Furthermore, the articles of value so lost such as the currencies, gold and silver shall not be ascertained according to law. In the circumstance that the actual loss of crew??s personal articles could not be ascertained, the loss of crew??s personal articles for daily use may be calculated on basis of RMB800/person according to the Regulations on Handling of Marine Traffic Accident of Guangdong Province. The loss of personal articles for daily use sustained by the 23 crewmembers of M/V ?°Tong Tian Shun?± would be in amount of RMB18,400 in total. 


VII. Loss of Stores


The alleged loss of stores claimed by the Plaintiff, i.e. RMB14,511.30, means the amount stated in the notes listed in the List of the Lost Ship Documents and lost with the vessel on purchasing stores, crew??s travel expenses and borrowed money. The two defendants held that the items stated in the List were not the loss of the stores itself and there were not the corresponding notes for verification, therefore they should not be approved. The collegiate bench holds that the Plaintiff has not provided evidences to prove that the said documents had actually lost together with the sinking of the vessel, and the loss of the notes on the relevant stores, crew??s travel expenses and debts of borrowed money could not support the loss of stores and expenses stated therein. Therefore, the alleged loss of stores claimed by the Plaintiff will not be supported. 


VIII. Loss of Spare Parts


According to the List of Accessories and Spare Parts Belonging to Ship, the loss of spare parts claimed by the Plaintiff includes the facilities and spare parts such as the fittings of the main engine, piston ring, paint, stern bearing, water pump of air conditioner, etc. purchased from Jan. 19, 1999 to May 29, 2001. Attached with the List are the invoices for the Plaintiff??s purchasing the said facilities and articles. The expenses stated in some of the invoices are the costs for repair and maintenance, renewal of fittings, paint for ship repairing, and renewal of stern bearing etc.. Some others state that there are also the expenses on repair of facilities and articles, inspection, transportation etc.. The amounts stated in the above invoices are in total of RMB465,120.13. The two defendants held that the Plaintiff did not provide evidence to prove that the said spare parts and articles were all used by M/V ?°Tong Tian Shun?±, some invoices stated that they were the expenses for replacement, repair and maintenance, and some others stated that the expenses included the travel expenses, labor cost etc.. Such expenses were not for spare parts. The invoices provided by the Plaintiff were for the purchasing of spare parts since 1999. M/V ?°Tong Tian Shun?± had a major repair in November, 2000, but the Plaintiff had not provided sufficient evidence to prove that the relevant spare parts had not been used all the while. Some facilities in the list of spare parts, such as the fittings of the Main Engine VTR500, were not related to M/V ?°Tong Tian Shun?±. Some facilities such as television and air conditioning water pump were the machinery equipment, which had been included in the ship??s value, therefore, such loss should not be claimed separately. The collegiate bench holds that the Plaintiff has not provided evidence to prove that the facilities and articles listed in the said List of Ship??s Spare Parts are all used as the spare parts of M/V ?°Tong Tian Shun?±, and there are not sufficient evidences to prove that they have been used before the collision. In addition, the expenses on some spare parts stated in the List are actually for replacement, repair and maintenance, which should have been included in the value of the vessel. Therefore, the said List of Ship??s Spare Parts provided by the Plaintiff and invoices attached thereto are not sufficient to prove the loss of the spare parts of M/V ?°Tong Tian Shun?± sustained by the Plaintiff. Therefore, this item of claim will not be supported. 


IX. Loss of Newly Added Fixed Assets


The Plaintiff has provided the invoices for purchasing the facilities, such as anchors, two-way mobile phones, booster shells of Main Engine VTR500, bearings etc., to prove that the newly added fixed assets of M/V ?°Tong Tian Shun?± were in value of RMB116,324. The two defendants held that the said facilities were machinery equipment, which should be included in the ship??s value. The collegiate bench holds that the said facilities should be the fixed assets of the ship itself, and its value should be included in the ship??s value. Therefore, such item of claim will not be supported. 


X. Loss of Lubricating Oil


To support the loss of lubricating oil, the Plaintiff has provided the invoices for the purchase of lubricating oil on May 17, June 16, 2001. The two invoices were issued by Yonghui Lubricating Oil Co. Ltd. of Qingdao Economic Technology Development District, which states that the total amount of purchasing lubricating oil was RMB67,088.40. The two defendants held that M/V ?°Tong Tian Shun?± commenced the voyage at issue from Lanshan port, Shandong. However, the said invoices stated that the lubricating oil was purchased at Qingdao, Shandong. The fact of the Plaintiff??s purchasing lubricating oil was doubtful. In addition, the lubricating oil would be consumed from time to time during the course of ship??s operation, therefore the amount should be discounted. The collegiate bench holds that the said invoice can only prove that the Plaintiff has purchased the lubricating oil but cannot prove that the said lubricating oil has been provided to M/V ?°Tong Tian Shun?± and the remaining quantity of the lubricating oil when the vessel sunk. In the circumstance that the Plaintiff could not provide sufficient supportive evidences, this item of claim will not be supported. 


XI. Loss of bunkers


The Plaintiff has provided a copy of the invoice related to the fact that the purchaser purchased bunkers from Ningbo Qinning Shipping Agency Co. Ltd., which is the basis for its claim for the loss of bunkers in RMB262,269.40. The two defendants held that the Plaintiff had no right of claim to this item of loss. The collegiate bench holds that the said bunkers were purchased by Ningbo Qinning Shipping Agency Co. Ltd. during the period of time charter of M/V ?°Tong Tian Shun?±. Ningbo Qinning Shipping Agency Co. Ltd. has filed a claim for such loss against the Plaintiff and the two defendants in another case, therefore such loss is not within the judicial scope of this case. This court will deal with it in another case. 


XII. Expenses on Ship Survey and Evaluation


The Plaintiff has provided the Debit Note for Providing Service in respect of ship survey fee and evaluation fee issued by Guangdong Maritime Engineering Consultation and Survey Company, and respectively claimed for the ship survey fee of RMB9,200 and the evaluation fee of RMB3,380, that is RMB12,580 in total. The two defendants held that the Plaintiff had not provided any certification for payment and invoices to support its payment of the said expenses, therefore it could not be proved that the Plaintiff had paid for the above expenses. Furthermore, such expenses had to be incurred by the Plaintiff for adducing evidences. Therefore, it should be undertaken by the Plaintiff for its own account. The collegiate bench holds that the Plaintiff has provided the Survey Report and Evaluation Report issued by Guangdong Maritime Engineering Consultation and Survey Company. Although the Plaintiff has not provided the certification for the actual payment of such expense, it should be deemed that such expenses have been actually incurred. The amount of RMB12,580, which is the expense on ship survey and evaluation, is the necessary expense paid by the Plaintiff for finding out and ascertaining the loss after the ship collision. Therefore, it shall be supported. 


XIII. Loss in Respect of Crew??s Repatriating Fee and the Severance Pay 


The Plaintiff claimed for the repatriating fee for the 23 crewmembers of M/V ?°Tong Tian Shun?± at RMB1,000/person, and provided the list of the crewmembers to whom the repatriating fee had been paid, which does not bear the signatures of the crewmembers. The two defendants had no objection to the amount of the repatriating fee, but held that the list had not the signatures of the crewmembers, so it could not prove that this item of cost had been actually incurred. The collegiate bench holds that after M/V ?°Tong Tian Shun?± sunk after the collision, the crewmembers?? repatriating cost is inevitably to be incurred. Now that the two defendants have no objection to the amount of repatriating fee claimed by the Plaintiff, the repatriating fee of RMB23,000 shall be approved. 


The Plaintiff also claimed for the crew??s severance pay of RMB198,000, which was calculated on basis of the total amount of salaries of the 23 crewmembers of M/V ?°Tong Tian Shun?± for three months from July 1 to September 30, 2001. The Plaintiff provided the salary sheets of the 23 crewmembers for the three months. However, there was no signature of the crewmembers in the sheet. The Plaintiff did not provide the employment contracts of the said 23 crewmembers either. The two defendants held that the sheet had not the signatures of the crewmembers, thus it could not prove that the severance pay had been actually incurred, and that it was groundless to calculate the severance pay according to the salary standard of the three months. The collegiate bench holds that the Plaintiff has not provided the legal and contractual basis for its need to lay off the crew nor provided the evidences to support that it has actually paid the severance pay. Therefore, the Plaintiff??s claim for loss of crew??s severance pay will not be supported. 


XIV. Loss in Respect of Port Dues and Charges


The Plaintiff has provided the invoices and receipts for the payment of towage service fee, pilotage fee, charge for mooring and unmooring tow lines, ship agency fee, fresh water charge, port charge etc. incurred by M/V ?°Tong Tian Shun?± at Lanshan port, Shandong, and claim for the said port dues and charges in total amount of RMB17,467.45. The two defendants held that the said expenses should be paid by the charterer of MV ?°Tong Tian Shun?± and they were not relevant to the collision accident. Therefore, they should not be approved. The collegiate bench holds that the opinion of the two defendants is reasonable, therefore will not support such loss. 


XV. Loss in Respect of Travel Expenses Paid by the Plaintiff for Handling the Collision Accident


The Plaintiff provided 1,036 copies of bills related to the expenses covering travel, accommodation, food, telephone, fax etc., claiming for the loss in respect of travel expenses in RMB95,239.65 paid for handling of the collision accident. The two defendants were doubtful of the authenticity of the said bills, holding that the amount of the travel expenses were obviously too high and some of them were not within the category of travel expenses. The collegiate bench holds that it is unable to determine the relativity between the said expenses and the disposal of the accident merely on basis of the said bills. However, in the consideration that the Plaintiff should pay some travel expenses for handling the case, an amount of RMB20,000 could be reasonably ascertained. 


To sum up, the Plaintiff sustained a loss in total of RMB7,047,707.57 due to the collision of M/V ?°Tong Tian Shun?±. 


The loss claimed by the Defendant Yuyang Co. has been approved as follows:


Ship repairing expenses


On June 30, 2001, Yuyang Co. concluded a Undertaking Contract with Zhongxing Ship Repairing Department of Shanghai Pudong New District (?°Zhongxing Dept.?±), entrusting Zhongxing Dept. to repair the damaged hull of M/V ?°Tian Shen?± stated in the Survey Report issued by China Classification Society. The repair cost agreed between the two parties was RMB138,000 (not including the cost for painting). Yuyang Co. has provided this court with the invoices for the repair cost of RMB138,000 and the cost for purchasing paint in RMB4,185. Yuyang Co. claimed for the loss of ship repairing cost of RMB142,185 on this basis. The Plaintiff held that Yuyang Co. did not notify the Plaintiff of the repair of M/V ?°Tian Shen?±, so it could not prove that the amount of the repair cost was reasonable. The invoice of paint could only evidence that the Defendant had purchased the paint but could not prove that the paint had been used for the ship repair. Therefore, the cost for the paint was irrelevant with this case. The collegiate bench holds that the loss arising from the collision of M/V ?°Tian Shen?± has been ascertained by the survey of China Classification Society. To entrust other party for the ship repair, Yuyang Co. has concluded the repair contract and provided the invoice for the ship repair. Yuyang Co.??s purchasing the paint complies with the provisions of the undertaking contract, and the paint has to be used in the repair of M/V ?°Tian Shen?±. Therefore, in the circumstance that the Plaintiff has not provided other contrary evidences, the loss of ship repair cost and the cost for the paint claimed by Yuyang Co. in total amount of RMB142,185 shall be supported. 


II. Cost for Ship Survey


After M/V ?°Tian Shen?± was damaged from the collision, Yuyang Co. entrusted China Classification Society to conduct a survey and paid the ship survey fee in total amount of RMB7,867. The Plaintiff had no objection to such expense, therefore it is approved by this collegiate bench.


III. Loss in Respect of Travel Expenses


Yuyang Co. has provided 110 copies of receipts for the traffic and accommodation expenses, claiming for the loss of travel expenses in amount of RMB14,009.20. The Plaintiff held that the said receipt could not prove the relativity of the expenses stated therein with this case. The collegiate bench holds that Yuyang Co. could not prove that the losses of all the said travel expenses were incurred by the collision of this case. However, in consideration that Yuyang Co. should pay for some of the travel expenses after the collision of M/V ?°Tian Shen?±, an amount of RMB10,000 could be reasonably approved. 


IV. Ship Agency Fee


After the collision, M/V ?°Tian Shen?± was investigated by MSA Shantou at Shantou port and later arrested by this court. The exchanged statement of accounts with Penavico Shantou provided by Yuyang Co. and the bills attached thereto state that Yuyang Co. should pay the agency fee, traffic expense, garbage disposing fee, sea chart fee etc. to Penavico Shantou in total amount of RMB8,862.70. The Plaintiff held that the payment of the garbage disposing fee and the sea chart fee was irrelevant with this case. Yuyang Co. held that the garbage disposing fee was the compulsory charge against the inward and outward ships by the relevant departments of Shantou port, while the sea chart fee was the expense for purchasing the relevant sea chart after MSA Shantou detained the same. The said expenses were all incurred by the collision accident. In the circumstance that the Plaintiff has not provided other contrary evidences, the collegiate bench approves such expenses. 


V. Loss in Respect of Hire and Bunker


Yuyang Co. provided a Time Charterparty that it concluded with Pan Oriental Shipping Co., Inc. on December 29, 2000, which stipulates that Pan Oriental Shipping Co., Inc. time charters M/V ?°Tian Shen?± for six months plus six months with effective date from February 15, 2001 at the hire rate of USD2,900/day or prorata; if the vessel is delayed due to sea average (including collision and running aground), resulting in the delay, obstructing or preventing from use of the vessel, the payment of the hire may be suspended. The letter provided by Yuyang Co., which is alleged to be sent by the master of M/V ?°Tian Shen?± to Waiwell Shipping ltd., states that: when the collision took place at 0634 hrs on June 21, 2001, M/V ?°Tian Shen?± had 345.5 tons of fuel oil and 65.40 tons of diesel oil on board. The vessel departed from the place of collision at 1058 hrs and arrived at the anchorage of Shantou port at 1409 hrs. M/V ?°Tian Shen?± departed from Shantou port at 1900 hrs on June 26. At that moment, she had 343.90 tons of fuel oil and 59.60 tons of diesel oil on board. At 1636 hrs on June 28 when she arrived at Shanghai port, she had 317.70 tons of fuel oil and 55.70 tons of diesel oil on board. M/V ?°Tian Shen?± laid alongside a berth to discharge the goods at 2130 hrs. on June 28. At 0340 hrs on June 29, the discharge was completed. At that moment, the vessel had 317.40 tons of fuel oil and 54.40 tons of diesel oil on board. At 1215 hrs on July 8, M/V ?°Tian Shen?± laid alongside the berth to load cargo again. At that moment, she had 312.40 tons of fuel oil and 44.60 tons of diesel oil on board. Yuyang Co. provided a letter that was sent by Weiwell Shipping Ltd. on July 12, 2001 in respect of the off-hire calculation. According to the said letter, a period in total of 5 days 15 hours 37 minutes, of which 5 days 12 hours 26 minutes calculated from 0634 hrs of June 21 to 1900 hrs of June 26 plus 3 hours 11 minutes during which the vessel returned to the place of collision from Shantou port, is the delay time incurred by the collision, for which the hire should not be paid. In this period, 3.20 tons of fuel oil and 6 tons of diesel oil were consumed. The period from 0340 hrs of June 29 to 1215 hrs of July 8, i.e. 9 days 8 hours and 35 minutes in total, was the time for repairing the vessel. In this period, 5 tons of fuel oil and 9.8 tons of diesel oil were consumed. The said off-hire period was 15 days 0 hour and 12 minutes in total. On basis of USD2,900/day, the off-hire should be USD43,523.20. A total of 8.20 tons of fuel oil and 15.80 tons of diesel oil were consumed. To calculate on basis of USD153.50/ton and USD240.50/ton respectively, the loss in oil consumption was about USD5,058.60. Similarly, according to the letter that the master of M/V ?°Tian Shen?± sent to Weiwell Shipping Ltd. on July 30 regarding the time of M/V ?°Tian Shen?± arriving at the Wusongkou Anchorage, storage of oil and the time of departing from Shanghai port, Weiwell Shipping Ltd. delivered a letter to Yuyang Co. on July 31, holding that for the period of 10.33 hours from 0800 hrs to 1820 hrs of July 30 which had been delayed due to the matter of security, the amount of off-hire should be USD1,248.21. In this period, the loss of oil consumption was USD149.55. On basis of the exchange rate between Renminbi and US dollars at 1:8.27, Yuyang Co. claimed for the losses of hire and oil consumption in total amount of RMB413,330.97. In addition, Yuyang Co. also provided a letter that Weiwell Shipping Ltd. and Pan Oriental Shipping Co., Inc. sent to Yuyang Co. on September 12, 2001, proving that the two companies were actually ?°one and same company?±. The Plaintiff held that according to the evidence provided by Yuyang Co., the charterer of M/V ?°Tian Shen?± and the party claiming for deducting the hire and compensating for the loss of oil consumption were different companies. Yuyang CO. did not provide evidence either to prove that it had actually sustained the said losses. M/V ?°Tian Shen?± stayed at Shantou port as she had been detained. In the circumstance that the Plaintiff had no fault in applying for the arrest of the vessel, Yuyang should undertake the losses of off-hire and oil consumption by itself even the said losses had actually been incurred. There is no evidence supporting the loss of oil consumption claimed by Yuyang Co., therefore it should not be supported. The collegiate bench holds that Yuyang Co. merely provided the letter that the master of M/V ?°Tian Shen?± sent to Weiwell Shipping Ltd. regarding the movements of the vessel and the letter that Weiwell Shipping Ltd. claimed for the losses of off-hire and oil consumption, but it did not provide the logbook and the evidences proving the losses of the actual consumption of bunkers, the actual off-hire and the compensation for the bunkers, which were not enough to prove the actual off-hire time, volume of the oil consumed and the amount of loss. Furthermore, the Time Charterparty provided by Yuyang Co. which was concluded between Yuyang Co. and Pan Oriental Shipping Co., Inc. only provided that the hire might be suspended due to delays arising from ship collision and running aground etc., but did not provide that during the off-hire period the charterer was entitled not to pay for the bunkers. Therefore, Yuyang??s claim for the loss from consumption of bunkers is groundless, therefore it will not be supported. The delays due to the detention of the vessel at Shantou port and due to the issue of security at Shanghai port were attributed to the reason that the preservation measure had been taken by the Plaintiff and other relevant parties on the ground that they had the right of maritime claim against Yuyang Co.. In the circumstance that Yuyang Co. could not prove the circumstances where the Plaintiff and the relevant parties were wrongful in applying for the preservation measures, the time delayed shall be undertaken by Yuyang Co. itself. The judges Xu Yuanping and Cheng Shengxiang hold that: the Time Charterparty between Yuyang Co. and Pan Oriental Shipping Co., Inc., which was provided by the Defendant Yuyang Co., can be verified with the letter that Weiwell Shipping Ltd. and Pan Oriental Shipping Co., Inc. sent to Yuyang Co. on September 12, 2001, the letter that Weiwell Shipping Ltd. sent to Yuyang Co. and the letter that the master of M/V ?°Tian Shen?± sent to Weiwell Shipping Ltd.. In the circumstance that the Plaintiff could not provide contrary evidences, the authenticity of the Time Charterparty shall be confirmed. The Charterparty provides that the hire should be suspended during the period of delays due to the collision accident. In consideration that M/V ?°Tian Shen?± had actually accepted the investigation and handling by relevant departments at Shantou port after the collision and was repaired at Shanghai port, and according to facts that M/V ?°Tian Shen?± accepted investigation and handling at Shantou port and was repaired at Shanghai port, in the circumstance that Yuyang Co. and the Plaintiff did not provide other contrary evidences, it can be reasonably ascertained that the delayed time sustained by M/V ?°Tian Shen?± due to the collision is 12 days, and the loss of hire shall be calculated on this basis. On basis of hire rate at USD2,900/day, the loss of hire shall be USD34,800, equivalent to RMB287,796 at the exchange rate of 1:8.27 between US dollars and Renminbi. The judge Chen Weiguo holds that: the Plaintiff refused to confirm the Time Charterparty concluded between Yuyang Co. and Pan Oriental Shipping Co., Inc., which was provided by Yuyang Co.. As Pan Oriental Shipping Co., Inc. is not a relevant party in this case, and has neither attended the court hearing nor appeared at court to give the witness statement, it is unable to confirm the authenticity of the contract through cross-examination of evidences. It was Weiwell Shipping Ltd. that claimed against Yuyang Co. for the loss of off-hire and oil consumption, but the relevant documents were all facsimile copies, therefore it is unable to verify the truthfulness of the evidences. The signing date stated in the contract is December 29, 2000, the date of delivering the vessel is February 15, 2001. Therefore, it should not be difficult for Yuyang Co. to provide the relevant evidences in respect of its performance of the contract, such as the bank??s certificates for the payment of hire. However, Yuyang Co. has not provided such evidences. Therefore, the loss of hire claimed by Yuyang Co. on basis of the contract is without sufficient support of evidences, and it will not be supported by this court. 


VI. Loss in Respect of Anti-pollution Cost


Yuyang prepaid the anti-pollution fee in RMB100,000 to MSA Shantou on June 22, 2001, and issued a letter of authorization on June 24, entrusting MSA Shantou to pay the anti-pollution cost with the prepaid fund. The sharing of specific amounts should be pending until the liabilities of both parties are apportioned and the relevant accounting formalities have been gone through at MSA Shantou. The Plaintiff had no objection to the above facts. The collegiate bench holds that: as the Plaintiff has settled and paid the cost for clearing the oil pollution, and Yuyang Co. has not provided the evidence supporting that their prepaid sum for clearing the oil pollution has been actually used in clearing the oil pollution, this item of loss claimed by Yuyang Co. shall not be supported. 


VII. Loss Resulting from the Too High Security Claimed by the Plaintiff


When the Plaintiff lodged an application to this court for detaining M/V ?°Tian Shen?± as a measure of maritime preservation prior to proceedings, requiring the owner or the operator of M/V ?°Tian Shen?± to provide a security of RMB15,000,000. The applicant was granted by this court according to law by a ruling. Later, subject to the agreement and approval of the Plaintiff and Yuyang Co. after negotiations, the amount of security was lowered to RMB8,000,000. After Yuyang Co. provided the security of RMB8,000,000 and this court lifted the arrest of M/V ?°Tian Shen?±, Yuyang Co. provided an Evaluation Report on the Value of M/V ?°Tian Shen?± issued by China Classification Society. The Report considers that the market value of M/V ?°Tian Shen?± is about RMB5,400,00-RMB5,800,000. After Yuyang Co. paid the evaluation fee of RMB10,000 for this report, it obtained the invoice for the evaluation fee issued by Nanjing Yangzi Marine Technology Service Ltd.. Yuyang Co. also provided a certificate issued by CITIC Industrial Bank, Yangzhou Branch, which stated that Yuyang Co. had paid the interest RMB13,068 arising from the security RMB2,000,000 and for delay from July 2 to August 7, 2001, and a copy of the receipt for paying the sum of RMB2,000 as commission charge for the security. Yuyang Co. held that according to the evaluation report on the value of M/V ?°Tian Shen?±, the Plaintiff could only request Yuyang Co. to provide the security of RMB6,000,000. The said evaluation fee, interest and commission totaling RMB25,068 was the loss resulting from the too high security damanded by the Plaintiff, which should be indemnified by the Plaintiff according to law. The Plaintiff held that the unit collecting the said evaluation fee was not the one conducting the evaluation, such expense was incurred from Yuyang Co.??s exercising of the its right of defence. Similar to the said interest and commission, it was irrelevant to the dispute in this case. The collegiate bench holds that: according to Article 75 of the Maritime Procedure Law of the PRC, the type and amount of the security to be provided by a person against whom a claim is made shall be jointly determined by the maritime claimant and the person against whom the claim is made through negotiation, failing which the amount shall be determined by the maritime court. The amount of maritime security, which was provided by Yuyang Co. was determined by the Plaintiff and Yuyang Co. through negotiation, is in line with the said provisions of the law and is legally effective. Furthermore, as the amount of security could be determined through negotiation, it is possible that it is higher or lower than the value of the preserved property. There is no relevant provision in the current Chinese laws and regulations regarding the standard for judging whether the amount of security is too high or too low. Therefore, it is baseless for Yuyang Co. to request for lowering the amount of security and claiming for the loss resulting from the too high security after providing the security on the ground that the value of the vessel was lower than the amount of security, therefore it will not be supported by this court.


To sum up, based on the majority opinions of the collegiate bench, the loss sustained by the Defendant Yuyang Co. due to the collision of M/V ?°Tian Shen?± amount to RMB456,710.70 in total. 


The collegiate bench unanimously hold that: this case is a dispute over damages arising from ship collision, for which the International Regulations for Preventing Collisions at Sea, 1972 shall be applicable to apportion the blame that should be undertaken by both parties. Sailing in fog and under the restricted visibility, both M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?± did not post a lookout and were negligent in keeping a proper lookout by sight, thus Article 5 of the International Regulations for Preventing Collisions at Sea, 1972 regarding look-out has been violated. The two vessels sailed at full speed in the navigational environment that the visibility was seriously restricted and there were many fishing boats around. M/V ?°Tong Tian Shun?± sailed at full speed until the collision took place, while M/V ?°Tian Shen?± had not changed for using the diesel oil for the main engine resulting that it was not easy for manoeuvring the machine, and finally the vessel could not be halted even by stopping engine and running full stern. The two vessels have not sailed at the safe speed, therefore Article 6 and Article 19 of the International Regulations for Preventing Collisions at Sea, 1972 have been violated. After detecting the opposite vessel in radar, neither vessel had made a plotting. M/V ?°Tong Tian Shun?± had the judgement that the coming vessel was sailing at a faster speed and nearly on the contrary course merely on basis of the trail of the radar echo, but failed to sense that the two vessels were at risk of collision. She blindly kept the course and speed, did not take actions until there was only 0.4 nautical mile between the two vessels. M/V ?°Tian Shen?± also made the judgement that the coming vessel was sailing nearly on the contrary course at the similar speed and the distance of approach would be about 0.2 nautical mile on basis of the trail of the radar echo. She did not sense the risk of collision between the two vessels but blindly kept the course and speed and did not take actions until she found the coming vessel turned to port at a large angle. Both the two vessels did not fully sense the risk of collision existing between the two vessels, therefore Article 7 of the International Regulations for Preventing Collisions at Sea, 1972 regarding risk of collision has been violated. The two defendants alleged that M/V ?°Tian Shen?± had made the radar plotting of M/V ?°Tong Tian Shun?±. However, the allegation is not consistent with the statement of the crewmembers of M/V ?°Tian Shen?±, therefore it will not be supported. Neither M/V ?°Tong Tian Shun?± nor M/V ?°Tian Shen?± has taken measure of preventing collision at an early stage. They both alleged that the fishing boats around had influenced their decision on turning the course to avoid the coming vessel, so that they had not reduced the speed of this vessel and stopped the engine at an early stage. M/V ?°Tong Tian Shun?± turned to port at a large angle to avoid M/V ?°Tian Shen?± only until there was about 0.4 nautical mile between the two vessels. However, in the circumstance that M/V ?°Tong Tian Shun?± was found all the time lying near ?°Tian Shen?±??s heading course, M/V ?°Tian Shen?± turned the course to starboard after it found M/V ?°Tong Tian Shun?± turned the course to port at a large angle, so that the situation of danger could not be avoided. The two vessels both violated Article 19 of the International Regulations for Preventing Collisions at Sea, 1972 regarding conduct of vessels in restricted visibility. M/V ?°Tong Tian Shun?± and M/V ?°Tian Shun?± both committed fault for the occurrence of the ship collision. However, in view that the master of M/V ?°Tong Tian Shun?± did not attend the bridge to give steering command under restricted visibility and turned the course to port in violation of the rules of conduct, it shall undertake larger responsibility for the faults resulting in the collision. Therefore, according to the degree of fault committed by M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?±, both vessels should undertake 60% and 40% of the responsibilities respectively for their faults. 


As the owner of M/V ?°Tong Tian Shun?±, the Plaintiff shall undertake the compensation liability for the loss resulting from the fault of M/V ?°Tong Tian Shun?± in the collision. The Defendant Tian Shen Co. is the owner of M/V ?°Tian Shen?±. Although it demise chartered the vessel to the Defendant Yuyang Co. before the collision accident, the collision accident took place during the period of demise charter, and Tian Shen Co. did not complete the registration formalities at the ship registration authority when it demise chartered the vessel to Yuyang Co.. According to Article 6 of the Regulations on Registration of Vessels of the PRC, the demise charter shall not be operating against third parties. Therefore, the demise charter of M/V ?°Tian Shen?± from Tian Shen Co. to Yuyang Co. does not affect the liability that Yuyang Co. should be held liable to the Plaintiff as the third party. Tian Shen Co., as the owner of M/V ?°Tian Shen?±, should still undertake the compensation liability for the loss incurred by the loss arising from the fault of M/V ?°Tian Shen?± in the collision. The Defendant Tian Shen Co. raised that the collision accident took place during the period that Yuyang Co. demise chartered M/V ?°Tian Shen?±. After the collision, it was Yuyang Co. who negotiated the aftermath with the Plaintiff and provided the security all the while. The collision liability of M/V ?°Tian Shen?± should be undertaken by Yuyang Co. and the allegation that liability of ?°Tian Shen?± was not relevant to Tian Shen Co. is without legal basis and will not be supported by the court. 


At the time of demise chartering M/V ?°Tian Shen?±, although Yuyang Co. has not performed registration at the ship registration authority, it exercised and performed the rights and obligations in the demise charter as the charterer. Therefore, it shall be responsible for the damage caused by M/V ?°Tian Shen?± during the period of demise charter. After the collision accident, Yuyang Co. handled the affairs of the collision in the identity of the demise charterer of M/V ?°Tian Shen?± and undertook and paid the expenses for the loss of M/V ?°Tian Shen?±, and provided security for the loss incurred by the collision of M/V ?°Tian Shen?±. Furthermore, it responded to the action and lodged a counter-claim in the proceedings as the subject of the liabilities of M/V ?°Tian Shen?±, and it was willing to undertake the liability for the collision of M/V ?°Tian Shen?± as the demise charterer. Therefore, Yuyang Co. should be liable for compensating the loss arising from the fault of M/V ?°Tian Shen?± in the collision according to law. Though Yuyang Co. should be liable for the fault of M/V ?°Tian Shen?± in the collision, it could not deny or repel the liability that Tian Shen Co. should undertake according to law as the shipowner. In the circumstance that the Defendant Tian Shen Co. and Yuyang Co. should both be responsible for the loss incurred by the fault of M/V ?°Tian Shen?± in the collision, the two defendants shall undertake the liability jointly and severally. In the circumstance that Yuyang Co. should perform the obligations as the demise charterer of M/V ?°Tian Shen?± and undertake the liability for compensating the loss incurred by the fault of M/V ?°Tian Shen?± in the collision, it has the right to lodge a counterclaim for the loss sustained by M/V ?°Tian Shen?± resulting from the fault of M/V ?°Tong Tian Shun?± in the collision. The mutual recovery between Yuyang Co. and Tian Shen Co. for the loss arising from the fault of M/V ?°Tian Shen?± in the collision can be settled through analyzing the legal relationship between the two parties. 


M/V ?°Tong Tian Shun?± carried the cargo in 7,390 tons. After colliding with M/V ?°Tian Shen?±, M/V ?°Tong Tian Shun?± had a crack of 6-6.5m long and 10-46cm wide in her Cargo Hold No.2, resulting in serious ingress of water into Cargo Hold No.2, Topside Tank No.2 and Double-bottom Ballast Tank No.4. The master of M/V ?°Tong Tian Shun?± alleged that at that moment the vessel listed to starboard quickly and there was the danger of capsizing, therefore he decided to get the vessel stranded to prevent it from sinking. The two defendants alleged that M/V ?°Tong Tian Shun?± did not suffer major damage after the collision, and the measure of getting the vessel stranded was attributed to the reason that the crew did not have good seamanship, but they have not provided sufficient evidences in this regard. Therefore, in the circumstance of immediate danger and no safety protection at the material moment, it was appropriate for the master of M/V ?°Tong Tian Shun?± to take the measure of getting the vessel stranded for purpose of the safety of the vessel, the goods and the life on board. M/V ?°Tong Tian Shun?± sunk after she got stranded, which could not be foreseen by the crewmembers of the vessel and unavoidable. Therefore, the allegation of the two defendants that sinking of the vessel was due to the fault of the crewmembers and the enlarged loss should be undertaken by the Plaintiff is without legal and factual basis. Such allegation will not be supported by this court. M/V ?°Tong Tian Shun?± sunk after the collision, but the Plaintiff and the two defendants had no objection to the cost for salvaging and repairing the vessel being higher than the value of the vessel, therefore constructive total loss of the vessel shall be established.


The two defendants also submitted that the sealing expenses and anti-pollution fee claimed by the Plaintiff was incurred by the fault of the crew of M/V ?°Tong Tian Shun?±, which should be undertaken by the Plaintiff itself. As M/V ?°Tong Tian Shun?± sunk very quickly after it got stranded, and the two defendants have not provided sufficient evidences proving that the crew of M/V ?°Tong Tian Shun?± committed a fault for not taking measures to prevent the oil pollution, such claim of the two defendants will not be supported either. 


As to the losses of the vessel and other properties arising from the faults of M/V ?°Tong Tian Shun?± and M/V ?°Tian Shen?± in the collision, according to paragraphs 1 and 2 of Article 169 of the Maritime Code of the PRC, each vessel shall be liable in proportion to the extent of its fault. Therefore, for the loss incurred to the Plaintiff due to the ship collision in amount of RMB7,047,707.57, the two defendants shall jointly and severally undertake 40% of the compensation liability, i.e. RMB2,819,083.03; for the loss of RMB456,710.70 incurred to the Defendant Yuyang Co., the Plaintiff shall undertake 60% of the compensation liability, i.e. RMB274,026.42. As to the loss of interest claimed by the Plaintiff and the Defendant Yuyang Co., according to Article 13 of the Regulations of the Supreme People??s Court on Adjudication of Ship Collision and Contact Cases Related to Property Damages, the interest on the loss of the ship value shall be calculated from the date when the calculation on the loss of earnings of the vessel is suspended, and the interest on other losses and expenses shall be calculated from the date of the arising of the losses or the expenses. Therefore, it is baseless for the Plaintiff and the Defendant Yuyang Co. to request that the interest on all the losses shall be calculated from June 21, 2001, which is the date of the occurrence of the collision. The request will not be supported by this court. In the expenses and losses claimed by the Plaintiff and the Defendant Yuyang Co., except that a very small part was incurred on the date of the collision, other parts were all incurred at different time after the collision. The exact time of the arising of some expenses and losses even could not be ascertained. In consideration that most losses and expenses occurred within two months after the collision, for the convenience of calculation, the interest on all the losses claimed by the Plaintiff and the Defendant Yuyang Co. could all be calculated from August 21, 2001 until the date of payment ascertained in this judgement at the loan interest rate for current funds of Renminbi published by the People??s Bank of China for the same period. 


As to the allegation of the Plaintiff requesting the two defendants to undertake the compensation liability for the oil pollution, as the relevant parties have lodged an action against the Plaintiff and the two defendants in another case, it is not within the judicial scope of this case. The Plaintiff and the two defendants may settle the dispute in another case. 


According to Article 5, Article 6, Article 7 and Article 19 of the International Regulations for Preventing Collisions at Sea, 1972, and paragraphs 1 and 2 of Article 169 of the Maritime Code of the PRC, the judgement is rendered as follows:


I.	The defendants Yuyang Co. and Tian Shen Co. shall undertake the joint and several liability to compensate the Plaintiff for the loss of RMB2,819,083.03 and the interest from August 21, 2001 to the date of payment ascertained in this judgement on basis of the loan interest rate for current funds published by the People??s Bank of China for the same period;


II.	The Plaintiff shall compensate the Defendant Yuyang Co. for the loss of RMB274,026.42 and the interest from August 21, 2001 to the date of payment ascertained in this judgement on basis of the loan interest rate for current funds published by the People??s Bank of China for the same period;


III.	Other litigation requests of the Plaintiff and the Defendant Yuyang Co. shall be rejected. 


The case acceptance fee in this case amounts to RMB103,384, for which the Plaintiff shall undertake RMB79,622, the Defendants Yuyang Co. and Tian Shen Co. shall jointly and severally undertake RMB23,762. The acceptance fee for the counterclaim case amount to RMB15,852, for which the Plaintiff shall undertake RMB6,107, and the Defendant Yuyang Co. shall undertake RMB9,745. The application fee for maritime preservation in RMB5,000 and the execution fee in RMB20,000 shall be jointly undertaken by the Defendants Yuyang Co. and Tian Shen Co.. The charge for investigation and evidence collection is RMB3,000, for which the Plaintiff shall undertake RMB1,500, the Defendants Yuyang Co. and Tian Shen Co. shall undertake RMB1,500. The case acceptance fee, application fee and execution fee for maritime preservation and the charge for investigation and evidence collection respectively prepaid by the Plaintiff and the Defendant Yuyang Co. will not be refunded by this court. The Plaintiff and the two defendants shall return the prepaid charges, which should be undertaken on its own account, directly to the relevant parties. 


The obligation of payment as mentioned above shall be accomplished within 10 days after the date this judgement takes effect. 


If any party has an objection to this judgement, it may submit a statement of appeal to this court within 15 days after the service of the judgement, together with the copies according to the number of the opposite parties. The appellate court is the Higher People??s Court of Guangdong Province.



Presiding Judge: Chen Weiguo

Judge: Xu Yuanping

Judge: Cheng Shengxiang

July 24, 2002

Judge??s Assistant: Zhang Xianwei

Court Clerk: Zhu Mingfang